"Blueprint Source" means technical drawings, architectural plans, or other representative architectural work of a structure submitted to HOVER through the HOVER Web App, the HOVER App, or other means;
"Co-Branded App" means the HOVER App, HOVER Web App, HOVER Report, or HOVER Deliverables that is co-branded for Sponsor in accordance with the Order Documentation;
"Customer" means a User or Sponsor, as applicable, that downloads or uses the HOVER Software and Services.
"Data Privacy Laws" means any applicable privacy statute or regulation governing the collection and processing of personal information or personal data, such as California Consumer Protection Act, GDPR, UK Data Protection Act, or Switzerland Federal Act on Data Protection, each as amended;
"Derived Data" means floorplans, the Property Information, Scene Data, and Structure Measurements, collected through the Software and Services or derived through the HOVER Production Process to create a HOVER Model, including a HOVER Report, to the extent anonymized;
"Estimation Platform" means the functionality within the HOVER App used to generate an Estimate Deliverable, excluding Sponsor information used to populate an Estimate Deliverable;
"Estimate Deliverable"means forms and templates for generating a quote or ordering materials for a single Subject Property, including the quote, materials order, bill of materials, takeoff, or other output of the Estimation Platform;
"European Resident"means a resident who lives in one of the European Union, United Kingdom, or Switzerland;
"GDPR" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);
"HOVER" means Hover Inc., a Delaware corporation;
"HOVER App" means a version of the HOVER mobile application (and any companion applications to web-based tools through the HOVER Website) used to collect Image Data, view HOVER Models and order HOVER Models, and also includes all Co-branded Apps;
"HOVER Deliverables" means HOVER Models, HOVER New Construction Models, Estimate Deliverables, HOVER Renderings, and any other products and services related thereto which are ordered by Sponsor or otherwise made available to Sponsor and Users (for clarity, HOVER Deliverables includes future products and services);
"HOVER Rendering" means one or more perspective views of a HOVER Model or other input subject to additional image processing;
"HOVER Model" means a digital version of HOVER’s 2D or 3D HOVER reconstruction of all or part of the exterior or interior of a Subject Property, of a type identified in the HOVER App or the HOVER Website (e.g., Roof Only or Complete, Expedited, TLA Premium, etc.) and generated through the HOVER Production Process, and which contains the Derived Data;
"HOVER New Construction Model" means a digital version of a 3D reconstruction of a single structure depicted in a Blueprint Source generated through the HOVER Production Process, and contains Derived Data;
"HOVER Production Process" means the production processes used by HOVER to create a HOVER Deliverable;
"HOVER Report" means a report that contains a description or representation of a HOVER Model or a HOVER New Construction Model and contains the applicable Derived Data;
"HOVER Web App" means the web application used to order, view, and manage HOVER Deliverables;
"HOVER Website" means web-based tools and content available for access through www.hover.to;
"Image Data" means the photos, video, images and other data (such as a Blueprint Source), including without limitation, the geospatial or other metadata embedded in therein that is submitted or otherwise provided to HOVER;
"Inspection Checklist" means a customizable digital questionnaire form enabling a User to record information about a Subject Property;
"Order Documentation" means any agreement, order form, pricing addendum, or online order submission interface or document used to purchase HOVER Deliverables and any subsequent amendment or addendum thereto entered into;
"Property Information"means the address and location of the Subject Property, which may be derived from the Image Data or from other geolocation information;
"Scene Data" means non-geometrical data within Image Data;
"Service Provider" means a third-party who downloads or uses the HOVER App to obtain a HOVER Deliverable with respect to a Subject Property;
"Software and Services" means collectively, the HOVER App, the HOVER Web App, HOVER Production Process, the Estimation Platform, application programming interfaces provided by HOVER, and the HOVER Deliverables used by a User or applicable Sponsor, as amended and supplemented from time to time;
"Sponsor" means a HOVER licensee that has contracted with HOVER to provide the Software and Services;
"Structure Measurements" means the exterior or interior lines and measurements associated with a Subject Property or respective HOVER Model;
"Subject Property" means the interior and exterior structures, location, rooms, or premises being photographed by a User using the HOVER App and in respect of which a HOVER Model is produced;
"Sponsored User" means a Sponsor’s employees, affiliates, Service Providers, or other Users authorized by the Sponsor to use the HOVER App to order or receive HOVER Deliverables;
"User" means an individual who downloads or uses the HOVER App, including a customer of a Sponsor who downloads and uses the HOVER App to transact with the Sponsor, a Sponsored User, or a Service Provider, as applicable.
The HOVER App is compatible only with those smartphones and operating systems identified by HOVER. The use of the HOVER App requires and utilizes internet connectivity and data. Carrier and provider rates for data may apply, and Users are responsible for any such charges. Use of the HOVER App could result in significant data usage.
The Software and Services and production of HOVER Deliverables are dependent on the accuracy of the data submitted, including geopositional data of the devices used and the quality of the Image Data submitted. Quality may refer to the format, number, location, clarity, and sequence and other data and information required or requested by the HOVER Production Process or the HOVER App. Customer acknowledges that failure to properly provide such images, data and information may limit or prevent the functionality of the HOVER App, the HOVER Production Process, and creation of a HOVER Deliverable.
HOVER has no liability for errors, unreliable operation, or other issues resulting from use of the HOVER App or HOVER Deliverables on or in connection with rooted or jailbroken devices or use on any mobile device that is not in conformance with the manufacturer’s original specifications, including use of modified versions of the operating system (collectively, “Modified Devices”). Use of the HOVER App or HOVER Deliverables on Modified Devices will be at the Customer’s sole and exclusive risk and liability.
You agree that the images you upload to HOVER will not contain any information that itself could identify you or any other individual.
Customers in the United States acting on behalf of the occupant of a Subject Property, such as either as a Sponsored User or Service Provider, must obtain consent of the occupant associated with the applicable Image Data and Property Information prior to collection and submission through the HOVER App.
If you process the personal data of Users or other identifiable individuals in your use of HOVER’s services, you are responsible for providing legally adequate privacy notices and obtaining necessary consents for the processing of such data. You represent to us that you have provided all necessary privacy notices and obtained all necessary consents. You are responsible for processing such data in accordance with applicable law, and HOVER relies on those representations in processing data.
Information provided to HOVER by a User and any HOVER Deliverables ordered by or provided to a User may be made available to and used by HOVER and the Sponsor that paid for the HOVER Deliverable, as well as their affiliates and Service Providers, in accordance with HOVER’s and the Sponsor’s published privacy policies, such as:
If you are a Sponsored User, you hereby acknowledge and consent to the Sponsor’s ability to access, disclose, restrict, monitor, and compile information and generate reports from your use of the HOVER App and the Software and Services.
(b) HOVER Deliverables. All HOVER Models and other HOVER Deliverables, including the Derived Data incorporated therein, are the property of HOVER. HOVER grants to Customer a non-exclusive, non-transferable, terminable (as provided herein), limited permission (with no right to grant further permission) to use a HOVER Deliverable with respect to a Subject Property. Customer shall use the HOVER Deliverables for its internal business purposes as contemplated at the time Customer enters into this Agreement. Customer shall not (i) directly or indirectly sell the HOVER Report or any of the Derived Data to third-parties, (ii) use, or enable or permit a third-party to use, the HOVER Report or any of the Derived Data to build a product or service that directly competes with the business of HOVER, (iii) use the HOVER Report or any of the Derived Data, directly or indirectly, to improve, teach, or train any of its software or algorithms, or (iv) otherwise violate any of the terms hereof. Customer shall limit access to the HOVER Report and the Derived Data to only those Customer personnel (“Personnel”) who have a legitimate need to access that information for a permitted use.
(c) Intellectual Property. The Software and Services are the property of HOVER, and subject to the copyright and other intellectual property rights of HOVER and its licensors. Use of the Software and Services or the HOVER Production Process does not create a work-for-hire relationship agreement (as that term is defined in 17 U.S.C. § 101). Any technology developed in connection with providing the Software and Services, or improvements or modifications to the foregoing, shall be owned by HOVER; provided however, that HOVER does not have the right to incorporate any of Customer’s Confidential Information into the Software and Services or any other product or service. Subject to the foregoing, HOVER shall have the exclusive right to apply for or register any patents, mask work rights, copyrights, and such other proprietary rights protections with respect thereto, and you hereby grant all right, title, and interest you may have in the foregoing to HOVER. HOVER will review allegations of copyright violations in accordance with the Digital Millennium Copyright Act (“DMCA”); notices of allegedly infringing Image Data or other content (collectively, “Content”) shall be sent to firstname.lastname@example.org or:
HOVER – Copyright Notices
255 Bush St, 7th Floor
San Francisco, CA 94104
(d) No Implied Rights. All rights not expressly granted herein are reserved by HOVER. Neither party grants the other party any interest or title in or rights to use its trademarks, service marks, or other proprietary symbols or designations (“Marks”), provided that during the Term, HOVER is hereby granted a limited, non-exclusive, non-transferable license to use Sponsor’s Marks solely in connection with providing the Software and Services to Sponsor. No party will take action to damage the goodwill associated with the other’s Marks.
The license to the Software and Services is conditioned on the following:
(a) use will not introduce, transmit, or otherwise upload materials or software code to the Software and Services that are harmful or unlawful, and use will not have any purpose that is unlawful or prohibited by this Agreement;
(b) use will not, in any manner, damage, disable, overburden, or impair the Software and Services or interfere with any other party’s use and enjoyment of the Software and Services;
(c) there will be no attempt to obtain any materials or information not provided for in the HOVER Deliverables; and
(d) the Software and Services will not be downloaded or used in, or transported to, a country or region that is subject to a U.S. Government embargo or sanction.
(a) Customer represents and warrants that for any data HOVER receives, Customer owns or has all necessary rights (including all necessary intellectual property rights), permissions, and licenses to provide such data (e.g., Image Data or a Blueprint Source), and grants to HOVER the license and rights described herein to reproduce, display, and modify the data.
(b) Customer hereby grants to HOVER and its affiliates, licensees, agents, and sub-licensees, without compensation to it or others, a perpetual, irrevocable, non-exclusive, royalty-free, transferable, assignable, sub-licensable, worldwide license, to copy, modify, create derivative works from, distribute, publicly display or otherwise use or exploit the submitted data in any format or media (whether now known or hereafter created) for the duration of any copyright or other rights in such submitted data. Further, to the extent permitted under applicable law, Customer waives and releases and covenants not to assert any moral rights that it may have in the submitted data. To the extent a HOVER Deliverable is a derivative work of submitted data and Customer possesses the necessary right, Customer hereby assigns all right, title, and interest in the HOVER Deliverables to HOVER; and
(c) Customer may provide suggestions, comments, or other feedback (collectively, "Feedback") to HOVER with respect to its products and services, including the Software and Services. Feedback is entirely voluntary. In the event Customer furnishes any Feedback to HOVER, HOVER may use Feedback for any purpose without obligation of any kind. Customer hereby assigns all right, title, and interest in any Feedback to HOVER; to the extent Customer cannot assign all rights, Customer hereby grants HOVER an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with HOVER’s business, including the enhancement of Software and Services.
(a) Product Placement. HOVER may incorporate existing agreed-upon images, or modifications and derivatives thereof, of Sponsor’s products (“Customer Product Images”) into the Software and Services to enable Users to view and render such product images on HOVER Models. Sponsor grants HOVER a nonexclusive, irrevocable, perpetual, worldwide license to reproduce, modify, create derivative works from, publicly perform or publicly display Customer Product Images.
(b) HOVER Rendering. A Rendering may be ordered only by a Customer or Sponsored User acting on Customer’s behalf. Customer represents and warrants that a Rendering is not part of a larger work incorporating the output of other rendering services.
(c) Direct Ordering. Customer acknowledges that the Direct Ordering feature enables Customer to order materials or services from third-party distributors. HOVER DOES NOT WARRANT ANY THIRD-PARTY PRODUCTS OR SERVICES. IN ANY EVENT, HOVER'S EXCLUSIVE LIABILITY FOR ANY LOSSES RESULTING FROM USE OF THE DIRECT-ORDERING FEATURE SHALL NOT EXCEED THE PRICE PAID FOR THE HOVER DELIVERABLE USED TO PLACE THE DIRECT ORDER.
(d) Beta Releases. Any beta, pilot, limited release, non-production, pre-production or evaluation feature or version of a feature or offering provided to Customer (“Beta Releases”) is experimental and provided “AS IS” without warranty, support, or maintenance of any kind and will not create any obligation for HOVER to continue to develop, productize, support, repair, offer for sale, or in any other way continue to provide or develop any such feature or offering. Customer agrees that its purchase is not contingent on the delivery of any future functionality or features, or dependent on any oral or written statements made by HOVER regarding future functionality or features. HOVER may modify or remove Beta Releases at any time.
(e) Estimation Platform. An Estimate Deliverable enables quoting and ordering materials for Customers to generate work orders of a Subject Property based on a HOVER Model. IN THE EVENT THE HOVER APP OR ESTIMATION PLATFORM CAUSES CUSTOMER TO ORDER AN INCORRECT AMOUNT OF MATERIALS, CUSTOMER’S SOLE REMEDY WILL BE ACTUAL, DIRECT DAMAGES (NO CONSEQUENTIAL DAMAGES) EQUAL TO AN AMOUNT NOT TO EXCEED THE PRICE PAID FOR THE HOVER DELIVERABLE USED TO GENERATE THE ESTIMATION.
(f) New Construction Model. The HOVER Production Process requires the Blueprint Source comprise (i) multiple elevation views of the structure to be reconstructed, including at least a front, right, left, and read view; and (ii) a floorplan of the structure to be reconstructed, with measurements. When a single Blueprint Source file depicts multiple structures, Customer must indicate, through applicable upload interfaces, which structure is to be reconstructed.
HOVER may provide technical support by telephone from 9:00 am to 8:00 pm ET during normal business days and from 9:00 am to 5:00 pm ET on weekends, and provide maintenance and update services to support performance of the Software and Services. Support services may also be accessed by email at email@example.com or through the chat feature in the HOVER App or HOVER Web App, with emails and chats monitored seven days a week from 9:00 am to 9:00 pm ET.
(a) HOVER maintains an information-security program designed to protect the personal information of Users from unauthorized use or disclosure and to comply with Data Privacy Laws.
(b) Sponsor shall ensure that all information related to Users provided hereunder are used, maintained and accessed by Sponsor in compliance with applicable Data Privacy Laws, including without limitation, the Telemarketing Sales Rule (as amended), the Telephone Consumer Protection Act of 1991 and the CANSPAM Act of 2003. If Customer is using the HOVER Connect feature to send invitations via text message or email to download and use the HOVER App, whether the invitations are initiated via the HOVER App, the HOVER Web App, an application program interface, or any other bulk-messaging process, Customer shall first obtain the recipient’s prior consent, as may be required under applicable law, before sending any such HOVER Connect invitation.
(a) General. The fees and other charges, if any, for the Software and Services and HOVER Deliverables provided hereunder may be subject to taxes and duties (such as sales, use, value-added, or excise); HOVER may be required to collect or pay now or at any time in the future additional amounts with respect to such fees owed, and Customer shall pay any such taxes (excluding taxes on HOVER’s net income). All pricing is in U.S. Dollars. The Software and Services, including but not limited to any subscription fees or volume commitments, if applicable, are not subject to proration and are non-refundable.
(b) Billing. Payment of the amounts due to HOVER shall be made with the payment method and credit terms as selected by Customer or as set forth in the Order Documentation. If Customer has provided a credit card to HOVER, Customer authorizes HOVER to charge the credit card for the amount of any purchase of Software or Services or HOVER Deliverables. Any amount due but not paid within thirty (30) days may bear a finance charge at the rate of 1.5% per month as permitted by law.
(c) Reliance on charges. Sponsor is responsible for paying applicable fees for all HOVER Deliverables ordered by, distributed to, or purchased by a User using Sponsor’s account. Sponsor is solely responsible for, and HOVER will bear no responsibility for, unauthorized access to or use of the Software and Services by any person who uses Sponsor credentials. HOVER shall be entitled to rely on User’s username, password, and any Sponsor identifier code and/or claim number supplied by any User to determine whether such user is an authorized User on Sponsor’s account.
HOVER does not guarantee the production and delivery of HOVER Deliverables. If HOVER is unable to produce a HOVER Deliverable due to failure to submit the required Image Data or other required information, or for any other reason, you will receive an email stating that your order cannot be processed, and no charges will accrue. Unless otherwise agreed upon or subject to exceptions in this Agreement or Order Documentation, Customer will be charged when the HOVER Deliverable is delivered to Customer.
HOVER Deliverables shall be made available through the HOVER App or HOVER Web App, email, or by other means as specified in an Order Documentation.
(a) Customer Indemnification. Customer shall indemnify, defend and hold harmless HOVER and its assignees, subsidiaries, and affiliated companies, and their respective officers, directors, employees, shareholders, agents and representatives, from and against any and all loss, claim, cost, judgment, liability, injury, damage, demand, action, or expense of any kind or character brought by a third-party (collectively, "third-party Claims"), including court costs and reasonable fees of attorneys and other professionals, arising out of or in connection with (i) a breach of this Agreement or any of the covenants contained herein, (ii) a breach of Data Privacy Laws, (iii) the use or possession by Customer of the Software and Services, (iv) the use of any Sponsor products and services, (v) the use of any Sponsor Marks in connection with a Co-Branded App or a HOVER Report, or (vi) an allegation that a HOVER Deliverable based on a Blueprint Source infringes, violates or misappropriates any patent, copyright, trademark, or other intellectual property right of a third-party.
(b) HOVER Indemnification
(i) In General. HOVER shall indemnify, defend and hold harmless Sponsor, and its directors, officers, employees and agents, from and against any and all third-party Claims, including court costs and reasonable fees of attorneys and other professionals, arising out of or in connection with (1) HOVER’s willful misconduct, or (2) a claim that the Software and Services directly infringe or violate any patent, copyright, trademark, or other intellectual property right of a third-party. Sponsor must promptly notify HOVER of any such claim in writing and give HOVER sole control over the defense and settlement of such claim. HOVER may, without the knowledge or consent of Sponsor, agree to any resolution of the dispute that does not require on the part of Sponsor a payment or an admission of wrongdoing. Without limiting the preceding sentence, HOVER may, in its sole discretion in the event of a third-party infringement claim, (A) seek to obtain through negotiation the right of Sponsor to continue using the Software and Services; (B) rework the Software and Services so as to make them non-infringing; or (C) replace the Software and Services, as long as the reworked or replacement Software and Services does not result in a material adverse change in the operational characteristics of the Software and Services. If none of these alternatives is reasonably available in HOVER’s sole discretion, HOVER may terminate this Agreement and the license granted herein, and Sponsor shall have no further obligation to HOVER.
(ii) Exceptions. HOVER’s indemnity obligation shall not apply to infringement relating to (A) Sponsor’s unauthorized modification or use of the Software and Services, including HOVER Deliverables; (B) Sponsor’s failure to use corrections or enhancements made available by HOVER, after notice of the corrections or enhancements is provided to Sponsor, and to the extent that such corrections or enhancements would make the Software and Services non-infringing; (C) use of the Software and Services in excess of the rights granted in this Agreement; (D) HOVER’s creation of, or modifications to, the Software and Services in compliance with specifications or instructions provided by Sponsor; or (E) an allegation that a HOVER Deliverable based on content provided by Customer infringes, violates or misappropriates any patent, copyright, trademark, or other intellectual property right of a third-party.
(c) Disclaimer of Warranties; Limitation of Liability. THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND CUSTOMER AGREES TO USE THEM AT THEIR OWN RISK. HOVER MAKES NO GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, CONTENT, QUALITY, ACCURACY, COMPLETENESS, EFFECTIVENESS, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, USEFULNESS, USE, OR RESULTS TO BE OBTAINED FROM THE SOFTWARE AND SERVICES, EXCEPT THOSE EXPRESSLY SET FORTH HEREIN. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY HOVER OR ITS REPRESENTATIVES WILL CREATE ANY OTHER WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF HOVER’S OBLIGATIONS HEREUNDER. HOVER (INCLUDING ITS LICENSEES, ASSIGNEES, SUBSIDIARIES, AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS AND REPRESENTATIVES) SHALL NOT BE LIABLE FOR ANY INJURY (INCLUDING WITHOUT LIMITATION PERSONAL INJURY, DISABILITY, OR DEATH), DAMAGE (INCLUDING WITHOUT LIMITATION PROPERTY DAMAGE), LOSS, CLAIM, LIABILITY, OR EXPENSE, OF ANY KIND, ANY LOSS OF PROFIT, REVENUE, CONTRACTS OR SAVINGS, OR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR SPONSOR’S OR ANY USER’S USE OF OR INABILITY TO USE THE SOFTWARE AND SERVICES, ANY DEFECT OR ERROR IN ANY SOFTWARE AND SERVICES, OR ANY BREACH OF THIS AGREEMENT, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY. THE AGGREGATE LIABILITY OF HOVER (INCLUDING ITS LICENSEES, ASSIGNEES, SUBSIDIARIES, AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS AND REPRESENTATIVES) FOR ALL CLAIMS AND DAMAGES OF EVERY KIND AND TYPE, WHETHER IN CONTRACT OR TORT, ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, INCLUDING RESULTING FROM THE USE OR POSSESSION OF THE SOFTWARE AND SERVICES, SHALL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID HEREUNDER BY SPONSOR IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE CLAIM. IN THE EVENT OF AN ERROR IN ANY HOVER MODEL OR OTHER HOVER DELIVERABLE, CUSTOMER’S SOLE REMEDY WILL BE A REFUND OF THE FEES PAID TO OBTAIN THE HOVER MODEL OR OTHER HOVER DELIVERABLE.
(d) Disclaimer with respect to Contractors. HOVER does not endorse, recommend, or make any representations or warranties about the service or installation provided by any contractor. Any information provided by HOVER relating to contractors is solely for informational purposes only. We make no guarantees or representations regarding the skills of any contractor, nor do we guarantee or warrant the outcome or quality of the job that they may perform if you elect to retain their services. Contractors are not employees or agents of HOVER, and your choice to use any contractor is at your own risk. Your rights are governed by the terms of the contract you enter into with the contractor you select, and by applicable federal, state, provincial and/or local laws.HOVER specifically disclaims any liability for any injury or other damages arising out of or relating in any way to disputes, contracts, or your dealings with contractors. Should you have a dispute with any contractor, you hereby agree to release HOVER and its agents, employees, or affiliates from any damages or claims of every kind of nature, suspected and unsuspected, known and unknown, and disclosed or undisclosed, including consequential and incidental damages, arising out of or relating in any way to such disputes and your dealings with contractors.
(a) Duration. Except as otherwise set forth on Order Documentation, the initial term of this Agreement shall be one (1) year from the date this Agreement is entered into, unless earlier terminated (the “Term”). Either party may terminate this Agreement (i) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors or (ii) upon 30 days’ written notice (email being sufficient) to the other party if a material breach occurs such as Customer’s failure to pay, and if such breach remains uncured at the expiration of such period. Customer shall delete all HOVER Deliverables in the event Customer’s Agreement is terminated for failure to pay or Customer’s other breach of this Agreement. In no event will termination relieve Customer of its obligation to pay or entitle Customer to a refund of any commitments, subscription fees, fees incurred for Deliverables, or other fees owed or paid to HOVER.
(b) Effect of Termination. Upon any termination of this Agreement, except as otherwise provided in Section 4(b), the license to the Software and Services shall terminate. The sections of this Agreement which by their nature are intended to survive shall survive any termination or expiration of this Agreement, including without limitation the provisions relating to license and use restrictions, intellectual property rights, limitations of liability, and confidentiality.
(c) Auto-Renewal. Unless written notice of non-renewal is provided by Customer or HOVER at least 30 days prior to the end of any Term, (i) the Agreement will automatically renew for a new 12-month Term, (ii) Customer will be charged a renewal membership fee at a rate no greater than its previous membership fee or the current membership fee for Customer’s membership tier listed on HOVER’s website (whichever is greater), and (iii) Customer will be charged fees for HOVER Deliverables ordered by Customer at rates no greater than HOVER’s standard rates listed on HOVER’s website.
(a) Confidentiality. Except as otherwise provided in this Agreement, any and all confidential documentation and information provided by one party to the other party under this Agreement (“Confidential Information”) is confidential and proprietary to the disclosing party and shall remain the property of the disclosing party. The receiving party agrees that it will not permit the duplication, use, or disclosure of any such Confidential Information to any person (other than its own employees, agents, or representatives who reasonably require such information for the performance of its obligations hereunder), unless such duplication, use, or disclosure is specifically authorized in writing in advance by the disclosing party. Confidential Information of the disclosing party may include, without limitation, the terms of Customer’s agreement with HOVER, the disclosing party’s past, present, and future research, development and business activities, inventions (whether patentable or not), software code, database lists, technical information, plans, methods, know-how, processes, and techniques regarding manufacturing and sale, and the disclosing party’s customers, creditors, suppliers, and pricing, whether in oral, written, graphic, or electronic form. All Confidential Information will remain the exclusive property of the disclosing party, and nothing contained in this Agreement shall be construed as granting to the receiving party any rights therein, by license or otherwise, except the limited right to use such Confidential Information solely in the performance of this Agreement. The receiving party agrees to reasonably delete, destroy, or return upon request of the disclosing party all Confidential Information furnished to the receiving party or acquired by the receiving party under this Agreement. Confidential Information does not include any information that at the time of disclosure: (i) was previously known to the receiving party without obligations of confidentiality; (ii) is obtained after the date hereof from a third-party which is lawfully in possession of such information and not in violation of any contractual or legal obligation to a disclosing party with respect to such information; (iii) is or becomes part of the public domain or otherwise accessible by the public through no fault of receiving party or its employees; (iv) is independently ascertainable or developed by receiving party or its employees; (v) is required to be disclosed by law, provided that receiving party promptly after receiving notice of such requirement notifies disclosing party to give the disclosing party an opportunity to seek any other legal remedies to maintain such Confidential Information in confidence; (vi) is approved for release by written authorization of disclosing party; or (vii) is otherwise addressed in this Agreement. The Derived Data and the Software and Services are the Confidential Information of HOVER.
(b) Equitable Relief. The disclosing party would suffer irreparable harm in the event of any disclosure or threatened disclosure of Confidential Information in violation of the Agreement, and money damages would not be a sufficient remedy for any such breach or threatened breach. Without prejudice to the rights and remedies otherwise available, the disclosing party will be entitled to seek equitable relief by way of injunction, specific performance or otherwise, without the requirement of proof of actual damages or posting a bond or other security, if the receiving party discloses or threatens to disclose Confidential Information in violation of this Agreement.
Each party will be and act as an independent contractor and not as an agent, partner, or joint-venturer with the other party for any purpose related to this Agreement or the transactions contemplated hereunder, and neither party will by virtue of this Agreement have any right, power or authority to act or create any obligation, expressed or implied, on behalf of the other party.
The rights and obligations described herein and as may be further described in any Order Documentation may not be assigned in whole or in part by either party without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed, except that (a) a Sponsor may assign its rights to any subsidiary or affiliate without prior written consent, but with notice to HOVER and (b) HOVER may assign without notice in connection with a sale of all, or substantially all, of the assets, business or equity of HOVER, by merger, consolidation, sale of assets, or otherwise.
If Customer is using form proposals and contracts provided by HOVER, Customer acknowledges the following:
All notices concerning, required or permitted under this Agreement shall be sent to firstname.lastname@example.org unless otherwise designated in Order Documentation.
(a) Neither party will incur any liability to the other on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond its control and without negligence of the parties. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquakes, fire, and explosions, but the ability to meet financial obligations is expressly excluded.
(b) Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time will not be deemed a waiver of such party’s rights and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action.
(c) If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
(d) This Agreement contains the entire agreement of the parties with respect to the subject matter herein and supersedes all previous communications, proposals, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter. No employee, agent, representative or affiliate of HOVER or Sponsor has authority to bind HOVER or Sponsor, respectively, to any oral representations or warranty concerning any HOVER products or services or additional Sponsor obligations. Any written representation or warranty not expressly contained in this Agreement is unenforceable.
(e) No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Sponsor may use in connection with the acquisition or licensing of the Software and Services will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement regardless of any failure of HOVER to object to such terms, provisions, or conditions, except where the same have been mutually agreed-to in writing by the parties.
(f) This Agreement may be executed in counterparts, including by .pdf format, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same instrument.
(g) This Agreement will be interpreted and construed pursuant to the laws of the State of California and the United States without regard to conflict of law provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any claims or litigation arising under these Terms will be brought in state and federal courts located in San Francisco, California, and the parties specifically consent to San Francisco, California, as the exclusive venue for any such proceeding.
(h) The parties agree to waive any future challenge to the validity and enforceability of these terms and any document submitted hereunder on the grounds that it was electronically transmitted and/or authorized or accepted.
(i) The language of this Agreement shall be construed in accordance with its fair meaning and not for or against any party. The parties acknowledge that each party has had the opportunity to review this Agreement with counsel, and accordingly any rule of construction that would resolve ambiguities in favor of non-drafting parties shall not apply to the interpretation of this Agreement.
(j) All section and paragraph titles and captions contained in this Agreement are for convenience only and are not deemed a part of the context hereof.