Terms of Service
Effective Date: 3/19/26
These Terms of Service form a binding agreement (this “Agreement”) between Hudu Technologies, Inc., a Delaware corporation having its principal office at 1305 North 4th Street, Suite B, Grand Junction, Colorado 81501 (“Licensor” or “Hudu”) and the person or entity identified in your Hudu or Hudu HQ account and/or on Invoice(s) as the licensee of the Software (“Licensee” or “You”).
BY CLICKING BELOW OR CONTINUING TO USE OUR SOFTWARE OR SERVICES AFTER THESE TERMS HAVE BEEN PRESENTED TO YOU, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY THESE TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, HUDU WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD OR USE THE SOFTWARE OR RESOURCES.
THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN YOU AND US ARE RESOLVED. IN PARTICULAR, SECTION 17 CONTAINS AN ARBITRATION AGREEMENT THAT MAY REQUIRE DISPUTES TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. IN ADDITION: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, AND NOT IN ANY CLASS OR REPRESENTATIVE PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
1. Definitions. For purposes of this Agreement, the following terms have the following meanings:
“Authorized Users” means solely those individuals who are identified in your instance of the Software as authorized to use the Software in accordance with this Agreement, the number of which shall at all times be limited to the user-seat count identified in your Hudu HQ account.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Customer Users” means solely those individuals who are identified in your instance of the Software as authorized to obtain read-only access to the Software through the Hudu-provided customer portal.
“Fees” means the fees, excluding taxes thereon, paid or required to be paid by Licensee for the license granted under this Agreement.
“Hosted Instance” means a licensed instance of the Software made available to Licensee through a subdomain hosted by Hudu.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Invoice(s)” means the order for Licensee's trial or purchase of a license to the Software granted under this Agreement, together with all documentation reflecting the Fees to be paid by Licensee.
“Licensee Data” means information, data, and other content, in any form or medium, that Licensee, its Authorized Users, or its Customer Users upload to or store utilizing the Software, whether such content is owned by Licensee or a Third Party.
“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Process” means to take any action or perform any operation or set of operations that the Software is capable of taking or performing on any data, information, or other content, including to collect, receive, upload, download, record, reproduce, store, organize, compile, combine, catalog, manage, maintain, copy, adapt, alter, translate, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
“Reseller” means any Third Party that has been authorized by Hudu to license, distribute, or otherwise make Software available to Licensee, subject to Licensee’s agreement to and compliance with this Agreement.
“Resources” means the materials available from our Resource Center, Knowledge Base, and any other user manuals, handbooks, and installation guides we provide relating to the Software.
“Resultant Data” means data and information related to use of the Software and about equipment through which the Software is accessed or used by Licensee, its Authorized Users, and its Customer Users (excluding Licensee Data), which is used by Hudu to evaluate and improve the performance and operation of the Software and Hudu’s services.
“Self-Hosted Instance” means a licensed instance of the Software made available to Licensee for use on a domain hosted by or in the control of Licensee, Reseller, or a Person other than Hudu.
“Software” means the product described in the Invoice(s) as made available to you, including, if applicable, any Application Program Interface (“API”) and any Updates provided to Licensee pursuant to this Agreement.
“Third Party” means any Person other than Hudu, Licensee or its Authorized Users.
“Updates” means any updates, feature improvements, bug fixes, patches, or other error corrections to the Software that Hudu generally makes available free of charge to all licensees of the Software.
2. License Grant and Scope. Subject to and conditioned upon Licensee's compliance with all terms and conditions in this Agreement, Hudu hereby grants Licensee a non-exclusive, non-sublicensable (except to Customer Users), non-transferable license, during the Term and solely by and through its Authorized Users, to:
(a) Access and use the Software for Licensee’s own use, solely as set forth in this Agreement and the Resources.
(b) Access and use the Resources, solely in support of its licensed use of the Software. Any copy of the Resources made by Licensee:
(i) will be the exclusive property of Hudu;
(ii) will be subject to the terms and conditions of this Agreement; and
(iii) must include all Intellectual Property Rights notices contained in the original.
(c) Provide limited, read-only access and use of the Software to Customer Users, solely as permitted through the customer portal provided by Hudu.
3. Use Restrictions. Except where expressly permitted by a separate agreement between Licensee and Hudu, Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
(a) use (including make any copies of) the Software or Resources beyond the scope of the license granted herein;
(b) make requests via the API that are, in Hudu’s sole discretion, deemed excessive or excessively frequent;
(c) provide any other Person with access to or use of the Software or Resources, except Licensee’s authorized Customer Users;
(d) provide Hudu any false name, contact information, or other information requested in order to register an account;
(e) register an account or access or use the Software through “bots” or other automated methods;
(f) share license keys or other login credentials;
(g) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Resources or any part thereof;
(h) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
(i) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
(j) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Resources, including any copy thereof;
(k) copy the Software or Resources, in whole or in part, except for any temporary or transitory copies created by use permitted under this Agreement or as reasonably necessary to implement and use a Self-Hosted Instance;
(l) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason not permitted under this Agreement, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
(m) use the Software or Resources in violation of any law, regulation, or rule; or
(n) use the Software or Resources for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to Hudu's commercial disadvantage.
4. Responsibility for Use of Software and AI-Enabled Technologies. Licensee is responsible and liable for all uses of the Software and Resources through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Resources by its Authorized Users, by its Customer Users, or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Resources, whether such access or use is permitted by or in violation of this Agreement. Hudu may provide Licensee tools to enable the use of software components or integrations made available by Third Parties, including without limitation artificial intelligence (“AI”) technologies, within the Software. Licensee is solely responsible for all use of such Third Party components in accordance with applicable Third Party terms, conditions, and licenses. Licensee acknowledges and agrees that AI technologies may not always be accurate and should not be relied upon as the sole source of factual information. Hudu does not review, verify, or guarantee the accuracy and completeness of the operation of any Third Party components, including AI technologies.By using such Third Party components and AI technologies, Licensee assumes all risk of such use, including without limitation any access, use, disclosure, or copying of Licensee Data that may occur as a result.
5. Compliance Measures.
(a) On a regular basis and at least annually, Licensee shall conduct a review of its use of the Software to confirm it is in full compliance with this Agreement, including by purchasing a license seat for each Authorized User and by permitting a Third Party to access and use the Software only if it is an authorized Customer User.
(b) If Licensee discovers any noncompliance, Licensee shall immediately remedy such noncompliance and provide Hudu with written notice thereof. Licensee shall provide Hudu with all access and assistance as Hudu requests to further evaluate and remedy such noncompliance.
(c) Hudu retains the right to audit Licensee's use of the Software to ensure Licensee's compliance with this Agreement.
6. Updates. Hudu may develop and provide Updates in its sole discretion, and Licensee agrees that Hudu has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Resources, all subject to all terms and conditions of this Agreement.
7. Hosted Instance Availability
(a) Hudu will use commercially reasonable efforts to make any Hosted Instance of the Software Available to Licensee and its Authorized Users at least 99.5% of the time as measured over the course of each calendar month during the Term (each a “Service Period”), excluding unavailability as a result of any of the Exceptions described in this Section 7 (the “Availability Requirement”). As used in this Section 7, “Available” means the Software is available for access and use by Licensee and its Authorized Users over the Internet and operating in material accordance with the Resources. “Service Level Failure” means a material failure of the Software to meet the Availability Requirement.
(b) The following “Exceptions” to the Availability Requirement will not be considered in calculating the period during which the Software was Available, or in determining any Service Level Failure, when Licensee or its Authorized Users are unable to access or use the Software due, in whole or in part, to any:
(i) act or omission by Licensee, any Authorized User, or any other Person acting on behalf of Licensee;
(ii) Licensee’s or its Authorized User’s Internet connectivity;
(iii) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, connectivity, or other matter not supplied by Hudu pursuant to this Agreement;
(iv) any circumstances beyond Hudu’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, national or regional shortage of adequate power or telecommunications or transportation, passage of law or any action taken by a governmental or public authority, or any complete or partial government shutdown;
(v) downtime for any Updates or emergency maintenance; or
(vi) The disabling, suspension, or termination of Licensee’s license or access to the Software as permitted by this Agreement.
(c) In the event of a Service Level Failure, Hudu shall issue a credit to Licensee in the amount of five (5%) of the monthly Fees for the Services due for the Service Period the Service Level Failure occurred (each a "Service Credit"), subject to the following:
(i) Hudu has no obligation to issue any Service Credit unless: (i) Licensee reports the Service Failure to Hudu immediately on becoming aware of it; and (ii) requests such Service Credit in writing within thirty (30) days of the Service Level Failure; and
(ii) in no event will a Service Level Credit for any Service Period exceed ten (10%) percent of the total Fees that would be payable for that Service Period if no Service Level Failure had occurred.
This Section 7(c) sets forth Hudu's sole obligation and liability and Licensee's sole remedy for any Service Level Failure.
8. Licensee Data and Resultant Data.
(a) As between Hudu and Licensee, Licensee is and will remain the sole and exclusive owner of all right, title, and interest in and to all Licensee Data, including all Intellectual Property Rights therein. Licensee hereby grants Hudu, its subcontractors, and any Reseller (if applicable) such rights and permissions in or relating to the Licensee Data solely as reasonably necessary to perform its obligations under this Agreement, including without limitation the right to copy, store, and Process Licensee Data in a Hosted Instance for access and use by Licensee, its Authorized Users, and its Customer Users.
(b) Licensee represents, warrants, and covenants to Hudu that Licensee owns or otherwise has and will have the necessary rights and consents in and relating to the Licensee Data so that, as received by Hudu and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, any privacy rights, or any other rights of any Third Party or otherwise violate any applicable law. Licensee represents, warrants, and covenants that Licensee, its Authorized Users and Customer Users shall not upload, submit, or otherwise cause Hudu to Process any Licensee Data that may reasonably be considered sensitive personal information under applicable law (including without limitation any financial account information, personal health information, or biometrics), except upon Hudu’s prior written consent in a signed document identified as an amendment or addendum to this Agreement.
(c) Hudu does not screen or otherwise monitor the content or use of Licensee Data. Hudu reserves the right (but not the obligation) to remove Licensee Data from any Hosted Instance if, in Hudu’s sole discretion, the content or use of Licensee Data violates or is likely to violate this Agreement or applicable law.
(d) Licensee acknowledges that Hudu may, directly or indirectly through the services of Third Parties, collect and store Resultant Data. Licensee agrees that Hudu may use Resultant Data for any purpose related to the Software, including but not limited to improving the performance of the Software or developing Updates; and verifying Licensee's compliance with the terms of this Agreement and enforcing Hudu's rights, including all Intellectual Property Rights in and to the Software.
9. Security and Data Processing.
(a) Hudu will employ reasonable security measures, and in a Hosted Instance of the Software will Process all Licensee Data, in a manner reasonably designed to safeguard Licensee Data from unauthorized or unlawful Processing, access, copying, modification, storage, reproduction, display, or distribution. Hudu’s compliance and security practices are more fully described at our Trust Center available at https://compliance.hudu.com and may be amended from time to time. In accordance with these policies and practices, Hudu may use Third Party vendors and hosting partners to provide necessary hardware, software, networking, storage, and related technology required to operate the Software and/or Process Licensee Data. Licensee further acknowledges and agrees that, if Licensee purchased or otherwise obtained access to this license through a Reseller, Reseller may Process Licensee Data to the same extent as, and subject to the same limitations as, Hudu’s Processing of Licensee Data under this Agreement.
(b) With respect to any Licensee Data that constitutes or contains personal information or its equivalents (“Personal Data”) as defined by applicable law or regulation (“Data Protection Laws”), Hudu and Licensee agree:
(i) Hudu and Reseller (if applicable) are each a processor, and Licensee may act either as a controller or a processor of Personal Data.
(ii) As between Hudu and Licensee, Licensee retains control of the Personal Data and remains responsible for its compliance obligations under the applicable Data Protection Laws, including providing any required notices and obtaining any required consents, and for the processing instructions given to Hudu.
(iii) Hudu will maintain all Personal Data confidentiality and will only Process, retain, use, or disclose the Personal Data to the extent and in the manner reasonably necessary for the provision of the Software and Hudu’s services. Hudu will not Process, retain, use, or disclose the Personal Data for any other purpose, including without limitation any sale to a Third Party or any cross-context behavior advertising for the benefit of Hudu or any Third Party, and will not combine or update the Personal Data with any personal information collected from any other source.
(iv) Licensee acknowledges and agrees that Hudu may engage sub-processors to access and Process Personal Data in connection with provision of the Software and Hudu’s services. Hudu shall enter into a written agreement imposing on each sub-processor data protection and confidentiality obligations with respect to the Personal Data comparable to those imposed on Hudu under this Agreement. A list of authorized sub-processors is available in the Trust Center at https://compliance.hudu.com.
(v) Hudu will promptly notify Licensee if, in its opinion, Hudu is unable to comply with applicable Data Protection Laws or Licensee’s instructions with respect to Personal Data. However, Hudu is under no duty to investigate the completeness, accuracy, or sufficiency of any specific instruction.
(vi) Hudu will reasonably assist Licensee with meeting Licensee’s compliance obligations under applicable Data Protection Laws. Hudu will, to the extent permitted by law, notify Licensee upon receipt of a request to exercise any rights of a data subject under applicable Data Protection Laws and Licensee will be responsible for responding to such a request. Hudu will promptly comply with any Licensee request or instruction requiring Hudu to amend, transfer, or delete the Personal Data, or to stop, mitigate, or remedy any unauthorized Processing, provided that Licensee is unable to respond without Hudu’s assistance and Hudu is capable of responding in accordance with all applicable laws.
(vii) Hudu will maintain records sufficient to demonstrate its compliance with its security and Processing obligations during the Term of this Agreement. Upon Licensee’s reasonable written request and subject to reasonable confidentiality controls, Hudu shall either make available for Licensee’s review copies of certifications or reports demonstrating Hudu’s compliance with reasonable prevailing data security standards applicable to the processing of Personal Data, or allow Licensee’s independent third party representative to conduct an audit or inspection of Hudu’s data security infrastructure and procedures that is sufficient to demonstrate Hudu’s compliance with its obligations under Data Protection Laws, provided that (x) Licensee provides reasonable prior written notice of any such request for an audit and such inspection shall not be unreasonably disruptive to Hudu’s business; (y) such audit shall only be performed during business hours and occur no more than once per calendar year; and (z) such audit shall be restricted to data relevant to Licensee. Licensee shall be responsible for the costs of any such audits or inspections, including without limitation a reimbursement to Hudu for any time expended for on-site audits.
(c) THE SOFTWARE DOES NOT REPLACE THE NEED FOR LICENSEE TO MAINTAIN REGULAR DATA BACKUPS OR REDUNDANT DATA ARCHIVES. Hudu has no obligation or liability for any loss, alteration, destruction, damage, corruption, or the recovery of Licensee Data. Hudu may, but is not obligated to, use commercially reasonable efforts to assist Licensee in the restoration of any Licensee Data accessible in a Hosted Instance of the Software.
(d) Licensee shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to securely administer the access and use of the Software by Licensee and its Authorized Users, and control the content and use of Licensee Data, including the uploading or other provision of Licensee Data for Processing by the Software.
(e) Licensee has and will retain sole responsibility for:
(i) all Licensee Data, including its content and use;
(ii) all information, instructions, and materials provided by or on behalf of Licensee or any Authorized User;
(iii) Licensee's information technology infrastructure, including computers, software, databases, electronic systems, and networks, whether operated directly by Licensee or through the use of third-party services; and
(iv) all access to and use of the Software and Resources directly or indirectly by or through Licensee or its Authorized Users or Customer Users, with or without Licensee’s knowledge or consent.
(f) Hudu will promptly notify Licensee if Hudu learns of or has reason to suspect any unauthorized access to or acquisition or disclose of Licensee Data or Personal Data (a “Security Incident”). Hudu will reasonably cooperate with Licensee in Licensee’s handling of the Security Incident, including making available any relevant records, logs, files, data reporting, or other materials required to comply with applicable law or as otherwise reasonably requested by Licensee. Hudu agrees that Licensee will have the sole right to determine whether notice of the Security Incident is to be provided by any individuals, regulators, law enforcement agencies, or consumer reporting agencies, as required by law or regulation or otherwise in Licensee’s discretion.
10. Intellectual Property Rights. Licensee acknowledges and agrees that the Software and Resources are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Resources under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Hudu and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, including but not limited to its code, look and feel, and visual design elements, except as expressly granted to the Licensee in this Agreement. Licensee shall use commercially reasonable efforts to safeguard all Software from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Hudu if Licensee becomes aware of any infringement of Hudu's Intellectual Property Rights in the Software and fully cooperate with Hudu, at Hudu's sole expense, in any legal action taken by Hudu to enforce its Intellectual Property Rights.
11. Payment of Fees.
(a) Licensee agrees to pay all Fees set forth in Invoice(s) or other documentation made available to Licensee.All Fees are payable in advance in the manner set forth in the Invoice(s) and are non-refundable, except as may be expressly set forth herein. Any renewal of the license hereunder shall not be effective until the Fees for such renewal have been paid in full.
(b) All Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Licensee shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes imposed on Hudu’s income. Where required, Hudu will collect those taxes on behalf of the taxing authority and remit those taxes to the taxing authority.
(c) Fees may be based upon the number of user-seats available to Licensee, the maximum data storage size available to Licensee in a Hosted Instance of the Software, and/or other factors identified on Invoice(s) issued to Licensee.If Licensee exceeds its permitted usage, Licensee acknowledges and agrees it will pay additional Fees for all excess usage and storage.
(d) Hudu may change the effective price of its Software and services at any time, and all such changes shall become effective thirty (30) days after Hudu provides notice to Licensee through the Hudu HQ account or in the Software.
(e) Payment shall be made to Hudu unless Licensee obtains license to the Software through an authorized Reseller, in which case payment shall be made to Reseller according to Reseller’s payment terms.
12. Term and Termination.
(a) This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Invoice(s) or until earlier terminated as set forth herein (the “Term”).
(b) Licensee may terminate this Agreement by ceasing to use and disabling access to the Software by Authorized Users and Customer Users, including without limitation by cancelling Licensee’s registered account.
(c) Hudu may terminate this Agreement, effective upon written notice to Licensee, if Licensee, materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after Hudu provides written notice thereof.
(d) Hudu may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
13. Effect of Termination.
(a) Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and accessing the Software and Resources. No expiration or termination shall affect Licensee's obligation to pay all Fees that may have become due before such expiration or termination, nor shall expiration or termination entitle Licensee to any refund.
(b) Licensee is responsible for extracting all Licensee Data from the Software prior to termination or expiration of the licensee. All Licensee Data will be inaccessible from the Software immediately upon termination or expiration.
14. Disclaimer of Warranties.THE SOFTWARE AND RESOURCES ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, RESOURCES, AND OTHER PROVIDED SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. LICENSOR FURTHER DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY MATERIALS AND RESELLER SERVICES.
15. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL LICENSOR'S AND ITS AFFILIATES', INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS' AND SERVICE PROVIDERS', COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY LICENSEE TO THE LICENSOR PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR THE SPECIFIC SERVICES OR SOFTWARE THAT IS OR ARE THE SUBJECT OF THE CLAIM.
(c) THE LIMITATIONS SET FORTH IN THIS SECTION 15 SHALL APPLY EVEN IF THE LICENSEE'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
16. Indemnification
(a) Hudu shall indemnify, defend, and hold harmless Licensee, its Authorized Users, and its officers, directors, employees, agents, and successors (each, a “Licensee-Indemnitee") from and against any and all Losses incurred by a Licensee-Indemnitee resulting from any Action by a Third Party (other than a Reseller or an affiliate of a Licensee-Indemnitee) that Licensee’s or an Authorized User’s use of the Software in accordance with this Agreement infringes or misappropriates such Third Party’s United States Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from:
(i) Licensee Data;
(ii) access to or use of the Software in combination with any hardware, system, software, network, or other materials or service not provided by Hudu;
(iii) modification of the Software or Resources other than by or on behalf of Hudu;
(iv) failure to timely implement any modifications, Updates, replacements, or enhancements made available to Licensee by or on behalf of Hudu;
(v) any Reseller services; or
(vi) act, omission, or other matter for which Licensee owes a defense or indemnification.
(b) Licensee shall indemnify, defend, and hold harmless Hudu, its affiliates and subcontractors, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Hudu-Indemnitee") from and against any and all Losses incurred by the Hudu-Indemnitee resulting from any Action by a Third Party (other than an affiliate of a Hudu-Indemnitee) that arise out of or result from, or are alleged to arise out of or result from:
(i) Licensee Data, including any Processing of Licensee Data by or on behalf of Hudu in accordance with this Agreement;
(ii) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Licensee or any Authorized User or Customer User, including without limitation any third-party components or Hudu's compliance with any specifications or directions provided by or on behalf of Licensee or any Authorized User or Customer User to the extent prepared without any contribution by Hudu;
(iii) allegation of facts that, if true, would constitute Licensee’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
(iv) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Licensee, any Authorized User, any Customer User, or any third party on behalf of any of them, in connection with this Agreement.
(c) Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee's prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee's failure to perform any obligations under this Section 16 will not relieve the Indemnitor of its obligations, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
(d) If any component of the Software or Resources are, or in Hudu’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any Third Party’s Intellectual Property Right, or if Licensee’s or any Authorized User’s use of the Software or Resources is enjoined or threatened to be enjoined, Hudu may, at its option and sole cost and expense:
(i) obtain the right for License to continue to use the Software and Resources materially as contemplated by this Agreement;
(ii) modify or replace the Software and Resources, in whole or in part, to seek to make the Software and Resources non-infringing, while providing materially equivalent features and functionality; or
(iii) by written notice to Licensee, terminate this Agreement with respect to all or part of the Software and Resources and require Licensee to immediately cease any use of the Software and Resources, in which case Hudu may at its sole discretion provide Licensee a pro-rata refund of any Fees pre-paid by Licensee for the then-remaining portion of the Term.
17. Governing Law and Agreement to Arbitrate.
(a) All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule.
(b) If there is a claim or dispute between us arising from or related in any way to the Software or this Agreement, either you or we may require the claim or dispute be resolved through binding arbitration before a neutral party instead of a lawsuit or other resolution in court. This includes all past, present, and future claims, including claims that arose before this provision became effective. If either party requires the claim or dispute to be resolved through arbitration, it will be subject to arbitration even if the other party does not agree. This arbitration provision will apply irrespective of whether the claim or dispute arises under contract, tort, statute, or any other basis. Such claim or dispute shall be arbitrated on an individual basis and not in a class action. You and we waive any right to arbitrate disputes as part of a class action. If a class action lawsuit is initiated against us, you agree that this provision applies to such action and if we require claims covered by the class action to be arbitrated, you will withdraw from or agree to dismissal of the class action and allow your claim to be arbitrated on an individual basis.
(c) Either of us may require arbitration of a claim or dispute even if one of us has already initiated legal action related to the claim or dispute. The arbitration may be required and initiated by: (i) making written demand for arbitration on the other party; (ii) initiating an arbitration proceeding against the other party; or (iii) filing a motion to compel arbitration in a court in which litigation has already begun. The arbitration shall be conducted pursuant to the Consumer Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration shall take place by remote proceedings, or in the federal district in which you reside. We will reimburse the amount of filing, case management, administration, and arbitrator fees you pay to the arbitration organization and the arbitrator that exceed $250, to a maximum of $5000, unless the arbitration rules or arbitrator’s decision requires us to pay more. We will not reimburse any fees if the arbitrator determines that your claim or dispute was frivolous or baseless. Each party shall be responsible for its own fees in any arbitration unless the arbitrator awards attorney fees under applicable law or agreement. More information about the AAA rules and procedures is available at www.adr.org or by phone at (800) 778-7879.This arbitration provision and any arbitration conducted under it are governed by the Federal Arbitration Act (9 U.S.C. § 1 et seq.) and are not subject to any state law related to arbitration.
(d) A claim filed against either you or us in small claims court in Alaska is excluded from this arbitration requirement as long as the claim remains in small claims court as an individual claim and not a class action. In addition, no claim is subject to this arbitration requirement if you are an active-duty armed service member.
18. Miscellaneous
(a) In no event shall Hudu be liable to Licensee, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Hudu's reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake, epidemics, pandemics or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (viii) shortage of adequate power or internet connectivity.
(b) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Invoice(s) or to such other address as may be designated by a party from time to time in accordance with this Section 18.
(c) This Agreement, together with the Invoice(s), and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Licensee and Hudu with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
(d) Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Hudu's prior written consent, which consent Hudu may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Hudu's prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 18 is void. Hudu may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee's consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(e) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
(f) Hudu reserves the right to modify the Software, its features, its pricing, or the terms of this Agreement at any time upon notice.No amendment, modification, or supplement by Licensee shall be effective unless in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(g) If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(h) For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Invoice(s) referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth herein.
(i) The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.