Thank you for signing up for a subscription with Humbol. (“Humbol”, “we” or “us”). By placing an order, clicking to accept this Agreement, or using or accessing any Humbol Service or related services, you agree to all the terms and conditions of this Terms of Service Agreement (“Agreement”). If you are using a Humbol Service or related services on behalf of a company or other entity, then “Customer” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Customer is an entity, this Agreement and each Order Form is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement. Please note that we may modify this Agreement as further described in the amendments section below. If you as a Customer are influenced by these modifications we will notify you about these changes separately. This Agreement includes any Order Forms, Purchase Orders and Service-Specific Terms (as defined below) as well as any policies or exhibits linked to or referenced herein.
This Agreement is effective as of May 15, 2021.
BACKGROUND AND PURPOSE
Humbol is an employee experience platform supporting leaders to have better interactions with their teams and team members. By unifying a company’s leadership practices Humbol brings proactivity, transparency, equality and efficiency into leadership to ensure that every interaction gets the attention it deserves. The platform combines interaction planning, execution, follow-up and continuous improvement into one unified solution.
The purpose of this Contract is to define the terms and conditions under which Humbol shall provide the Service(s) and potential support services to the Customer in exchange for payment for the services.
1.1. “Active Use” refers to data stored within the Service under a current Order Form or within six (6) months of expiration of the most recent Order Form.
1.2. “Add-On” means integrations, applications, and other add-ons that are used with the Service.
1.3. “Affiliate(s)” means any entity which is controlled by, in control of, or is under common control with a Party to this Contract, where “control” means either the power to direct the management or affairs of the entity or ownership of 50% or more of the voting securities of the entity.
1.4. “Aggregate/Anonymous Data” means: (i) data generated by aggregating Customer Data so that results are non-personally identifiable with respect to the Customer or any natural person; and (ii) learnings, logs, and data regarding use of the Service.
1.5. “Authorized Users” means the Customer’s employees and contractors (such as external consultants) who have or may be assigned a Seat to access and use the Service and who are acting for the Customer’s benefit and on its behalf.
1.6. “Confidential Information” means for any such information exchanged under this Contract, that is identified as confidential at the time of disclosure or that should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed, for example code, inventions, know-how, product plans, inventions, and technical and financial information.
1.7. “Content” means text, images, videos or other content uploaded or integrated with the Service by Customer.
1.8. “Contract” means this Terms of Service Agreement document and its annexes, appendices, schedules and amendments, including any Order Forms and service-specific terms as well as any policies or exhibits linked to or referenced herein.
1.9. “Customer Data” means: (i) Content; (ii) Submitted Data; and (iii) Visitor Data.
1.10. “Customer’s Administrators” means the Authorized Users that have been provided with administrator permissions within the Service. Customer’s Administrators have broader user permissions to the Service than regular Authorized Users.
1.11. “Documentation” means the possible technical documentation created and provided by Humbol in connection with the Service.
1.12. “Intellectual Property Rights” mean copyrights, software, domain names, trademarks, service marks, designs and registrations and applications thereof, data, and documentation thereof, trade secrets and know-how (including but not limited to development information, specifications, plans, proposals and technical data).
1.13. “Service(s)” means the specific proprietary SaaS (Software as a Service) product(s) of Humbol specified in Customer’s Order Form, including any related Humbol Documentation, and excluding any Third-Party Products. The Service(s) include access to the features and functionalities made available by Humbol from time to time.
1.14. “Humbol Technology” means the Service, any and all related or underlying Intellectual Property Rights, documentation, technology, code, know-how, logos and templates (including any reports or output obtained from the Service), anything delivered as part of support or other services, and any updates, modifications or derivative works of any of the foregoing.
1.15. “Order Form” means any Humbol ordering documentation or online sign-up or subscription flow that references this Contract.
1.16. “Scope of Use” means the usage limits or other scope of use descriptions for the Service included in the applicable Order Form (including descriptions of packages and features) or Documentation, including any numerical limits on Seats or Authorized Users.
1.17. “Submitted Data” means data uploaded or otherwise submitted by Customer to the Service, including Third-Party Content.
1.18. “Subscription Term” means the initial term for the subscription to the applicable Service, as specified on the Customer’s Order Form(s), and each subsequent renewal term (if any).
1.19. “Third Party” and “Third-Party” means any party that is not the Customer, Humbol, an Affiliate of the Customer or Humbol’s subcontractor.
1.20. “Third-Party Content” means content, data or other materials that the Customer submits to the Service from its third-party data providers, including integrations used by the Customer.
1.21. “Third-Party Product(s)” means any applications, integrations, software, code, online services, systems, other products, and Add-Ons not developed by Humbol.
1.22. “Seat(s)” or “Account(s)” mean each individual user account granting access to the Service as assigned or assignable by the Customer’s Administrator.
1.23. “Party” means either Humbol Inc or the Customer. Together they may be referred to as Parties.
1.26. “Visitor Data” is the data collected from a user when they use the Humbol service, including IP address, browser information, and/or header information.
Other terms are defined in other Sections of this Terms of Service Agreement or in the relevant policies, or annexes.
2. ACCOUNT REGISTRATION AND USE
2.1. Google Account and Microsoft Account The Customer and its Authorized Users may need to register for a Google or Microsoft Account in order to access the Service. Humbol may, at its discretion, provide alternative means of accessing the Service other than a Google or Microsoft Account. The Humbol Service may also require installation or configuration by a Google or Microsoft administrator.
2.2. Account Information All Account information must be accurate, current, and complete.
2.3. Credentials The Customer must ensure that any user IDs, passwords, and other access credentials (such as API tokens) for the Service are kept strictly confidential and not shared with any unauthorized person. The Customer must notify Humbol immediately of any breach of security or unauthorized use of an account which the Customer has become aware of. Accounts are personal and must not be shared with others. If any Authorized User stops working for the Customer, the Customer must immediately terminate that person’s access to the Service. The Customer will be responsible for any and all actions taken using the accounts, passwords or access credentials designated to Customer.
2.4. Administration Rights The Customer is responsible for designating those individuals who are authorized to access the Customer’s Admininstrators’ account(s).
3. ACCESS TO THE SERVICE
3.1. General Conditions Subject to the compliance with this Contract and the Acceptable Use Policy (currently available at www.humbol.app/en/acceptable-use-policy/), Humbol grants to the Authorised Users of the Customer, a worldwide, non-exclusive, non-transferable, non-sublicensable right during the applicable Subscription Term to access and use the Service(s) designated on the Customer’s Order Form. The service may be used solely for the Customer’s internal business purposes. For the avoidance of doubt, the Customer will be responsible and liable for all Authorized Users’ use and access of the Service and their compliance with the terms and conditions of this Contract.
3.2. Developments The Customer acknowledges that the Service constantly develops and evolves over time. Consequently, Humbol may, at its option, make updates, bug fixes, modifications or improvements to the Service from time to time. Updates to the Service can be found on the Humbol blog (currently available at https://www.humbol.app/blog). Humbol may also make such new applications, features or functionalities for the Services available from time to time, the use of which may be contingent upon the Customer’s agreement to additional terms.
3.3. Early Stage Services Humbol may provide the Customer with access to “Alpha”, “Beta”, or other early-stage Services, integrations, or features (“Alpha and Beta Releases”), which are optional for the Customer to use. Humbol may use good faith efforts in its discretion to assist the Customer with Alpha and Beta Releases. Without limiting the other disclaimers and limitations in this Contract, the Customer acknowledges and agrees that Alpha and Beta Releases may not be complete or fully functional and may contain bugs, errors, omissions, and other problems for which Humbol will not be responsible. Accordingly, any use of Alpha and Beta Releases are at the Customer’s sole risk. Humbol makes no promises that future versions of Alpha and Beta Releases will be released or will be available under the same commercial or other terms. Humbol may terminate the Customer’s right to use any Alpha and Beta Releases at any time for any reason or no reason in Humbol’s sole discretion, without liability.
4. CUSTOMER OBLIGATIONS
4.1. Respecting Third Party Rights The Customer represents and warrants that the collection, use, and disclosure of Customer Data will not violate any third-party rights, including Intellectual Property Rights, privacy and publicity rights. If the Customer receives any take down requests or infringement notices related to Customer Data or its use of Third-Party Products it must promptly stop using the related item with the Humbol Service and notify Humbol. If Humbol receives any take down requests or infringement notices related to Customer Data or Customer’s use of Third-Party Products, Humbol may respond in accordance with its policies, including immediate removal of the relevant content from the Service, and will notify the Customer on next steps. The Customer must not take any action that would cause Humbol or the Service to become subject to any third-party terms (including open source license terms).
4.2. Obtaining Consents The Customer may have the ability to access, monitor, use, or disclose data available to Authorized Users within the Authorized Users’ Accounts. The Customer will obtain and maintain all required consents from Authorized Users to allow: (i) Customer’s access, monitoring, use and disclosure of such data and (ii) Humbol to provide the Service(s).
4.3. Prohibited Use The Customer must not and must not allow Authorized Users or any third party to: (i) rent, lease, copy, transfer, resell, sublicense, lease, time-share, or otherwise provide access to the Service to a third party (except Authorized Users); (ii) publicly disseminate information regarding the performance of the Service (which is deemed Humbol’s Confidential Information); (iii) modify or create a derivative work of the Service or any portion of it; (iv) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any Service (including Humbol’s code), except to the extent expressly permitted by applicable law and then only with advance notice to Humbol; (v) access the Service for the purpose of building a competitive product or sestomer entity.rvice or copying its features or user interface; (vi) use the Service for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without Humbol’s prior written consent; or (vii) remove or obscure any proprietary or other notices contained in the Service, including in any reports or output obtained from the Service.
4.4. Customer Affiliates Where Affiliates of the Customer purchase subscriptions to the Service from Humbol (or an Affiliate of Humbol) by executing an Order Form that references this Contract, such agreement shall be deemed to form a separate agreement. For clarification: (i) the Customer or the Customer’s Affiliates have no rights under other Customer Affiliate agreements; and (ii) breach or termination by any Customer entity or a Humbol entity of any separate agreement is not a breach or termination under any other agreement between an Humbol entity and another Cu
5. CUSTOMER DATA
5.1. Rights in Customer Data As between the Parties, the Customer retains all right, title, and interest (including any Intellectual Property Rights) in and to the Customer Data (excluding any Humbol Technology). The Customer hereby grants Humbol a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Customer Data solely to the extent necessary to provide the Service and related services to the Customer. This Section does not however limit Humbol’s right to generate the Aggregate Data in accordance with Section 5.3 below.
5.2. Third-Party Integrations and Customer Data. If the Customer installs or enables Third-Party Integrations for use with the Service, the Customer acknowledges that providers of those Third-Party Integrations may have access to Customer Data in connection with the interoperation and support of such Third-Party Integrations with the Service. To the extent the Customer authorizes the access or transmission of Customer Data through a Third-Party Integration, Humbol will not be responsible for any use, disclosure, modification or deletion of such Customer Data.
5.3. Aggregate Data. Humbol will have the right to generate Aggregate Data from the Service. Aggregate Data shall be regarded as Humbol Technology, which Humbol may use for any business purpose during or after the term of this Contract (including without limitation to develop and improve Humbol’s products and services and to create and distribute reports and other materials). For clarity, Humbol will only disclose Aggregate Data externally in a de-identified (anonymous) form that does not identify the Customer, or Authorized Users, and that is stripped of all persistent identifiers (such as device identifiers, IP addresses, names, addresses, and cookie IDs). The Customer is not responsible for Humbol’s use of Aggregate Data.
5.4. No Archiving Humbol does not provide an archiving service. The Customer acknowledges that Humbol may delete Content no longer in Active Use. Additionally, the Customer acknowledges that Humbol may, by giving reasonable prior notice, delete such data relating to a feature of the Service no longer being offered or made available as part of the Service. Humbol expressly disclaims all other obligations with respect to storage.
6. PERSONAL DATA AND DATA PROTECTION
6.1. Data Processing and DPA In the course of providing the Service to the Customer, Humbol processes certain personal data (as defined in the EU General Data Protection Regulation 2016/679) on behalf of the Customer. Such processing shall be subject to a Data Processing Agreement (“DPA”) included in Annex 1.
7. SUPPORT SERVICES
7.1. Provision of Support Services . In addition to standard support, additional support services may be available to the Customer upon payment of applicable fees, as specified in Customer’s Order Form or Humbol’s price list applicable at each time. Any support services are subject to this Contract and Humbol’s applicable support policies. Humbol may also provide onboarding, deployment and other services under this Contract. The scope, pricing, and other terms for these additional services will be specified in an Order Form, Order Form exhibit, or other document referencing this Contract. The Customer may use anything delivered as part of these additional services internally during its Subscription Term to support its authorized use of the Service, subject to the restrictions in Section 3 (Access to the Service) and Section 4.3 (Prohibited Use) above applicable to the Service itself. Humbol’s ability to deliver additional services will depend on the Customer’s reasonable and timely cooperation and the accuracy and completeness of any information from the Customer needed to deliver the additional services.
8. SUBSCRIPTION TERM
8.1. Subscription Term The applicable Subscription Term shall be specified in the Order Form. By executing an Order Form for purchase of a subscription to the Service, the Customer agrees to pay all applicable fees for the entire Subscription Term.
8.2. Cancellation or Termination The Customer cannot cancel or terminate a Subscription Term except as expressly permitted by Section 11.3 (Termination for cause) and Section 16.1 (Performance Warranty).
8.3. Start Date If a subscription start date is not specified on the applicable Order Form, the Subscription Term starts the day that the Customer signs the Order Form.
8.4. Renewals Each Subscription Term is initially valid for twelve (12) months, after which it will automatically renew for additional successive twelve-month (12-month) periods unless otherwise stated on the applicable Order Form or unless either Party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term.
9. FEES AND PAYMENT
9.1. Prices and Payment Schedule The Customer is billed according to the Seats, fees and payment schedule determined in the applicable Order Form. The Customer agrees to pay all fees in the agreed currency and in accordance with the payment schedule specified in the applicable Order Form.
9.2. Taxes Humbol’s fees are exclusive of all taxes. If Humbol is obligated to collect or pay taxes, the taxes will be invoiced from the Customer, unless the Customer provides Humbol with a valid tax exemption certificate authorized by the appropriate tax authority. If the Customer is required by law to withhold any taxes from its payments to Humbol, the Customer must provide Humbol with an official tax receipt or other appropriate documentation to support such payments. Any applicable taxes shall be added to the Customer’s invoice.
9.3. Additional Seats If the Customer adds additional Seats in excess of the amount on the applicable Order Form, Humbol may charge additional fees. The fees for such additional Seats are charged for the remaining subscription period. Where such Additional Seats have been mutually agreed upon with Humbol, such Additional Seats will be priced at the same cost per Seat as agreed in the applicable Order Form. After additional Seats have been created and an invoice issued, all future invoicing will be based on the increased number of Seats for the remainder of the Subscription Term. If changes have minimal financial effect the changes can be pooled on its own invoice on a later date. Billing of changes made will commence from the beginning of the month of the date when the change took effect.
9.4. Annual Price Adjustments Humbol can and has the right to perform annual price adjustments to all fees specified in the Order Form. Annual price adjustments cannot exceed 3% and apply immediately during the applicable Subscription Term.
9.5. Price Changes Apart for the annual adjustments applicable to an ongoing Subscription Term which shall be limited to the increase specified above in section 9.4, Humbol shall have the full right to make changes to their pricing. Such price changes shall take effect upon the commencement of a new Subscription Term or a renewal thereof. Humbol shall inform any Customers with an ongoing Subscription Term of such price changes at least ninety (90) days in advance.
9.6. Payment Method The payment shall be made via wire transfer to Humbol’s bank account specified by Humbol in the invoice. The message of the payment shall include the applicable invoice number or the reference number of the invoice.
10.1. Standard Invoicing Schedule The Service is invoiced for a 12-month period at the beginning of the Subscription Term unless otherwise specified on the Order Form. If the Subscription Term is longer than 12 months but under 24 months the Subscription Term shall be invoiced in total in the beginning of the Subscription Term. Otherwise the Service shall be invoiced in 12-month terms.
10.2. Invoicing Method The invoices shall be sent to the billing address provided by the Customer. The preferred Invoicing method is electronic invoicing via email (as pdf) or e-invoice where available. Humbol has the right to add a reasonable invoicing fee for traditional paper invoices sent via traditional mail.
10.3. Payment Term and Late Payments The term of payment is 14 days net. Humbol has the right to charge a late payment fee from the Customer if Humbol has not received payment within three (3) business days from the due date. The late payment fee shall be calculated from the due date to the day the payment is received by Humbol. The late payment fee shall be calculated by actual days. The Customer has five (5) business days to notify a dispute to the Invoice. The five-business-day period is calculated from the date the Customer received the invoice. If there are no other means to determine the receipt date, it shall be the next business day from the date the invoice was sent by Humbol. If the Customer does not react to the invoice in five (5) business days the invoice is considered undisputed and valid. Undisputed late payments are subject to a late payment fee equal to the lesser of 1.5% per month of the amount due or the maximum amount allowed by law.
10.4. Invoicing Information The Customer shall provide Humbol with all necessary reference information needed to process each invoice, including a valid billing address. If the Customer has not provided such information to Humbol the Customer cannot waive the obligation to pay the Invoice even if it does not have the reference information needed to internally process the payment.
11.1. Termination without Cause Either Party may terminate the Contract with thirty (30) days’ advance written notice. If the termination notice is submitted later than thirty (30) days prior to the end of the Subscription Term, the subscription shall renew as defined in Section 8.4 and the termination shall commence at the end of the renewed Subscription Term.
11.2. Termination Notice The Customer shall submit the termination notice via email to firstname.lastname@example.org. Only termination notices submitted to email@example.com are considered valid termination notices.
11.3. Termination for Cause The Contract can be terminated with immediate effect, if:
a) the other Party is in material breach of the Contract and fails to cure that breach within sixty (60) days after receipt of written notice;
b) the other Party ceases its business operations or becomes subject to insolvency proceedings; or
the other Party is in material breach of the Contracts more than two (2) times notwithstanding any cure of such breaches.
11.4. Suspension or Termination due to Unpaid Invoices Humbol has the right to suspend the Customer’s accounts and terminate this Contract if the Customer has either two (2) undisputed unpaid invoices or at least one (1) undisputed unpaid invoice past due a minimum of 60 days. The Customer’s liability to pay any undisputed invoice does not cease with the suspension or termination of this Contract.
11.5. Obligations upon Termination Upon the termination of this Contract: (i) the rights granted by one Party to the other will cease immediately (except as set forth in this Section); (ii) Humbol shall provide the Customer access to, and the ability to export, the Customer Data for thirty (30) days at the Company’s then-current rates for the applicable services; (iii) after a commercially reasonable period of time, Humbol shall delete Customer Data; and (iv) upon request each Party will promptly use commercially reasonable efforts to return or destroy all other Confidential Information of the other Party. If the Customer terminates the Contract prior to the conclusion of the Subscription Term, Humbol will bill the Customer, and the Customer is responsible for paying Humbol, for the remaining unpaid amount of the Customer’s commitment per the Contract.
11.6. Surviving Terms Such Sections of the Contract that by their nature are intended to remain in force after the termination or expiration of the Contract shall survive the termination or expiry of the Contract. Such Sections include, namely, without limitation, Sections 12 (Confidentiality), 13 (Intellectual Property Rights), 15 (Indemnification), 17 (Limitations of Liability) and 19 (General terms).
12.1. Confidentiality Obligation Each Party (as the receiving Party) must: (i) hold in confidence and not disclose the other Party’s Confidential Information to Third Parties except as permitted by this Contract; and (ii) only use the other Party’s Confidential Information to fulfill its obligations and exercise its rights under this Contract. Each Party may share the other Party’s Confidential Information with its, and its Affiliates’, employees, agents or contractors on a legitimate need-to-know basis (which, for Humbol, includes the subcontractors referenced in Section 19.4), provided that the Party remains responsible for any recipient’s compliance with the terms of this Section and that such recipients are bound to confidentiality obligations no less protective than those set herein.
12.2. Exemptions from Confidentiality These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving Party; (ii) was known by the receiving Party before it received the Confidential Information; (iii) is rightfully obtained by the receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving Party without using the disclosing Party’s Confidential Information, as can be shown by documentary evidence. A Party may also disclose the other Party’s Confidential Information to the extent required by law or court order, provided it gives advanced notice (if permitted by law) and cooperates in any effort by the other Party to obtain confidential treatment for the information.
12.3. Equitable Relief The Parties acknowledge that disclosing Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so on breach of this Section 12, each Party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.
13. INTELLECTUAL PROPERTY RIGHTS
13.1. No Transfer of intellectual Property Rights Except as expressly set forth herein, this Contract does not grant either Party any rights, implied or otherwise, to the other’s Intellectual Property Rights. As between the Parties, the Customer owns all Intellectual Property Rights in Customer Data, and Humbol owns all Intellectual Property Rights in the Service.
14. HUMBOL TECHNOLOGY
14.1. Subscription Basis The Service is provided in the form of an online service subscription. The Customer acknowledges that it is obtaining only a limited right to use the Service and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to the Customer under this Contract. The Customer agrees that Humbol (or its suppliers) retain all rights, title and interest (including all Intellectual Property Rights) in and to all Humbol Technology and that Humbol reserves all rights not specifically granted in this Contract. Customer further acknowledges and agrees that it has no right to obtain a copy of the software behind any Service.
14.2. Feedback If the Customer elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to Humbol (collectively, “Feedback”), the Customer hereby grants Humbol a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute, and exploit any Feedback in any format and in any manner without any obligation, payment, or restriction based on Intellectual Property Rights or otherwise. Humbol will not identify the Customer as the source of the Feedback. Nothing in this Contract limits Humbol’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
15.1. Indemnification by Humbol Humbol agrees to defend and indemnify the Customer from and against any third party claims resulting from infringement of any Australian, Canadian, European Union member state, United Kingdom, or United States patent, copyright, trademark, or trade secret by the Service itself, as provided by Humbol and used by the Customer in accordance with this Contract. In response to any claim or potential claim of infringement, if required by settlement or injunction, or if Humbol determines these actions are reasonably necessary to avoid material liability, Humbol may at its option: (i) procure a license for the affected portion of the Service; (ii) modify the Service so as to avoid infringement but be materially equivalent; or (iii) terminate the Order Form for the affected Service and refund any subscription fees the Customer has pre-paid for the terminated portion of the applicable Subscription Term. Notwithstanding the above, Humbol’s obligations under this Section 15 do not apply to the extent infringement results from: (i) Third-Party Products or combinations with these items; (ii) modification of the Service by someone other than Humbol or its subcontractors; or (iii) use of the Service other than the then-most current release. Humbol’s obligations under this Section 15 also do not apply to use in breach of this Contract, to Customer Data or to Alpha and Beta Releases.
THIS SECTION 15 STATES THE SOLE AND EXCLUSIVE REMEDY OF THE CUSTOMER AND THE ENTIRE LIABILITY OF HUMBOL, OR ANY OF ITS SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, CONTRACTORS OR REPRESENTATIVES, WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
15.2. Indemnification by Customer The Customer agrees to defend and indemnify Humbol from and against any third-party claims and liabilities to the extent resulting from Customer Data or a breach or alleged breach of Section 4 (Customer Obligations) or Section 12 (Confidentiality).
15.3. Conditions for Indemnification Each Party’s defence and indemnification obligations are subject to the indemnifying Party receiving: (i) prompt written notice of the claim; (ii) the exclusive right to control and direct the investigation, defence, and settlement of the claim; and (iii) all reasonable necessary cooperation of the indemnified Party at the indemnifying Party’s expense (as to reasonable out-of-pocket costs). The indemnifying Party must not settle any claim without the indemnified Party’s prior written consent if the settlement would require the indemnified Party to admit fault, pay amounts that the indemnifying Party must pay under this Section 15, or take or refrain from taking any action (other than with respect to the Service or features). The indemnified Party may participate in a claim through counsel of its own choosing at its own expense.
16. WARRANTY; DISCLAIMERS
16.1. Performance Warranty. During the Subscription Term, Humbol warrants, for the Customer’s benefit only, that: (i) the Service will operate in substantial conformity with the applicable Documentation (“Performance Warranty”). The Customer must notify Humbol in writing within thirty (30) days of discovery and include a brief reference to the applicable warranty and detailed description of the potential breach. If Humbol receives a valid warranty claim within this period, it will use commercially reasonable efforts in its discretion to repair the affected portion of the Service or re-perform the services (as applicable). If Humbol determines this remedy is not commercially reasonable, either Party may terminate the applicable Order Form with prompt written notice. Upon termination as a result of a warranty claim under this Section 16, the Customer will receive a refund of any subscription fees it has pre-paid for the terminated portion of the applicable Subscription Term. The remedy in this Section 16 will be the Customer’s sole and exclusive remedy (and Humbol’s sole liability) for any breaches of the Performance Warranty. Notwithstanding the above, the Performance Warranty does not cover and Humbol will not be responsible for: (i) errors in or resulting from Third-Party Products or Third-Party Content; (ii) the Customer’s misuse or failure to follow the Documentation; (iii) modifications or services by anyone other than Humbol or its subcontractors; (iv) any version of the Service other than the then most recent release; or (v) any Alpha or Beta Releases.
16.2. NO OTHER WARRANTIES. EXCEPT FOR THE ABOVE PERFORMANCE WARRANTY, ALL HUMBOL TECHNOLOGY AND RELATED SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER HUMBOL NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
HUMBOL MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT HUMBOL TECHNOLOGY WILL MEET THE CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT HUMBOL TECHNOLOGY WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. HUMBOL DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL.
HUMBOL WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD-PARTY PRODUCTS OR NON-HUMBOL SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR PERSONAL DATA OR OTHERWISE REGULATED DATA RECEIVED FROM THE CUSTOMER IN BREACH OF THIS CONTRACT, FOR THE COLLECTION, USE AND DISCLOSURE OF CUSTOMER DATA AUTHORIZED BY THIS CONTRACT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY THE CUSTOMER BASED UPON HUMBOL TECHNOLOGY OR HUMBOL’S RELATED SERVICES.
THE DISCLAIMERS IN THIS SECTION 16 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS CONTRACT. THE CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
17. LIMITATIONS OF LIABILITY
17.1. DIRECT DAMAGES ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF THESE DAMAGES.
17.2. MAXIMUM LIABILITY EACH PARTY’S AND ITS SUPPLIERS’ TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY THE CUSTOMER TO HUMBOL FOR THE APPLICABLE HUMBOL SERVICE OR RELATED SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. FOR ALPHA AND BETA RELEASES, HUMBOL’S TOTAL LIABILITY WILL HOWEVER NOT EXCEED IN AGGREGATE FIFTY EURO (50 EUR).
17.3. EXCEPTIONS THE LIABILITY LIMITATIONS IN THIS SECTION 17 DO NOT APPLY TO: (i) THE INDEMNITY OBLIGATIONS UNDER SECTION 15 (INDEMNIFICATION); AND (ii) THE CUSTOMER’S PAYMENT OBLIGATIONS AS EXPRESSLY PROVIDED IN THIS CONTRACT.
17.4. LEGAL LIMITATIONS IN CASE THE LAW APPLICABLE TO THIS CONTRACT DOES NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION 17, THIS SECTION 17 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
18. THIRD-PARTY PRODUCTS AND INTEGRATIONS
18.1. No Liability for Third Party Products If the Customer uses Third-Party Products or integrations in connection with the Services, those products may access the Customer’s instance of the Service, including Customer Data. Humbol does not warrant or support Third-Party Products (whether or not these items are designated by Humbol as “powered”, “verified” or otherwise) and disclaims all responsibility and liability for these items and their access to the Services, including their modification, deletion, disclosure, or collection of Customer Data. Humbol is not responsible in any way for Customer Data once it is transmitted, copied, or removed from the Services by the Customer or under the Customer’s direction.
19. GENERAL TERMS
19.1. Notice Any notice or communication under this Contract must be in writing. The Customer must send any notices under this Contract (including breach notices and warranty and indemnity claims) to Humbol, in English, at the following address, firstname.lastname@example.org, and include “Attn. Legal Department” in the subject line. Humbol may send notices to the email addresses on the Customer’s account or, at Humbol’s option, to the Customer’s last-known postal address. Humbol may also provide operational notices regarding the Service or other business-related notices through conspicuous posting of the notice on Humbol’s website or the Service. Each Party consents to receiving electronic notices. Humbol is not responsible for any automatic filtering the Customer or its network provider may apply to email notification.
19.2. Assignment This Contract will bind and inure to the benefit of each Party’s permitted successors and assigns. Neither Party may assign this Contract without the advance written consent of the other Party, except that each Party may assign this Contract without consent in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Contract except as expressly authorized under this Section 19.2 will be void.
19.3. Publicity Unless otherwise specified in the applicable Order Form, Humbol may use the Customer’s name, logo, and marks to identify the Customer as a customer of Humbol and a user of the relevant Service(s) on Humbol’s website and in other marketing materials.
19.4. Subcontractors Humbol may use subcontractors and permit them to exercise the rights granted to Humbol in order to provide the Service and related services under this Contract. These subcontractors may include, for example, Humbol’s hosting provider. However, subject to all terms and conditions of this Contract, Humbol will remain responsible for: (i) compliance of its subcontractors with the terms of this Contract; and (ii) the overall performance of the Services if and as required under this Contract.
19.5. Independent Contractors The Parties to this Contract are independent contractors. This Contract does not create a partnership, joint venture, employment, franchise, or agency relationship between the Parties. Neither Party has the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
19.6. Force Majeure Neither Party will be liable for any delay or failure to perform its obligation under this Contract if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.
19.7. Export The Customer is responsible for obtaining any required export or import authorisations or control laws for the use of any Service.
19.8. Amendments Any modification or amendment to this Contract must be made in writing and executed by an authorized representative of each Party. If, during the Customer’s Subscription Term, Humbol modifies the service-specific terms relevant for a specific Service purchased under an Order Form, the modified version will take effect upon the Customer’s next renewal. If Humbol launches new products or optional features that require opt-in acceptance of new terms, those terms will apply upon the Customer’s acceptance or use. If Customer accepts new Order Forms or Order Form changes following the modification, the changes will take effect immediately. However, during a Subscription Term, Humbol may update Humbol’s policies, including without limitation the Acceptable Use Policy, and Documentation from time-to-time to reflect process improvements or changing practices, provided these changes do not substantially diminish the Customer’s rights or create substantial additional Customer obligations during a Subscription Term, and these changes will take immediate effect from the date of posting.
19.9. No Waiver Failure to enforce any provision of this Contract will not constitute a waiver.
19.10. Severability If any provision of this Contract is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Contract may otherwise remain in effect.
19.11. No Third Party Rights Nothing in this Contract confers on any third party the right to enforce any provision of this Contract. Customer acknowledges that each Order Form only permits use by and for the legal entity or entities identified in the Order Form(s).
19.12. Entire Agreement This Contract represents the Parties’ complete and exclusive understanding relating to the Contract’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Humbol Technology or any other subject matter covered by this Contract. Any terms provided by the Customer (including as part of any purchase order or other business form used by the Customer) are for administrative purposes only and have no legal effect. This Contract may be signed in counterparts, including by electronic copy, each of which will be deemed an original, and all counterparts together constituting one and the same Contract.
19.13. Governing Law and Dispute Resolution This Contract is governed by the laws of Finland without regard to any conflict of law provisions. All disputes will primarily be resolved by negotiation between the Parties. If such negotiations fail, any dispute, controversy or claim arising out of or relating to this Contract, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The number of arbitrators shall be one (1). The seat of arbitration shall be Vaasa, Finland. The language of the arbitration shall be English. The arbitral proceedings and award shall be confidential.
20. ORDER OF PRECEDENCE
20.1. The Order of Precedence is i) Order Form(s) ii) This Contract, iii) Annexes in descending order, iv) written communication between the Parties.
Appendix 1: Terms and conditions regarding the processing of personal data
”Data Protection Regulation (“GDPR”)” means the EU General Data Protection Regulation (2016/679/EU) “GDPR” and other relevant privacy legislation in Finland.
”Personal Data Breach” means an event leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data processed.
”Personal Data” means any information relating to a natural person who can be identified, directly or indirectly, by reference to such information.
“Service Provider” means Humbol Inc and its affiliates.
This Appendix sets out the terms under which the Service Provider shall process the Customer’s Personal Data. The purpose of this Appendix is to take into account the responsibilities and obligations set by the GDPR between the Parties.
The Parties acknowledge that data protection authorities may provide regulations and guidelines regarding the application of the GDPR and agree to update this Appendix based on such regulations and guidelines, if needed.
3 CUSTOMER’S RESPONSIBILITIES
The Customer shall process the Personal Data in accordance with the Data Protection Regulation. The Service Provider shall process the Customer’s Personal Data in accordance with the documented, lawful instructions set out in this Appendix. The Customer is, in accordance with the GDPR, responsible for the lawfulness of the agreed instructions and that the instructions are not defective. The Service Provider shall inform the Customer if, in its opinion, an instruction by the Customer infringes applicable data protection legislation.
The Service Provider shall not monitor the contents, quality or currency of the Personal Data stored in the Service.
The Customer is responsible for the purpose and grounds of the processing of Personal Data being in accordance with the Data Protection Regulation, including that, the Personal Data have been collected and stored in accordance with the Data Protection Regulation and that the Customer has the right to transfer the Personal Data to the Service Provider.
4 SERVICE PROVIDER’S RESPONSIBILITIES AND INFORMATION SECURITY OF THE SERVICE
The Service Provider shall process the Personal Data in accordance with the Data Protection Regulation and this Appendix, unless otherwise required by laws applicable to the Service Provider. In such case, the Service Provider shall notify the Customer of that legal requirement before the processing, unless the law prohibits such notification.
The Service Provider shall assist the Customer with appropriate technical and organizational measures at its choice, insofar as possible, to fulfill the Customer’s obligation to respond to requests from the data subjects regarding the exercising of the following data subject’s rights laid down in Chapter 3 of the GDPR:
a) right to access the data;
b) right to rectify and erase the data;
c) right to restrict the processing of the data;
d) right to transfer the data from one system to an-other;
e) right to object the processing of the data.
The Service Provider shall assist the Customer in ensuring that the following obligations of the Customer laid down in articles 32-36 of the GDPR are complied with (taking into account the nature of the processing and the information available to the Service Provider):
a) implementing appropriate technical and organizational measures;
b) assisting in notifying Personal Data Breaches to the supervisory authority and the data subjects;
c) participating in the data protection impact assessment and prior consultation of the supervisory authority, if needed.
The Service Provider has the right to charge the Customer for the aforesaid measures according to its price list in effect at the time in so far as the measures are not included in the recurring charges of the right to use of the Service.
The Service Provider shall implement the technical, physical and organizational measures to protect the Personal Data from accidental or unlawful processing or disclosure of Personal Data. Such measures may include:
a) the pseudonymisation and encryption of Personal Data;
b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
c) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident;
d) a process for regularly testing, assessing and evaluating the effectiveness of technical and organization measures for ensuring the security of the processing.
The Service Provider shall process the Personal Data in connection with the Service in accordance with its own documented data security instructions. The Customer has the right to review the data security procedures and certificates of the Service Provider.
The Service Provider shall ensure that the persons processing the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. The Service Provider shall take required measures to ensure that such persons process the Personal Data only in accordance with the lawful instructions of the Customer.
5 BOTH PARTIES’ RESPONSIBILITIES
Each Party shall notify the other Party of a data subject’s request regarding the exercise of the data subject’s rights if the fulfillment of the request requires measures from the other Party. In connection with the notification, the Party shall provide all information that are necessary to fulfill the request to the other Party.
The Service Provider has the right to charge the Customer for all measures taken to fulfill the data subject’s request to exercise the data subject’s rights according to its price list in effect at the time.
6 LOCATION OF PERSONAL DATA
The physical location of the Service is in Amazon Data Centers in the EU. The Service Provider has the right to transfer the Personal Data in its discretion within the EU or EEA for the purpose of providing the Service. The Service Provider may transfer the Personal Data outside the EU or EEA in accordance with the Data Protection Regulation.
The Service Provider is entitled to use subcontractors in the provision of the Service and the processing of Personal Data. The Service Provider shall inform the subcontractors it uses to the Customer. The Service Provider shall inform the Customer of any intended changes or additions to the sub-contractors participating in the processing of Personal Data. The Customer has the right to object to such changes on reasonable grounds. The Customer shall inform the Service Provider of its objection without undue delay after receiving the information from the Service Provider. If the Customer does not accept the change or addition of subcontractors, the Service Provider shall have the right to terminate the Agreement by 60 days’ notice.
The Service Provider is responsible for its subcontractors processing the Personal Data in accordance with this Appendix and the Data Protection Regulation.
8 PERSONAL DATA BREACHES
Each Party shall notify the other Party without undue delay if it becomes aware of any Personal Data Breach. When notify-ing the Service Provider of the Personal Data Breach, the Customer shall provide the Service Provider with all information that may be considered necessary in addressing, restricting and preventing the Personal Data Breach.
When notifying the Customer of the Personal Data Breach, the Service Provider shall in so far as is possible provide the following information to the Customer:
a) a description of the Personal Data Breach, including in so far as is possible the categories and approximate number of data subjects concerned and the categories and approximate number of data records concerned;
b) the name and contact details of a person who can provide more information on the matter;
c) a description of the likely consequences of the Personal Data Breach;
d) a description of the measures taken by the Service Provider to address the Personal Data Breach and measures to mitigate its possible adverse effects.
If the Personal Data Breach is caused by a reason attributable to the Customer, the Customer shall pay all costs caused to the Service Provider from the Personal Data Breach. The Customer is responsible for notifying the supervisory authority and the data subjects of the Personal Data Breach in accordance with the GDPR.
9 RECORD OF PROCESSING ACTIVITIES
The Service Provider shall maintain a record of the processing activities carried out on behalf of the Customer. The record shall contain the following information:
a) the name and contact details of the Customer, the Service Provider and the Service Provider’s information regarding possible subcontractors;
b) the categories of processing activities carried out on behalf of the Customer;
c) where applicable, information on the transfers of Person-al Data outside the EU or EEA; and
d) a description of the technical and organizational security measures implemented.
10 RIGHT TO AUDIT
The Service Provider shall provide the Customer the information required to demonstrate its compliance with the obligations laid down in this Appendix. The Service Provider shall not, however, disclose any information regarding its other customers or partners or otherwise breach any confidentiality undertakings it has given to other parties. If the audit is performed by a third party auditor, the auditor and the Service Provider shall conclude a confidentiality agreement before the audit.
During the term of the Agreement, the Customer or an independent third party auditor appointed by the Customer, which cannot be the Service Provider’s competitor, has the right to inspect that the Service Provider complies with the obligations set out to it in this Appendix. The audit is focused on the Service Provider’s necessary material related to the processing of Personal Data and the Service Provider’s systems and premises used in the processing of Personal Data. The audit may be performed at a maximum once per year and the Service Provider must be notified of the audit at least 30 days in advance. The Service Provider shall participate in the audit.
The audit may not cause any detriment to the Service Provider’s service production and the auditor shall not have the right to access any information of the customers or partners of the Service Provider. The Customer shall bear all costs in connection with the audit.
11 TERMINATION OF DATA PROCESSING ACTIVITIES
After the termination of the processing of Personal Data, the Service Provider shall, in accordance with the Customer’s written request, either destroy or return to the Customer all Personal Data as separately agreed. The Service Provider has the right to charge the Customer from the return of the Personal Data. The destruction of Personal Data will not be charged. The Service Provider shall delete all existing copies of the Personal Data, unless the Service Provider is required to store such Personal Data according to law or regulatory provision.
12 DAMAGES CAUSED BY THE PROCESSING OF PERSONAL DATA
Each Party is responsible for the responsibilities and liabilities for damages and administrative fines addressed to it in accordance with the Data Protection Regulation.
The limitation of liability term of the Terms of Service Agreement is applied to this Appendix