Hubnetic System Subscription Agreement

ATTACHMENT A - General Terms and License

This Attachment A – General Terms and License (the “Terms and License Attachment”) constitutes a part of the Subscription Agreement entered into between Hubnetic, LLC (“Hubnetic”) and the person completing the Subscription Page of the Subscription Agreement and accepting the Subscription Agreement by electronic signature as provided therein (the “Client” or sometimes “You” or “Your”).

This Terms and License Attachment contains the general terms and conditions that govern the Subscription Agreement as well as the grant to Client of a license to access and use the “Client Solution” (as defined below) in accordance with the various provisions of the Subscription Agreement.

For avoidance of doubt, (i) the provisions of these Terms and License Attachment do not apply unless You have electronically signed and transmitted the Subscription Page as provided therein.

Subscription Agreement. The Subscription Agreement shall constitute the complete and exclusive statement of the terms and conditions governing Client’s access and use of the Client Solution. Any additional or conflicting terms proposed by Client in any quote, acknowledgment, invoice, or other correspondence shall not be binding on Hubnetic, and are hereby objected to and expressly rejected.
Certain Definitions. Capitalized terms not otherwise defined in the text of this Attachment shall have the meaning set forth below.
1. “Affiliate” means, with respect to a specified person, any other person that controls, is controlled by, or is under common control with such specified person, where “control” means the possession, directly or indirectly, through one or more intermediaries of the power to direct or cause the direction of the management or policies of such person, whether by ownership, agreement, or otherwise.
2. “Applicable Laws” means any applicable federal, state or foreign laws, rules and regulations applicable to the parties hereto, the Subscription Agreement or the subject matter of the Subscription Agreement, together with all amendments, successors and replacements thereto from time to time.
3. “Effective Date” means the date Client electronically signs and transmits the Subscription Agreement as set forth on the Subscription Page
4. “Hubnetic System” means the proprietary, on-line, hosted system of software applications, equipment, infrastructure and other technology developed, owned and/or controlled by Hubnetic, and installed on and/or supporting one or more remote servers owned or hosted by Hubnetic or third parties that can be accessed and used remotely through the internet on a “Software as a Service” basis.
5. “Industrial Equipment” means material handling and other industrial equipment, e.g., forklifts, attachments thereto, tow motors, loaders and other industrial equipment, and parts related thereto.
6. “Intellectual Property Rights” means all intellectual property rights throughout the world, registered or unregistered, whether existing now or in the future, including without limitation: (a) all patent rights and other rights in inventions and ornamental designs and improvements to any of the foregoing; (b) all copyrights and other rights in works of authorship, software, mask works, databases, compilations, and collections of information; (c) all trademarks, service marks, and other proprietary trade designations; and (d) all rights in know-how and trade secrets.
7. “Personnel” means employees, contractors, agents and representatives of an applicable person or entity.
  For convenience, a glossary listing the defined terms used herein and the sections in which they are defined is set forth in Schedule 1 to this Terms and License Attachment.
Authority, Conventions, Client Solution.
1. Client Authority. Client represents and warrants to Hubnetic that Client has all necessary right and authority to accept and agree to the Subscription Agreement, including all Agreement Documents.
2. Designated Affiliates and Client Personnel. As set forth in the Initial SOW and any Subsequent SOW (collectively referred to as “SOW”), Client may from time to time designate certain of its Affiliates to access and use the Client Solution in the same manner and to the same extent as Client (“Designated Affiliates”). Client, for itself and its Designated Affiliates, will be directly responsible and liable to Hubnetic for Client’s, its Designated Affiliates’, all Client End Users’ and all Client Personnel’s compliance with the Subscription Agreement. For avoidance of doubt, a breach by Client, any Designated Affiliate, any Client End Users and/or any Client Personnel, will be deemed a direct breach of the Subscription Agreement by Client. For purposes of the Subscription Agreement, “Client Personnel” means collectively, all Personnel of Client and all applicable Designated Affiliates.
3. “Client” Includes Designated Affiliates. For avoidance of doubt, WHERE APPLICABLE ALL REFERENCES IN THE SUBSCRIPTION AGREEMENT TO “CLIENT” WILL BE DEEMED TO REFER TO CLIENT AND EACH OF ITS DESIGNATED AFFILIATES (IF ANY), REGARDLESS OF WHETHER DESIGNATED AFFILIATES ARE SEPARATELY MENTIONED FROM TIME TO TIME.
4. Client Solution. As used herein, the “Client Solution” means (i) the Hubnetic System as configured and implemented for Client pursuant to the Initial SOW and any Subsequent SOW; (ii) the Client Services (as defined below) and Additional Services (as defined below) as provided to Client pursuant to the Subscription Agreement and the applicable SOWs; and (ii) all updates, modifications and improvements to the foregoing from time to time. The Client Solution may be updated from time to time without notice to Client and without Client approval. Any such updates and modifications may result in changes to the capabilities of the Client Solution but will not materially diminish the functionality of the Client Solution. The Operating Manual and Additional Documentation may also be revised accordingly to account for any such updates and modifications.
5. Client Services. For purposes of the Subscription Agreement, “Client Services” means those services identified as such in the Initial SOW and/or any Subsequent SOW, and may include, without limitation, (i) collecting data, tracking and maintaining records in connection with the ownership, purchase, maintenance of and maintenance scheduling for Industrial Equipment owned or controlled by Client (“Client Equipment”), (ii) collecting data to enable monitoring the performance of the Client’s vendors providing services relating to Client Equipment; (iii) utilizing such data to provide reports regarding such Client Equipment, including analyses of the performance of a Client's vendors, analyses of local, regional and national trends, vendor comparisons, costs of maintenance and comparisons and similar analyses and reports and (iv) such other services and functions as may be added from time to time by Hubnetic.
6. Managed Assets and Client Data. In order to access and use the Client Solution, all information relating to Client Equipment selected by Client must be input or “Onboarded” into the Client Solution as set forth in the Initial SOW. Client Equipment for which the relevant Client data has been Onboarded to the Client Solution is referred to herein as “Managed Assets”, and the data relating to such Client Equipment Onboarded to the Client Solution is referred to herein as “Managed Asset Data”. As set forth in the Initial SOW, depending upon the time of entry such Client data will be Onboarded to the Client Solution either by or on behalf of (i) Client, (ii) Hubnetic or (iii) Licensed Vendors.
Client Fees. Fees for the Client Solution (“Client Fees”) are listed in the applicable SOW.
1. Expenses. Unless otherwise agreed to by the parties, Client Fees are exclusive of travel, lodging, meals and other expenses for any costs or expenses reasonably incurred by Hubnetic to provide the applicable Client Solution, Client Services and/or Additional Services (“Reimbursable Expenses”). Any Reimbursable Expenses in excess of $100.00 shall require Client’s prior written consent which will not be unreasonably withheld. To the extent applicable, and after acceptance by Hubnetic in writing, Hubnetic will comply with Client expense reimbursement policies.
2. Invoices. Hubnetic will invoice Client for all Client Fees. Unless otherwise provided in an applicable SOW, all Client Fees and Reimbursable Expenses will be invoiced by Hubnetic to Client on a monthly basis. The rates for Client Fees may be adjusted from time to time as set forth below. Hubnetic will use commercially reasonable efforts to deliver invoices on or before the fifteenth day of each month unless Hubnetic and Client otherwise agree in writing. All amounts are stated and payable in U.S. Dollars, and except as otherwise expressly stated herein, are non-refundable.
3. Payment. Unless otherwise provided in the applicable SOW, all payments for Client Fees and Reimbursable Expenses shall be due on or before the expiration of thirty (30) days after receipt of the invoice therefor. Invoices will be delivered outside of the Client Solution and shall be deemed delivered if sent to Client as set forth in the applicable SOW:
4. Past Due Payments. In the event any payment becomes overdue, Hubnetic shall provide Client with written notice of nonpayment. Upon notice, Client shall then have thirty (30) days (“Payment Cure Period”) from receipt of this notice to cure any late payment. In the event of timely cure, Client shall not be deemed to be in breach of the Subscription Agreement and not charged a late fee of any kind. In the event Client does not timely cure as provided herein, Hubnetic reserves the right to charge interest on overdue amounts at the rate of one percent (1.5%) per month, or such lesser maximum rate as may be permitted under Applicable Laws, accruing from the due date until the date paid.
5. Suspension of Services; Termination. In the event any undisputed Client Fees or Reimbursable Expenses have not been paid within sixty (60) days of the date due therefor, and in addition to any Hubnetic rights to terminate this Agreement as set forth in the Terms and License Attachment, Hubnetic upon written notice to Client specifying the amounts due (“Suspension Notice”) and Client’s failure to pay all amounts due within five (5) business days of the date of the Suspension Notice, Hubnetic shall have the right to suspend in whole or in part, Client’s, Client End Users’ and/or Licensed Vendors’ access to the Client Solution, until such amounts are paid in full. Hubnetic shall not be responsible for any damages or costs incurred by Client or any Licensed Vendor in connection with any such suspension, and Client shall defend, indemnify and hold Hubnetic harmless from any Claims made by any Licensed Vendor against Hubnetic or its Affiliates resulting from any such suspension.
6. Fee Adjustments.
  1. CPI. No more than once annually, Hubnetic reserves the right to adjust the Client Fees for any ongoing Client Services or Additional Services by an amount equal to the CPI Change for the immediately prior CPI Year, plus five percent (5%) (“Annual Adjustment”). Hubnetic will provide Client as much advance written notice (“Adjustment Notice”) as possible of any such adjustment, but in any event at least thirty (30) days prior to the expiration of the then current Contract Year. Any such change shall be effective as of the first day of the Contract Year next following the date of the Adjustment Notice. Notwithstanding the foregoing, in the event Hubnetic determines to add a fee for Maintenance and Support Services as of the beginning of a Renewal Term (i) such fees will be included in the applicable Adjustment Notice, and (ii) such fees will not be included for purposes of calculating the Annual Adjustment.
  2. Volume Increases. In addition, for applicable Managed Asset volume increases Hubnetic shall have the right to increase ongoing Client Fees in the manner set forth in the Fee applicable SOW.
7. Taxes. The Client Fees and Reimbursable Expenses are exclusive of any taxes or duties associated with the Client Solution, Client Services and/or the Additional Services, however designated or levied in any jurisdiction by any taxing authority. Client is solely responsible for all such taxes and duties, excluding taxes based on Hubnetic’s net income.
8. Definitions. As used in this Section 4:
  1. “Contract Year” means the twelve (12) calendar months from the Activation Date; provided that if the Activation Date is not the first day of the month, the first Contract Year shall commence as of the Activation Date and end upon the expiration of the next twelve (12) complete calendar months thereafter, and Client Fees due for the first calendar month of the Contract Year shall be prorated.
  2. “CPI Change” means the percentage increase or decrease in the Consumer Price Index, Not Seasonally Adjusted, published by the United States Department of Labor's Bureau of Labor Statistics (or its successor index) during the most recent twelve (12) months for which such index has been finalized (e.g., if the index for the immediately prior fourteen months have been finalized for the first twelve (12) months of such period, but not the last two (2) months thereof, the first twelve (12) months of such period would be used to calculate the percentage increase or decrease).
  3. “CPI Year” means the twelve (12) month period used to calculate an applicable CPI Change.
Grant.
1. Client License. Commencing with the Effective Date and subject to (i) completion and execution of the Initial SOW by Client and Hubnetic, and (ii) the provisions of the Subscription Agreement; Hubnetic hereby grants to Client and, if applicable, its Designated Affiliates and Client End Users (as provided in an applicable SOW), the right to access and use the Client Solution during the Term (as defined below) of the Subscription Agreement as provided in an applicable SOW (collectively, the “Client License”). In addition, the Client’s access to and use of the Client Solution is and will be subject to compliance with access rules for using the Client Solution as described in the Initial SOW and any Subsequent SOW, the Operating Manual, and any Additional Client Documentation. Hubnetic has the right to modify the Operating Manual and any Additional Client Documentation from time to time.
2. Client Services. Hubnetic will provide Client with the Client Services as set forth in the Initial SOW. If Client requests any modifications, additions, or reductions to any Client Services, such changes, if applicable, shall be set forth in the Initial SOW or a Subsequent SOW executed by the parties.
3. Client Solution Subscription. Subject to the terms of the Subscription Agreement, and Hubnetic’s prior approval, Client may change, modify, reduce or increase its level of services subscribed to in the Initial SOW at any time. Any such changed to Client’s subscription levels shall be made pursuant to a Subsequent SOW agreed upon by the parties.
4. Client End Users. Under the Client License, Client will have the right to designate certain Client Personnel who may access and use the Client Solution, each of whom shall be required to accept an end user license agreement with Hubnetic as a condition to the access and use of the Client Solution (“Client EULA”) as provided in the applicable SOW. As solely between Client and Hubnetic, to the extent of any conflict between the terms of this Terms and License Attachment and any accepted EULA, the terms of this Terms and License Attachment shall prevail. Client Personnel who accept a Client EULA are referred to as a “Client End Users”. As set forth in this Terms and License Attachment, the Initial SOW, any Subsequent SOW and/or Operating Manual, Client will have the right to control and restrict the rights of the Client End Users to access and use the Client Solution, and Client will have the right to change such rights and restrictions from time to time.
Vendors. As set forth in the Initial SOW and/or any Subsequent SOW, Hubnetic at the direction of Client, will use commercially reasonable efforts to enter into limited sub-agreements with Licensed Vendors that provide maintenance, support and/or other services related to Client's Managed Assets (generally, “Vendor Services”) as designated by Client. Vendors who enter into sub-agreements with Hubnetic as set forth in the Initial SOW and/or any Subsequent SOW are referred to herein as “Licensed Vendors”.
Implementation. As part of the Client Services, Hubnetic will implement the Client Solution as set forth in the Initial SOW and/or any Subsequent SOW. In addition, and in accordance with the Initial SOW or Operating Manual, Client may request that Hubnetic modify the Client Solution or elements thereof from time to time. Any such modifications after completion of the initial implementation of the Client Solution would be subject to the execution of a Subsequent SOW, identifying such modifications and any other relevant terms agreed to by the parties.
Restrictions.
1. License Not Sale. The access and use rights and licenses granted to Client under the Subscription Agreement are a license and shall in no event be construed as a sale.
2. License Restrictions. Client hereby covenants and agrees that neither it, nor any Designated Affiliates, any Client End Users or any Client Personnel, will, or will authorize or permit any other person or entity to: (a) reproduce, distribute, publicly display, sublicense, lease, rent, loan, transfer, or otherwise make available the Hubnetic System or the Client Solution except as expressly provided in the Subscription Agreement; (b) modify, adapt, alter, translate, or create derivative works of the Hubnetic System or the Client Solution or any components thereof; (c) merge the Hubnetic System or the Client Solution with any other software; (d) except as expressly provided in the Subscription Agreement, use the Hubnetic System or the Client Solution in or as part of a service bureau, timesharing or outsourcing capacity; (e) develop an alternative to the Hubnetic System or the Client Solution that is based on or derived from, in whole or in part, the Hubnetic System or the Client Solution or other information or materials of Hubnetic; (f) use the Hubnetic System or the Client Solution in violation of any import, export, re-export or other Applicable Laws; (g) attempt to deactivate, bypass, or otherwise circumvent the license keys or other security measures included in the Hubnetic System or the Client Solution; (h) attempt to gain unauthorized access to any data, functionality, or systems; (i) attempt to use automated systems (such as test tools, screen capture technology, scripted browsers, or other programmatic methods) not approved by Hubnetic in conjunction with the Hubnetic System or the Client Solution; (j) remove or obscure any copyright or other proprietary rights notices, trademarks, logos or trade designations for the Hubnetic System or the Client Solution, or on any user screens or documentation therefor; (k) disseminate viruses, Trojan horses, spyware, adware, or other malicious code; (I) disclose the results of any benchmarking or other performance testing of the Hubnetic System or the Client Solution; (m) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Hubnetic System or the Client Solution; or (n) replicate or attempt to replicate the Hubnetic System or the Client Solution, any Client Services or any Hubnetic Intellectual Property Rights embodied therein.
Hubnetic Intellectual Property Rights.
1. Ownership. Hubnetic shall retain sole and exclusive right, title and interest in and to the Hubnetic System and the Client Solution (in both binary object code and source code form) and the Client Services, including, without limitation:
  1. All program architecture, design and coding methodology, (ii) documentation (including the Operating Manual and Additional Client Documentation) provided by Hubnetic to Client, Licensed Vendors or their Personnel authorized to access and use the Client Solution and all modification thereto from time to time,
  2. all graphical user interfaces, screen shots embodied in the Hubnetic System and/or Client Solution from time to time, including the “look and feel” thereof,
  3. all databases and database structures used in connection with the Hubnetic System and/or Client Solution from time to time,
  4. all improvements to the Hubnetic System and/or the Client Solution made by or for Hubnetic from time to time (collectively “Improvements”), whether at the request of Client or otherwise and regardless of whether Client or any other person pays for, or contributes to the development thereof (jointly or otherwise), including without limitation:
    1. as a result of any suggestions, specifications or other feedback provided by Client or Client Personnel (“Feedback”),
    2. all updates and upgrades to the Hubnetic System and/or Client Solution made by or for Hubnetic from time to time (“Updates”);
  5. all contributions, modifications (whether custom modifications made for and/or paid for by Client, Feedback, Updates, ideas, configurations to the Hubnetic System and/or the Client Solution made or requested by Client, Client Designated Affiliates or Client Personnel, and whether alone or jointly with Hubnetic or any third party (collectively, “Work Product”),
  6. all applications developed for use with the Hubnetic System and/or the Client Solution,
  7. all goodwill associated therewith, and
  8. all present and future copyrights, trademarks, trade secrets, patent rights, and (xi) all other Intellectual Property Rights of any nature embodied therein and/or appurtenant to any of the foregoing.
2. Hubnetic IP. All right title and interest in and to the property and rights referenced in Section 8.1 together with any other documentation, operating manual, instructions or other items relating to the Hubnetic System and the Client Solution (other than Managed Asset Data), together with all Intellectual Property Rights embodied therein and/or appertaining thereto are and shall be owned, solely and exclusively by Hubnetic (collectively, “Hubnetic IP”).
3. Hubnetic Right to Use. Hubnetic shall be free to include any Hubnetic IP, including any Work Product, in the Hubnetic System and/or the Client Solution or portions thereof, without any payment or other obligation to Client or Client Personnel. Client, for itself and on behalf of the Client Personnel, agrees not to take any action inconsistent with Hubnetic's ownership of the Hubnetic IP.
4. Transfer of Work Product. Client for itself, its Designated Affiliates and all Client Personnel hereby unconditionally and irrevocably sells, transfers, assigns and conveys to Hubnetic all right, title and interest, vested and contingent, in and to all Work Product, in every form and medium, including without limitation all modifications and improvements thereto, all derivations thereof, all patents, copyrights, trade secrets and other Intellectual Property Rights embodied therein and appurtenant thereto, all statutory and common law rights and powers pertaining thereto, including the right to recover damages for past infringement, the exclusive control thereof, and all goodwill arising therefrom, without payment or further obligation of any kind. No rights or licenses, express or implied, are retained by Client, its Designated Affiliates or any Client Personnel. To the extent permitted by Applicable Laws, any rights retained by operation of law (including any moral rights, rights of attribution or integrity, or similar rights) are hereby irrevocably and unconditionally waived. Client further agrees, for itself, its Designated Affiliates and all Client Personnel, to execute such documents and take such further actions as Hubnetic may deem reasonably necessary for establishing, preserving and/or enforcing Hubnetic's sole and exclusive ownership the Hubnetic IP and the Work Product.
5. Managed Asset Data. As between Client and Hubnetic, Client will own and continue to own, solely and exclusively, all rights, title and interest in and to all Managed Asset Data. Notwithstanding the foregoing, Client hereby grants Hubnetic a non-exclusive, perpetual, fully paid-up right and license to maintain, use, reproduce, distribute, and make derivative works from, in any or all formats or media now or hereafter existing, Managed Asset Data for purposes of providing the Client Services
6. Anonymized Data. As between the Client and Hubnetic, Hubnetic shall own, solely and exclusively, all Anonymized Data derived from any Managed Asset Data (whether by or on behalf of Hubnetic), and shall be free to use such Anonymized Data in any manner it deems appropriate, including to create reports any analyses regarding performance of vendors in applicable regions, to establish trends or benchmarks in the industry, or for any other purpose. For purposes of the Subscription Agreement, “Anonymized Data” means Managed Asset Data that has been sanitized to remove any information which would identify Client or any Client addresses although it may be identified to a particular city, state or region, or vendor (including Licensed Vendors by city, state, region or otherwise).
7. Marks. Each party shall retain exclusive ownership of all right, title and interest in and to its trademarks, service marks, trade names, trade dress, logos, and other proprietary trade designations (“Marks”) used in connection with its business. The Marks used by Hubnetic (“Hubnetic Marks”) include those set forth in the Initial SOW. Client may not use any Hubnetic Mark for any purpose without the prior written consent of Hubnetic and then solely for use as authorized. Client Marks (collectively, “Client Marks”), which include those set forth in the Initial SOW, may not be used by Hubnetic for any purpose without the prior written consent of Client. Neither party shall adopt, use or attempt to register any Marks that are confusingly similar to the Marks of the other party. All goodwill arising from either party's use of the other party's Marks shall inure solely to the benefit of the party owning the Marks. Client hereby grants Hubnetic a non-exclusive, royalty-free license to use the Client Marks for the purpose of providing the Client Services to Client.
8. Equitable Relief. Client for itself, its Designated Affiliates and their Client Personnel acknowledges and agrees that the Hubnetic System, the Client Solution and their structure, organization, and source code, and all Intellectual Property Rights embodied therein, constitute valuable trade secrets of Hubnetic, and that if Client, any Designated Affiliates or any of their Client Personnel breaches any provisions of the Subscription Agreement, including without limitation, the license provisions, security or access requirements, restrictions set forth in Section 8 of this Terms and License Attachment, ownership or similar provisions of the Subscription Agreement, such breach would cause irreparable harm to Hubnetic, the extent of which would be difficult and impracticable to assess, and that money damages would not be an adequate remedy for such breach. Accordingly, in addition to all other remedies available at law or in equity, Hubnetic shall be entitled to immediate injunctive and other equitable relief in any court of competent jurisdiction without any requirement for posting security or bond in connection with the issuance of such injunctive or other equitable relief.
Term and Termination.
1. Activation Date. Unless otherwise agreed to by the parties, “Activation Date” means the date on which the Client Solution is first made available by Hubnetic for Client production use whether during or upon completion of the Initial Implementation.
2. Term. Provided that Client and Hubnetic complete and execute the Initial SOW, and unless sooner terminated as set forth herein, this Subscription Agreement will commence as of the Effective Date and end upon the expiration of the number of complete calendar months from the Activation Date set forth in the Initial SOW except as may modified by any Subsequent SOW (the “Initial Activation Period”). The period ending at the expiration of the Initial Activation Period is the “Initial Term”. Upon the expiration of the Initial Term and unless otherwise set forth in the Initial SOW, the Subscription Agreement shall automatically renew for successive twelve (12) month periods (each a “Renewal Term” and together with the Initial Term referred to as the “Term”) unless a party elects not to renew by providing at least thirty (30) days’ written notice of non-renewal to the other party prior to the expiration of the then current Initial Term or Renewal Term. If the parties do not execute an Initial SOW within ninety (90) days of the Effective Date, then unless the parties otherwise agree, the Subscription Agreement shall be void and of no effect.
3. Termination for Convenience.
  1. Either party may terminate the Subscription Agreement by written notice prior to the execution of the Initial SOW.
  2. With respect to any multi-year Initial Activation Period or Renewal Term, after the expiration of the first twelve (12) months of the Initial Term or Renewal Term, Client may terminate the Subscription Agreement for its convenience at any time upon delivery to Hubnetic of at least sixty (60) days prior written notice provided that Client shall pay to Hubnetic on or before the effective date of such termination as a termination fee (“Early Termination Fee”), an amount equal to one-half of the Client Fees required to be paid for the calendar month immediately prior to the date on which such written notice is delivered, multiplied by the number of calendar months remaining in the then Initial Term or Renewal Term, as the case may be.
4. Termination for Cause. Either party may terminate the Subscription Agreement: (i) if the other party materially breaches the Subscription Agreement (including non-payment), and fails to cure the breach within thirty (30) days after receiving written notice thereof; or (ii) if the other party becomes or is declared insolvent, makes a general assignment for the benefit of creditors, suffers a receiver to be appointed for it, enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations, files a voluntary petition in bankruptcy, or has an involuntary petition in bankruptcy filed against it, which petition is not dismissed with prejudice within sixty (60) days after the filing thereof. In the event of a termination pursuant to this Section, and subject to the arbitration provisions of the Subscription Agreement, each party shall have all rights and remedies available to it in law and in equity.
5. By Agreement. The Subscription Agreement may be terminated pursuant to a mutually acceptable written agreement of the parties.
6. EFFECT OF TERMINATION. UPON THE EXPIRATION OR TERMINATION OF THIS SUBSCRIPTION AGREEMENT FOR ANY REASON:
  1. All access and use rights and licenses granted to Client and any of Client’s Licensed Vendors (as defined herein) will terminate automatically and immediately, and Hubnetic may take such actions as it deems appropriate to effect such termination, including termination of all access to the Client Solution by Client and its Licensed Vendors; and Client will promptly (within five (5) days) erase and destroy (or return to Hubnetic) all copies of any Client Documentation it may have, and remove any remnants (such as cached computer code, images, data) of the Client Solution (if any) from each of Client’s computers, network and systems.
  2. Provided that Hubnetic has not terminated the Subscription Agreement pursuant to Section 10.4 above, and provided Client has paid in full all undisputed Client Fees, Reimbursable Expenses (as defined in the Initial SOW) and if applicable Early Termination Fees outstanding as of the effective date of termination or expiration,
    1. upon Client’s request on or before the expiration of ten (10) business days following the effective date of such termination, Client may download Client’s Managed Asset Data at no charge; or
    2. thereafter, and further provided Client has prepaid to Hubnetic the quoted charge to extract its Managed Asset Data and for any consulting or data conversion services requested by Client with respect thereto (“Extraction Fees”), Hubnetic will (1) extract all Managed Asset Data maintained in the Client Solution and export the same onto recordable media in raw format; and (2) provide Client reasonable assistance with respect to any database mapping and/or system conversion.
  3. In the event of termination by Hubnetic pursuant to Section 10.4, Client shall pay Hubnetic an amount equal to the amount of Client Fees required to be paid for the calendar month immediately prior to the date of termination (or the last month in which full payment of Client Fees was made, if earlier), multiplied by the number of calendar months remaining in the then Initial Term or Renewal Term, as the case may be, plus the amount equal to Hubnetic’s quote for extraction of the Managed Asset Data (collectively, “Termination and Extraction Fees”), and upon such payment, Hubnetic will extract the Managed Asset Data; provided that Hubnetic will have no obligation to extract any Managed Asset Data unless the Termination and Extraction Fees are paid in full in advance.
  4. For avoidance of doubt, Hubnetic will have the right to suspend Client’s right to download Client’s Managed Asset Data at any time Client has breached this Agreement including, without limitation, any cure periods.
  5. In no event will Hubnetic have any obligation to extract any Managed Asset Data or provide any assistance to Client (or retain any Managed Asset Data) after the expiration of ninety (90) days from the termination or expiration of the Subscription Agreement for any reason.
7. Survival. In the event of any termination or expiration of the Subscription Agreement, all provisions relating to confidentiality, disclaimers, indemnity, limitations of liability, payment, and any other provisions of the Subscription Agreement (regardless of where stated) which by their terms or nature are intended to survive, will survive the expiration or termination of this Subscription Agreement for any reason, and will be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.
Representations and Warranties.
1. General. Each party represents and warrants to the other party that it has full right, power and authority to enter into this Subscription Agreement, and that it will exercise its rights and perform its obligations under this Subscription Agreement in a professional and workmanlike manner, consistent with industry standards and practices.
2. Ownership. Hubnetic represents and warrants that it owns and/or has the right to grant the license for the Client Solution for remote access and use pursuant to the provisions of this Terms and License Attachment and the Subscription Agreement. In the event of a breach by Hubnetic of the foregoing representation and warranty, as Hubnetic's entire obligation and the Client's sole and exclusive remedy will be indemnification pursuant to Section 12 below.
3. Proper Use. Client represents and warrants that (i) neither it, its Designated Affiliates nor any Client Personnel (i) will access or use the Hubnetic System or the Client Solution for any unlawful purpose, (ii) will input, process or store data that it does not have full right to input, process and/or store using the Hubnetic System or the Client Solution; (ii) it will ensure compliance with the Subscription Agreement by its Designated Affiliates and all Client Personnel; and (iii) it will indemnify, defend and hold Hubnetic harmless from and against any third party claims, demands, suits, damages, losses, liabilities, costs and expenses (including reasonable attorneys' fees) arising out of or resulting from data input, processed or stored by Client or on Client's behalf, any blueprints, designs or other materials Client supplies Hubnetic in connection therewith and/or any unauthorized use or misuse of the Hubnetic System, Client Solution or Client Services by Client, its Designated Affiliates and/or any Client Personnel.
4. Third Party Products. Any third-party products and services bundled with the Hubnetic System and/or Client Solution or otherwise made available by Hubnetic with the Client Solution are subject to the licensing and other terms of the respective third- party vendors, and are warranted if at all only as expressly provided by such third-party vendors. Hubnetic does not make any representations or warranties for third party products and services, and will have no responsibility or liability even if Hubnetic procures, resells or provides any Client Services in connection therewith.
5. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 11, OR AS OTHERWISE EXPRESSLY SET FORTH IN THE SUBSCRIPTION AGREEMENT, THE CLIENT SOLUTION AND CLIENT SERVICES ARE PROVIDED “AS IS”, “WHERE IS” AND WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, HUBNETIC HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. HUBNETIC DOES NOT REPRESENT OR WARRANT THAT THE HUBNETIC SYSTEM, THE CLIENT SOLUTION OR CLIENT SERVICES WILL OPERATE OR BE PROVIDED UNINTERRUPTED OR ERROR-FREE, OR MEET CLIENT'S PARTICULAR BUSINESS, TECHNICAL OR OTHER REQUIREMENTS. THE CLIENT SOLUTION AND CLIENT SERVICES MAY BE SUBJECT TO TRANSMISSION ERRORS, POWER OUTAGES, DELIVERY FAILURES, DELAYS AND OTHER LIMITATIONS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. NO HUBNETIC PERSONNEL HAVE AUTHORITY TO BIND HUBNETIC TO ANY REPRESENTATIONS OR WARRANTIES NOT EXPRESSLY SET FORTH IN THE SUBSCRIPTION AGREEMENT.FOR AVOIDANCE OF DOUBT, INDUSTRIAL EQUIPMENT THAT HAS NOT BEEN ONBOARDED TO THE CLIENT SOLUTION WILL NOT BE COVERED BY THE SUBSCRIPTION AGREEMENT AND WILL NOT BE INCLUDED AS MANAGED ASSETS.
Indemnification, Limitations of Liability.
1. By Hubnetic. Hubnetic will defend at its own expense any action, suit, assertion, proceeding or other claim (collectively, “Claims”) brought by or on behalf of a third party against Client, an applicable Designated Affiliate, , and their respective shareholders, directors and Client Personnel (“Client Indemnitees”), and shall indemnify and hold the Client Indemnitees harmless from and against all damages arising from any such Claims, including, reasonable attorneys' fees, court costs, damages awarded to such third party (collectively, “Damages”), to the extent that any such Claim arises out of or is attributable to (i) Hubnetic’s or its Designated Affiliates negligent or intentional tortious acts or omissions; (ii) breach of any of the provisions of the Subscription Agreement; (iii) a Security Incident (as defined in Section 16) occurs due to the fault of Hubnetic or any of its Designated Affiliates, and (vi) any infringement, misappropriation or other violation of any third party's Intellectual Property Rights by the Hubnetic System or the Client Solution as made available to Client under the Subscription Agreement; and/or (vi) any violation of Applicable Laws by Hubnetic. Notwithstanding the foregoing, Hubnetic will have no obligation or liability for any Claim to the extent arising out of or resulting in whole or in part from: (a) unauthorized use or misuse of the Hubnetic System, Client Solution or Client Services by any Client Indemnitee or any Licensed Vendor or its Personnel; (b) modifications to the Hubnetic System or Client Solution not made by Hubnetic; (c) blueprints, designs, content, data or other materials supplied to Hubnetic by or on behalf of Client or any Licensed Vendor, or Onboarded by Client or any Licensed Vendor; (d) any combination of the Hubnetic System or Client Solution with or use of the Client Solution as part of a non-Hubnetic method or system or (e) the negligent act or omission of Client or a Client Indemnitee. In the event Hubnetic has reason to believe that any portion of the Hubnetic System or Client Solution is or may become the subject of an infringement claim, Hubnetic will have the right to modify the Hubnetic System and/or Client Solution, as applicable, with a non-infringing equivalent with the substantially similar functionality, features, and performance; to secure the right for Client to continue using the Client Solution, or, if the foregoing options are not commercially practicable, as determined by Hubnetic in its reasonable discretion, to terminate the Subscription Agreement, subject to a refund on a pro rata basis the unused portion of any payments made in respect of Client Solution or Client Services to be provided after termination.
2. By Client. Client shall defend at its own expense any Claim brought by or on behalf of a third party against Hubnetic, its Affiliates and their respective shareholders, directors, managers, members, officers and/or other Personnel, and their respective successors and permitted assigns (collectively, the “Hubnetic Indemnitees”), and shall indemnify and hold the Hubnetic Indemnitees harmless from and against all Damages, to the extent that any such Claim arises out of or is attributable to any of (i) Client’s, its Designated Affiliates’ and/or Client Personnel’s negligent or intentional tortious acts or omissions; (ii) breach of any of the provisions of the Subscription Agreement; (iii) infringement, misappropriation or other violation of any third party's Intellectual Property Rights by any Client Marks, Client materials, unauthorized use or misuse of the Client Solution and/or any unauthorized changes to the Hubnetic System or Client Solution any of them may make or have made; (iv) misuse of the Hubnetic System or Client Solution; (v) any breach of its or their confidentiality obligations under the Subscription Agreement; and/or (vi) violation of Applicable Laws. Client shall have no obligation to indemnify or defend any Hubnetic Indemnitee to the extent any Claims or Damages that arise from the negligent act or omission of Hubnetic or a Hubnetic Indemnitee.
3. Procedure. Each party (as “Claimant”) will notify the other promptly and in writing of any Claim for which it may be or is entitled to indemnification hereunder. Failure or delay in providing such notice by Claimant will not relieve the other party (“Indemnitor”) of its indemnification obligations, except to the extent Indemnitor demonstrates that the defense or settlement of the Claim has been prejudiced thereby. Indemnitor will have the right to control the defense and settlement of any Claim. The Indemnitor will have the right to use counsel of its choice for such Claim. The Claimant may elect to participate in the defense or settlement of any Claim with counsel of its choice and at its own cost. No compromise or settlement may be committed to or valid without the Claimant's prior written approval (which will not be unreasonably withheld, conditioned or delayed); provided, however, that if such settlement is for monetary damages only, Claimant shall not object to such settlement unless such settlement would cause Claimant to suffer any reputational damages, cause Claimant to alter its business processes or other damages, each as reasonably determined by such Claimant.
4. Limitations of Liability. EXCEPT FOR CLAIMS ARISING UNDER SECTION 12.1(i), 12.1(ii) and 12.1(iv), and 12.2 (INDEMNIFICATION), ANY VIOLATION OF ANY OF HUBNETIC’S INTELLECTUAL PROPERTY RIGHTS BY CLIENT, ITS DESIGNATED AFFILIATES OR ANY CLIENT PERSONNEL, AND BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 13 (CONFIDENTIALITY) AND SECTION 16 (SECURITY INCIDENT) WHICH SUCH BREACH RESULTS IN THE UNAUTHORIZED ACCESS, USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION AND/OR PERSONAL DATA (AS DEFINED IN SECTION 16), (I) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE OR SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THE HUBNETIC SYSTEM, THE CLIENT SOLUTION, THE CLIENT SERVICES OR THE SUBSCRIPTION AGREEMENT, INCLUDING LOSS OF BUSINESS, PROFITS, OR REVENUE, LOSS OR DESTRUCTION OF DATA, OR BUSINESS INTERRUPTION OR DOWNTIME; AND (II) IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ALL CLAIMS ARISING OUT OF AND RELATED TO THE CLIENT SOLUTION, THE CLIENT SERVICES AND THE SUBSCRIPTION AGREEMENT) EXCEED, IN THE AGGREGATE, THE AMOUNT EQUAL TO THE CLIENT FEES PAID FOR THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE DATE OF THE INCIDENT GIVING RISE TO SUCH DAMAGES. THE LIMITATIONS ON LIABILITY IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, REGARDLESS OF THE CAUSE OF ACTION OR BASIS OF LIABILITY (WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE), AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ON LIABILITY ARE AN ESSENTIAL PART OF THE SUBSCRIPTION AGREEMENT, AND WILL BE VALID AND BINDING EVEN IF ANY REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE. IN THE EVENT CLIENT, ITS DESIGNATED AFFILIATES OR ANY CLIENT PERSONNEL, VIOLATE THE INTELLECTUAL PROPERTY RIGHTS OF HUBNETIC, OR EITHER PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 13 (CONFIDENTIALITY) OR SECTION 16 (SECURITY INCIDENT) WHICH SUCH BREACH RESULTS IN THE UNAUTHORIZED ACCESS, USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION, OR IN THE EVENT OF A SECURITY INCIDENT, PERSONAL DATA, EACH PARTY’S CUMULATIVE LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY SHALL NOT EXCEED THREE TIMES THE CLIENT FEES PAID OR OWING BY COMPANY DURING THE SIX (6) MONTHS PRECEDING THE APPLICABLE CLAIM.
Confidentiality.
1. Confidential Information. From time to time in connection with the Subscription Agreement, each of Hubnetic, (on the one hand, and Client and/or Client Personnel) on the other hand, may receive, observe, access or otherwise be provided with certain confidential information of the other, its Affiliates, vendors or suppliers, in written, visual or oral form, including but not limited to business, marketing, sales, technical (including, with respect to Hubnetic, the Hubnetic System, the Client Solution and the Hubnetic IP), equipment, creative, human resources and other information that a person familiar with the applicable party's industry would consider confidential in nature (collectively, “Confidential Information”). Confidential Information does not include information that: (i) was in the rightful possession of the receiving party prior to any disclosure by the disclosing party; (ii) is rightfully acquired by the receiving party from a third party that is legally and rightfully entitled to make such disclosure, without restriction as to its use or disclosure; (iii) is independently developed by the receiving party without reference to or reliance on the disclosing party's information as established by documented and competent evidence; or (iv) is generally known or available to the public or in the public domain, or is placed in the public domain through no act or failure to act by the receiving party. Information shall not be deemed in the public domain merely because it may be embraced by more general disclosures in the public domain, or may be derived from combinations of disclosures that are in the public domain, if collected and combined in a form that is not generally known or available to the public. The parties acknowledge and agree that the Client Solution, and all software related thereto (including all object code and source code), is the proprietary trade secret of Hubnetic.
2. Confidentiality Obligations. Each party, as receiving party, shall hold the Confidential Information of the other party, as disclosing party, in strict confidence, exercising at least the same care used to protect its own Confidential Information of a similar nature, but no less than reasonable care. Each receiving party shall access, use and disclose Confidential Information of the disclosing party only for the limited purpose of exercising its rights and fulfilling its obligations under the Subscription Agreement, or as otherwise expressly set forth in the Subscription Agreement or authorized in writing by the disclosing party. Upon the expiration or termination of the Subscription Agreement and except as otherwise set forth herein, each receiving party shall promptly return to the disclosing party or destroy all Confidential Information of the disclosing party in its possession, and upon written request of the other party, certify in writing that it has retained no copies or summaries of the same.
3. Legally Required Disclosures. If the receiving party is requested to disclose any Confidential Information of the disclosing party under Applicable Laws, in any judicial or administrative proceeding, or in response to a formal request of a regulatory or governmental authority (including law enforcement), then, except as otherwise required to comply with Applicable Laws, the receiving party shall promptly notify the disclosing party of such request so that the disclosing party may resist such disclosure or seek an appropriate protective order, and shall provide all information and assistance reasonably requested by the disclosing party in connection therewith, at the disclosing party's sole expense. If the receiving party is nonetheless compelled to disclose any Confidential Information of the disclosing party, the receiving party shall limit its disclosure to that which, in the reasonable opinion of counsel, is required under Applicable Laws.
4. Equitable Relief. Each party acknowledges that any breach by the other party of the foregoing confidentiality provisions would cause irreparable harm to the non-breaching party, the extent of which would be difficult and impracticable to assess, and that money damages would not be an adequate remedy for such breach. Accordingly, in addition to all other remedies available at law or in equity, and as an express exception to the binding arbitration requirement of the Subscription Agreement, the non-breaching party shall be entitled to seek immediate injunctive and other equitable relief in any court of competent jurisdiction without any requirement for posting security or bond in connection with the issuance of such injunctive or other equitable relief.
Dispute Resolution and Attorney’s Fees. In the event of any dispute arising out of or related to the Subscription Agreement, the parties shall, within thirty (30) days of such dispute, meet in person to discuss potential amicable resolution of this dispute. During this time period where the parties are exploring resolution of the dispute, Client shall not be in breach due to nonpayment of any disputed invoiced amount, provided all undisputed amounts are timely paid. This provision shall not be interpreted to release, postpone or alter any of Hubnetic’s obligations set forth herein. In the event the parties are unable to adequately resolve any claim or dispute through dispute resolution, any forthcoming legal proceeding arising out of or relating to this Agreement, the party prevailing in such legal dispute shall be entitled to recover all reasonable fees and expenses (including, without limitation, costs of investigation, reasonable attorneys’ fees and litigation expenses) incurred in connection therewith.

Required Insurance. During the Term of the Subscription Agreement, and after its expiration or termination for as long as Hubnetic owes any obligation to Client and/or any statute of limitations for any potential claim that Client may have against Hubnetic remains unexpired, Hubnetic shall maintain all insurance and/or bonds required by statute, law and this Subscription Agreement with minimum insurance limits as follows:

Workers’ Compensation:	Statutory
Employer's Liability:
Per accident: Bodily Injury by Accident	$500,000 each occurrence
Policy limit by Disease	$500,000 each occurrence
Per employee: Bodily Injury by Disease	$500,000 each occurrence
General Liability	$2,000,000 each occurrence
	$5,000,000 aggregate
Cybersecurity	$1,000,000 each occurrence
The cybersecurity policy shall provide coverage for (i) liability incurred from alleged or actual theft, dissemination, and/or use of personal or confidential information and any related forensic costs, crisis management costs, investigation costs; (ii) network security liability arising from the unauthorized access to, use of, or tampering with computer systems, including hacker attacks or inability of an authorized third party to gain access to services, including denial of service, unless caused by a mechanical or electrical failure; (iii) liability arising from the introduction of a computer virus into, or otherwise causing damage to, a customer's or third person's computer, computer system, network, or similar computer related property and the data, software, and programs thereon; (iv) any government investigations resulting from the alleged or actual disclosure of personal or confidential information or network security liability event; and (v) nonphysical business interruption.

Hubnetic shall also require its agents or subcontractors who may enter upon Client’s premises or conduct work associated with the Subscription Agreement to maintain the same coverage required herein. Should insurance policy limits be exhausted or should Hubnetic or its agents or subcontractors fail to maintain the required insurance coverage, neither Hubnetic nor any of its agents and subcontractors will in any way be relieved from liability provided for herein to Client should a loss occur. Hubnetic shall furnish Client with a certificate evidencing the aforementioned coverage limits. Such certificate shall provide for thirty (30) days written notice to Client in the event of cancellation.

Except with respect to workers’ compensation / employer’s liability coverage, all certificates of insurance shall name Client and its parents, subsidiaries, employees, agents, affiliates and assigns as an additional insured by policy endorsement. For any claims relating to this Agreement, Hubnetic’s insurance shall be deemed to be primary and not contributing to or in excess of any similar coverage purchased by Buyer. Failure of Buyer to demand any certificates or to identify any deficiency in the insurance provided shall not be construed as or deemed to be a waiver of Hubnetic’s or its agents or subcontractors’ obligation to maintain such insurance.

Data Protection
1. Definitions. For purposes of this Section 16, (i) “Privacy Laws” mean all laws, statutes, codes, ordinances, rules, regulations orders, directives, judgments, and decrees of any country and/or any subdivision thereof pertaining to the privacy, confidentiality, handling, storage, data export, disposal, breach notification and/or safeguarding of any Personal Information, whether relating to individuals, financial, health, or other personal information, records, or data, and all implementing rules and regulations, amendments to, and successors of any of the foregoing;(ii) “Personal Data” means personally identifiable information and, to the extent applicable Privacy Laws includes a definition of personal data or personally identifiable information (or their equivalent terms), includes the meaning set out in applicable Privacy Laws; and relates only to personal data, personally identifiable information, or any part of such personal data or personally identifiable information, that is provided by Client to, or accessed by, Hubnetic in connection with the Client Solution and Client Services; and (iii) “Security Incident” means any verified breach of confidentiality or security affecting Personal Data , including any verified unauthorized access to or misuse, loss, alteration or destruction of Personal Data.
2. Security Incident.
  1. Hubnetic shall promptly (and in any event within seventy-two (72) hours, unless sooner required under applicable Privacy Laws, inform Client in writing, whenever Hubnetic reasonably believes that there has been a Security Incident.) Hubnetic shall inform Client with as many details as known at that time (and regularly update Client thereafter in writing or by email followed by a written notification) setting out in reasonable detail, without limitation, the nature of the information compromised, threatened, or potentially compromised, the specific information compromised or potentially compromised and of all events which may adversely affect the Hubnetic’s ability to provide the Client Solution. Hubnetic will investigate the Security Incident and take all necessary steps to eliminate or contain the exposure of Personal Data and to restore the security of compromised systems, files and information. Hubnetic shall keep Client informed of the status of the Security Incident, all assessments and plans of actions taken by it in response to the Security Incident, and all other related matters. Upon Hubnetic’s completion of its investigation, Client shall promptly be provided by Hubnetic with an incident report relating to Client’s Personal Data prepared by or for Hubnetic relating to a Security Incident. Hubnetic further agrees to provide reasonable assistance and cooperation requested by Client and/or Client’s designated representatives, in the furtherance of any correction, remediation, or investigation of any Security Incident and/or the mitigation of any damage. Hubnetic shall coordinate with Client regarding any notifications to regulators, law enforcement, affected individuals, and the press. In the event of a breach by Hubnetic of this Section 16 resulting in the unauthorized use or disclosure of Personal Data, Hubnetic, shall, at its own expense, send notices as required by applicable Privacy Law, and provide affected individuals with credit monitoring services where general available for a specific period not to exceed twelve months, to the extent the breach could lead to a compromise of affected individuals’ credit or credit standing. In addition, within 90 days of identifying or being informed of any Security Incident arising from any act or omission by Hubnetic, Hubnetic will develop and execute a plan, subject to Client approval, that reduces the likelihood of a recurrence of a Security Incident.
  2. Unless required by Applicable Law, Hubnetic will not notify any individual or any third party other than law enforcement of any potential Security Incident involving Client Personal Data without first consulting with, and obtaining written permission of Client. Client may additionally require Hubnetic to provide additional notifications which may include, without limitation, the Hubnetic to distribute to persons whose information was or may have been compromised a direct communication describing Hubnetic’s role in any such Security Incident.
Miscellaneous.
1. Governing Law. The Subscription Agreement will be governed and interpreted for all purposes by the laws of the State of mISSOURI, U.S.A., without reference to any conflict of laws principles that would require the application of the laws of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (as enacted by any jurisdiction) do not and will not apply to the Subscription Agreement, and are hereby specifically excluded.
2. Jurisdiction; Venue. Any dispute, action or proceeding arising out of or related to the Subscription Agreement may be commenced in a court of competent jurisdiction (whether State or Federal) located in St. Louis County, Missouri. Each party submits to the personal jurisdiction and venue of such courts and irrevocably waives any objections thereto, including any objection based on forum non conveniens.
3. Notices. All notices, requests, demands, or other communications required under the Subscription Agreement must be in writing, addressed to the applicable party at the address set forth in the Initial SOW, and will be deemed to have been duly given on the date of actual delivery provided such notice is either (i) delivered by hand, (ii) by overnight courier next business day delivery, (iii) by registered or certified mail; in each case pre-paid, return receipt requested, or (iv) by email so long as a copy of the notice is provided to the addressee on the next following business day via the methods specified in items (i), (ii) or (iii) above; and further provided that if delivery is refused, the notice will be deemed given on the date of such refusal. If notice is given by email and a copy of such notice is not delivered on the next business day as set forth above, such email notice shall be invalid.
  
  Either party may change its address for notices from time to time by providing written notice of such change to the other party in the foregoing manner.
4. Assignments. Neither party may assign or otherwise transfer the Subscription Agreement, or any of its rights or obligations under the Subscription Agreement, without the prior written consent of the other party; provided, however: (i) Hubnetic may fulfill appropriate duties under the Subscription Agreement through its qualified subcontractors, provided that Hubnetic remains responsible for the performance of such subcontractors; and (ii) upon written notice, either Party may assign the Subscription Agreement in its entirety to a successor in interest in connection with such party’s merger, acquisition, corporate reorganization, or sale of all or substantially all of its business. Any attempted assignment or transfer in violation of the foregoing will be null and void from the beginning and without effect.
5. Relationship; Third Party Beneficiaries. The parties hereto are independent contractors. Neither party is nor shall it be construed to be an employee of the other party within the meaning of any national, state, or local laws, or regulations. Neither party shall have, nor shall it represent to any third party that it has, the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligation for or on behalf of the other party for any purpose whatsoever, other than as expressly set forth in the Subscription Agreement
6. Third Party Beneficiaries. Nothing in the Subscription Agreement, express or implied, is intended or shall be construed, to give any third party any rights or remedies under or by reason of the Subscription Agreement; provided, however, the disclaimers, limitations on liability and indemnification protections under the Subscription Agreement will extend to each party and its directors, officers, shareholders, managers, members, Affiliates and their respective Personnel and suppliers.
7. U.S. Government Restricted Rights. The Client Solution and the Client Documentation are licensed with RESTRICTED RIGHTS as “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation is licensed (if at all) to U.S. Government end users only as Commercial Items, and with only those rights as are granted to other licensees pursuant to the Subscription Agreement.
8. Export Control. The Client Solution and underlying information and technology may not be accessed or used except as authorized by United States and other Applicable Law, and further subject to compliance with the Subscription Agreement. The Client Solution may not be exported or re-exported into any U.S. embargoed countries, or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. Client represents and warrants that Client and its end users are not located in, under the control of, or a national or resident of any country or on any such list.
9. Publicity, Confidentiality of Terms. Neither party shall, without the prior written consent of the other party in each instance: (a) issue any press releases or make any other public statements concerning the Subscription Agreement in any defamatory or derogatory manner; or (b) disclose the pricing or terms of the Subscription Agreement to any third party, except: (i) to its attorneys, accountants, and other professional advisors who are under a duty of confidentiality; (ii) to potential investors, lenders, purchasers of the party's business, merger parties, and underwriters in connection with their due diligence in future financings, loan transactions, acquisitions, mergers, or public offerings, provided that such persons or entities agree in writing to keep the provisions of the Subscription Agreement confidential; or (iii) in a judicial or other dispute resolution proceeding between the parties hereto.
10. Amendment; Waiver. Except as expressly set forth in the Subscription Agreement, the Subscription Agreement may be amended only by a written instrument executed by a duly authorized representative of each party. No right or obligation will be waived by any act, omission or knowledge of a party, except by an instrument in writing expressly waiving such right or obligation and signed by an authorized representative of the waiving party. Any waiver on one occasion will not constitute a waiver on subsequent occasions.
11. Force Majeure. Neither party shall be liable for any delays in performance under the Subscription Agreement to the extent caused by acts of God, fire, flood or other natural catastrophe, governmental acts, orders, or regulation, acts of terrorism, of other events beyond the party's reasonable control (each a “Force Majeure”), provided the foregoing shall not apply to obligations to pay money. Any excuse for delay shall last only as long as the Force Majeure event remains beyond the reasonable control of the delayed party, and the delayed party shall use reasonable efforts to minimize the delay.
12. Severability; Construction. If any provision of the Subscription Agreement is determined to be unenforceable under Applicable Law, the remaining provisions of the Subscription Agreement will continue in full force and effect. The headings in the Subscription Agreement are for reference purposes only, and will not affect the meaning or interpretation of the Subscription Agreement. The term “including” as used herein means “including without limitation.” The terms “herein,” “hereto,” “hereof,” and similar variations refer to the Subscription Agreement as a whole, rather than to any particular section or Attachment.
13. Entire Agreement. The Subscription Agreement, which includes each of the Agreement Documents, sets forth the entire agreement of the parties, and supersedes all prior proposals, agreements and understandings, whether written or oral, pertaining to the subject matter hereof. Where Client requires a purchase order as part of its procurement process, such purchase order may be issued for administrative purposes only. Any additional or conflicting terms included in any such purchase order, acknowledgement, or other writing will not be binding on Hubnetic, and are hereby objected to and expressly rejected.

Hubnetic System Subscription Agreement

ATTACHMENT A - General Terms and License

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