HINGE AXIS AGREEMENT
TERMS AND CONDITIONS
NOVEMBER 25, 2020
This Hinge Axis Agreement (this “Agreement” or these “Terms“) is made and entered into between Hinge Consulting, LLC, an Ohio limited liability company, with a principal place of business at 310 Culvert St Cincinnati Ohio 45202 (“Hinge Axis“) and the person agreeing to these terms (“Customer“, “You“, or “Your“) and is made effective as of the date you agree to these terms (the “Effective Date“).
- 1. DEFINITIONS. For the purposes of this Agreement, capitalized terms shall have the meanings set forth in this Agreement and in the definitions set forth on Exhibit “A” attached hereto (the “Definitions”), the terms of which are incorporated herein by reference.
- 2. LICENSE GRANT/RESTRICTIONS.
- 2.1 Grant. Subject to the other terms and conditions of this Agreement, Hinge Axis hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license (the “License“) to use the Services solely for Customer’s internal business purposes. All other rights in and to the Services are reserved to Hinge Axis.
- 2.2 Restrictions. Unless specifically otherwise agreed to in writing by Hinge Axis, and without limiting Hinge Axis’s reservation of rights set forth above, the following rights are specifically excluded from the License, and Customer shall not, directly or indirectly: (i) copy, modify, decompile, reverse engineer, translate, disassemble or create derivate works from the Services; (ii) sell, rent, lease, loan, sublicense, or otherwise transfer or distribute all or any part of the Services; (iii) use any robot, spider, or other manual or automatic software, device or method to monitor, track or copy any part of the Services; or (iv) use or otherwise export all or any portion of the Services in violation of any applicable laws and regulations, including without limitation, the export control laws and regulations of the United States of America.
- 3. CUSTOMER RESPONSIBILITIES / ASSIGNMENT OF RIGHTS.
- 3.1 Prohibited Materials. Customer shall not submit, upload, email, post or transmit to, or distribute or otherwise directly or indirectly publish through the Services any material which: (i) is unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, offensive, harassing, hateful, sexually explicit, or indecent; (ii) constitutes or encourages conduct that would constitute a criminal offense, potentially give rise to civil liability, or otherwise violate the local, state, or national laws of any country; (iii) violates, plagiarizes, or infringes the rights of third parties; (iv) contains a virus, worm, trojan horse, or other Destructive Elements; (v) contains solicitations or advertisements of any kind; (vi) constitutes or contains false or misleading indication of origin or statement of fact, or (vii) includes any PII (without prior written agreement of Hinge Axis).
- 4. TERM AND TERMINATION.
- 4.1 Agreement Term. The “Term” of this Agreement will begin on the Effective Date and continue until the Agreement is earlier terminated by either Party pursuant to Section 4.2.
- 4.2 Termination. Either Party may terminate this Agreement under the applicable terms of the Statement of Work between Hinge Axis and Customer under which this License was granted. Hinge Axis retains the right, in its sole discretion, to terminate this Agreement and access to the Service if it believes that the Customer has violated the terms of this Agreement.
- 5. RELATIONSHIP — INDEPENDENT CONTRACTORS. The Parties agree that the relationship created by this Agreement is that of independent contractors and is not that of employer-employee for any purpose including employee benefits, taxation, and insurance. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the Parties. Neither Party shall have the authority to make any statement, representation or commitment of any kind on behalf of the other Party, or to take any action that shall be binding on the other Party except as authorized in writing by the Party to be bound.
- 6. CONFIDENTIALITY. All Confidential Information supplied by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) shall remain solely and exclusively the property of the Disclosing Party. Except as expressly authorized herein or by prior written consent of the Disclosing Party, which consent may be withheld in the Disclosing Party’s sole discretion, the Receiving Party shall not use or disclose to any third party any of the Disclosing Party’s Confidential Information. The Receiving Party shall only disclose the Disclosing Party’s Confidential Information to those of its employees and their respective contractors who have a need to know it for the purposes of this Agreement and who have executed a written non-disclosure agreement containing terms substantially similar to this Section 6 regarding such Confidential Information. The Receiving Party shall protect the Confidential Information of the Disclosing Party with the same level of care with which it protects its own Confidential Information, but in no event with less than reasonable care. Each Party shall be responsible for any unauthorized use or disclosure of any of the other Party’s Confidential Information received by its employees, agents, representatives or contractors. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that the Receiving Party is required by any applicable governmental authority to do so; provided, however, that in such event, to the extent permitted by applicable law, the Receiving Party shall first notify the Disclosing Party and shall cooperate with the Disclosing Party in any attempt to contest or limit such required disclosure, at the Disclosing Party’s sole expense.
- 7. PROPRIETARY RIGHTS.
- A. Except for Third Party Products and Third Party Services covered by their own license requirements, Hinge Axis shall own all right, title, and interest, including, without limitation, all Intellectual Property Rights in the Services and the Hinge Axis platform covered by this Agreement. Customer shall have only those rights in and to the Services and the Hinge Axis platform as are expressly granted to it pursuant to this Agreement. If Hinge Axis believes that Customer has exceeded its rights under this Agreement, Hinge Axis retains the right, within its sole discretion, to terminate access to the Services and the Hinge Axis platform.
- B. Aggregated or de-identified data from Your use of the Services and the Hinge Axis platform may be used for statistical analysis or to otherwise develop or improve Hinge Axis’s Services, platform, or other offerings. Any analyses/reports developed from such aggregated or de-identified data shall be the sole property of Hinge Axis. All data collected, used, and disclosed will be in aggregate form only and will not identify You.
- 8. CROSS-LICENSE
- A. LICENSE TO CUSTOMER MATERIALS AND CUSTOMER SYSTEMS. Customer grants to Hinge Axis a worldwide, non-exclusive, non-transferable (except to successors of Hinge Axis), limited license and right to: (i) store, host, process, reproduce and maintain the Customer Materials, and access and use Customer Systems, during the Term for purposes of facilitating the provision of the Services on behalf of Customer; and (ii) during and after the Term use such Customer Materials as may be included in aggregated and/or de-identified data that may be used for statistical analysis or to otherwise develop or improve Hinge Axis’s Services, platform, or other offerings. As used in these Terms, (i)“Customer Materials” means any materials, data or information submit by or on behalf of Customer or to which access was granted to Hinge Axis by or on behalf of Customer, and “Customer Systems” means any Customer computer equipment, systems, networks or portals to which access was granted to Hinge Axis by or on behalf of Customer for purposes of this Agreement.
- 9. REPRESENTATIONS & WARRANTIES.
- A. Each Party represents and warrants that it has full right, power and authority to enter into and perform its obligations under this Agreement without the consent of any third party.
- B. Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, HINGE AXIS DISCLAIMS ALL WARRANTIES TO THE MAXIMUM EXTENT PERMITTED BY LAW, WHETHER SUCH WARRANTY BE EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, THE HINGE AXIS PLATFORM AND ANY MATERIALS THAT MAY BE PROVIDED TO CUSTOMER UNDER THESE TERMS INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HINGE AXIS PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE, SERVICES, THE HINGE AXIS PLATFORM OR ANY OTHER MATERIALS THAT MAY BE PROVIDED TO CUSTOMER UNDER THESE TERMS WILL MEET CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, EQUIPMENT, DELIVERABLES, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE. HINGE AXIS DOES NOT WARRANT THAT ALL ERRORS WILL BE RESOLVED, OR WILL BE RESOLVED WITHIN A SPECIFIED PERIOD OF TIME. CUSTOMER ACKNOWLEDGES THAT THE HINGE AXIS PLATFORM IS PROVIDED AS-IS. HINGE AXIS FURTHER DISCLAIMS ANY AND ALL LIABILITY FOR ANY PII, SUBMITTED, UPLOADED, EMAILED, POSTED, OR TRANSMITTED TO, OR DISTRIBUTED OR OTHERWISE DIRECTLY OR INDIRECTLY PUBLISHED THROUGH SERVICES BY OR ON BEHALF OF CUSTOMER.
- C. Customer represents and warrants that it currently has, and at all times during the Term will have, sufficient rights in and to the Customer Materials and the Customer Systems to allow for their use in the Services in full compliance with this Agreement and the rights granted hereunder, and that use of the Customer Materials and the Customer Systems in the Services and by Hinge Axis, or its successors or assigns, pursuant to this Agreement does not, and will not, violate any rights of any third party including, without limitation, any rights of privacy, copyright, patent or other intellectual property right or proprietary right.
- 10. LIMITATION OF LIABILITIES. HINGE AXIS DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED UNDER THE LAW, ALL LIABILITY TO CUSTOMER (WHETHER DIRECTLY OR FOR INDEMNIFICATION TO THIRD PARTIES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT) WHETHER SUCH LIABILITY IS BASED ON AN ACTION IN CONTRACT, WARRANTY, STRICT LIABILITY, OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE. IN NO EVENT SHALL HINGE AXIS BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR: (I) ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS, LOST DATA, PROFIT OR BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY) ARISING OUT OF OR PERTAINING TO THE SUBJECT MATTER OF THIS AGREEMENT OR ANY DEPENDENT DOCUMENT; OR (II) ANY SECURITY BREACH CAUSED, DIRECTLY OR INDIRECTLY, BY ANY ACT OR OMISSION OF CUSTOMER OR ITS AUTHORIZED USERS.
- 11. INDEMNIFICATION. Customer agrees to indemnify and hold Hinge Axis and its subsidiaries, Affiliates, officers, agents, and employees harmless from any claims by third parties, and any related damages, losses or costs (including reasonable attorney fees and costs), arising out of or related to: (i) Hinge Axis’s use of Customer Materials or Customer Systems under this Agreement, (ii) any data, documents, information or other materials submitted to or published on the Services or the Hinge Axis platform by Customer, (ii) Customer’s use of the Services or the Hinge Axis platform, (iii) Customer’s breach of the terms and conditions of this Agreement and (iv) Customer’s alleged violation of any rights of a third party in connection with its use of the Services or the Hinge Axis Platform. Hinge Axis may, at its sole discretion, assume the exclusive defense and control of any matter subject to indemnification. The assumption of such defense or control by Hinge Axis, however, shall not excuse the Customer from any of its indemnity obligations.
- 12. SURVIVAL. Sections 1, 2.2, 3, 5, 6, 7, 9 through 14, and 16 through 19 shall survive the termination of this Agreement. All other Sections of this Agreement which by their nature, are intended to survive termination shall so survive any termination or cancellation of this Agreement.
- 13. CHOICE OF LAW. This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of Ohio, with venue in the courts of Hamilton County, excluding its conflict of law provisions.
- 14. WAIVER. The waiver by either Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.
- 15. ASSIGNMENT. Customer may not assign or otherwise transfer, by operation of law or otherwise, any of its rights under this Agreement without Hinge Axis’s prior written consent.
- 16. SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
- 17. NOTICES. All notices, consents and other communications hereunder shall be provided to the following Hinge Axis email: firstname.lastname@example.org (with a copy to email@example.com) and for Customer to such address as is provided for this purpose.
- 18. CONSTRUCTION. In the event of an ambiguity or question of intent or a need for interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions on this Agreement.
- 19. MISCELLEANEOUS.
Your Accounts. Customer is solely responsible for (i) all use of the Services by Customer, (ii) obtaining consent from its employees to the collection, use, processing and transfer of any data or other information pertaining to them in connection with the Services, and (iii) providing notices or obtaining consent as legally required in connection with the Services. Hinge Axis does not send emails asking for your usernames or passwords, and to keep your accounts secure, you should keep all usernames and passwords confidential. Hinge Axis is not liable for any loss that Customer may incur if a third party uses its password or account. Hinge Axis may suspend the Services or terminate the Agreement if Customer is using the Services in a manner that is likely to cause harm to Hinge Axis. Customer agrees to notify Hinge Axis immediately regarding, and terminate, any unauthorized access to the Services or other Security Breach pertaining to the Services or Hinge Axis’s platform.
- EXHIBIT A
- A. “Affiliate” means an entity, which directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with, another entity. As used herein, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of more than 50% of the voting equity securities or other equivalent voting interests of the entity.
- B. “Hinge Axis Tools” means all Hinge Axis proprietary works of authorship including, without limitation, computer programs, methodologies, templates, flowcharts, architecture designs, tools, specifications, drawings, sketches, models, samples, records and documentation, copyrights, trademarks, service marks, ideas, concepts, know-how, techniques, knowledge or data, and any derivatives thereof, which have been originated, developed, acquired or purchased by Hinge Axis, an Hinge Axis Affiliate, or by third parties under contract to Hinge Axis or an Hinge Axis Affiliate.
- C. “Confidential Information” means, any non-public information of the Party disclosing such information (the “Disclosing Party”) including, but not limited to, business plans, products, technical data, specifications, documentations, rules and procedures, contracts (including without limitation any lease, service agreement, data maintenance agreement, or business associate agreement), intellectual property, trade secrets, presentations, know-how, business methods, services, data, client list, markets, competitive analysis, databases, formats, methodologies, applications, developments, processes, payment, delivery and inspection procedures, designs, drawings, or other information or material of any kind, whether in paper, electronic, or oral form, or any other information that are designated as “confidential,” “proprietary”, etc., or could reasonably be construed by the Party receiving such information (the “Receiving Party”) as giving the Disclosing Party some competitive business advantage or the opportunity of obtaining that advantage, so that the disclosure or use thereof could be detrimental to the interests of the Disclosing Party (the “Disclosed Materials”). Confidential Information shall further include any information otherwise obtained, directly or indirectly, by a receiving Party through inspection, review or analysis of the Disclosed Materials. Anything to the contrary notwithstanding, Confidential Information shall not include information or materials that the Receiving Party demonstrates: i) were known to the Receiving Party prior to the Effective Date free of any obligation of nondisclosure; ii) were in the public domain prior to the date received by a Receiving Party hereunder or which subsequently came into the public domain through no fault of the Receiving Party; iii) were lawfully received by the Receiving Party from a third party free of any obligation of nondisclosure; or iv) are or were independently developed by the Receiving Party or any of its Affiliates, employees, consultants or agents without reference to any Confidential Information of the Disclosing Party.
- D. “Data Law” means, all laws related to PII, (e.g., the Gramm-Leach-Bliley Act and any state statutes adopted to comply therewith, the FTC regulations promulgated pursuant thereto (including, 16 CFR § 313, 16 CFR § 314, 12 CFR § 332, and 12 CFR § 364), any state regulations promulgated under state privacy statutes or in compliance with the Gramm-Leach-Bliley Act, the Health Insurance Portability and Accountability Act of 1996 (including as amended by the American Recovery Reinvestment Act of 2009), the European Union General Data Protection Regulation (“GDPR”).
- E. “Days” shall mean calendar days.
- F. “Destructive Elements” means computer code, programs or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Services or any other associated software, firmware, hardware, computer system or network (including without limitation “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious or hidden procedures, routines or mechanisms that would cause such Services to cease functioning or to damage or corrupt data, storage media, programs, equipment or communications, or otherwise interfere with operations.
- G. “Intellectual Property” or “Intellectual Property Rights” shall mean all intellectual and industrial property rights, whether now existing or existing in the future, including without limitation, (i) all patent rights, including any rights in pending patent applications and any related rights; (ii) all copyrights and other related rights throughout the world in works of authorship, including all registrations and applications therefor; (iii) all trademarks, service marks, trade dress or other proprietary trade designations, including all registrations and applications therefor (iv) all rights throughout the world to proprietary know-how, trade secrets and other confidential information, whether arising by law or pursuant to any contractual obligation of non-disclosure; (v) all other rights covering industrial or intellectual property recognized in any jurisdiction; and (vi) any and all know-how, ideas, business names, domain names, source code, object code, test results, proprietary techniques, regulatory filing, or other similar information (whether or not patentable and whether in tangible or intangible form), whether or not registered as of the Effective Date of the Agreement or at any time.
- H. “Parties” shall refer to Hinge Axis and Customer collectively.
- I. “Party” shall refer to Hinge Axis and Customer individually.
- J. “PII” or “personally identifiable information” means any data and/or information that can be used to distinguish or trace an individual’s identity, either alone or when combined with other personal or identifying information that is linked or linkable to a specific individual, including, without limitation, name, mailing address, phone number, fax number, e-mail address, frequent flier, number, Social Security number, credit card, or other payment data, date of birth, driver’s license number, account number or user ID, PIN, or password. For the avoidance of doubt, data or information shall be deemed PII if the unauthorized access, use, disclosure, modification, storage, destruction or loss of that data or information may trigger the application of any Data Law or any security breach notification under a Data Law.
- K. “Security Breach” means an unauthorized acquisition of unencrypted computerized data that compromises the security, confidentiality or integrity of the data.
- L. “Services” means the Hinge Axis SaaS Services made available by Hinge Axis and any other Additional Services provided by Hinge Axis to Customer.
- M. “Additional Services” mean any professional or other services to be provided by Hinge Axis under this Agreement, as described in more detail in a Dependent Document.
- a. “Professional Services” means development, migration, implementation, integration, testing, conversion, consulting or other services and Deliverables as further described in the applicable Dependent Document.
- b. “SaaS Services” means the software-as-a-service including Software, hosting, maintenance and/or support services made available by Hinge Axis for remote access and use by Customer, including any Documentation and Updates thereto and any equipment or technology used by Hinge Axis in connection with the foregoing.
- N. “Third Party Products” or “Third Party Services” shall refer to any software, services, hardware or other materials including, without limitation, any Intellectual Property rights of any third party or Hinge Axis Affiliate which Hinge Axis may from time to time resell or otherwise provide to Customer pursuant to a Dependent Document under this Agreement and subject to the licensing terms of the third party or Hinge Axis Affiliate which govern said software, services, and /or Intellectual Property rights.
- O. “Updates” means any error correction, bug fix, patch, enhancement, update, upgrade, new version, release, revision or other modification to the SaaS Services provided or made available by Hinge Axis pursuant to this Agreement, including without limitation, any update designed, intended or necessary to make the SaaS Services or Customer’s use thereof comply with applicable law. Updates do not include new modules and add-ons that Hinge Axis sells or licenses for an additional charge.