Terms and Conditions

eHub Network Service Terms and Conditions

THESE EHUB TERMS AND CONDITIONS (THIS “AGREEMENT“) CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN ESSENTIAL HUB, LLC (“EHUB“) AND THE PERSON OR ENTITY CREATING AN ACCOUNT WITH EHUB (“CUSTOMER“). BY CREATING AN ACCOUNT (DEFINED BELOW), CUSTOMER AGREES AND CONSENTS TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING ANY CHANGES TO THIS AGREEMENT OR ADDITIONAL POLICIES INCORPORATED BY REFERENCE WHICH ehub MAY MAKE IN ITS SOLE DISCRETION IN THE FUTURE, FOR AS LONG AS CUSTOMER USES THE SERVICES (defined below). if customer DOES NOT AGREE TO THE AGREEMENT OR IS UNABLE TO COMMIT TO THE FOREGOING, CUSTOMER SHOULD NOT CREATE AN ACCOUNT OR USE ANY SERVICES.

DEFINITIONS. The following terms, when used in this Agreement shall have the following meanings:
1. “3PL” means a third-party logistics provider.
2. “API” means the application programming interface for accessing and using the Services and any related materials made available to Customer by eHub, including, without limitation, through eHub.com.
3. “API Key” means the security key eHub makes available for Customer to access the API.
4. “Confidential Information” means all material, non-public, business-related information, written or oral, that either party discloses to the other, directly or indirectly, through any means of communication or observation that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. “Confidential Information” does not include any information which: (i) is or becomes publicly available through no fault of the receiving party; (ii) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (iii) was properly disclosed to receiving party, without restriction, by another person without violation of the disclosing party’s rights; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
5. “Customer Application” means a Customer-owned or -controlled software solution offered by Customer to its End User(s).
6. “Customer Data” means data and other information made available to eHub by Customer through the Services.
7. “Documentation” means all of the instructions, code samples, online help files, and technical documentation related to the Products that is made available by eHub to Customer, including through the Portal.
8. “End User” means persons or entities authorized by Customer to use the Services.
9. “Intellectual Property Rights” means all forms of industrial and intellectual property rights and protections throughout the world, including any: (i) patents (including any patent applications, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and re-examinations thereof); (ii) copyrights; (iii) Internet domain names, trademarks, service marks, and trade dress, together with all goodwill associated therewith; (iv) trade secrets; (v) rights in databases and designs (ornamental or otherwise); (vi) moral rights, rights of privacy, rights of publicity, and similar rights; and (vii) any other proprietary rights and protections, whether or not registered, and whether currently existing or hereafter developed or acquired arising under statutory or common law, including all applications, disclosures, and registrations with respect thereto.
10. “Malicious Code” means any software, hardware or other technology, device, or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby.
11. “Network” means the Product wherein eHub provides a network of qualified entities or organizations who will be able to meet the business needs and requirements of said referrals.
12. “Portal” means eHub’s hosted platform and user interface for Customer to access all Products.
13. “Products” means all eHub software and services available through the Portal.
14. “Services” means, collectively, the Products and the Portal.
15. “Services Fees” means fees charged by eHub for Customer’s, or its End Users’, use of the Services.
LICENSES; RESTRICTIONS
1. License Grant. Subject to and conditioned on Customer’s compliance with all terms and conditions set forth in this Agreement, including payment of any applicable Services Fees, eHub hereby grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable (excluding licenses to End User(s) in accordance with this Agreement) license during the term of this Agreement to: (i) use the API solely for the purposes of internally developing the Customer Applications that will communicate and interoperate with the API; (ii) access and use all other Products and the Portal for the internal business purposes of Customer; and (iii) use and make a reasonable number of copies of the Documentation for the internal business purposes of Customer. The Services may be accessed (1) solely in object code form; and (2) solely via a device that meets the minimum technical requirements necessary to run the Services (as determined by eHub).
2. API Access. To use and access the API, Customer must obtain an API Key from eHub. Customer may not share the API Key with any third party, must keep the API Key and all log-in information secure, and must use the API Key as Customer’s sole means of accessing the API. The API Key may be revoked at any time by eHub. Customer will use commercially reasonable efforts to safeguard the API (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. Customer will promptly notify eHub if Customer becomes aware of any infringement of any intellectual property rights in the API and will fully cooperate with eHub in any legal action taken by eHub to enforce eHub’s Intellectual Property Rights.
3. Service Interruptions and Updates. eHub will employ reasonable measures to provide Customer with access to the Services. However, there will be occasions when the Services will be interrupted for maintenance, upgrades for emergency repairs, or due to the failure of telecommunications links or equipment or other circumstances that are beyond eHub’s reasonable control. When possible, eHub will take reasonable steps to minimize such disruptions within eHub’s control. eHub may, in its sole discretion, change, modify, add, or remove portions, features or functions from the Services, or suspend or discontinue the Services or any portion thereof (temporarily or permanently and whether pursuant to a modification of the Service or otherwise), without notice or liability to Customer (except that, in the event of a complete discontinuation or scheduled suspension of the Service, eHub will use reasonable efforts to provide Customer with actual notice, rather than merely constructive notice). eHub shall not be liable to Customer for any modification, suspension or discontinuance of the Services or any features or functions thereof.
4. Separately Licensed Software. The Services may contain or require the use of open-source software, public-source software, “copyleft” software, shareware, freeware and similar software, and other third-party software or materials, which in each case is embedded in the Service or provided by eHub in connection with the Service (“Separately Licensed Software”). This Agreement does not apply to Separately Licensed Software, and eHub hereby disclaims all warranties with respect to any Separately Licensed Software and disclaims any liability to Customer or any third party based on any claims arising out of use of Separately Licensed Software. Nothing in this Agreement limits an end user’s rights under, or grants the end user rights that supersede, the terms of any applicable license agreement for Separately Licensed Software. In addition, eHub or third parties may make available third-party products or services for use in connection with the Services. Customer’s acquisition of any such third-party products or services, and any exchange of data between Customer and any third party, is solely between Customer and such third party. Any third-party products and services are provided for Customer’s convenience only, and if Customer accesses any other websites or services linked to the Services, Customer does so at its own risk.
5. Restrictions. Customer shall not use the Services for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as expressly set forth in this Agreement, Customer shall not at any time, and shall not permit others to: (i) modify, translate or create derivative works based on the Services (except to the extent expressly permitted by eHub in writing or authorized within the Services); (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Services to any third party; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, Documentation or data related to the Services; (iv) remove any proprietary notices from the Services; (v) use the Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Rights or other right of any person, or that violates any applicable law; (vi) combine or integrate the Services with any software, technology, services or materials not authorized by eHub; (vii) design or permit the Customer Applications to disable, override or otherwise interfere with any eHub-implemented communications to End Users, consent screens, user settings, alerts, warning or the like; (viii) attempt to cloak or conceal Customer’s identity or the identity of the Customer Applications when requesting authorization to use the Services; (ix) input, upload, transmit, store or otherwise provide to or through the Services any Customer Data or other information or materials that: (1) contain or transmit any Malicious Code, (2) are unlawful, abusive, malicious or tortious or (3) infringe upon or violate the Intellectual Property Rights of any third party; (x) frame or mirror any part of the Portal; or (xi) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm, in any manner, the Services or eHub’s information technology systems, in whole or in part. Under no circumstance shall Customer offer the Services to End Users on a standalone basis.
6. Monitoring. eHub has the right (but never the obligation) to monitor Customer’s use of the Services and in its sole discretion may prohibit any use of the Services it reasonably believes are in violation the restrictions set forth in this Agreement.
ACCOUNTS AND BILLING
1. Account Creation. Customer must create an eHub account (“Account”) to access the Services. Customer must use complete and accurate information when completing the Account set up process. Customer will not share its Account credentials with others and acknowledges that Customer is responsible for any activity associated with its Account. Customer may request that eHub create sub-accounts under its Account for End Users to access, which requests eHub may accept or reject in its reasonable discretion. A sub-account permits a designated End User of such Customer to set up the End User’s own Postage Meter (defined below) and for such End User to generate shipping labels through the Services on behalf of such End User’s own customers. However, Customer remains solely responsible and liable for all Service Fees incurred under Customer’s Account, including all sub-accounts, regardless of whether such Service Fees are incurred by Customer or an End User.
2. Plan Selection. At or around the time of Account creation, Customer will choose a subscription plan (“Plan”) with associated Services Fees for the chosen Plan and either a monthly or annual billing cycle. The date as of which (1) Customer chooses its Plan and (2) any applicable trial periods have expired will be the date of Customer’s recurring payment for the Services (“Billing Date”). For example, if Customer selects a Plan on February 17^th, is not subject to a trial period, Customer chooses monthly billing, Customer will be charged on the 17th of each month. If Customer chooses annual billing, Customer will be charged every February 17^th. If Customer’s Account is created on a date that does not occur every month or every year, Customer will be charged on a date as close to the Billing Date as reasonably possible.
3. Limits. Each Plan has feature limits, the specifics of which are designated at the time of Plan selection. If Customer exceeds any limits indicated in Customer’s Plan, Customer will be charged a surcharge for each label, account, or other feature that exceeds Customer’s monthly limit. It is Customer’s responsibility to understand all monthly feature limits associated with its selected Plan. Regardless of the Plan, Customer will be charged for any usage of the Services in excess of its Plan on each Billing Date. For the avoidance of doubt, all shipping labels created by Customer shall count towards Customer’s limit, regardless of whether such labels are used, unless Customer cancels the label within 30 days of creation. Such labels may be automatically canceled by eHub in its sole discretion after 30 days of inactivity.
4. Changes. Customer may change its Plan at any time. If Customer chooses to upgrade its Plan, Customer will be charged a one-time prorated amount for the remaining days in the Plan until the next Billing Date. If Customer downgrades its Plan, any change to the Service Fees will be reflected on the next Billing Date. Customer will not receive a refund when downgrading Plans.
5. Payment Method. Customer will be required to enter a credit card for payment of Service Fees associated with Customer’s chosen Plan at the time of Account creation. Customer’s credit card will be charged on or around the Billing Date for access to the Services through the current billing cycle. The Billing Date will serve as the first day of Customer’s billing cycle. If Customer’s credit card is declined for any reason, Customer will be notified by email to the email address listed in Customer’s Account. Customer is responsible for maintaining accurate contact information in its Account. If eHub is unable to collect payment after 3 days, Customer’s subscription to the Services may be interrupted, suspended, or canceled, in eHub’s sole discretion.
6. Additional Fees; Taxes. Customer acknowledges that eHub may, at its sole discretion, pass along transactional fees associated with providing the Services, including credit card fees, to Customer. Such transactional fees may also include fees imposed by carriers; all such fees will be billed to Customer at the carriers’ standard rates, regardless of any discount granted on the original shipment. Fees imposed by carriers may be passed through to Customer at any time and Customer’s obligation to pay such fees shall survive any termination of this Agreement. All Service Fees are exclusive of applicable federal, state or local taxes and all use, sales, commercial, gross receipts, privilege, surcharges, or other similar taxes, license fees and surcharges, whether charged to or against eHub, and all such taxes, fees and charges will be the sole responsibility of and payable by Customer. Customer will not withhold any taxes from any amounts due to eHub.
7. Late Payments. If Customer fails to pay in time any amounts due hereunder, eHub will (without limiting its other rights) be entitled to (i) impose monthly interest on all such late payments up to the maximum amount permitted by applicable law; and/or (ii) suspend Customer’s access to the Services without prior notice to Customer. eHub will not have any liability whatsoever for any damage, liabilities, losses (including any lost profits) or any other consequences that Customer may incur with respect to any interruption, suspension, or cancellation of the Services pursuant to this Section.
8. Disputes; Late Payments. Customer will notify eHub in writing in the event Customer disputes any portion of any charges under this Agreement. Customer will provide such notice to eHub within thirty (30) days of the applicable charge and the parties will work together to resolve the applicable dispute promptly. Upon expiration of the 30-day period described in this Section, Customer will not be entitled (and hereby waives any right) to dispute any charges. Should there be a negative balance on Customer’s Postage Meter, eHub reserves the right to charge Customer’s Account to recover the negative balance and bring Customer’s Postage Meter to a positive balance.
9. Discrepancies. Customer acknowledges that periodically there may be a discrepancy between the postage rate at the time of purchase (“Purchased Rate”) and the final rate that is charged by the carrier after shipping (“Invoiced Rate”). This discrepancy can occur for many reasons including inaccurate weight, inaccurate dimensions, etc. Any discrepancy between the Purchased Rate and the Invoiced Rate corresponding to Customer’s shipment(s) will be charged to Customer’s Payment Account at a non-discounted rate and Customer agrees to accept said charges. eHub may dispute any Invoiced Rates that are suspected to be incorrect on the Customer’s behalf when possible. Customer agrees to make best effort to ensure that all packages are labeled with the correct postage prior to shipping. eHub agrees to make commercially reasonable effort to promptly notify Customer of each Invoiced Rate, however, Customer acknowledges that carriers may charge an Invoiced Rate after a significant amount of time following package shipment. Customer agrees to all charges related to any Invoiced Rate regardless of the amount of time that has passed since package shipment. eHub reserves the right to withhold remaining Postage Meter balance for 30 days following the Customer’s last generated label to help offset any amounts owning by Customer for Invoiced Rates.
10. Postage Meters. Customer acknowledges that certain shipping carriers require payment for postage prior to parcel shipment. eHub therefore requires Customer to set up a virtual postage meter that must be loaded with funds prior to purchasing postage (“Postage Meter”). Customer acknowledges that the Postage Meter is used solely for purchasing postage. eHub requires Customer to accurately complete the eHub Metered Customer Payment Authorization Form (“Payment Form”) that Customer will receive separately from this Agreement. However, if Customer has previously completed the Payment Form and it is still accurate, eHub will use information on previously submitted Payment Form for the terms of this Agreement. On the Payment Form, Customer will designate a bank or credit card account from which eHub will charge to reload funds for Postage Meter (“Payment Account”). By completing and submitting the Payment Form, Customer authorizes eHub to create an account on its behalf with eHub. Customer further authorizes eHub to make regularly scheduled charges to its Payment Account to refill Customer’s Postage Meter once the balance drops below a minimum amount as specified on the Payment Form for all postage purchases. If Customer already has either of the aforementioned accounts, those previously created accounts will continue to be used and Customer consents to this continued usage. Customer certifies that Customer is an authorized user of the Payment Account on the Payment Form and that Customer will not dispute the scheduled payments with Customer’s Payment Account provided the transactions correspond to the terms indicated herein.
11. Invoicing. Customer acknowledges that certain shipping carriers will invoice for postage after parcel shipment. Customer agrees that eHub will invoice Customer for postage purchases after package shipment (“Invoice”) when applicable based on shipping carrier chosen by Customer. Payment terms are as specified on each individual Invoice, each of which is incorporated by reference into and forms part of this Agreement. eHub will charge Customer’s Payment Account for postage based on Customer’s Invoices.
12. Account Reload. If Customer is on a metered basis for postage, Customer understands that eHub or Customer’s bank may end its recurring payment plan at any time. Customer understands that if any payment dates fall on a weekend or holiday, the payment may be debited from Customer’s Payment Account on the next business day, however, the Postage Meter will be loaded regardless of weekends or holidays as a service provided by eHub to enable Customer to always be able to access postage and not disrupt business. In these circumstances, eHub may choose or be forced to carry that debt until the next business day.

CUSTOMER RESPONSIBILITIES
1. Customer Applications. Customer shall monitor the use of the Customer Applications for any activity that violates applicable laws, rules and regulations or any terms and conditions of this Agreement, including any fraudulent, inappropriate or potentially harmful behavior, and promptly restrict any offending users of the Customer Applications from such use of the Customer Applications. As between the parties, Customer will be solely responsible for physical package handling and the management of technical support questions or issues reported or experienced by End Users relating to Customer Applications.
2. Support. In the event an End User requires additional support or resolution of any issues related to the Services, eHub and Customer agree that escalations will be sent to eHub’s support team, which shall provide commercially reasonable support to Customer’s End User for any such escalations. If Customer requests additional support from eHub that falls outside the scope of this Agreement, the parties shall negotiate in good faith to arrive at terms and conditions governing eHub’s provision of such support, which terms and conditions shall be memorialized in a signed addendum hereto.
3. Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to make use of the Services, including without limitation modems, hardware, server, software, operating system, networking, web servers and similar equipment (collectively, the “Equipment”). Customer shall be responsible for maintaining the security of the Equipment and shall take reasonable measures to prevent the unauthorized disclosure of any information stored on or conveyed through the Equipment.
4. Customer Data. Customer agrees that: (i) Customer’s submission and the use of any Customer Data in connection with the Services will be in compliance with all applicable laws; and (ii) Customer will not upload any Customer Data to the Services or print any data using the Services that depicts violence, nudity, partial nudity or is unlawful, sexually suggestive, pornographic, offensive, discriminatory, threatening, libelous, defamatory, obscene, or otherwise violates this Agreement.
EARLY ACCESS PRODUCTS
1. Access. During the term of this Agreement, eHub may provide Customer with access to certain pre-release products (“Early Access Products“) free of charge. Customer agrees that the purpose of using the Early Access Products is primarily to provide eHub with substantial and detailed feedback at eHub’s specific request, including but not limited to feedback related to the usability, functionality, bugs, and overall user experience, or such other details as eHub may request. Customer agrees to provide eHub with such feedback in a timely manner. Such feedback will be treated as eHub’s Confidential Information under this Agreement.
2. Disclaimer. Customer acknowledges and agrees that the Early Access Products are provided “as is” and in a pre-release state. Consequently, they may not function as intended or promised. eHub disclaims all warranties, whether express or implied, related to the Early Access Products, including but not limited to warranties of title, merchantability, or fitness for a particular purpose. eHub will not be liable to Customer or any third party for any damages of any kind arising out of or relating to customer’s use of or inability to use the Early Access Products.
3. Modification and Termination. eHub may, in its sole discretion, modify the Early Access Products, cease providing the Early Access Products, or terminate Customer’s access to the Early Access Products at any time, without any prior notice to Customer.
DATA AND INTELLECTUAL PROPERTY RIGHTS
1. Ownership of Services. As between Customer and eHub, all right, title and interest in and to the Services are and shall remain owned exclusively by eHub. No title to or ownership of the Services are transferred under or by virtue of this Agreement. eHub reserves all rights in and to the Services not expressly granted to Customer under this Agreement.
2. Ownership of Customer Data. Customer will remain the sole and exclusive owner of all right, title, and interest in and to Customer Data. Customer hereby grants to eHub a nonexclusive, worldwide, transferable, sublicensable (to its subcontractors and service providers), irrevocable, royalty-free, fully paid-up license to access, use and process all Customer Data in accordance with the terms of this Agreement in order to provide, analyze and improve the Services. All data collected from individuals is subject to eHub’s privacy policy located at https://ehub.com/privacy-policy/.
3. Service Analyses. Notwithstanding anything herein to the contrary, eHub shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom) (“Service Analyses”), and eHub will be free (during and after the Term): to (i) use Service Analyses improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other eHub offerings; and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. Service Analyses do not constitute Customer Data, and eHub shall retain all right, title, and interest in and to Service Analyses, including all Intellectual Property Rights therein and thereto, and Customer hereby assigns all right, title and interest it may have in and to such Service Analyses.
4. Feedback. If Customer provides any suggestions, enhancement requests, recommendations, comments or other feedback (“Feedback”) relating to the Services, Customer grants eHub the right to use, reproduce, license, distribute, and otherwise commercialize the Feedback for any lawful purpose, on a royalty-free, worldwide, transferable, sublicensable, irrevocable, and perpetual basis. eHub will not be obligated to implement any Feedback.
CONFIDENTIALITY.
1. Obligations. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose such information to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure of at least the level of care to protect such Confidential Information as a trade secret under applicable law. Each party may disclose the Confidential Information of the other party, in whole or in part, to its employees, representatives, actual or potential investors, professional advisors and subcontractors who have a need to know and are legally bound to keep such information confidential substantially consistent with the terms of this Agreement. Either party may disclose the Confidential Information of the other party as required by law, upon prior written notice to the other party (where allowed by law); provided that such party will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.
2. Cumulative Remedies. Customer acknowledges that eHub’s Confidential Information contains trade secrets of eHub and that any unauthorized use or disclosure of such information would cause eHub irreparable harm for which its remedies at law would be inadequate. Accordingly, Customer acknowledges and agrees that eHub will be entitled, in addition to any other remedies available to it at law or in equity, to the issuance of injunctive relief, without bond, enjoining any breach or threatened breach of Customer’s obligations hereunder with respect to the Confidential Information of eHub, and such further relief as any court of competent jurisdiction may deem just and proper.
TERMINATION
1. Termination Rights. Either party may terminate this Agreement in the event the other party commits any material breach of this Agreement and fails to remedy such breach within five (5) days after written notice of such breach. eHub may also suspend or terminate this Agreement or any of the Services immediately upon notice if: (i) there is an unusual spike or increase in Customer’s use of the Services, and eHub, in its sole discretion, believes such traffic or use is fraudulent or negatively impacting the operating capability of the Services; (ii) eHub determines, in its sole discretion, that its provision of any of the Services is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; (iii) Customer’s use of the Services is not in compliance with Section 2 or otherwise poses a security threat to eHub or its other customers; (iv) eHub has a good-faith reason to terminate Customer’s access, whether or not Customer is in violation of this Agreement; or (v) subject to applicable law, upon Customer’s liquidation, commencement of dissolution proceedings, cessation of business, change of control, disposal of Customer’s assets, assignment for the benefit of creditors, or if Customer becomes the subject of bankruptcy or similar proceeding.
2. Termination of Access. Customer may terminate its access to any or all Products to which it is subscribed by submitting a written request to eHub’s customer service department at [email protected] fifteen (15) days prior to the renewal on monthly billing Plans and thirty (30) days prior to the renewal on annual billing Plans.
3. Post-Termination Obligations. Upon termination or expiration of this Agreement: (i) Customer’s license to the Services will immediately terminate; (ii) Customer will immediately stop using the Services and (iii) Customer will pay eHub, within ten (10) business days following the termination or expiration date, all accrued Services Fees and any other charges that remain unpaid. Customer’s payment obligations, the terms of this Section 8(b) and the terms of the following Sections shall survive indefinitely: Sections 1, 6, 7, and 10-13.
WARRANTIES AND DISCLAIMER
1. Mutual Warranties. Each party represents and warrants that it has the requisite company power and authority to enter into this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby, and the execution, delivery and performance of this Agreement have been duly authorized by all necessary company action on the part of each of the parties.
2. Customer Warranties. Customer hereby represents and warrants to eHub that Customer’s performance under this Agreement (a) will not violate any applicable law, rule, regulation or judicial order, or violate any contractual obligation that Customer may have to or with any third party, (b) will not violate any proprietary rights of third parties including, without limitation, patents, copyrights or trade secrets, and (c) any Customer Data or other information Customer may supply to eHub or utilize with respect to performing its duties hereunder will have been lawfully obtained by Customer.
3. eHub Warranties. eHub represents and warrants that it shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in accordance with the Documentation and in a manner designed to minimize errors and interruptions in the Services.
4. Disclaimer. SUBJECT ONLY TO THE WARRANTY SET FORTH IN SECTIONS 9(a) AND 9(c) ABOVE, EHUB HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICES IS AT CUSTOMER’S SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EHUB DOES NOT WARRANT THAT THE SERVICE WILL: PERFORM ERROR-FREE OR WITHOUT INTERRUPTION; MEET ANY PERFORMANCE OR RELIABILITY STANDARDS; BE FREE FROM BUGS, VIRUSES, HARMFUL CODE, ERRORS, OR OTHER PROGRAM OR SYSTEM LIMITATIONS (OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED); MEET YOUR REQUIREMENTS; ACHIEVE ANY INTENDED RESULTS; OR BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES. EHUB SHALL HAVE NO RESPONSIBILITY OR LIABILITY TO YOU FOR DOWNTIME OF THE SERVICES, ANY BREACH OF DATA SECURITY, OR ANY PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE RESULTING FROM USE OF THE SERVICES, FAILURE OF THE SERVICES, OR OTHERWISE RELATING TO THE SERVICES. USE OF ANY MATERIAL DOWNLOADED OR OBTAINED THROUGH THE USE OF THE SERVICES SHALL BE AT CUSTOMER’S OWN DISCRETION AND RISK AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEM, MOBILE DEVICE, OR DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY CUSTOMER FROM EHUB, ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
LIMITATION OF LIABILITY
1. Limitation on Damages. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EHUB AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER SIMILAR DAMAGES OR LOSSES, EVEN IF EHUB HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EHUB BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER DURING THE TWELVE MONTHS PRECEDING THE INCIDENT OR CLAIM. THE ABOVE LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHETHER AN ACTION IS IN CONTRACT OR TORT, REGARDLESS OF THE THEORY OF LIABILITY, AND EVEN IF EHUB WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER. IN SUCH JURISDICTIONS, THE LIABILITY OF EHUB AND ITS REPRESENTATIVES IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
2. Limitation on Time to Bring Claims. ANY CAUSE OF ACTION OR CLAIM CUSTOMER MAY HAVE ARISING OUT OF OR RELATING TO THE SERVICES OR THIS AGREEMENT MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
INDEMNIFICATION
1. eHub Indemnification. eHub will defend at its expense any suit brought against Customer, and will pay any settlement eHub makes or approves, or any damages finally awarded in such suit, to the extent such suit is based on a claim by any third party alleging that the Services (or portion thereof) misappropriates any trade secret recognized under the Uniform Trade Secrets Act or infringes any copyright registered or United States patent issued as of the Effective Date. If any portion of the Services becomes, or in eHub’s opinion is likely to become, the subject of a claim of infringement, eHub may, at eHub’s option: (i) procure for Customer the right to continue using the Services; (ii) replace the Services with non-infringing software or services which do not materially impair the functionality of the Services; (iii) modify the Services so that it becomes non-infringing; or (iv) terminate this Agreement, and upon such termination, Customer will immediately cease all use of the Services. Notwithstanding the foregoing, eHub shall have no obligation under this section or otherwise with respect to any infringement claim based upon (w) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (x) any use of the Services in combination with other products, equipment, software or data not supplied by eHub; or (y) any modification of the Services by any person other than eHub or its authorized agents.
2. Customer Indemnification. Customer shall indemnify, defend and hold harmless eHub and its subsidiaries, affiliates, officers, directors, employees, agents and subcontractors from and against all liability, damages, loss, cost or expense, including but not limited to reasonable attorneys’ fees and expenses, arising out of or in connection with any third-party claims or allegations arising from, relating to, or alleging: (i) that Customer’s use of the Services infringe or otherwise violate any rights of any a third party, including intellectual property rights; (ii) Customer’s breach of this Agreement; (iii) Customer’s violation of applicable law; (iv) Customer’s acts or omissions in connection with any Customer Application; or (v) Customer’s negligence, recklessness, fraud, or willful misconduct.
3. Procedures. Upon the assertion of any claim or the commencement of any suit or proceeding against a party by any third party subject to indemnification hereunder, the indemnitee shall promptly notify the indemnitor of the existence of such a claim and shall give the indemnitor reasonable opportunity to defend and to settle the claim at its own expense and with counsel of its own selection. The indemnitee shall cooperate with the indemnitor at the indemnitor’s expense, shall at all times have the full right to participate in such a defense at its own expense and shall not be obligated, against its consent, to participate in any settlement which it reasonably believes would have an adverse effect on its business.
GOVERNING LAW; DISPUTES. This Agreement will be governed by the laws of the State of Utah, without regard to its rules governing conflicts of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except for claims for injunctive relief (which may be brought in any court of competent jurisdiction), any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be shall be resolved as follows: (i) the parties shall first attempt in good faith to resolve any such claim or controversy, (ii) failing that, the parties shall be free to file suit in any state or federal court of competent jurisdiction located in Salt Lake City, Utah.
MISCELLANEOUS
1. Export. Customer agrees that it shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce.
2. Attorneys’ Fees. If Customer fails to make any payments required by this Agreement and eHub seeks to collect the amounts owed to it under this Agreement, Customer agrees to pay the reasonable costs of collection. These costs include, but are not limited to, any collection agency’s fees, reasonable attorneys’ fees, interest or late fees accrued, and arbitration or court costs. If any party shall be in default or breach of this Agreement, said party shall be liable to pay all reasonable attorneys’ fees, court costs and other related construction costs and expenses incurred by the non-defaulting or non-breaching party in prosecuting its rights hereunder.
3. Assignment. Customer will not assign or otherwise transfer this Agreement, in whole or in part, without eHub’s prior written consent, which eHub may withhold in its sole discretion. Any attempted assignment, delegation, or transfer in violation hereof will be null and void. eHub may freely assign this Agreement in whole or in part. This Agreement shall be binding upon the inure to the benefit of the successors, permitted assigns and legal representatives of the parties. There are no third-party beneficiaries to this Agreement except as otherwise stated herein.
4. Relationship of the Parties. Neither party is the agent of the other and neither party shall have any right or authority to make or enter into any contract or other agreement in the name of or for the account of the other party, or to make any representation, or to assume, create or incur any obligation or liability of any kind on behalf of the other party. Each party will be responsible for any applicable payment and withholdings of any salary, benefits, incentives and any other compensation or taxes relevant to its personnel. Nothing in this Agreement, and no course of dealing between the parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the parties or between one party and the other party’s employees or agents.
5. Entire Agreement; Modification; Rights Cumulative. This Agreement is the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior agreements or communications between the parties, whether written, oral, electronic or otherwise. The express terms of this Agreement control and supersede any course of performance or usage of the trade inconsistent with any of the terms of this Agreement. No change, modification, amendment or addition of or to this Agreement or any part thereof shall be valid unless in writing and signed by authorized representatives of the parties. The rights and remedies of the parties herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
6. Waiver. Any waiver of any breach or default by either party will not constitute a waiver of any other right or any subsequent breach or default. All such waivers must be in writing. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
7. Severability. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, then such provision will be enforced to the maximum extent possible under applicable law so as to effect the intent of the parties and the remaining provisions of this Agreement will remain in full force and effect. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision, it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so written.
8. Notices. All notices, requests, demands or other communications under this Agreement shall be in writing and shall be validly given or made to another party if given by personal delivery, email, or if deposited in the United States mail, certified or registered, postage prepaid, return receipt requested. If such notice, demand or other communication is given by personal delivery or email, service shall be conclusively deemed made at the time of receipt. If such notice, demand or other communication is given by mail, such notice shall be conclusively deemed given forty-eight (48) hours after the deposit thereof in the United States Mail addressed to the party to whom such notice, demand or other communication is to be given as hereinafter set forth:
  1. If to eHub:
    eHub
    
    9490 S 300 W Suite 200
    
    Sandy, Utah 84070
    
    Attn: Legal Department

1. 1. If to Customer: the address designated on Customer’s Account.

1. Force Majeure. Each of the parties shall be excused from performing their respective obligations hereunder (other than payment obligations) in the event that either or both are prevented from so performing by reason of an emergency such as floods, earthquakes and other extraordinary natural acts, war, insurrection, riots, and other similar catastrophic events that are beyond the control of and not the fault of the party claiming the excuse.
2. Non-Disparagement. Customer shall not, during or after the term of this Agreement, disparage eHub, any of its officers, directors or employees, the Services, or otherwise take any action that could reasonably be expected to adversely affect eHub’s reputation.
3. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which taken together will constitute one and the same instrument.
4. No Consent. No consent, permit, approval or authorization of, or declaration, filing, application, transfer or registration with, any governmental authority, or any other person or entity is required to be made or obtained by either party by virtue of the execution, delivery or performance of this Agreement.
5. Interpretation. For purposes of this Agreement: (i) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; (iii) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; and (iv) words denoting the singular have a comparable meaning when used in the plural, and vice-versa. Unless the context otherwise requires, references in this Agreement: (1) to sections mean the sections of this Agreement; (2) to an agreement, instrument, or other document means the agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (3) to a statute means the statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties drafted this Agreement without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
6. Captions. The captions used herein are for convenience of reference only and are not part of this Agreement, and shall in no way be deemed to define, limit, describe or modify the meaning of any provision of this Agreement.

If Customer uses the Network, the following terms shall apply in addition to the terms set out above:

DUTIES OF NETWORK CUSTOMERS
1. Prospects. Customer may receive prospective clients (“Prospects”) through the Network on a non-exclusive basis when Prospects fit Customer’s ideal customer profile. Customer acknowledges that any negative interaction between Prospect and Customer reflects poorly on eHub and could impact Customer’s current and future participation in the Network. eHub reserves the right to rescind placement of a Prospect for lack of performance or at the request of the Prospect or the Prospect’s client. Customer must have the technological capability to assign a unique identifier to every Prospect placed by eHub for tracking purposes and must assign a unique identifier to each Prospect placed by eHub.
2. Postage Rates and Shipping Minimums. Customer agrees to use eHub’s USPS postage rates as part of their participation in the Network. eHub reserves the right to impose marginable shipment minimums in order to qualify for participation in the Network.
3. Misrepresentation. Customer shall not make any representations or guaranties regarding eHub’s services or business, other than as expressly authorized in writing by eHub. Customer shall not in any manner represent to any Prospect or any other party that Customer is authorized to act on eHub’s behalf.