General Terms and Conditions
These general terms and conditions (the “Terms and Conditions”) are between Red Book Connect, LLC d/b/a HotSchedules (“HotSchedules”) and the Subscriber named on any service order form that incorporates these Terms and Conditions (“Order”) or any other person or entity whose use of the Subscription Services is not governed by a superseding agreement (“Subscriber”). By clicking the box indicating acceptance, signing an Order, by making payment in accordance with an Order, or by using the Subscription Services, Subscriber agrees that such Order and its use of the Subscription Services shall be governed exclusively by these Terms and Conditions and any additional terms stated in such Order. If you are entering into this Agreement on behalf of a Subscriber that is a company or other legal entity, you warrant and represent that you have the authority to bind such entity and such entity’s affiliates to these Terms and Conditions.
1. USE OF THE SUBSCRIPTION SERVICE
1.1 Limited License to Use the Subscription Service. Subject to the provisions hereof, HotSchedules grants to Subscriber a limited, worldwide, non-exclusive, non-sublicensable, non-transferable right during the Term (as defined below) hereof to (a) use the hosted service identified on the Order (the “Subscription Service”) solely in connection with its internal business operations; and (b) reproduce, without modification, and internally use a reasonable number of copies of the HotSchedules-provided online user documentation for the Subscription Service (the “Documentation”) solely in connection with its permitted use of the Subscription Service. HotSchedules reserves all rights that are not explicitly granted herein.
1.2 Locations, Users, and Pricing. A “Location” means a discrete profit center at a physical location at which Subscriber has operations. During the Term, Subscriber shall (a) use the Subscription Service at the maximum number of Locations specified in the applicable Order; and (b) restrict the ability to log into the Subscription Service (“Access”) to those employees and/or third-party contractors performing services for the benefit of Subscriber’s internal business operations at such Locations (each a “User”). Subscriber’s and Subscriber’s Users use of the Subscription Service shall be subject to and governed exclusively by these Terms and Conditions even if such use has not been licensed in an Order.
1.3 Use Restrictions. Subscriber shall not, and shall not permit or authorize third parties under its control to: (a) rent, lease, or otherwise permit anyone other than Users to use the Subscription Service or Documentation; (b) use the Subscription Service to provide services to third parties (e.g., as a service bureau); (c) circumvent or disable any security or other technological features or measures of the Subscription Service, or attempt to probe, scan, gain Access to, or test the vulnerability of a network and or system; (d) upload or provide any information or materials that are defamatory, offensive, abusive, obscene, of menacing character, or that violate privacy or intellectual property rights; (e) use the Subscription Service to harm, threaten, or harass others; or (f) send, store or distribute any malware, viruses or any other routines, code or programs with the intent or effect of damaging, destroying, disrupting, monitoring or otherwise impairing HotSchedules’, or any other person’s or entity’s, network, computer system, or other equipment. Subscriber will neither alter nor remove any proprietary rights notices that may appear on the Documentation and will include all such notices on any copies. Subscriber will use the Subscription Service and Documentation, and upload data into the Subscription Service, in compliance with all applicable laws and regulations.
1.4 Feedback. Notwithstanding anything to the contrary in these Terms and Conditions, any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber to HotSchedules relating to the Subscription Services (collectively “Submissions”) shall be HotSchedules’ sole exclusive property and shall constitute HotSchedules’ Confidential Information. HotSchedules shall exclusively own all rights, including all intellectual property rights, in and to all Submissions. HotSchedules shall be entitled to the unrestricted use and dissemination of Submissions for any purpose, including without limitation, the right to create improvements to the Subscription Service and derivative works based on Submissions, without acknowledgement, consent, or compensation to Subscriber. If any intellectual property rights within any Submissions vests, or has previously vested, in or to Subscriber, Subscriber hereby assigns to HotSchedules all of Subscriber’s right, title and interest in all such intellectual property rights and Submissions, and Subscriber hereby waives to and in favor of HotSchedules any of its moral rights therein, including, without limitation, any right of integrity or author attribution.
1.5 Assistance. Subscriber shall promptly provide all reasonably requested information and assistance to HotSchedules to enable HotSchedules to implement and provide Access to the Subscription Service. Upon request from HotSchedules, Subscriber shall promptly deliver Subscriber Data to HotSchedules in an electronic file format specified and accessible by HotSchedules. Subscriber acknowledges that HotSchedules’ ability to implement and provide Access to the Subscription Service in the manner and timing provided in these Terms and Conditions and any Order is dependent upon the accuracy and timeliness of Subscriber’s information and assistance. If any Order or statement of work contains implementation or delivery dates, such dates are contingent upon Subscriber’s assistance as required in this Section 1.5
2. PROVISION OF SUBSCRIPTION SERVICES
2.1 Service Availability. During the term of the Subscription Service, HotSchedules will (a) use commercially reasonable efforts to operate the Subscription Service in a manner that meets the availability targets set forth in its then-current service policies; (b) utilize a reputable hosting infrastructure to provide the Subscription Service; (c) maintain commercially reasonable measures intended to avoid unplanned Subscription Service interruptions; and (d) use commercially reasonable efforts to notify Subscriber in advance of planned Subscription Service interruptions.
2.2 Data Integrity and Security. HotSchedules will maintain commercially reasonable physical, electronic, and managerial procedures intended to protect against the loss, misuse, or unauthorized access, alteration or disclosure of Subscriber Data. If HotSchedules learns of any unauthorized access to Subscriber Data, HotSchedules will, as required by law, promptly notify Subscriber of such unauthorized access, and the parties agree to coordinate and cooperate in good faith on developing the content of any related public statements or any required notices for the affected persons. Subscriber shall ensure that no User usernames and passwords are shared and is solely responsible for maintaining the confidentiality of all User usernames and passwords and for all activities that occur under such usernames. Subscriber will immediately notify HotSchedules of any suspected security breach or unauthorized access at security@HotSchedules.com, copying Subscriber's HotSchedules relationship manager. HotSchedules reserves the right to suspend the Subscription Service if HotSchedules reasonably determines that Subscriber or Subscriber’s Users use of the Subscription Service is causing immediate and ongoing harm to HotSchedules or others. In the extraordinary case that HotSchedules suspends the Subscription Service, HotSchedules shall immediately notify Subscriber of the suspension and the parties shall diligently attempt to resolve the issue. HotSchedules shall not be liable to Subscriber or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the Subscription Service in accordance with this Section 2.2. Nothing in this Section 2.2 shall limit HotSchedules rights under Section 4 below.
2.3 Professional Services. If an Order or a statement of work includes services designated as professional services, implementation services, or training (together “Professional Services”), subject to the payment of applicable fees, HotSchedules will use commercially reasonable efforts to perform such Professional Services (a) in a professional and workmanlike manner and (b) in accordance with the terms and conditions set forth in the Order or statement of work. Any changes to the Professional Services will not be effective unless mutually agreed upon by the parties in a written change order. Each party will designate a project leader as its single point of contact regarding the Professional Services.
2.4 Technical Support Services. HotSchedules will provide Subscriber with then-current standard technical support services with respect to the Subscription Service, as described on HotSchedules’ website at https://hotschedules.com/supportpolicy (“Technical Support Services”), so long as Subscriber is current in all payments due to HotSchedules under these Terms and Conditions. HotSchedules may use all technical information provided by Subscriber in connection with Technical Support Services for HotSchedules’ business purposes, including, without limitation, for product support and development. Subscription Services, Professional Services, and Technical Support Services may be collectively referred to as “Services”.
2.5 Subscriber's Responsibilities. Subscriber will be responsible for supplying its own internet connection, computer and network equipment, and mobile devices to Access the Subscription Service. As a condition to HotSchedules’ provision of any Professional Services and Technical Support Services, Subscriber will provide all assistance, cooperation, information, equipment, and resources reasonably necessary for HotSchedules to perform such services. Subscriber will use, and will ensure that its Users use reasonable efforts to prevent any unauthorized use of the Subscription Service or Documentation, and Subscriber will promptly notify HotSchedules if it learns of any unauthorized use. In such case, Subscriber will take all steps reasonably necessary to terminate the unauthorized use, and will cooperate and assist with any actions taken by HotSchedules to prevent or terminate such unauthorized use. Subscriber will ensure that all Users comply with the applicable obligations of Subscriber under these Terms and Conditions and will be directly responsible to HotSchedules for their conduct. Any act or omission of a User that would constitute a breach of these Terms and Conditions if committed by Subscriber will be deemed to be a breach by Subscriber.
2.6 Integrated Services. If the Subscription Service requires integration or interoperability with third party hardware, software, services, websites, or data (“Integrated Subscription Service”), it is Subscriber’s responsibility to secure the right for HotSchedules to receive, transmit, process, display, and store all data from such third party (“Integrated Data”) to the extent required for HotSchedules to perform its obligations and exercise its rights under these Terms and Conditions. If Subscriber does not secure such rights, HotSchedules may, in its sole discretion, secure such rights and charge Subscriber additional fees for the Integrated Subscription Service. HotSchedules does not control, is not responsible for, and Subscriber bears all risks associated with access to and use of such third party hardware, software, services, websites, or Integrated Data. Any Integrated Data made accessible by HotSchedules in or through the Integrated Subscription Service is provided on an “as-is” and “as available” basis without any warranty of any kind. Integrated Data may be indecent, offensive, inaccurate, incomplete, infringing or otherwise objectionable or unlawful, and Subscriber acknowledges that HotSchedules is not responsible for and under no obligation to control, monitor or correct Integrated Data; provided, however, HotSchedules reserves the right to take remedial action if any such data violates applicable law or these Terms and Conditions, including without limitation, the removal of, or disablement of access to, such data. Subscriber’s change in or additional use of third party hardware, software, services, or websites that requires integration with a HotSchedules Integrated Subscription Service may result in immediate additional fees beginning at the time such change was made.
2.8 Third Party APIs. Subscriber acknowledges that: (i) the nature, type, quality and availability of Integrated Data may change at any time during the Term, and (ii) features of the Integrated Subscription Service that integrate or interoperate with third parties and Integrated Data depend on the continuing availability of such third parties’ respective application programming interfaces (“APIs”) for use with the Integrated Subscription Service. HotSchedules may update, change or modify the Integrated Subscription Services under these Terms and Conditions because of a change in, or unavailability of, such Integrated Data or APIs. If any third party ceases to make its Integrated Data or APIs available on reasonable terms for the Integrated Subscription Services, as determined by HotSchedules in its sole discretion, HotSchedules may cease providing access to the affected Integrated Data or without any liability to Subscriber. Any changes to Integrated Data or APIs, including their availability or unavailability, during the Term does not affect Subscriber’s obligations under these Terms and Conditions or the applicable Order, and Subscriber will not be entitled to any reduction in fees, refund, credit or other compensation due to any such changes.
2.9 Installed Agent. For some Integrated Subscription Services, HotSchedules may require the installation of HotSchedules software on Subscriber’s hardware (“Integration Agent”). If HotSchedules requires the installation of an Integration Agent, Subscriber consents to such installation and represents and warrants that it has the right to allow HotSchedules to install the Integration Agent. For purposes of these Terms and Conditions, the Integration Agent shall be deemed part of the Subscription Services and Subscriber’s obligations and rights to use the Integration Agent are subject to these Terms and Conditions.
2.10 Storage. Any Integrated Data or other third party data that is stored in Subscriber’s Subscription Service environment shall count towards any storage restrictions, fees, or other allotments that may be applicable to the Subscription Services Subscriber has ordered.
3. FEES AND PAYMENT
3.1 Subscription Fees. The Subscription Commencement Date for each Location is the date Access to the Subscription Service is made available or 30 days after the Effective Date of the applicable Order, whichever is earlier. Subscription fees identified in an Order (“Subscription Fees”) shall be charged for all Locations beginning on the Subscription Commencement Date for such Locations and shall be paid on a calendar monthly basis in advance continuing through the end of the Term, unless otherwise stated in an Order. Partial calendar months will be pro-rated on a daily basis for the initial invoice only. HotSchedules may modify the Subscription Fees no more than once every twelve (12) calendar months by notifying Subscriber no later than sixty (60) days before the end of the annual anniversary of the Effective Date of the Order, with such change to take effect upon the anniversary of the Effective Date of the Order. If Subscriber elects to not renew this Agreement in accordance with Section 4.1, Subscriber shall be responsible for a full month’s Subscription Fees for the month the Agreement is effectively terminated.
3.2 Location and Tiered Pricing. The Subscription Fees for each Location may be based on the average number of Users at such Location during the then current Term on a tiered basis. For such Subscription Services, if Subscriber increases the number of Locations accessing the Subscription Service in excess of the number of Locations licensed in an Order, or if the average number of Users at a Location changes such that a different pricing tier applies to the Location than what is licensed in the applicable Order, Subscriber shall immediately owe HotSchedules additional Subscription Fees and Activation Fees, as applicable, beginning from the date such changes occurred. In such event, HotSchedules shall deliver a subsequent Order and invoice reflecting the changes at the then current price (“True-up Order”). The Initial Term and Renewal Term for all True-up Orders shall be the greater of the remaining Term for the applicable Location and one (1) year unless otherwise stated in the True-up Order. A True-up Order shall be billable and payable per the terms of these Terms and Conditions and the True-up Order. Any changes in Subscription Fees due to tiered pricing will not qualify Subscriber to any reduction in or rebates for Subscription Fees for Subscription Services already accrued or delivered.
3.3 Other Fees. Subscriber shall pay all fees for the activation or re-activation of the Subscription Service (“Activation Fees”), fees for professional services (“Professional Services Fees”), fees for additional Subscription Service quantities or Locations, and all other fees and charges set forth in the Order. All such fees are due in accordance with the Order, or, if payment terms are not set forth therein, in full within fifteen (15) days after the date reflected on the applicable invoice. Once HotSchedules enables Access to the Subscription Service, Activation Fees are non-refundable. In the event Subscriber terminates Access or disengages with implementation after Access has been provided and subsequently requests to participate in training or to re-enable Access for the Subscription Service, Subscriber will be obligated to pay additional Activation Fees. Additionally, Subscriber shall pay for all data downloads that require the time of HotSchedules personnel at HotSchedules’ then-current Professional Services time and materials rates.
3.4 Payment Terms. Unless otherwise stated in an Order, HotSchedules’ standard payment method it accepts from Subscriber is via Automated Clearinghouse (“ACH”) payments, and all Subscription Fees are due monthly in advance, or as otherwise stated in an Order. Charges on any invoice for Professional Fees will be deemed accepted by Subscriber unless Subscriber notifies HotSchedules in writing of a dispute within seven (7) days of the date of the invoice. All amounts payable under these Terms and Conditions are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars. For any late payments, HotSchedules reserves the right to impose finance charges equal to the lesser of (a) 1.5% of the unpaid balance per month, or the highest rate permitted by applicable law, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including attorneys' fees) incurred by HotSchedules to collect any amount that is not paid when due. Amounts due from Subscriber under these Terms and Conditions may not be withheld or offset by Subscriber against other amounts due to Subscriber for any reason. If Subscriber fails to timely pay any amounts due under these Terms and Conditions, HotSchedules may, without limitation to any of its other rights or remedies, report delinquent amounts due to credit reporting agencies, suspend performance of the Subscription Service, Professional Services and Technical Support Services, and/or terminate the applicable Order governed by these Terms and Conditions or the Terms and Conditions and all corresponding Orders as a whole.
3.5 Payment Authorizations. Subscriber hereby authorizes HotSchedules to initiate debit entries to Subscriber’s account specified in the Order, through ACH transfers, or other payment method as stated in an Order, in order to satisfy all payment requirements hereunder, and will provide HotSchedules at least thirty (30) days’ notice of any change in Subscriber’s account.
3.6 Taxes. The fees stated on the Order do not include local, state, federal or foreign taxes (e.g., value- added, sales or use taxes), fees, duties, or other governmental charges resulting from this Terms and Conditions (collectively, “Taxes”). Subscriber is responsible for paying all applicable Taxes, excluding Taxes based on HotSchedules’ net income or property. If HotSchedules determines it has the legal obligation to pay or collect Taxes, HotSchedules will add such Taxes to the applicable invoice and Subscriber will pay such Taxes, unless Subscriber provides HotSchedules with a valid tax exemption certificate from the appropriate taxing authority. Subscriber is wholly responsible for self-assessing, reporting, and remitting applicable taxes to the appropriate taxing authorities in the event that HotSchedules does not add such taxes to its applicable invoices. If a taxing authority subsequently inquires or pursues HotSchedules for unpaid Taxes for which Subscriber is responsible under this Terms and Conditions and which were not paid by Subscriber to HotSchedules, Subscriber agrees to cooperate with HotSchedules in good faith during such inquiry or pursuit, and HotSchedules may invoice Subscriber and Subscriber will pay such Taxes to HotSchedules or directly to the taxing authority, plus all applicable interest, penalties and fees.
4. TERM AND TERMINATION
4.1 Term. These Terms and Conditions shall govern all Services provided by HotSchedules to Subscriber beginning upon the Effective Date of the applicable Order. Subscription Services provided under these Terms and Conditions shall be provided for the initial period of time defined in the Order (“Initial Term”), unless earlier suspended or terminated in accordance with these Terms and Conditions or the Order and shall automatically renew for successive one (1) year terms unless a different renewal term is specified on the Order (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless either party provides written notice of its intent not to renew no later than thirty (30) days prior to the expiration of the Initial Term or current Renewal Term.
4.2 Termination for Material Breach. If either party breaches a material term of an Order or these Terms and Conditions and fails to correct the breach within 30 days of written notification specifying such breach, then the non-breaching party may terminate the Subscription Services for which the breach occurred. HotSchedules may terminate all Orders and Subscription Services provided hereunder in the event Subscriber breaches these Terms and Conditions due to non-payment of any Subscription Service in any Order.
4.3 Post-Termination Obligations. If the Services provided under these Terms and Conditions are terminated for any reason, HotSchedules shall have no obligation to provide the Subscription Service, or any Professional Services or Technical Support Services after the effective date of the termination. If the Subscription Service is terminated by HotSchedules due to Subscribers uncured breach of an Order or these Terms and Conditions, Subscriber will immediately pay to HotSchedules all Subscription Fees for the remainder of the Initial Term or then- current Renewal Term (as applicable), and will make all other payments that have accrued prior to the effective date of termination. If the Subscription Service is terminated due to HotSchedules’ uncured breach or for non-renewal of a Term, Subscriber will immediately pay to HotSchedules any Subscription Fees, Professional Services Fees, and other amounts that have accrued prior to the effective date of the termination. Sections 1.3, 1.4, 3, 4.3, 5, 6.1, 6.3, 6.4, 7, 8 and 9 will survive the termination of the Subscription Services or these Terms and Conditions. Subscriber may be provided with limited access to the Subscription Service for fourteen (14) days following termination of the Subscription Service. Subscriber may retrieve their Data through the Subscription Service through standard reports. Any requests for HotSchedules’ retrieval of Subscriber’s Data must be requested through a support ticket submitted to HotSchedules’ Support Team. HotSchedules will provide a Professional Services Fee based statement of work to Subscriber for review and acceptance to retrieve the requested Subscriber Data.
5. INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION
5.1 Subscription Service and Documentation. HotSchedules retains all rights, title, and interest in and to the Subscription Service, Documentation, and all Services and deliverables provided under these Terms and Conditions.
6. WARRANTIES AND DISCLAIMER
6.1 Mutual Warranties. Each party represents and warrants to the other that (i) the se Terms and Conditions constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (ii) performance of such party’s obligations hereunder do not violate any applicable laws or contracts by which it is bound; and (iii) it is not relying upon any statement, promise, or representation of the other party except as expressly stated herein.
6.2 Subscription Service Warranty. HotSchedules represents and warrants that the Subscription Service shall materially perform in accordance with the Documentation. For any material breach of a warranty, Subscriber’s exclusive remedy shall be as provided in Section 4, Term and Termination.
6.3 Personal Information. Subscriber represents and warrants that (a) except to the extent expressly requested in a data field specified by the Subscription Service or otherwise required by HotSchedules, Subscriber will not upload into the Subscription Service or otherwise provide any information that may be deemed personal information or sensitive data of any individual person under the laws of any applicable jurisdiction (including, without limitation, the Gramm-Leach-Bliley Act, Health Insurance Portability and Accountability Act of 1996, and Family Educational Rights and Privacy Act) (all of the foregoing information, “Personal Information”), without HotSchedules’ prior written consent; and (b) if Personal Information is uploaded or otherwise provided, Subscriber and its Users have complied and will comply with all applicable laws with respect to the collection, transfer, and use of that Personal Information, including by obtaining any required third-party consents to transfer that Personal Information to servers associated with the Subscription Service located in the United States or elsewhere.
6.4 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 6, HOTSCHEDULES MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. HOTSCHEDULES EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT. HOTSCHEDULES DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE OR DOCUMENTATION IS ERROR-FREE OR THAT OPERATION OR USE OF THE SUBSCRIPTION SERVICE WILL BE SECURE OR UNINTERRUPTED. HOTSCHEDULES EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, INCLUDING WITHOUT LIMITATION LABOR WAGE LAWS. THE SUBSCRIPTION SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. HOTSCHEDULES IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
7.1 Infringement Claims. HotSchedules will, at its expense, defend Subscriber from or settle any claim, proceeding, or suit brought by a third party (“Claim”) against Subscriber alleging that the Subscription Service infringes or misappropriates any intellectual property right of such third party, and will indemnify Subscriber from all damages, costs, and attorneys’ fees finally awarded against Subscriber as a result of such Claim; provided, however, that (a) Subscriber gives HotSchedules prompt written notice of the Claim; (b) Subscriber grants HotSchedules full and complete control over the defense and settlement of the Claim; (c) Subscriber provides reasonable assistance at HotSchedules’ request in connection with the defense and settlement of the Claim; and (d) Subscriber complies with any settlement or court order made in connection with the Claim. HotSchedules will have no obligation under this Section 7.1 for any Claim to the extent arising out of or is based upon (i) use of the Subscription Service in combination with other products or services if such Claim would not have arisen but for such combination; (ii) compliance with requirements or specifications required by or provided by or on behalf of Subscriber, if such Claim would not have arisen but for such compliance; (iii) use of the Subscription Service for purposes not intended or other than in accordance with these Terms and Conditions; (iv) use of the Subscription Service inconsistent with instructions or Documentation provided by HotSchedules; or (v) any modification of the Subscription Service. This Section 7.1 states HotSchedules’ sole and exclusive liability, and Subscriber's sole and exclusive remedy, for any actual or alleged infringement or misappropriation of any third party intellectual property right by the Subscription Service.
7.2 Subscriber Data. Subscriber will, at its expense, defend HotSchedules from and settle any actual or threatened Claim against HotSchedules arising from or relating to (i) the Subscriber Data, Integrated Data, or other materials or information provided by or on behalf of Subscriber or (ii) any violation of law by Subscriber, its subcontractors or its agents (including the employees of any of the foregoing), and will indemnify HotSchedules from all damages, costs, and attorneys’ fees finally awarded against HotSchedules as a result of such Claim; provided, however, that (a) HotSchedules gives Subscriber prompt written notice of the Claim provided that HotSchedules’ failure to provide such prompt written notice shall not relieve Subscriber of its defense and indemnification obligations except to the extent Subscriber establishes that such failure materially prejudiced Subscriber’s defense of the indemnifiable Claim; (b) HotSchedules grants Subscriber full and complete control over the defense and settlement of the Claim provided that Subscriber may not enter into any settlement with respect to an indemnifiable Claim without HotSchedules’ written consent; (c) HotSchedules provides reasonable assistance at Subscriber’s request in connection with the defense and settlement of the Claim; and (d) HotSchedules complies with any settlement or court order made in connection with the Claim. In addition, in the event that HotSchedules is compelled by subpoena to respond or reply to a third party Claim brought against Subscriber requiring HotSchedules to collect or retrieve any Subscriber Data or Integrated Data, Subscriber agrees to promptly pay HotSchedules Professional Services Fees and all reasonable expenses related to such third party Claim.
8. LIMITATIONS OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS AND CONDITIONS, HOTSCHEDULES WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER OR SUBSCRIBER’S USERS FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF HOTSCHEDULES IS APPRISED OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
UNDER NO CIRCUMSTANCES WILL HOTSCHEDULES' TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL SUBSCRIPTION FEES PAID BY SUBSCRIBER TO HOTSCHEDULES UNDER THESE TERMS AND CONDITIONS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT INCREASE THIS LIMIT.
EACH PROVISION OF THESE TERMS AND CONDITIONS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THESE TERMS AND CONDITIONS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY HOTSCHEDULES TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS AND CONDITIONS. THE LIMITATIONS IN THIS SECTION 8 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE TERMS AND CONDITIONS.
9.1 Relationship. HotSchedules will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of Services governed under these Terms and Conditions.
9.2 Assignability. Neither party may assign its rights, duties, or obligations under any Order or these Terms and Conditions without the other party's prior written consent, except, however, a party may assign an Order and these Terms and Conditions as a result of merger, acquisition, sale of assets, change of control, or operation of law without the other party's consent.
9.3 Subcontractors. HotSchedules may use a subcontractor or other third party in carrying out its obligations under these Terms and Conditions so long as HotSchedules remains responsible for all of its obligations under these Terms and Conditions.
9.4 Notices. Any notice required or permitted to be given in accordance with these Terms and Conditions will be effective if it is in writing and sent by certified or registered mail, or overnight courier, return receipt requested, to the appropriate party at the address set forth on Order and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 9.4. Notices are deemed given two (2) business days following the date of mailing or one business day following delivery to a courier.
9.5 Force Majeure. Neither party will be liable for, or be considered in breach of or default under these Terms and Conditions on account of, any delay or failure to perform as required by these Terms and Conditions as a result of any cause or condition beyond its reasonable control, so long as that party uses commercially reasonable efforts to avoid or remove the causes of non-performance.
9.6 Governing Law and Jurisdiction. These Terms and Conditions will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Georgia, without reference to its choice of law rules. Subject to Section 9.7 of these Terms and Conditions, Subscriber and HotSchedules submit to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in Atlanta, Georgia and waive all challenges to such jurisdiction and venue including, without limitation, forum non conveniens. Neither the Uniform Commercial Code nor The United Nations Convention on Contracts for the International Sale of Goods shall apply to these Terms and Conditions or any transaction contemplated hereunder.
9.7 Arbitration. Except for disputes arising from or related to intellectual property rights or ownership and the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any action arising out of or in connection with these Terms and Conditions will be settled by binding arbitration in Atlanta, Georgia, U.S.A. under the Rules of the American Arbitration Association by one arbitrator appointed in accordance with such rules. Subscriber agrees that it will not serve as a class representative or participate as a class member in an arbitration proceeding, that only its claims will be addressed in the arbitration proceeding, and that additional parties cannot be added to the arbitration proceeding unless Subscriber and HotSchedules agree in writing before the arbitration. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its attorneys' fees and costs incurred in connection with any arbitration or litigation instituted in connection with these Terms and Conditions.
9.8 Publicity. HotSchedules may include Subscriber’s name and logo in its customer lists and on its website. Upon signing, HotSchedules may issue a high-level press release announcing the relationship and the manner in which Subscriber will use the HotSchedules solution. HotSchedules shall coordinate its efforts with appropriate communications personnel in Subscriber’s organization to secure approval of the press release upon Subscriber’s request.
9.9 Other Terms. Any waiver of the provisions of these Terms and Conditions or of a party's rights or remedies under these Terms and Conditions must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of these Terms and Conditions or its rights or remedies at any time, will not be construed as a waiver of the party's rights under these Terms and Conditions and will not in any way affect the validity of the whole or any part of these Terms and Conditions or prejudice the party's right to take subsequent action. HotSchedules shall comply at its own expense with all applicable laws and regulations relating to its performance of the Services under these Terms and Conditions. HotSchedules does not guarantee that the use of the Subscription Services by Subscriber will comply with applicable law. Subscriber shall at its own expense comply with all applicable laws and regulations relating to its operations and the use of the Subscription Service. Exercise or enforcement by either party of any right or remedy under these Terms and Conditions will not preclude the enforcement by the party of any other right or remedy under these Terms and Conditions or that the party is entitled by law to enforce. There are no third-party beneficiaries to these Terms and Conditions, including, without limitation, Subscriber’s Users. If any part of these Terms and Conditions is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms and Conditions will remain in full force and effect. If any material limitation or restriction on the use of the Subscription Service under these Terms and Conditions is found to be illegal, unenforceable, or invalid, HotSchedules may, in its sole discretion, immediately terminate the Subscription Service and all of Subscriber’s rights thereto. Orders and statements of work may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. The Order may also be executed and delivered by facsimile, email, or electronically and such execution and delivery will have the same force and effect of an original document with original signatures.
9.10 Entire Agreement. These Terms and Conditions, together with any Order or statement of work is the final and complete expression of the agreement between the parties regarding the Subscription Service, the Documentation, and all related services and materials provided by HotSchedules. These terms and Conditions supersede all previous oral and written communications between the parties regarding these matters, and may be changed only by a written agreement signed by an authorized agent of both parties. If there is a conflict between the Order and these Terms and Conditions, such conflict will be resolved in the following order of precedence: the Order then these Terms and Conditions. No employee, agent, or other representative of HotSchedules has any authority to bind HotSchedules with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in these Terms and Conditions. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter these Terms and Conditions. Headings are used for reference only and will not be considered when interpreting these Terms and Conditions. Neither party will be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to these Terms and Conditions and any Order that is proffered by the other party in any acceptance, confirmation, invoice, purchase order, receipt, correspondence, or otherwise, unless HotSchedules specifically agrees to such provision in a writing signed by an authorized officer of HotSchedules.