Terms of Service
SUBSCRIPTION SERVICES AGREEMENT and EULA
APPLICABLE TO CUSTOMERS OF SABRHUB RESELLERS
This agreement governs your use of the messaging platform provided by Sabrhub Technologies LLC ("Sabrhub "), a company offering a software and technology solutions and services (the "Service"). By using the Service, you agree to be bound by these terms and conditions.
You (“Subscriber,” “You,” “Your” or related terms) are acquiring a subscription to a Service operated by Sabrhub from an unrelated third party authorized to sell such subscriptions (“Reseller”) under a separate agreement with Sabrhub (“Reseller Agreement”). In addition to any terms and conditions related to Your use of the Service pursuant to any agreement by and between You and the Reseller, this Agreement contains the terms and conditions that govern Your access to and use of the Service. Sabrhub is an express beneficiary of this Agreement, and in acquiring a subscription to the Service, You expressly acknowledge and agree that Sabrhub shall have the right to enforce this Agreement against You and that this Agreement constitutes the entire agreement and supersedes any and all prior agreements between You and Sabrhub with regard to Your subscription to the Service or Your access to or use thereof under this Agreement and Your agreement between You and the Reseller (the "Subscription Agreement").
By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any Agent or End-User to access or use a Service, Subscriber agrees to be bound by this Agreement as of the date of such access or use of the Service (the “Effective Date”). If You are entering into this Agreement on behalf of a company, organization, or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Sabrhub that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Subscriber,” “You,” or “Your” herein refers to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not use or authorize any use of the Services. Subscriber and Sabrhub shall each be referred to as a “Party” and collectively referred to as the “Parties” for purposes of this Agreement.
Description of Service
The Service allows users to communicate with one another via text, voice, and video, email and other channels. The Service may be accessed through Sabrhub's website or mobile application, or via a third-party integration.
Sabrhub will make the Services available pursuant to this Agreement and the applicable Subscription Agreement between Subscriber and Reseller. Sabrhub will use commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week, except during (a) planned downtime (of which Sabrhub will give advance notice via Reseller); and (b) Force Majeure Events. Sabrhub reserves the right to monitor and periodically audit Subscriber’s use of the Services to ensure that Subscriber’s use complies with this Agreement and the Subscription Agreement. Should Sabrhub discover that Subscriber’s use of a Service violates this Agreement or the Subscription Agreement, Sabrhub reserves the right to exercise any remedies available to Us.
2. User Conduct
Login Management. Access to and use of certain Services is restricted, such as to the specified number of individual users permitted under Subscriber’s Subscription Agreement. Subscriber agrees and acknowledges that a user login cannot be shared or used by more than one (1) individual. However, user logins may be reassigned to new individuals replacing former individuals who no longer require ongoing use of the Services. Subscriber and users are responsible for maintaining the confidentiality of all user login information. Absent a written license from Sabrhub expressly stating otherwise, Subscriber agrees and acknowledges that Subscriber may not use the Services to circumvent the requirement for an individual user login for each individual. Further, Subscriber shall not use the Services in such a way to circumvent applicable Subscriber Agreement restrictions. Should Sabrhub discover that Subscriber’s use of a Service violates this Agreement or the Subscription Agreement, Sabrhub reserves the right to exercise any remedies available to Us.
You agree to use the Service only for lawful purposes and in a manner that does not infringe upon the rights of others. You are solely responsible for any content that you transmit through the Service. You agree not to use the Service to:
Transmit any content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another's privacy, or otherwise objectionable;
Harm minors in any way;
Impersonate any person or entity, including a Company official, forum leader, guide, or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service;
Transmit any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships;
Transmit any content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any party;
Transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, or any other form of solicitation;
Transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; or
Intentionally or unintentionally violate any applicable local, state, national, or international law.
3. PROPRIETARY RIGHTS
a. Ownership– Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Sabrhub’s rights under this Agreement, between the parties, Subscriber retains all intellectual property and other rights in its intellectual property and to the Subscriber Content provided to Sabrhub. Except for Subscriber’s rights under this Agreement, Sabrhub and its licensors retain all intellectual property and other rights in the Platform, and in and to each Product, the Services, and any deliverables and related Sabrhub technology, templates, documentation, help files, tutorials, formats and dashboards, including any modifications or improvements to these items made by Sabrhub and the Usage Data, as defined below (the “Sabrhub Materials”). If Subscriber provides Sabrhub with feedback or suggestions regarding the Services or other Sabrhub offerings, Sabrhub may use the feedback or suggestions without restriction or obligation.
b. Usage Data– Sabrhub may generate technical logs, data and learnings about Subscriber’s use and an End-User’s use of the Services (the “Usage Data”) and the Subscriber Content processed by the Services, and use such information to operate, analyze, improve and support the Platform and/or the Services and for other lawful purposes. Except as required by law, Sabrhub will not disclose Usage Data externally, including in benchmarks or reports except in the aggregate.
4. Limitations of Use
5. SUBSCRIBER OBLIGATIONS
a. Compliance with Law– Subscriber represents, warrants and covenants to Sabrhub that Subscriber’s use of the Services shall comply with the limitations of use in Section 4 and all applicable laws, rules or regulations of any jurisdiction, including, without limitation, those relating to (i) communication by telephone, text/SMS/MMS message or email for advertising, marketing or other purposes, (ii) monitoring or recording of electronic or telephonic communications, (iii) the privacy, security or protection of ‘personal data’ or ‘personal information’, as such terms are defined under privacy laws (collectively, “Personal Information”), including, without limitation, as applicable to the collection, storage, retention, processing, transfer, disclosure, sharing, disposal or destruction of Personal Information, (iv) requirements for websites and mobile applications, online behavioral advertising, or online tracking technologies, or (v) applicable economic or financial sanctions or trade embargoes, including those administered by the U.S. government through the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or the U.S. Department of State, or the Israeli government (collectively, “Laws”). Without limiting the foregoing, Laws include the Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Do-Not-Call Implementation Act, the Controlling the Assault of Non Solicited Pornography and Marketing Act of 2003, the Children’s Online Privacy Protection Act (“COPPA”), the Federal Trade Commission Act, the California Consumer Privacy Act (“CCPA”), other state privacy, data security and breach notification laws, state consumer protection laws, the European Union’s General Data Protection Regulation (2016/679) (“GDPR”) and Privacy and Electronic Communications Directive 2002/58/EC (the “ePrivacy Directive”), the United Kingdom’s Data Protection Act 2018 (together with the GDPR, the ePrivacy Directive and any national legislation implementing either, “European Data Protection Law”), Canada’s Personal Information Protection and Electronic Documents Act, Canada’s Anti-Spam Legislation (S.C. 2010, c 23), the U.S. Trading with the Enemy Act of 1917, the U.S. International Emergency Economic Powers Act, the Israeli Trading with the Enemy Ordinance of 1939, and any legislation and/or regulation implementing or made pursuant to, or which amends, replaces, re-enacts or consolidates, any of the foregoing. For purposes of this Agreement, Laws also include the Cellular Telecommunications Industry Association (CTIA) Messaging Principles and any other applicable self-regulatory rules or codes of conduct, as amended from time to time, including, without limitation, such rules and guidelines issued by the Mobile Marketing Association and telecommunications providers. You also represent, warrant and covenant that you are not identified on the OFAC list of Specially Designated and Blocked Persons or any other U.S. or Israeli list of restricted parties, are not operating from, established under the laws of, or ordinarily resident in Cuba, Iran, Lebanon, North Korea, Syria, or the Crimea region of Ukraine (each a “Sanctioned Country” and collectively the “Sanctioned Countries”), and will not use the Services in a Sanctioned Country.
c. Restricted Data– Subscriber shall ensure that Subscriber Content does not include (i) protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”) or medical information governed by state healthcare privacy laws, (ii) Social Security numbers, driver’s license numbers or other government-issued identification numbers, (iii) financial information, banking account numbers or passwords, or information regulated by the Gramm Leach-Bliley Act, (iv) payment card data regulated by the Payment Card Industry Data Security Standards; (v) biometric data regulated by biometric privacy laws, (vi) online account passwords, login credentials or related information (vii) criminal history, (viii) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation or other information that constitutes “special categories of data” regulated by the GDPR or (ix) Personal Information of children under sixteen (16) years of age regulated by COPPA, the GDPR or under the age of consent for purposes of applicable privacy laws. Sabrhub shall have no liability with respect to such information, notwithstanding anything in the Agreement to the contrary.
d. Security– Subscriber shall use its best efforts to prevent unauthorized access to or use of the Services through its or its Permitted Users accounts, promptly notify Sabrhub of any unauthorized access or use and provide reasonable cooperation regarding information requests from law enforcement, regulators or telecommunications providers.
e. Obligations Regarding Subscriber Content– Subscriber is solely responsible for the accuracy, content and legality of the Subscriber Content. Subscriber acknowledges that the Services are provided by Sabrhub to Subscriber on a business-to-business basis, and that Sabrhub does not have a direct relationship with any End-User as a result of providing the Services to Subscriber hereunder. Subscriber is solely responsible for the accuracy, content and legality of Subscriber Content. Sabrhub shall not be liable for any Subscriber Content, and shall be entitled, in its sole discretion, to edit or remove from the Platform any Subscriber Content which Sabrhub reasonably believes to be inaccurate, inappropriate or otherwise not in compliance with the Agreement or applicable law. NOTHING IN THIS AGREEMENT OBLIGATES Sabrhub TO DISPLAY ANY SUBSCRIBER CONTENT THAT Sabrhub REASONABLY BELIEVES TO BE INACCURATE, INAPPROPRIATE OR OTHERWISE NOT IN COMPLIANCE WITH THIS AGREEMENT OR APPLICABLE LAW OR TO USE SUCH SUBSCRIBER CONTENT AT ALL OR IN A CERTAIN MANNER. Subscriber shall designate a copyright agent and implement a notice and takedown mechanism in compliance with the Digital Millennium Copyright Act (or other comparable applicable laws in jurisdictions outside of the United States), and Subscriber shall comply with any such takedown notice received in respect of any Subscriber Content, in each case, to the extent required by applicable law.
f. Rights in Subscriber Content– Subscriber represents and warrants to Sabrhub that Subscriber has given all notices and obtained all rights consents, assignments, licenses, permissions and authorizations (including the waiver of any moral rights) necessary for Subscriber to transfer to Sabrhub and for Sabrhub to collect, use and share the Subscriber Content (and any Personal Information contained therein) as contemplated by this Agreement without violation or infringement of (i) any Laws, (ii) intellectual property, publicity, privacy or other rights, or (iii) any terms of service or other agreements governing the Subscriber Content or Subscriber’s activities relating to its use of the Services (including, without limitation, the Instagram Platform Policy).
h. Order Fulfillment– As between Subscriber and Sabrhub, Subscriber is solely responsible for all customer service, order fulfillment and returns, and payment of taxes or charges associated with any products or services that Subscriber sells or markets in connection with the domains listed on the Order.
i. Sending Messages to End-Users via the Services– To the extent that Sabrhub provides Subscriber with access to functionality that allows Subscriber to send Subscriber communications by telephone, text/SMS/MMS message or email to End-Users, including, without limitation, marketing and advertising communications (“ Subscriber Messages”), Subscriber agrees not to send any unsolicited, commercial communications. Further, Subscriber acknowledges that Subscriber is solely responsible for all content of Subscriber Messages created by or on behalf of Subscriber and for Subscriber’s compliance with all Laws in connection with Subscriber’s use of the Services to send Subscriber Messages. Accordingly, and notwithstanding any representation or warranty disclaimer in the Agreement, Subscriber represents, warrants and covenants that: (i) all applicable lists of email addresses and/or phone numbers were created and/or shared with Sabrhub in a manner that complies with Laws, (ii) each End-User or other recipient of Subscriber Messages or other communications has been given clear and conspicuous notice prior to the collection of his or her phone number, email address and/or other contact information that such information may be collected, used or shared to facilitate sending Subscriber Messages to such recipient and as contemplated in this Agreement and (iii) each End-User or other recipient of applicable communications has given all consents required by Law to receiving commercial email and other forms of communication, including, but not limited to, consent to receive the Subscriber Messages. Subscriber acknowledges that the Services may employ automated telephone dialing systems regulated by the TCPA to transmit Subscriber Messages and Subscriber agrees that such consents shall be sufficient to permit the Services’ use of such systems, including without limitation, to send messages for advertising and solicitation purposes.
j. Limits on Certain Messages– By using functionality to send Subscriber Messages to End-Users, Subscriber agrees to make End-Users aware of their right to opt out of any future messages, as required by law. Subscriber is responsible for honoring all opt-out requests from End-Users. Subscriber must use a valid telephone number. Phone numbers such as landline numbers that cannot receive SMS/MMS or text messages will not be eligible for the Services. Subscriber agrees that Sabrhub reserves the right in its sole discretion to cap the number of Subscriber Messages that may be sent in connection with the Services. Applicable message and data rates apply to such messages. Subscriber hereby acknowledges and agrees that (i) Sabrhub merely plays a technical role in transmitting or routing Subscriber Messages sent by Subscriber as a conduit, (ii) that Subscriber is the sender of any Subscriber Messages for purposes of Laws, (iii) Sabrhub has no relationship with or any obligation to any End User or any other person or entity with to whom Subscriber provides services utilizing the Services (“End-User Services”), none of whom is a third-party beneficiary of this Agreement, and (iv) Subscriber shall have sole responsibility and liability for any Subscriber Messages and for compliance with any Laws related to End-User Services. Sabrhub may suspend or disable Subscriber’s ability to send messages through the Services at any time if Sabrhub, in its sole discretion, believes Subscriber is sending messages in violation of the Terms of this Agreement.
6. REPRESENTATIONS AND WARRANTIES
a. In addition to representations and warranties made elsewhere in this Agreement, Subscriber represents and warrants to Sabrhub that: (i) it has, and will have at all times, all right, title and interest necessary to grant to Sabrhub any and all licenses granted by Subscriber or its End-Users or other third parties hereunder for the purposes contemplated by this Agreement, including from Subscriber’s End-Users or any third-party site for the use of the Subscriber Content, (ii) has all necessary rights, permits and licenses under all Laws, rules and regulations to operate the domains listed on the Sabrhub Order and to promote, offer for sale, and sell all products or services offered or sold in connection with such domains, (iii) any and all Subscriber Content complies, and will comply at all times during the term of this Agreement, with all Laws, rules and regulations, and this Agreement and does not and will not during the term of this Agreement infringe the rights of any third party, including any intellectual property rights; and (iv) Subscriber shall comply with all Laws, including without limitation, TCPA, S.H.A.F.T, CAN-SPAM Act and the Digital Millennium Copyright Act.
b. Sabrhub represents and warrants that: (i) it has, and will have at all times, all right, title and interest necessary to grant any and all licenses granted by Sabrhub hereunder for the purposes contemplated by the Agreement; (ii) it has, to its knowledge, all necessary rights, permits and licenses under all Laws, rules and regulations to operate the Platform in the manner in which it is meant to be operated at any applicable time; and (iii) the Platform (except as related to Subscriber Content, which shall be the responsibility of Subscriber), shall, to Sabrhub’s knowledge, not infringe on the rights, including without limitation, intellectual property rights, of any third party.
7 . CONFIDENTIALITY
a. During the term of this Agreement, either party (as the “Disclosing Party“) may disclose or make available to the other party (as the “Receiving Party“) information about its business affairs, products/services, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media , and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information“). Confidential Information shall not include information that, at the time of disclosure: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 7 by the Receiving Party or any of its Representatives, (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information, (iii) was known by or in the possession of the Receiving Party or its representatives before being disclosed by or on behalf of the Disclosing Party, (iv) was or is independently developed by the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party’s Confidential Information; or (v) is required to be disclosed under applicable federal, state or local law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction.
b. The Receiving Party shall: (A) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care, (B) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (C) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement.
c. The provisions of this Section 7 shall survive the natural expiration or termination of this Agreement for any reason for a period of three (3) years.
8 . PRIVACY AND DATA PROTECTION
9 . DISCLAIMERS
a. EXCEPT AS EXPRESSLY PROVIDED HEREIN: (I) THE PLATFORM, INCLUDING WITHOUT LIMITATION ANY AND ALL Sabrhub MATERIALS, THE SERVICES (INCLUDING WITHOUT LIMITATION INSTALLATION, INTEGRATION AND IMPLEMENTATION SERVICES), AND THE PRODUCTS ARE PROVIDED BY Sabrhub “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESSED OR IMPLIED; (II) TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, Sabrhub DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE; (III) Sabrhub DOES NOT WARRANT THAT THE Sabrhub MATERIALS, THE SERVICES OR CONTENT AVAILABLE THROUGH THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE PLATFORM OR THE SERVER(S) THAT MAKE THE PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; AND (IV) Sabrhub DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS THAT SUBSCRIBER’S USE OF THE SERVICES WILL COMPLY WITH LAWS OR OTHERWISE RELATING TO THE USE OR THE RESULTS OF THE USE OF THE SERVICES, THE Sabrhub MATERIALS OR OTHER CONTENT MADE AVAILABLE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. SUBSCRIBER IS RESPONSIBLE FOR EVALUATING THE CAPABILITIES AND FEATURES OF THE SERVICES AND MAKING ITS OWN DETERMINATION ABOUT WHETHER SUBSCRIBER IS ABLE TO USE THE SERVICES IN COMPLIANCE WITH LAWS. SUBSCRIBER IS RESPONSIBLE FOR TAKING ALL PRECAUTIONS IT BELIEVES NECESSARY OR ADVISABLE TO PROTECT IT AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF ITS USE OF OR RELIANCE UPON THE PLATFORM, Sabrhub’S WEBSITE, OR THE SERVICES. Sabrhub ADDITIONALLY DISCLAIMS ALL WARRANTIES RELATED TO THIRD-PARTY TELECOMMUNICATIONS PROVIDERS. THE SERVICES SHOULD NOT BE USED FOR EMERGENCY COMMUNICATIONS AND Sabrhub WILL HAVE NO LIABILITY ARISING FROM SUCH USE.
b. SUBSCRIBER ACKNOWLEDGES, THAT EMAIL AND TEXT/SMS/MMS MESSAGES ARE INSECURE MEDIUMS THAT ARE GENERALLY NOT ENCRYPTED IN TRANSIT AND SECURITY OF INFORMATION TRANSMITTED THROUGH THE INTERNET CAN NEVER BE GUARANTEED AND, ACCORDINGLY, Sabrhub IS NOT RESPONSIBLE FOR ANY INTERCEPTION OR INTERRUPTION OF ANY COMMUNICATIONS THROUGH THE INTERNET OR FOR CHANGES TO OR LOSS OF SUBSCRIBER CONTENT IN CONNECTION WITH THE SERVICES.
c. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY WHERE SUCH LIMITATIONS ARE INAPPLICABLE
10 . LIMITATION OF LIABILITY
a. TO THE MAXIMUM PERMITTED UNDER LAW, UNDER NO CIRCUMSTANCES WHATSOEVER WILL Sabrhub NOR ITS RESPECTIVE AFFILIATES OR PARTNERS NOR ANY OF ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS, SUBCONTRACTORS OR SUPPLIERS BE RESPONSIBLE OR LIABLE, UNDER ANY LEGAL THEORY, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, FOR ANY COMPENSATORY, DIRECT OR INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS AND LOST BUSINESS OPPORTUNITIES, BUSINESS INTERRUPTION, REVENUE, INCOME, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES OR SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT RESULT FROM OR RELATE IN ANY MANNER WHATSOEVER TO THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREIN, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE EVENT THAT Sabrhub IS FOUND LIABLE OR RESPONSIBLE TO YOU FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE IN CONNECTION WITH THESE TERMS AND/OR THE MATTERS CONTEMPLATED HEREIN, Sabrhub’s AGGREGATE LIABILITY TO YOU SHALL BE LIMITED TO $100.00.
b. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY WHERE SUCH LIMITATIONS ARE INAPPLICABLE.
c. YOU RECOGNIZE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THESE TERMS ARE A MATERIAL, BARGAINED-FOR BASIS OF THESE TERMS AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN THE DECISION BY Sabrhub TO OFFER TO YOU AND BY YOU TO USE THE SERVICES AND THE PLATFORM.
11 . INDEMNIFICATION
a. Indemnification by Sabrhub– Sabrhub will defend Subscriber, its officers, directors, employees and affiliates (“ Subscriber Indemnified Parties”) from and against any third-party claim made against a Subscriber Indemnified Party to the extent alleging that the Platform or the Services, when used by Subscriber as authorized in this Agreement, infringes such third-party’s U.S. patent, copyright, trademark or trade secret, and will indemnify and hold harmless Subscriber Indemnified Parties against any damages or costs awarded against Subscriber (including reasonable attorneys’ fees) or agreed in settlement by Sabrhub resulting from the claim.
b. Indemnification by Subscriber– Subscriber will defend Sabrhub, its officers, directors, employees, and affiliates (“Sabrhub Indemnified Parties”) from and against any third-party claim, demand, suit, or proceeding made or brought against a Sabrhub Indemnified Party to the extent resulting from Subscriber Content, or Subscriber’s breach or alleged breach of Section 5 ( Subscriber’s Obligations), Subscriber’s use of the Services or any activities other than in accordance with these Terms; and will indemnify and hold harmless Sabrhub Indemnified Parties against any damages or costs awarded against Sabrhub Indemnified Parties (including reasonable attorneys’ fees) or agreed in settlement by Subscriber resulting from the claim.
c. Procedures– The indemnifying party’s obligations in this Section 11 are subject to receiving (i) prompt written notice of the claim, (ii) the exclusive right to control and direct the investigation, defense and settlement of the claim and (iii) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior written consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Service, when Sabrhub is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
d. Mitigation and Exceptions– In response to an actual or potential infringement claim, if required by settlement or injunction or as Sabrhub determines necessary to avoid material liability, Sabrhub may at its option: (i) procure rights for Subscriber’s continued use of the Platform or the Services, (ii) replace or modify the allegedly infringing portion of the Platform or the Services to avoid infringement without reducing the Platform’s or the Services’ overall functionality or (iii) terminate the affected Order and refund to Subscriber any pre-paid, unused fees for the terminated portion of the subscription Term. Sabrhub’s obligations in this Section 11 do not apply (1) to infringement resulting from Subscriber’s modification of the Platform or the Services or use of the Platform in combination with items not provided by Sabrhub (including third-party platforms), (2) to infringement resulting from Services other than the most recent release, (3) to unauthorized use of the Platform or the Services, or (4) if Subscriber settles or makes any admissions about a claim without Sabrhub’s prior written consent. This Section 11 sets out Subscriber’s exclusive remedy and Sabrhub’s entire liability regarding infringement of third-party intellectual property rights
12 . TERM, TERMINATION, AND PAYMENT OF FEES
a. This Agreement is effective between Subscriber and Sabrhub as of the date of Subscriber’s accepting this Agreement. The initial term of your subscription to the Services is as specified in your Subscription Agreement with Reseller.
b. Sabrhub may suspend or terminate Your subscription to the Service, Your rights to access and use the Service or Your account with the Reseller if: (a) Sabrhub is notified by Reseller of Your failure to pay amounts due to Reseller with respect to Your subscription to a Service; or (b) Reseller fails to pay any amounts due to Sabrhub pursuant to the Reseller Agreement with respect to Your subscription to a Service. You consent to these suspension and termination rights and acknowledge and agree that Sabrhub shall have no liability to You of any kind with respect to any such suspension or termination. Subscriber’s sole recourse with respect to any such suspension or termination shall be against Reseller.
c. Termination for Cause. A Party may terminate this Agreement for cause (a) upon written notice to the other Party of a material breach if such breach remains uncured after thirty (30) days from the date of receipt of such notice; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. However, Sabrhub may immediately terminate this Agreement for cause without notice if Subscriber violates the Sabrhub User Conduct terms or if provision of the Service violates applicable law, regulation, or court order.
d. Following the termination or cancellation of Subscriber’s subscription to the Service and/or Account, Sabrhub reserves the right to delete all Subscriber data in the normal course of operations.
e. Export of Subscriber Data. Upon Subscriber’s written request, Sabrhub will make Subscriber data available to Subscriber for export or download for thirty (30) days after the effective date of termination, expiration or migration of the Subscriber’s account, except for Subscriber data which (i) was created and/or used in violation of this Agreement, or (ii) unless prohibited by law or legal order. Thereafter, Sabrhub will have no obligation to maintain or provide any Subscriber data and Sabrhub will delete Subscriber data in accordance with Sabrhub’s then effective deletion policy, unless prohibited by law or legal order.
13 . NOTICES, GOVERNING LAW AND JURISDICTION
a. If you reside in the U.S. or your business is located in the U.S., this Agreement is to be construed in accordance with and governed by the laws of the State of Texas , United States, without giving effect to its provisions regarding conflict of laws. Each party hereby irrevocably consents to tbe subject to the exclusive jurisdiction and venue of the courts located in Travis County, Texas , and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such venue and courts.
b. If you reside outside of the U.S. or your business is located outside of U.S., this Agreement is to be construed in accordance with and governed by the laws of England and Wales, without giving effect to its provisions regarding conflict of laws. Each party hereby irrevocably consents to the subject to the exclusive jurisdiction and venue of the courts located in London, England, and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such venue and courts.
c. All notices are to be sent in writing by email to Sabrhub at: firstname.lastname@example.org, to Subscriber at the address provided on the Order. Any such notices shall be deemed to have been given upon delivery.
14 . GENERAL
a. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable and if such provision is determined to be invalid or unenforceable nonetheless, the provision shall be deemed to be severable from the remainder of the Agreement and shall not cause the invalidity or unenforceability of the remainder of the Agreement.
b. Subscriber acknowledges and agrees that Sabrhub has the right, at any time and for any reason, to redesign or modify the Sabrhub Materials and other elements of the Platform or any part thereof.
c. This Agreement constitutes the entire agreement between Subscriber and Sabrhub respect to the subject matter herein and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, including previous non-disclosure agreements between the parties. Sabrhub may update this Agreement from time to time. We will provide prior written notice of any material updates at least thirty (30) days in advance of the effective date; provided however, Sabrhub may not be able to provide at least thirty (30) days prior written notice of material updates to this Agreement that result from changes in law, regulation, or requirements, directly or indirectly, from telecommunications providers. Except as otherwise specified by Sabrhub, updates will be effective upon the effective date indicated. The updated version of this Agreement will supersede all prior versions. Following such notice, Subscriber’s continued use of the Services and Platform on or after the effective date of the updated Agreement constitutes Subscriber’s acceptance of such updated Agreement . If you do not agree to the updated version of this Agreement , you must stop using the Services and Platform immediately.
d. No failure, delay or default in performance of any obligation of a party (other than a payment obligation) shall constitute an event of default or breach of this Agreement to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control of such party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; epidemic, pandemic or quarantine; earthquake, tornado or other natural disaster; failure or diminishment of power or telecommunications or data networks or services; distributed denial of service (DDoS) or other cyberattacks; or refusal of a license by a government agency. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.
e. Neither party may assign this Agreement without the prior written consent of the other party, not to be unreasonably withheld, provided that either party may assign or transfer this Agreement, without the prior written consent of the other party, to an affiliate or in connection with a sale or merger of all or substantially all of the assigning party’s business or assets. Any unauthorized assignment will be void and of no force or effect.
f. Except as expressly stated herein, nothing in this Agreement shall be considered as granting any rights to third parties. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
g. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
h. Sabrhub may use subcontractors and permit them to exercise Sabrhub’s rights (including without limitation the provision of customer support), but Sabrhub remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
i. In any event of a conflict or inconsistency between the terms herein and the terms of the Order Form, the terms of the Order Form shall prevail. Any additional or conflicting terms contained in purchase orders issued by Subscriber with respect to the subject matter hereof are hereby expressly rejected and shall have no force or effect on the terms of this Agreement or any Order Form.
J. EXCEPT FOR CLAIMS RELATED TO OR ARISING FROM SUBSCRIBER’S INDEMNITY OBLIGATIONS CONTAINED IN SECTION 11 HEREOF OR SUBSCRIBER’S PAYMENT OBLIGATIONS HEREUNDER, SUBSCRIBER AND SABRHUB AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES OR THE PLATFORM MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION SHOULD HAVE REASONABLY BEEN DISCOVERED. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED