SAAS SERVICES AND SUPPORT
Subject to these terms and conditions of use (the “Agreement”) Hustle will use reasonable efforts to provide Customer the Hustle Services as described in an applicable Order Form.
Subject to the terms hereof, Hustle will provide Customer with reasonable technical and customer support services in accordance in accordance with Hustle’s standard practices then in effect and as described in an applicable Order Form, which is referenced and incorporated herein.
RESTRICTIONS AND RESPONSIBILITIES
Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Hustle or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Hustle hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Hustle’s standard published policies then in effect, including its Acceptable Use Policy located at hustle.life/aup, which is referenced and fully incorporated herein, (collectively the “Policy”) and all applicable laws and regulations. Hustle reserves the right to determine whether a modify or amend its Policy and it shall provide notice of such amendment to Customer via email. Customer hereby agrees to indemnify and hold harmless Hustle against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Hustle has no obligation to monitor Customer’s use of the Services, Hustle may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
CONFIDENTIALITY; PROPRIETARY RIGHTS
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Hustle includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Hustle to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Customer shall own all right, title and interest in and to the Customer Data. Hustle shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
Notwithstanding anything to the contrary, Hustle shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Hustle will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Hustle offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
PAYMENT OF FEES
Customer shall pay Hustle the fees described in the Order Form for the Services as described in the Order Form in accordance with the terms therein. If Customer’s use of the Services exceeds the Service capacity, if any, set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Fees are nonrefundable or subject to allocation. Hustle reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Hustle has billed Customer incorrectly, Customer must contact Hustle no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Hustle’s customer support department.
Hustle may choose to bill through an invoice by email or by U.S. postal mail, in which case, full payment for invoices issued in any given month must be received by Hustle thirty (30) days after the date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Hustle’s net income.
TERM AND TERMINATION
Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term. Additionally, if Customer selected Monthly term and is paying Monthly rates, Customer can terminate this contract at any time, and without cause, by giving 30 days’ advance notice of desire to enact a termination. Additionally, if Customer selected Annual term and is paying Monthly rates, Customer may terminate this contract by providing 30 days’ advance notice of its intent not to renew prior to the end of the then current term.
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and such breach remains uncured for thirty days following notice thereof. In the event either party terminates a Month-to-Month contract, Customer shall pay in full for the Services up to and including the last day on the month which the Services are provided. In the event Customer terminates an Annual Contract, Customer shall pay, as consideration for its right to terminate, the fees remaining on the duration of the contract. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, limitations of liability, and dispute resolution and arbitration provisions.
WARRANTY AND DISCLAIMER
Hustle shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Hustle or by third-party providers, or because of other causes beyond Hustle’s reasonable control, but Hustle shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Hustle does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Subject to the limitation of liability set forth in Section 8 below, Hustle shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Hustle is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Hustle will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Hustle, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Hustle, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Hustle to be infringing, Hustle may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE THREE MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
This Agreement is not assignable, transferable or sublicensable by Customer except with Hustle’s prior written consent. Hustle may transfer and assign any of its rights and obligations under this Agreement without consent.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Hustle in any respect whatsoever.
The parties shall endeavor to resolve any dispute with respect to this Agreement in good faith within 30 days of a dispute being raised by one party with the other party. Any unresolved controversy or claim arising out of or relating to this Agreement shall be submitted to binding arbitration under the auspices of JAMS in San Francisco, California in accordance with its rules then in effect, and judgment upon any award rendered in such arbitration will be binding and may be entered in any court having jurisdiction thereof. In any such action or proceeding, the prevailing party will be entitled to recover costs and attorneys’ fees. The decision of the arbitrator shall be final, binding, and conclusive upon the parties. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator. This dispute resolution provision shall be governed by the Federal Arbitration Act.
All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
Force Majeure. No party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement except for any obligations to make payments to the other party hereunder, when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control (“Force Majeure Event”). The party suffering a Force Majeure Event shall give notice within 3 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.
Public Announcements and Case Studies. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, provided, however, that Hustle may, without Customer’s consent, include Customer’s name and/or other indicia in its lists of Hustle’s current or former customers of Hustle in promotional and marketing materials. Additionally, upon consent of Customer, Hustle shall prepare a case study relating to Customer’s access and use of the Services, including but not limited to one or more testimonials from Customer’s users, aggregated data of the results of Customer’s use of the Services, and other informational material as determined by Hustle. Customer agrees to provide reasonable assistance to Hustle and timely responses in Hustle’s preparation of said case study.