Terms and conditions
Last Updated: September 8, 2024
IMPORTANT: Carefully read these Terms of Service (this “Agreement”) before using the Service (as defined below). This Agreement creates a binding legal agreement between you (“Customer”) and Roundhouse Trust dba Hummingbird.Software (“Hummingbird”).
BY USING THE SERVICE, YOU IRREVOCABLY ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MUST NOT USE THE SERVICE. You also agree to ensure that anyone who uses the Service using your password or login information abides by this Agreement.
IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE, THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
By accepting this Agreement, you agree to be bound by the terms and conditions of this Agreement, as well as Hummingbird’s Privacy Statement located at https://hummingbird.software/privacy-policy/ (the “Privacy Statement”), as it may be amended from time to time in the future. We may amend any part of this Agreement by adding, deleting, or varying its terms from time-to-time at our discretion. We will provide you with notice of the proposed amendment by posting an amended version of this Agreement with a new “Last Updated” date. We will include a link to the previous version of the terms beneath the new “Last Updated” date.
The amendments will take effect 30 days after the date on which the amended version is posted. Prior to that date, the previous version of this Agreement will continue to apply.
If you disagree with any amendments, you may terminate this Agreement by ceasing to use the Site and Services at any time within the 30-day period before the amendments take effect. If the amendment increases your obligations under this Agreement or decreases our obligations under this Agreement, then you can also terminate within the 30 days after the amendments take effect. In either case, there is no cost or penalty for terminating. If you do not cease using the Site and Services during that time, then by your continued use, you are considered to have accepted the proposed amendments.
In order to enter into this Agreement, you must have reached the legal age of majority in your jurisdiction of residence and be fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement and to abide by and comply with this Agreement. It is your responsibility to ensure that you are legally eligible to enter into this Agreement under any laws applicable to you. If you accept this Agreement, you represent that you have the capacity to be bound by it.
Definitions. As used in this Agreement:
1.1 “Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. Hummingbird’s Confidential Information includes information derived from or concerning the Service, the System, or the Documentation and the terms of this Agreement. Customer’s Confidential Information includes the Customer Data.
1.2 “Customer Data” means any data, information, or information contained in any database, template, or other similar document (a) submitted by Customer or a User through the Service, (b) provided by Customer or a User to Hummingbird as part of the Service, or (c) supplied to Hummingbird by or on behalf of Customer.
1.3 “Documentation” means the designated final user manuals, handbooks, online materials, specifications, or forms made available by Hummingbird that describe the features, functionality, or operation of the Service and the System.
1.4 “Fees” is defined in Section 4.
1.5 “Force Majeure Event” is defined in Section 11.3.
1.6 “Order Form” means, collectively, the online or written order documents representing Customer’s initial subscription to the Service, and any subsequent modifications to the subscription agreed to between the parties from time to time, that, upon execution, are incorporated in and made a part of this Agreement from time to time.
1.7 “Personal Information” means information about or relating to an identified or identifiable individual that is subject to any Privacy Laws.
1.8 “Privacy Laws” means all applicable federal and provincial legislation and regulations governing the collection, use, and disclosure of Personal Information in the jurisdictions where Customer has subscribed to use the Service, which may include the Personal Information and Protection of Electronic Documents Act (Canada) and equivalent provincial, state, federal, and international legislation.
1.9 “Service” means the online software-as-a-service offerings delivered by Hummingbird to Customer using the System, as made available by Hummingbird from time to time as specified in the Order Form.
1.10 “System” means the technology, including hardware, software, and systems, used by Hummingbird to deliver the Service to Customer in accordance with this Agreement.
1.11 “UserID” is defined in Section 3.1.
1.12 “Users” means Customer’s employees, representatives, consultants, contractors, or agents who are authorized to use the Service on behalf of Customer and have been supplied user identifications and passwords for this purpose.
2. The Service.
2.1 Subscription to the Service. Conditional on Customer: (a) complying with the provisions of this Agreement, including but not limited to paying the Fees as required by this Agreement; (b) cooperating with the reasonable requests of Hummingbird; and (c) providing Hummingbird with access to Customer’s internal systems and any required third-party systems (and making all required third-party disclosures and obtaining all required third-party consents in respect of such access) from which Customer wishes the System to access Customer Data, Hummingbird hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Service in accordance with this Agreement solely for Customer’s internal business purposes and not for resale. Customer may order the Service under this Agreement by placing written, signed orders on an Order Form. Only the execution of an Order Form by Customer and by Hummingbird constitutes a binding contract between those parties. Customer agrees that its purchase of the subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Hummingbird with respect to future functionality or features.
2.2 Minimum Uptime. Hummingbird will use commercially reasonable efforts to achieve Service uptime equal to or better than 99.9% on an annual basis (the “Target”), provided, however, that any failure to achieve the Target will not constitute a breach of this Agreement.
2.3 Support. Subject to the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 4, Hummingbird will use commercially reasonable efforts to correct any reproducible failure of the Service to substantially conform to its expected operation, provided that Hummingbird will not have an obligation to provide a correction for all such nonconformities.
2.4 System Updates and Scheduled Downtime. Hummingbird may update any aspect of the Service or System at any time in its sole discretion. Hummingbird may schedule downtime for maintenance and upgrades to the System without prior notice but will use commercially reasonable efforts to provide advance notice where practicable.
2.5 Privacy Statement. To the extent any Customer Data contains Personal Information, it will be used, collected, stored, and disclosed for the purposes contemplated under this Agreement and in accordance with the Privacy Statement.
2.6 Internet Security Disclaimer. Customer acknowledges and agrees that Hummingbird exercises no control over, and accepts no responsibility for, any content passing through the Internet or for Internet connectivity outside of Hummingbird’s control. Customer acknowledges that the Internet is inherently risky despite reasonable measures being taken, and Customer assumes responsibility for its use of the Service over the Internet.
2.7 Limitation, Suspension or Termination of Access. In addition to the other rights and remedies of Hummingbird under this Agreement, Hummingbird may suspend, terminate or limit, in Hummingbird’s reasonable discretion, Customer’s access to or use of the Service, or any part of it, without notice in order to: (a) prevent damage to, or degradation of the integrity of the System or any of Customer’s systems; (b) comply with any law, regulation, court order, or other governmental request or order; or (c) otherwise protect Hummingbird from harm to its reputation or business. Hummingbird will use commercially reasonable efforts to notify Customer of a limitation, suspension, or termination action as soon as reasonably practicable. In the event of a limitation or suspension, Hummingbird will restore Customer’s access to the Service when Hummingbird determines the event has been resolved. Nothing in this Agreement will limit Hummingbird’s right to take any action or invoke remedies, or will act as a waiver of Hummingbird’s rights in any way with respect to any of the foregoing activities. Hummingbird will not be responsible for any loss or damages of any kind incurred by Customer as a result of any limitation, termination, or suspension of the Service under this Section 2.7.
2.8 Subcontractors. Customer acknowledges and agrees that Hummingbird may retain the services of independent contractors (“Subcontractors”) from time to time to provide, or to assist Hummingbird in providing, the Service. Any Subcontractors used by Hummingbird to provide the Service shall remain under the direction and control of Hummingbird, and Hummingbird shall be fully and personally liable for all acts or omissions of the Subcontractors.
3. Customer’s Use of the Service.
3.1 Access and Security Guidelines. Subject to any limitations associated with Customer’s subscription account, Customer may set up User accounts by supplying a unique user identification name and password (“UserID”) to Hummingbird for each User along with the User’s designated social media login credentials. A User may only access and use the Service with his or her specific UserID. Customer is responsible to ensure UserIDs are not shared, and that Users retain the confidentiality of their UserIDs. Customer is responsible for any and all activity occurring under the UserIDs associated with Users. Customer will promptly notify Hummingbird of any actual or suspected unauthorized use of the Service. Hummingbird may require that a UserID be replaced at any time.
3.2 Customer Responsibilities and Restrictions. Customer will, at all times, comply with all applicable local, state, provincial, federal, and foreign laws in using the Service. Without limiting the generality of Section 3.1, Customer agrees that Customer will not, and will not permit any person, including without limitation the Users, to: (a) use the Service other than as permitted by this Agreement; (b) use the Service to violate, infringe or appropriate any person’s privacy rights, publicity rights, defamation rights, intellectual property rights, proprietary rights, contractual rights, or any other legal right; (c) sublicense or transfer any of Customer’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Service for the benefit of a third party or to operate a service bureau; (d) copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Service; (e) use or launch any automated system, including without limitation any “robot” or “spider” that accesses the Service; or (f) interfere with, or attempt to interfere with, the Service, the System, or any other networks or services connected to the Service, whether through the use of viruses, bots, worms, or any other computer code, file, or program that interrupts, destroys, or limits the functionality of any computer software or hardware.
3.3 Customer Data. Customer is solely responsible for the Customer Data and will not provide or transmit any Customer Data or any other information, data, or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law, or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept, or expropriate any system, data, or personal information. Hummingbird may take remedial action if Customer Data violates this Section 3.3, however, Hummingbird is under no obligation to review Customer Data for accuracy or potential liability.
4. Fees, Payment, and Suspension. As consideration for the subscription to the Service, Customer will pay Hummingbird the fees (“Fees”) set forth in and in accordance with the Order Form. All Fees will be billed in advance on a monthly basis and are due on the first day of each monthly subscription period, unless otherwise agreed to in the Order Form. Overdue amounts will accrue interest at the rate of 12% per annum, or the highest legal interest rate, if less. Customer shall reimburse Hummingbird for all expenses (including reasonable attorneys’ fees) incurred by Hummingbird to collect any amount that is not paid when due. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise, and other taxes that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on Hummingbird’s net income. Hummingbird reserves the right (in addition to any other rights or remedies Hummingbird may have) to discontinue the Service and suspend all UserIDs and Customer’s access to the Service if any Fees set forth in the Order Form are more than 30 days overdue until such amounts are paid in full. Customer shall maintain complete, accurate, and up-to-date Customer billing and contact information at all times.
5. Confidential Information.
5.1 Obligation. Each party agrees (a) to hold the other party’s Confidential Information in strict confidence, (b) to limit access to the other party’s Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use such Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the receiving party will not be in violation of this Section 5.1 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the receiving party gives the other party prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information.
5.2 Exceptions. The restrictions on the use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records, (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s competent written records, or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
6. Ownership.
6.1 System and Technology. Customer acknowledges that Hummingbird and its licensors retain all right, title, and interest in and to the Service, the System, and all software, materials, formats, interfaces, information, data, content, and Hummingbird proprietary information and technology used by Hummingbird or provided to Customer in connection with the Service (collectively, the “Hummingbird Technology”), and that the Hummingbird Technology is protected by intellectual property rights owned by or licensed to Hummingbird, including any licensed open-source software (see https://hummingbird.software/open-source-software-notices for applicable notices). Other than as expressly set forth in this Agreement, no license or other rights in the Hummingbird Technology are granted to the Customer, and all such rights are hereby expressly reserved by Hummingbird. Hummingbird will have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations, or other feedback provided by Customer, including Users, relating to the Service.
6.2 Customer Data. Customer retains all right, title, and interest in and to the Customer Data. Except as set out in Section 6.3, Hummingbird will only use Customer Data to provide the Service under this Agreement. Customer will be solely responsible for providing all Customer Data required for the proper operation of the Service. Customer grants to Hummingbird all necessary licenses in and to such Customer Data solely as necessary for Hummingbird to provide the Service to Customer and the Users.
6.3 Aggregated Data. Customer grants to Hummingbird a perpetual, worldwide, royalty-free, non-exclusive, irrevocable license to use, reproduce, process, and display the Customer Data in an aggregated and anonymized format for Hummingbird’s internal business purposes, including without limitation to develop and improve the Service, the System, and Hummingbird’s other products and services.
7. Term and Termination.
7.1 Term. Unless otherwise agreed to in the Order Form, the term of this Agreement will commence on the Effective Date and continue for the period specified in the Order Form (the “Initial Term”). Clients are obligated to fulfill their entire term, regardless of the payment schedule. Thereafter, this Agreement will be automatically renewed for an additional term matching the duration of the previous term (each a “Renewal Term,” and together with the Initial Term, the “Term”), unless either party provides written notice to the other party no less than 15 days prior to the expiration of the then-current Initial Term or Renewal Term indicating that it does not wish to renew this Agreement. Written notice can be provided by Hummingbird to the customer via email or postal mail, or by the customer to Hummingbird by filling out a cancellation form within 15 days prior to the end of the current term.
7.2 Termination for Default. Either party may terminate this Agreement immediately upon written notice if: (a) the other party materially breaches this Agreement and does not cure such breach (if curable) within 60 days after written notice of such breach; or (b) the other party becomes insolvent or files or has filed against it a petition in bankruptcy.
7.3 Effect of Termination. Upon the termination of this Agreement for any reason: (a) any amounts owed to Hummingbird under this Agreement before such termination will become immediately due and payable; (b) each party will return to the other party all property (including any Confidential Information) of the other party in its possession or control; and (c) Customer’s and each User’s access to and use of the System and the Service will be immediately suspended. Hummingbird agrees that, upon written request from Customer received by Hummingbird within 60 days following any termination of this Agreement, Hummingbird will provide Customer with one electronic copy of the Customer Data in a usable format. Thereafter, Hummingbird may remove all Customer Data from the System. The rights and duties of the parties under Sections 3.3, 4 through 6, 7.3, and 8 through 11 will survive the termination or expiration of this Agreement.
8. Warranty; Disclaimer.
8.1 Warranty. Hummingbird represents and warrants to Customer that (a) the Services will perform materially as described in the technical specifications set forth in the Documentation. In the event of any failure of the Services to conform to the above applicable warranties, Hummingbird will, as Customer’s sole and exclusive remedy, re-perform the Services.
8.2 Disclaimer. EXCEPT AS EXPRESSLY SET OUT IN SECTION 8.1: (A) THE SERVICE AND ANY OTHER PRODUCTS AND SERVICES (INCLUDING ANY THIRD-PARTY SOFTWARE INCORPORATED THEREIN) PROVIDED BY HUMMINGBIRD TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND; (B) HUMMINGBIRD HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL, OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION, OR FITNESS FOR A PARTICULAR PURPOSE; (C) HUMMINGBIRD DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR-FREE; AND (D) WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, HUMMINGBIRD EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICE (INCLUDING ALERTS AND RECOMMENDATIONS) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
HUMMINGBIRD IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD PARTY OF ANY SERVICE, NETWORK, SOFTWARE, OR HARDWARE, INCLUDING BUT NOT LIMITED TO INTERNET SERVICE PROVIDERS, HOSTING SERVICES UTILIZED BY HUMMINGBIRD, TELECOMMUNICATIONS PROVIDERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY HUMMINGBIRD.
THE SERVICES ARE OFFERED AND CONTROLLED BY HUMMINGBIRD FROM ITS FACILITIES IN CANADA. HUMMINGBIRD MAKES NO REPRESENTATIONS THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
9. Indemnity. If any action is instituted by a third party against Hummingbird arising out of or relating to: (a) Customer’s use of the Service or System (including claims by any customer or business partner of Customer); (b) Customer’s breach of any of Customer’s obligations, representations, or warranties under this Agreement; or (c) an allegation that the Customer Data, or the use of Customer Data by Hummingbird pursuant to this Agreement, infringes any third party intellectual property rights or other rights of a third party, or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of Hummingbird and shall pay all damages attributable to such claim which are finally awarded against Hummingbird or paid in settlement of such claim.
10. Limitation of Liability. The following provisions have been negotiated by each party, are a fair allocation of risk, are an essential basis of the bargain under this Agreement, and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
10.1 Amount. HUMMINGBIRD’S TOTAL AGGREGATE LIABILITY FROM ANY AND ALL CLAIMS IN CONNECTION WITH OR UNDER THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO HUMMINGBIRD UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION FIRST AROSE. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL HUMMINGBIRD’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
10.2 Type. IN NO EVENT SHALL HUMMINGBIRD BE LIABLE TO CUSTOMER FOR ANY (A) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL, (C) BUSINESS INTERRUPTION, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (D) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT SHALL HUMMINGBIRD BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
10.3 No Jury Trial. CUSTOMER IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT CUSTOMER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT. No Participating in Class Action. CUSTOMER AGREES THAT, WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, CUSTOMER HEREBY GIVES UP ITS RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
10.4 Limitation of Time. Customer agrees that it will not bring a claim under or related to this Agreement more than 12 months from when such claim first arose.
11. General Provisions
11.1 Publicity. Hummingbird may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties. Customer agrees to allow Hummingbird to use Customer’s name in customer lists and other promotional materials describing Customer as a customer of Hummingbird and user of the Service.
11.2 Assignment. Customer may not assign this Agreement to a third party without Hummingbird’s prior written consent, not to be unreasonably withheld, except to a third party that controls, is controlled by, or is under common control with Customer. Hummingbird may assign this Agreement or any rights hereunder to any third party without Customer’s consent. Any assignment in violation of this Section 11.2 shall be void. Any assignment is conditional upon the assignee agreeing in writing to be bound to the terms of this Agreement which shall be binding upon and inure to the benefit of the parties’ successors and permitted assignees.
11.3 Force Majeure. If the performance of any obligation under this Agreement, except non-payment of amounts due hereunder, is interfered with by reason of any circumstances beyond a party’s reasonable control, including but not limited to acts of God, labor strikes and other labor disturbances, epidemics and pandemics, power surges or failures, Internet connectivity or the act or omission of any third party (each a “Force Majeure Event”), such party will be excused from such performance to the extent necessary. Each party will use reasonable efforts to implement industry-standard procedures to minimize disruption of such Force Majeure Events and will use reasonable efforts to remove such causes of non-performance.
11.4 Arbitration. Any dispute or claim arising out of or relating to this Agreement will be referred to and finally resolved by arbitration administered by the Vancouver International Arbitration Centre (VanIAC) pursuant to its applicable Rules. The place of arbitration shall be Vancouver, British Columbia, Canada and the language of the arbitration shall be English. The number of arbitrators shall be one. Notwithstanding the foregoing, Hummingbird may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction and you agree that this Agreement is specifically enforceable by Hummingbird through injunctive relief and other equitable remedies without proof of monetary damages.
11.5 Choice of Law. This Agreement and any action related thereto shall be governed by and construed in accordance with the laws of the province of British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
11.6 Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing: (i) to Hummingbird, by email at support@hummingbird.software or by certified mail at 11175 Azusa Ct Suite 110, Rancho Cucamonga, California; or (ii) to Customer, by email or by certified mail at the addresses set forth in the Order Form. Notwithstanding the foregoing, each party may change its address from time to time upon written notice to the other party of the new address. Notices will be deemed to have been given upon receipt, or when delivery is refused.
11.7 Entire Agreement. This Agreement, including the Order Form, is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals, or representations, written or oral, between the parties, as to the subject matter hereof. This Agreement may only be modified in writing signed by both parties.
11.8 Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.9 Relationship of the Parties. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture, or employee-employer relationship is intended or created by this Agreement.
IMPORTANT: Carefully read these Terms of Service (this “Agreement”) before using the Service (as defined below). This Agreement creates a binding legal agreement between you (“Customer”) and Roundhouse Trust dba Hummingbird.Software (“Hummingbird”).
BY USING THE SERVICE, YOU IRREVOCABLY ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MUST NOT USE THE SERVICE. You also agree to ensure that anyone who uses the Service using your password or login information abides by this Agreement.
IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE, THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
By accepting this Agreement, you agree to be bound by the terms and conditions of this Agreement, as well as Hummingbird’s Privacy Statement located at https://hummingbird.software/privacy-policy/ (the “Privacy Statement”), as it may be amended from time to time in the future. We may amend any part of this Agreement by adding, deleting, or varying its terms from time-to-time at our discretion. We will provide you with notice of the proposed amendment by posting an amended version of this Agreement with a new “Last Updated” date. We will include a link to the previous version of the terms beneath the new “Last Updated” date.
The amendments will take effect 30 days after the date on which the amended version is posted. Prior to that date, the previous version of this Agreement will continue to apply.
If you disagree with any amendments, you may terminate this Agreement by ceasing to use the Site and Services at any time within the 30-day period before the amendments take effect. If the amendment increases your obligations under this Agreement or decreases our obligations under this Agreement, then you can also terminate within the 30 days after the amendments take effect. In either case, there is no cost or penalty for terminating. If you do not cease using the Site and Services during that time, then by your continued use, you are considered to have accepted the proposed amendments.
In order to enter into this Agreement, you must have reached the legal age of majority in your jurisdiction of residence and be fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement and to abide by and comply with this Agreement. It is your responsibility to ensure that you are legally eligible to enter into this Agreement under any laws applicable to you. If you accept this Agreement, you represent that you have the capacity to be bound by it.
Definitions. As used in this Agreement:
1.1 “Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. Hummingbird’s Confidential Information includes information derived from or concerning the Service, the System, or the Documentation and the terms of this Agreement. Customer’s Confidential Information includes the Customer Data.
1.2 “Customer Data” means any data, information, or information contained in any database, template, or other similar document (a) submitted by Customer or a User through the Service, (b) provided by Customer or a User to Hummingbird as part of the Service, or (c) supplied to Hummingbird by or on behalf of Customer.
1.3 “Documentation” means the designated final user manuals, handbooks, online materials, specifications, or forms made available by Hummingbird that describe the features, functionality, or operation of the Service and the System.
1.4 “Fees” is defined in Section 4.
1.5 “Force Majeure Event” is defined in Section 11.3.
1.6 “Order Form” means, collectively, the online or written order documents representing Customer’s initial subscription to the Service, and any subsequent modifications to the subscription agreed to between the parties from time to time, that, upon execution, are incorporated in and made a part of this Agreement from time to time.
1.7 “Personal Information” means information about or relating to an identified or identifiable individual that is subject to any Privacy Laws.
1.8 “Privacy Laws” means all applicable federal and provincial legislation and regulations governing the collection, use, and disclosure of Personal Information in the jurisdictions where Customer has subscribed to use the Service, which may include the Personal Information and Protection of Electronic Documents Act (Canada) and equivalent provincial, state, federal, and international legislation.
1.9 “Service” means the online software-as-a-service offerings delivered by Hummingbird to Customer using the System, as made available by Hummingbird from time to time as specified in the Order Form.
1.10 “System” means the technology, including hardware, software, and systems, used by Hummingbird to deliver the Service to Customer in accordance with this Agreement.
1.11 “UserID” is defined in Section 3.1.
1.12 “Users” means Customer’s employees, representatives, consultants, contractors, or agents who are authorized to use the Service on behalf of Customer and have been supplied user identifications and passwords for this purpose.
2. The Service.
2.1 Subscription to the Service. Conditional on Customer: (a) complying with the provisions of this Agreement, including but not limited to paying the Fees as required by this Agreement; (b) cooperating with the reasonable requests of Hummingbird; and (c) providing Hummingbird with access to Customer’s internal systems and any required third-party systems (and making all required third-party disclosures and obtaining all required third-party consents in respect of such access) from which Customer wishes the System to access Customer Data, Hummingbird hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Service in accordance with this Agreement solely for Customer’s internal business purposes and not for resale. Customer may order the Service under this Agreement by placing written, signed orders on an Order Form. Only the execution of an Order Form by Customer and by Hummingbird constitutes a binding contract between those parties. Customer agrees that its purchase of the subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Hummingbird with respect to future functionality or features.
2.2 Minimum Uptime. Hummingbird will use commercially reasonable efforts to achieve Service uptime equal to or better than 99.9% on an annual basis (the “Target”), provided, however, that any failure to achieve the Target will not constitute a breach of this Agreement.
2.3 Support. Subject to the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 4, Hummingbird will use commercially reasonable efforts to correct any reproducible failure of the Service to substantially conform to its expected operation, provided that Hummingbird will not have an obligation to provide a correction for all such nonconformities.
2.4 System Updates and Scheduled Downtime. Hummingbird may update any aspect of the Service or System at any time in its sole discretion. Hummingbird may schedule downtime for maintenance and upgrades to the System without prior notice but will use commercially reasonable efforts to provide advance notice where practicable.
2.5 Privacy Statement. To the extent any Customer Data contains Personal Information, it will be used, collected, stored, and disclosed for the purposes contemplated under this Agreement and in accordance with the Privacy Statement.
2.6 Internet Security Disclaimer. Customer acknowledges and agrees that Hummingbird exercises no control over, and accepts no responsibility for, any content passing through the Internet or for Internet connectivity outside of Hummingbird’s control. Customer acknowledges that the Internet is inherently risky despite reasonable measures being taken, and Customer assumes responsibility for its use of the Service over the Internet.
2.7 Limitation, Suspension or Termination of Access. In addition to the other rights and remedies of Hummingbird under this Agreement, Hummingbird may suspend, terminate or limit, in Hummingbird’s reasonable discretion, Customer’s access to or use of the Service, or any part of it, without notice in order to: (a) prevent damage to, or degradation of the integrity of the System or any of Customer’s systems; (b) comply with any law, regulation, court order, or other governmental request or order; or (c) otherwise protect Hummingbird from harm to its reputation or business. Hummingbird will use commercially reasonable efforts to notify Customer of a limitation, suspension, or termination action as soon as reasonably practicable. In the event of a limitation or suspension, Hummingbird will restore Customer’s access to the Service when Hummingbird determines the event has been resolved. Nothing in this Agreement will limit Hummingbird’s right to take any action or invoke remedies, or will act as a waiver of Hummingbird’s rights in any way with respect to any of the foregoing activities. Hummingbird will not be responsible for any loss or damages of any kind incurred by Customer as a result of any limitation, termination, or suspension of the Service under this Section 2.7.
2.8 Subcontractors. Customer acknowledges and agrees that Hummingbird may retain the services of independent contractors (“Subcontractors”) from time to time to provide, or to assist Hummingbird in providing, the Service. Any Subcontractors used by Hummingbird to provide the Service shall remain under the direction and control of Hummingbird, and Hummingbird shall be fully and personally liable for all acts or omissions of the Subcontractors.
3. Customer’s Use of the Service.
3.1 Access and Security Guidelines. Subject to any limitations associated with Customer’s subscription account, Customer may set up User accounts by supplying a unique user identification name and password (“UserID”) to Hummingbird for each User along with the User’s designated social media login credentials. A User may only access and use the Service with his or her specific UserID. Customer is responsible to ensure UserIDs are not shared, and that Users retain the confidentiality of their UserIDs. Customer is responsible for any and all activity occurring under the UserIDs associated with Users. Customer will promptly notify Hummingbird of any actual or suspected unauthorized use of the Service. Hummingbird may require that a UserID be replaced at any time.
3.2 Customer Responsibilities and Restrictions. Customer will, at all times, comply with all applicable local, state, provincial, federal, and foreign laws in using the Service. Without limiting the generality of Section 3.1, Customer agrees that Customer will not, and will not permit any person, including without limitation the Users, to: (a) use the Service other than as permitted by this Agreement; (b) use the Service to violate, infringe or appropriate any person’s privacy rights, publicity rights, defamation rights, intellectual property rights, proprietary rights, contractual rights, or any other legal right; (c) sublicense or transfer any of Customer’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Service for the benefit of a third party or to operate a service bureau; (d) copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Service; (e) use or launch any automated system, including without limitation any “robot” or “spider” that accesses the Service; or (f) interfere with, or attempt to interfere with, the Service, the System, or any other networks or services connected to the Service, whether through the use of viruses, bots, worms, or any other computer code, file, or program that interrupts, destroys, or limits the functionality of any computer software or hardware.
3.3 Customer Data. Customer is solely responsible for the Customer Data and will not provide or transmit any Customer Data or any other information, data, or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law, or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept, or expropriate any system, data, or personal information. Hummingbird may take remedial action if Customer Data violates this Section 3.3, however, Hummingbird is under no obligation to review Customer Data for accuracy or potential liability.
4. Fees, Payment, and Suspension. As consideration for the subscription to the Service, Customer will pay Hummingbird the fees (“Fees”) set forth in and in accordance with the Order Form. All Fees will be billed in advance on a monthly basis and are due on the first day of each monthly subscription period, unless otherwise agreed to in the Order Form. Overdue amounts will accrue interest at the rate of 12% per annum, or the highest legal interest rate, if less. Customer shall reimburse Hummingbird for all expenses (including reasonable attorneys’ fees) incurred by Hummingbird to collect any amount that is not paid when due. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise, and other taxes that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on Hummingbird’s net income. Hummingbird reserves the right (in addition to any other rights or remedies Hummingbird may have) to discontinue the Service and suspend all UserIDs and Customer’s access to the Service if any Fees set forth in the Order Form are more than 30 days overdue until such amounts are paid in full. Customer shall maintain complete, accurate, and up-to-date Customer billing and contact information at all times.
5. Confidential Information.
5.1 Obligation. Each party agrees (a) to hold the other party’s Confidential Information in strict confidence, (b) to limit access to the other party’s Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use such Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the receiving party will not be in violation of this Section 5.1 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the receiving party gives the other party prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information.
5.2 Exceptions. The restrictions on the use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records, (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s competent written records, or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
6. Ownership.
6.1 System and Technology. Customer acknowledges that Hummingbird and its licensors retain all right, title, and interest in and to the Service, the System, and all software, materials, formats, interfaces, information, data, content, and Hummingbird proprietary information and technology used by Hummingbird or provided to Customer in connection with the Service (collectively, the “Hummingbird Technology”), and that the Hummingbird Technology is protected by intellectual property rights owned by or licensed to Hummingbird, including any licensed open-source software (see https://hummingbird.software/open-source-software-notices for applicable notices). Other than as expressly set forth in this Agreement, no license or other rights in the Hummingbird Technology are granted to the Customer, and all such rights are hereby expressly reserved by Hummingbird. Hummingbird will have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations, or other feedback provided by Customer, including Users, relating to the Service.
6.2 Customer Data. Customer retains all right, title, and interest in and to the Customer Data. Except as set out in Section 6.3, Hummingbird will only use Customer Data to provide the Service under this Agreement. Customer will be solely responsible for providing all Customer Data required for the proper operation of the Service. Customer grants to Hummingbird all necessary licenses in and to such Customer Data solely as necessary for Hummingbird to provide the Service to Customer and the Users.
6.3 Aggregated Data. Customer grants to Hummingbird a perpetual, worldwide, royalty-free, non-exclusive, irrevocable license to use, reproduce, process, and display the Customer Data in an aggregated and anonymized format for Hummingbird’s internal business purposes, including without limitation to develop and improve the Service, the System, and Hummingbird’s other products and services.
7. Term and Termination.
7.1 Term. Unless otherwise agreed to in the Order Form, the term of this Agreement will commence on the Effective Date and continue for the period specified in the Order Form (the “Initial Term”). Clients are obligated to fulfill their entire term, regardless of the payment schedule. Thereafter, this Agreement will be automatically renewed for an additional term matching the duration of the previous term (each a “Renewal Term,” and together with the Initial Term, the “Term”), unless either party provides written notice to the other party no less than 15 days prior to the expiration of the then-current Initial Term or Renewal Term indicating that it does not wish to renew this Agreement. Written notice can be provided by Hummingbird to the customer via email or postal mail, or by the customer to Hummingbird by filling out a cancellation form within 15 days prior to the end of the current term.
7.2 Termination for Default. Either party may terminate this Agreement immediately upon written notice if: (a) the other party materially breaches this Agreement and does not cure such breach (if curable) within 60 days after written notice of such breach; or (b) the other party becomes insolvent or files or has filed against it a petition in bankruptcy.
7.3 Effect of Termination. Upon the termination of this Agreement for any reason: (a) any amounts owed to Hummingbird under this Agreement before such termination will become immediately due and payable; (b) each party will return to the other party all property (including any Confidential Information) of the other party in its possession or control; and (c) Customer’s and each User’s access to and use of the System and the Service will be immediately suspended. Hummingbird agrees that, upon written request from Customer received by Hummingbird within 60 days following any termination of this Agreement, Hummingbird will provide Customer with one electronic copy of the Customer Data in a usable format. Thereafter, Hummingbird may remove all Customer Data from the System. The rights and duties of the parties under Sections 3.3, 4 through 6, 7.3, and 8 through 11 will survive the termination or expiration of this Agreement.
8. Warranty; Disclaimer.
8.1 Warranty. Hummingbird represents and warrants to Customer that (a) the Services will perform materially as described in the technical specifications set forth in the Documentation. In the event of any failure of the Services to conform to the above applicable warranties, Hummingbird will, as Customer’s sole and exclusive remedy, re-perform the Services.
8.2 Disclaimer. EXCEPT AS EXPRESSLY SET OUT IN SECTION 8.1: (A) THE SERVICE AND ANY OTHER PRODUCTS AND SERVICES (INCLUDING ANY THIRD-PARTY SOFTWARE INCORPORATED THEREIN) PROVIDED BY HUMMINGBIRD TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND; (B) HUMMINGBIRD HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL, OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION, OR FITNESS FOR A PARTICULAR PURPOSE; (C) HUMMINGBIRD DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR-FREE; AND (D) WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, HUMMINGBIRD EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICE (INCLUDING ALERTS AND RECOMMENDATIONS) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
HUMMINGBIRD IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD PARTY OF ANY SERVICE, NETWORK, SOFTWARE, OR HARDWARE, INCLUDING BUT NOT LIMITED TO INTERNET SERVICE PROVIDERS, HOSTING SERVICES UTILIZED BY HUMMINGBIRD, TELECOMMUNICATIONS PROVIDERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY HUMMINGBIRD.
THE SERVICES ARE OFFERED AND CONTROLLED BY HUMMINGBIRD FROM ITS FACILITIES IN CANADA. HUMMINGBIRD MAKES NO REPRESENTATIONS THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
9. Indemnity. If any action is instituted by a third party against Hummingbird arising out of or relating to: (a) Customer’s use of the Service or System (including claims by any customer or business partner of Customer); (b) Customer’s breach of any of Customer’s obligations, representations, or warranties under this Agreement; or (c) an allegation that the Customer Data, or the use of Customer Data by Hummingbird pursuant to this Agreement, infringes any third party intellectual property rights or other rights of a third party, or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of Hummingbird and shall pay all damages attributable to such claim which are finally awarded against Hummingbird or paid in settlement of such claim.
10. Limitation of Liability. The following provisions have been negotiated by each party, are a fair allocation of risk, are an essential basis of the bargain under this Agreement, and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
10.1 Amount. HUMMINGBIRD’S TOTAL AGGREGATE LIABILITY FROM ANY AND ALL CLAIMS IN CONNECTION WITH OR UNDER THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO HUMMINGBIRD UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION FIRST AROSE. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL HUMMINGBIRD’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
10.2 Type. IN NO EVENT SHALL HUMMINGBIRD BE LIABLE TO CUSTOMER FOR ANY (A) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL, (C) BUSINESS INTERRUPTION, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (D) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT SHALL HUMMINGBIRD BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
10.3 No Jury Trial. CUSTOMER IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT CUSTOMER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT. No Participating in Class Action. CUSTOMER AGREES THAT, WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, CUSTOMER HEREBY GIVES UP ITS RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
10.4 Limitation of Time. Customer agrees that it will not bring a claim under or related to this Agreement more than 12 months from when such claim first arose.
11. General Provisions
11.1 Publicity. Hummingbird may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties. Customer agrees to allow Hummingbird to use Customer’s name in customer lists and other promotional materials describing Customer as a customer of Hummingbird and user of the Service.
11.2 Assignment. Customer may not assign this Agreement to a third party without Hummingbird’s prior written consent, not to be unreasonably withheld, except to a third party that controls, is controlled by, or is under common control with Customer. Hummingbird may assign this Agreement or any rights hereunder to any third party without Customer’s consent. Any assignment in violation of this Section 11.2 shall be void. Any assignment is conditional upon the assignee agreeing in writing to be bound to the terms of this Agreement which shall be binding upon and inure to the benefit of the parties’ successors and permitted assignees.
11.3 Force Majeure. If the performance of any obligation under this Agreement, except non-payment of amounts due hereunder, is interfered with by reason of any circumstances beyond a party’s reasonable control, including but not limited to acts of God, labor strikes and other labor disturbances, epidemics and pandemics, power surges or failures, Internet connectivity or the act or omission of any third party (each a “Force Majeure Event”), such party will be excused from such performance to the extent necessary. Each party will use reasonable efforts to implement industry-standard procedures to minimize disruption of such Force Majeure Events and will use reasonable efforts to remove such causes of non-performance.
11.4 Arbitration. Any dispute or claim arising out of or relating to this Agreement will be referred to and finally resolved by arbitration administered by the Vancouver International Arbitration Centre (VanIAC) pursuant to its applicable Rules. The place of arbitration shall be Vancouver, British Columbia, Canada and the language of the arbitration shall be English. The number of arbitrators shall be one. Notwithstanding the foregoing, Hummingbird may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction and you agree that this Agreement is specifically enforceable by Hummingbird through injunctive relief and other equitable remedies without proof of monetary damages.
11.5 Choice of Law. This Agreement and any action related thereto shall be governed by and construed in accordance with the laws of the province of British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
11.6 Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing: (i) to Hummingbird, by email at support@hummingbird.software or by certified mail at 11175 Azusa Ct Suite 110, Rancho Cucamonga, California; or (ii) to Customer, by email or by certified mail at the addresses set forth in the Order Form. Notwithstanding the foregoing, each party may change its address from time to time upon written notice to the other party of the new address. Notices will be deemed to have been given upon receipt, or when delivery is refused.
11.7 Entire Agreement. This Agreement, including the Order Form, is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals, or representations, written or oral, between the parties, as to the subject matter hereof. This Agreement may only be modified in writing signed by both parties.
11.8 Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.9 Relationship of the Parties. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture, or employee-employer relationship is intended or created by this Agreement.