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 any person or entity that uses or Accesses the Services, that is either named on an Order or Statement of Work and any exhibits attached thereto that incorporates these Terms and Conditions or any other person or entity whose use of a Service is not governed by a mutually executed superseding agreement. By clicking a box indicating acceptance, signing an Order or Statement of Work, by making payment for or by using the Subscription Services, Subscriber agrees that HotSchedules’ Subscription Services, Professional Services, and Technical Support Services (collectively referred to as “Services”) shall be governed exclusively by these Terms and Conditions and any additional terms stated in an Order or Statement of Work and any exhibits attached thereto. 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. HotSchedules reserves the right to change these Terms and Conditions from time to time without notice. However, for then existing Subscribers such changes shall not take effect until the beginning of Subscriber’s next Renewal Term.
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) to (a) use the hosted software (“Subscription Service”) identified on an ordering document that identifies a Subscription Service, a Term, and any applicable Fees (“Order”) 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 text-based online user documentation for the Subscription Service (the “Documentation”) and other HotSchedules online materials and media solely in connection with its permitted use of the Subscription Service.
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 for 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 threaten, defame, bully, harass, or harm persons or their property; 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. (g) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Subscription Service; or (h) Access the Subscription Service or use the Documentation in order to build a similar product or competitive product. 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 and any other Service (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 any other 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 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 avoid any unplanned interruptions to Subscriber’s Access to the Subscription Service (“Downtime”); (b) utilize a reputable hosting infrastructure to provide the Subscription Service; and (c) 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 email@example.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.
2.3 Technical Support Services. HotSchedules shall provide Subscriber with standard Technical Support Services applicable to the Subscription Service, as described on HotSchedules’ website at https://www.hotschedules.com/support-policy (“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 the improvement of Services.
2.4 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 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 is deemed to be a breach by Subscriber.
2.5 Integrated Services. If the Subscription Service integrates or interoperates 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 and to such third party (“Integrated Data”) to the extent required for HotSchedules to perform its obligations and exercise its rights under these Terms and Conditions. HotSchedules’ obligation to provide Integrated Subscription Services are contingent upon Subscriber securing such rights. Subscriber’s failure to secure such rights does not terminate or suspend Subscriber’s obligation to pay 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 and the Integrated Subscription Service. HotSchedules reserves the right to limit the amount, type, and frequency in which Integrated Data may be uploaded into the Integrated Service. 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. Subscribers with an Integrated Service shall provide at all times a current and active contact within its organization to HotSchedules so that HotSchedules may provide Subscriber notice of any material changes to its API. Integrated Subscription Service warranties are contingent upon Subscriber maintaining such a contact. HotSchedules is not responsible for any Integrated Subscription Service degradation or Downtime due to Subscriber’s failure to provide and maintain such a contact.
2.7 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.
2.8 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.
3. PROFESSIONAL SERVICES
3.1 General. The following terms and conditions shall apply to the extent that HotSchedules provides any Professional Services to Subscriber that may include without limitation: implementation, configuration, or integration of Subscription Services; data migration; training; consulting; or other work listed in an Order, Statement of Work, and exhibits attached thereto (“Professional Services”). Subscriber may purchase Professional Services from HotSchedules via an Order or the Professional Services may be documented in a Statement of Work detailing the scope of such work, associated Fees, and other applicable terms (“Statement of Work”).
3.2 No Works for Hire. Professional Services provided to Subscriber and any deliverables resulting therefrom shall not constitute works for hire and HotSchedules reserves and retains all right, title and interest, including without limitation, all patents, copyrights, and trade secret rights anywhere in the world, and all other intellectual property and rights in connection therewith shall be the sole property of and remain with HotSchedules or its licensors, as applicable.
3.3 Termination of Professional Services. Professional Services whether ordered through a Statement of Work or Order may be terminated prior to the planned completion of the Professional Services as follows:
(a) Time and Materials. Either party may terminate time and materials based Professional Services at its convenience or due to a party’s uncured material breach of these Terms and Conditions, or applicable Order or Statement of Work by providing the other party ten (10) days prior written notice. Termination shall be effective ten (10) days after the receiving party’s receipt of such notice. If either party terminates time and materials based Professional Services for any reason, Subscriber shall pay all Professional Services Fees for all Professional Services performed prior to the effective termination date plus all reasonable actual costs incurred by HotSchedules during its performance of the Professional Services. If Subscriber has prepaid any Professional Services Fees, HotSchedules shall refund all unused prepaid Professional Services Fees on a pro rata basis based on the effective date of the termination.
(b) Fixed Fees. Subscriber may terminate fixed fee based Professional Services due to an uncured material breach by HotSchedules of these Terms and Conditions, or applicable Order or Statement of Work and any exhibits attached thereto. Subscriber may also terminate such Professional Services at Subscriber’s convenience. HotSchedules may only terminate fixed fee based Professional Services due to Subscriber’s uncured material breach of these Terms and Conditions, or applicable Order or Statement of Work and any Exhibits attached thereto. If (i) Subscriber terminates any fixed fee based Professional Services for any reason other than due to HotSchedules’ uncured material breach of these Terms and Conditions, Order, or Statement of Work; or (ii) if HotSchedules terminates any fixed fee based Professional Services due to Subscriber’s uncured material breach of these Terms and Conditions, Order, or Statement of Work, then Subscriber shall promptly pay HotSchedules all unpaid fixed fee amounts for the terminated Professional Services. Additionally, Subscriber shall not be entitled to a refund or credit for any prepaid fixed fee amounts.
3.4 Professional Services Delays. If Subscriber delays the scheduled start date or otherwise causes a delay in the delivery of Professional Services, Subscriber shall reimburse HotSchedules for all reasonable and actual costs incurred due to such delay. Additionally, delays by Subscriber may affect timelines or the work proposed in a Statement of Work or Order and may result in an increase in reimbursement costs and an increase in Fees subject to an additional Statement of Work or change order.
3.5 Consent to Subcontract. Subscriber hereby consents for HotSchedules to subcontract Professional Services to persons or companies qualified and certified by HotSchedules to provide Professional Services on HotSchedules’ behalf. Subject to the limitations contained in these Terms and Conditions, HotSchedules shall be responsible for the actions of its Subcontractors.
3.6 Change Orders and Project Leaders. Changes to the Professional Services or a Statement of Work 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.
4. FEES AND PAYMENT
4.1 Subscription Fees. Unless otherwise stated in an Order, 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 each Location 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 a Subscription Service in accordance with this Section 4.1, Subscriber shall be responsible for a full month’s Subscription Fees for the month the Subscription Service is effectively terminated. Subscription Fees include initial standard setup services for the Subscription Service. Standard setup services include site provisioning, applicable Subscription Service standard integration with Subscriber’s point of sale (for HotSchedules supported points of sale only), and granting Subscriber Access to the Subscription Service. Standard setup services do not include, without limitation, master data uploads, customer specific configurations, non-supported or custom integrations, training, custom development, or data migration.
4.2 Location and Tiered Pricing. The Subscription Fees for each Location are 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, or if the average number of Users at a Location increases 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 all other required applicable Fees calculated from the date such changes occurred through the end of the then current Term. In such event, HotSchedules shall deliver a subsequent Order and invoice reflecting the changes at the then current price (“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. A reduction in the average number of Users at a Location will not qualify Subscriber to any reduction in, credits, or rebates for Subscription Fees. If Subscriber reduces the number of Locations for any Subscription Services as a result of a permanent closure of a Location, Subscriber may terminate the Subscription Service for such Location by providing HotSchedules advance written notice of termination. Subscriber shall continue to pay Subscription Fees for such Location through the end of the month following the month in which HotSchedules receives the notice of termination.
Transferring ownership of a Location or business entity that owns a Location does not terminate any Services, Order, Statement of Work, or these Terms and Conditions. If Subscriber transfers the ownership of a Location or business entity that owns a Location to a third party (“Transferee”), Subscriber agrees that HotSchedules may continue to bill Subscriber for all Fees otherwise due until HotSchedules receives a completed and signed transfer of ownership form from Subscriber containing true and correct contact information of the Transferee and HotSchedules verifies that such ownership and Subscriber’s obligations hereunder have been transferred.
If bundled Subscription Services are unbundled or if the Billing Frequency as defined in the applicable Order are changed for any reason, Services ordered shall be subject to a price increase for the remainder of the Term and any subsequent Renewal Term. Except as otherwise provided for in an Order or these Terms, Subscription Fees are noncancelable and nonrefundable.
4.3 Professional Services Fees and Expenses. Fees for Professional Services shall be defined in a Statement of Work or Order and any exhibit attached thereto. For Professional Services based on time and materials, invoices may be issued on a monthly basis or as otherwise stated in the Statement of Work or Order. For Professional Services based on fixed fees, all Fees shall be due and payable upon the execution of the applicable Order or Statement of Work and are nonrefundable. Professional Services Fees exclude expenses for travel, food and lodging, that may be required for HotSchedules to perform the Professional Services.
4.4 Training and Training Fees. All Subscription Services require at least one training session. Unless otherwise stated on an Order or Statement of Work, Subscriber must participate in all training courses within sixty (60) days from the Subscription Commencement Date of the applicable Subscription Service. Training sessions shall be on a fixed fee basis and shall be due and payable upon the execution of the applicable Order or Statement of Work. Training fees are nonrefundable.
4.5 Reactivation and Re-Training Fees. If Subscriber terminates a Subscription Service after Access has been provided, disengages with or terminates any implementation or configuration including the initial standard setup services, or fails to attend training within the required timeline and then Subscriber subsequently requests to re-enable Access for the Subscription Service, reinitiate an implementation or configuration, or participate in training, Subscriber shall be obligated to pay additional re-activation, training, and implementation or configuration Fees as applicable. Additionally, Subscriber shall pay for all reasonably required or Subscriber requested data downloads that require the time of HotSchedules personnel at HotSchedules’ then-current Professional Services time and materials rates which shall be documented in a Statement of Work.
4.6 Payment Terms. Unless otherwise stated in an Order, Statement of Work, or payment authorization form, Subscriber shall pay all Fees via Automated Clearinghouse (“ACH”), Electronic Funds Transfer (“EFT”), or by credit card. Unless otherwise stated in an Order or Statement of Work, all Fees payable under these Terms and Conditions are denominated in and shall be paid in United States dollars, and Subscriber will pay all such Fees in United States dollars. For any late payments, HotSchedules reserves the right to impose late fees 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 (“Late Fees”). Subscriber will reimburse any costs or expenses (including without limitation collections and attorneys' fees) incurred by HotSchedules to collect any amount that is not paid when due. Fees 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 Fees due under these Terms and Conditions, HotSchedules may, without limiting any of its other rights or remedies, refer Subscriber’s account to a third-party collections agency, report delinquent Fees to credit reporting agencies, suspend performance of any or all Services, and/or terminate the applicable Order or Statement of Work or the Terms and Conditions.
4.7 Payment Authorizations. Subscriber hereby authorizes HotSchedules to initiate debit entries to Subscriber’s account specified in the Order, through ACH or ETF transfers, credit card, 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.
4.8 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 these 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 if 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 these 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.
5. TERM AND TERMINATION
5.1 Term. All initially ordered Subscription Services shall be licensed beginning upon the Effective Date of the applicable Order for a period of one (1) year unless otherwise stated in the Order (“Initial Term”). After the Initial Term, all Subscription Services 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 applicable Term.
5.2 Termination for Material Breach. If either party breaches a material term of an Order, Statement of Work, any exhibits attached thereto, or these Terms and Conditions and fails to correct the breach within 30 days of receipt of written notification specifying such breach (including Subscriber’s breach for nonpayment), then the non-breaching party may terminate the applicable Service, Order or Statement of Work upon providing the other party written notice.
5.3 Post-Termination Obligations. If any Service, Order, or Statement of Work, or these Terms and Conditions are terminated for any reason, HotSchedules shall have no obligation to provide the applicable Service(s) after the effective date of the termination. If a Service, Order, or Statement of Work, is terminated by HotSchedules due to Subscribers uncured material breach or if the Subscriber elects to terminate any Subscription Service or Order prior to the end of its then current Term, absent an uncured material breach by HotSchedules, Subscriber shall immediately pay to HotSchedules the total remaining Subscription Fees for the remainder of the then current Term and all other Fees that have accrued prior to the effective termination date. If an Order, Statement or Work, or these Terms and Conditions is terminated due to HotSchedules’ uncured material breach, Subscriber will immediately pay to HotSchedules any Subscription Fees, Professional Services Fees, and all other Fees that have accrued prior to the effective date of the termination and Subscriber shall be relieved of its obligation to pay Subscription Fees for the remainder of the applicable Term. Upon written request, Subscriber shall be provided with limited Access to the terminated Subscription Service for fourteen (14) days following termination solely for the purpose of retrieving Subscriber Data through standard reports. Any Subscriber request for retrieval of Subscriber’s Data by HotSchedules personnel must be requested through a support ticket submitted to HotSchedules’ Support Team. For such requests, HotSchedules will provide a Statement of Work outlining any required Fees for such retrieval. Only upon Subscriber’s execution of such Statement of Work shall HotSchedules be obligated to provide Subscriber Data to Subscriber.
6. INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION
6.1 Subscription Service and Documentation. Except as explicitly granted herein, HotSchedules reserves and retains all rights, title, and interest in and to the Subscription Service, Documentation, and all Services and deliverables provided under these Terms and Conditions.
7. WARRANTIES AND DISCLAIMER
7.1 Mutual Warranties. Each party represents and warrants to the other that (i) these Terms and Conditions constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (ii) during the performance of its obligations hereunder it will not violate any laws applicable to such performance; and (iii) it is not relying upon any statement, promise, or representation of the other party except as expressly stated herein.
7.2 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 5, Term and Termination
7.3 Personal Information. SSubscriber 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 or enter 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, entered, 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.
7.4 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, 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 ANY 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 SUBSCRIBER’S USE OF ANY SERVICE WILL SATISFY ANY STATUTORY, ORDINANCE, OR REGULATORY OBLIGATIONS, OR GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS, ORDINANCES, OR REGULATIONS, INCLUDING WITHOUT LIMITATION LABOR WAGE LAWS. SERVICES 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.
8.1 Indemnification by HotSchedules. 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 and unappealable 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 8.1 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 8.1 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.
In the event of such a Claim being brought or threatened or in the event an injunction is issued or threatened, HotSchedules may, at its sole option and expense, either procure for Subscriber the right to continue to use the Subscription Service, modify the Subscription Service in a manner that does not materially degrade the Subscription Service’s functionality, or terminate the Subscription Service. If HotSchedules terminates the Subscription Service under this Section, Subscriber shall not be liable for any Subscription Fees that Subscriber would otherwise be obligated to pay after the termination date.
8.2 Indemnification by Subscriber. Subscriber will, at its expense, defend HotSchedules from and settle any 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 that infringes on any patent, copyright or trademark, or misappropriates any trade secret; (ii) any violation of law by Subscriber, its contractors or its agents (including the employees of any of the foregoing); (iii) Subscriber, its contractors or its agents (including the employees of any of the foregoing) use of the Subscription Service to threaten, defame, bully, harass, or harm persons or their property, and will indemnify HotSchedules from all damages, costs, and attorneys’ fees finally awarded and unappealable 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, if 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.
9. 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 GOODWILL OR BUSINESS VALUE, LOST PROFITS, OR LOSS OF BUSINESS, EVEN IF HOTSCHEDULES IS APPRISED OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
NDER 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 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE TERMS AND CONDITIONS.
10.1 Relationship. HotSchedules will be and act as an independent contractor (and not as the agent, partner, or representative of Subscriber) in the performance of Services governed under these Terms and Conditions.
10.2 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.
10.3 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.
10.4 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 10.4. Notices are deemed given two (2) business days following the date of mailing or one business day following delivery to a courier.
10.5 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.
10.6 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.
10.7 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.
10.8 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.
10.9 Other Terms. Any waiver of the provisions of these Terms and Conditions, an Order, or Statement of Work or of a party's rights or remedies thereunder must be in writing to be effective. Failure, neglect, or delay by a party to enforce such provisions or its rights or remedies at any time, will not be construed as a waiver of the party's rights and will not in any way affect the validity of the whole or any part of these Terms and Conditions, Order, or Statement of Work or prejudice the party's right to take subsequent action. 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. 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. Orders and Statements of Work 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.
10.10 Entire Agreement. These Terms and Conditions, together with any Order or Statement of Work and any Exhibits attached thereto is the final and complete expression of the agreement between the parties regarding the Services, Documentation, and all materials and deliverables 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. Sections 1.3, 1.4, 3.2, 3.3, 4, 5.3, 6, 7.1, 7.4, 7.5, 8, 9 and 10 will survive the termination of these Terms and Conditions. If there is a conflict between a Statement of Work, an Order, and Exhibit and these Terms and Conditions, such conflict will be resolved in the following order of precedence: The Statement of Work, the Order and any exhibit attached thereto, 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. HotSchedules shall not 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, Orders, and Statements of Work that is proffered by Subscriber or any third 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.
HotSchedules Online General Terms and Conditions ver. 2-1-2019