1. Certain Definitions
The following words have the following meanings:
“Co-branded App” means a HOVER App, HOVER Report, or HOVER Deliverable branded, distributed, or maintained with a Sponsor in accordance with Order Documentation;
“Consumer User” means an individual (other than a Service Provider) who downloads and uses the HOVER App, or the customer of Sponsor who downloads and uses the HOVER App to transact with the Sponsor;
“Customization Services” means those integration, software development and other customization services set forth on Order Documentation and performed by HOVER;
“Data Privacy Laws” means the applicable privacy statute or regulation for the collection and processing of personal information or personal data according to the User’s jurisdiction, such as California Consumer Protection Act or General Data Protection Regulation, as amended;
“Derived Data” means the Property Information, and Structure Measurements, collected through the Software and Services and derived through the HOVER Production Process to create a HOVER Model, including a HOVER Report, to the extent anonymized;
“Estimation Platform” means the Quote-to-Order (Q2O) function within the HOVER App, excluding Sponsor information used to populate an Estimate Deliverable;
“Estimate Deliverable” means forms and templates for generating a quote or ordering materials incident to Sponsored User directed services for a single Subject Property;
“HOVER” means Hover Inc., a Delaware corporation;
“HOVER App” means a version of the HOVER mobile application and (and any companion applications to web-based tools through the HOVER Website) used to collect Image Data, view HOVER Models and order HOVER Models, and also includes all Co-branded Apps;
“HOVER Deliverables” means the HOVER Models, Estimate Deliverable, TLA Premium or TLA Report or any other product and service related thereto ordered by or otherwise accessible by and made available to Users or Sponsors;
“HOVER Membership Subscription” means all HOVER Membership features as set forth on the HOVER Website;
“HOVER Model” means a digital version of HOVER’s 2D or 3D HOVER reconstruction of a Subject Property, of a type identified in the HOVER App or the HOVER Website (e.g. Roof Only or Complete, Expedited, TLA Premium, etc.) and generated through the HOVER Production Process, and which contains the Derived Data;
“HOVER Production Process” means the propriety production process used by HOVER to create a HOVER Model;
“HOVER Report” means a PDF version of a report that contains a representation of the HOVER Model and contains the Derived Data;
“HOVER Web App” means the web application used to order, view and manage the HOVER Deliverables;
“HOVER Website” means web-based tools and content available for access through www.hover.to;
“Image Data” means the photos, images and other data, including without limitation, the geospatial and other metadata embedded in therein that is submitted or otherwise provided by User or Sponsor to HOVER through the HOVER App;
“Order Documentation” means any agreement, order form, pricing addendum, or other ordering document used to purchase HOVER Deliverables and any subsequent amendment or addendum thereto entered into from time to time;
“Property Information” means the address and location of the Subject Property, which may be derived through the Image Data or GPS information;
“Service Provider” means a third party who downloads and uses the HOVER App to obtain a HOVER Model with respect to a Subject Property;
“Software and Services” means collectively, the Customization Services, the HOVER App, the HOVER Web App, the Estimation Platform and the HOVER Deliverables engaged by a User or applicable Sponsor, as amended and supplemented from time to time;
“Sponsor” means the HOVER licensee set forth on the Order Documentation who has contracted with HOVER to provide the Software and Services;
“Structure Measurements” means the lines and measurements of a Subject Property derived by HOVER using the HOVER Production Process and if set forth on the Order Documentation, downloadable in .dwg, dxf or other file format or is readable through, inter alia, the .esx file format;
“Subject Property” means the structure, location or premises being photographed by a User using the HOVER App and in respect of which a HOVER Model is produced;
“Sponsored User” means the Sponsor’s employees, affiliates, Consumer User, and Service Providers authorized by Sponsor to use the HOVER App to order or receive HOVER Models;
“TLA Premium” means a report with a total living square footage calculation, plus an exterior material calculation, which also includes a HOVER Model of a Subject Property;
“TLA Report” means a report with a total living square footage calculation, but not including HOVER Model of a Subject Property; and
“User” means each Consumer User, Sponsored User or a Service Provider, as applicable.
2. Requirements of the HOVER App
The HOVER App is only compatible with those smartphones and operating systems identified and certified by HOVER from time to time. The use of the HOVER App requires and utilizes internet connectivity and data. Carrier and provider rates for data may apply and you are responsible for any such charges. Use of the HOVER App could result in significant data usage.
The functional use of the HOVER App and the production of HOVER Models and other HOVER Deliverables may be dependent on the data related to geographic location and geo-positional data, and you acknowledge and agree that any failure to provide (or make accessible) that data may limit the functionality of the HOVER App and the generation of HOVER Models and other HOVER Deliverables.
The Software and Services are dependent on the accuracy of the images submitted, in the format, number, location, clarity and sequence required by or requested through the HOVER App and the other data and information required by or requested through the HOVER App. User, or applicable Sponsor, acknowledges and agrees that failure to properly provide such images, data and information may limit or prevent the functionality of the HOVER App and the ability of HOVER to deliver HOVER Models or other HOVER Deliverables.
HOVER has no liability for errors, unreliable operation, or other issues resulting from use of the HOVER App or HOVER Deliverables on or in connection with rooted or jail broken devices or use on any mobile device that is not in conformance with the manufacturer’s original specifications, including use of modified versions of the operating system (collectively, “Modified Devices”). Use of the HOVER App or HOVER Deliverables on Modified Devices will be at the User’s, or applicable Sponsor’s, sole and exclusive risk and liability.
3. Consent to Information Collection and Use
You hereby give HOVER consent to collect data related to you through the HOVER App or applicable Co-branded App. Collected data may include personal information, Image Data, or Property Information. HOVER will manage collected data in accordance with Data Privacy Laws. A full description of the information collected and purposes of the collection is available at hover.to/privacy. Users acting on behalf of the resident of a property, such as either as a Sponsored User or Service Provider, must obtain consent of the resident of the applicable Image Data and Property Information prior to collection and submission through the HOVER App.
- processing and managing your purchase and use of our products and services;
- verifying your identity and responding to your inquiries or requests;
- creating and delivering personalized promotions;
- communicating with you by mail, telephone, facsimile, e-mail, mobile alerts, SMS text messaging or other reasonable means about:
- HOVER or the applicable Sponsor and its affiliates;
- products of HOVER or the applicable Sponsor that may be applicable to you;
- managing permissions for access to HOVER Deliverables already provided to you; and
- marketing efforts; and
- furthering HOVER or the applicable Sponsor and its affiliates business and support purposes, such as to perform data analysis, audits, fraud monitoring and prevention, to enhance, improve or modify the services, to identify usage trends, determine the effectiveness of promotional campaigns and to operate and expand business activities.
IF AT ANY TIME YOU DESIRE FOR HOVER NOT TO SHARE YOUR INFORMATION WITH ANY SPONSOR, SPONSOR AFFILIATE, SERVICE PROVIDER OR OTHERWISE, YOU CAN OPT-OUT BY EMAILING HOVER AT [email protected]
IF YOU ARE A SERVICE PROVIDER WHO HAS DOWNLOADED AND/OR IS USING A SPONSORED APP, YOU ALSO HEREBY ACKNOWLEDGE AND CONSENT TO THE SPONSOR’S OR CUSTOMER’S ABILITY TO ACCESS, DISCLOSE, RESTRICT, MONITOR, COMPILE INFORMATION AND GENERATE REPORTS FROM YOUR USE OF THE SPONSORED APP AND THE SOFTWARE AND SERVICES.
(a) Software and Services. HOVER grants to User, or applicable Sponsor, a non-exclusive, revocable, non-transferable license to those rights necessary to use the Software and Services as accessible to User or Sponsor in accordance with the Order Documentation, if any. The foregoing shall not be construed as entitling User or Sponsor to physical delivery or possession of any software comprising the Software and Services. The Software and Services are licensed, not sold, to User or Sponsor. HOVER retains all title in and to the Software and Services. Other than the limited license granted, User or Sponsor has no other right, title or interest in the Software and Services. User or Sponsor shall not: (i) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt all or any portion of the Software and Services; (ii) build a competitive product or service using information obtained from the Software and Services; (iii) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Software and Services; (iv) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of HOVER or its affiliates, partners, suppliers or the licensors of the Software and Services, or otherwise obscure or modify the manner in which the Software and Services are displayed; (v) use any robot, spider or other automatic program or device to monitor, copy, summarize, or otherwise extract information from the HOVER Models or other HOVER Deliverables, in whole or in part; or (vi) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Software and Services, programs or materials available, to any third party other than, as expressly permitted under the terms of this Agreement.
(b) HOVER Report and Derived Data. For the avoidance of doubt, for those Sponsors acting on behalf of a resident or User, the Sponsor shall be entitled to save and use a copy of the HOVER Report together with the related Derived Data and otherwise make use of it with respect to a Subject Property provided it shall not (i) directly or indirectly sell or make any of the Derived Data available to third parties on an aggregated basis (ii) use, or enable or permit a third-party to use, any of the Derived Data to build a product or service that directly competes with the business of HOVER as comprised as of the date this Agreement is entered into and (iii) does not otherwise violate any of the terms hereof.
(c) No Implied Rights. All rights not expressly granted herein are reserved by HOVER. Neither party grants the other party any interest or title in or rights to use its trademarks, service marks, or other proprietary symbols or designations (“Marks”), provided that during the Term, HOVER is hereby granted a limited, non-exclusive, non-transferable license to (i) use Sponsor’s Marks solely in connection with providing the Software and Services to Sponsor, and (ii) for Co-branded Apps, to reproduce and use Sponsor Marks listed on the Order Documentation within the Co-branded App, provided HOVER observes the usage guidelines described in the Order Documentation as may be amended by Sponsor. It is further provided that HOVER grants to Sponsor a limited, non-exclusive, non-transferable license during the Term to reproduce and use HOVER Marks listed on the Order Documentation within the Co-branded App or a HOVER Report, provided Sponsor observes the usage guidelines described in the Order Documentation as may be amended by HOVER. All goodwill associated with the use of either party’s Marks in connection with the Co-branded App inures solely to HOVER for its HOVER Marks and to Sponsor for its Sponsor Marks, and neither party will take action to damage the goodwill associated with the other’s Marks. In the event Sponsor notifies HOVER in writing that the Co-branded App does not conform to the requirements of the Order Documentation, HOVER will discontinue display of Sponsor Marks in the Co-branded App or make revisions satisfactory to Sponsor; and in the event HOVER notifies Sponsor in writing that the Co-branded App or a HOVER Report does not conform to the requirements of the Order Documentation, Sponsor will discontinue display of HOVER Marks in the Co-branded App or HOVER Report or make revisions satisfactory to HOVER.
5. No Unlawful or Prohibited Use
The license to the Software and Services is conditioned on the following:
(a) the use will not have any purpose that is unlawful or prohibited by this Agreement;
(b) the use will not, in any manner, damage, disable, overburden, or impair the Software and Services or interfere with any other party’s use and enjoyment of the Software and Services;
(c) there will be no attempt to obtain any materials or information not provided for in the HOVER Deliverables; and
(d) the HOVER App will not be downloaded or used in, or transported to, a country that is subject to a U.S. Government embargo or sanction.
6. Rights and Responsibilities for Images and Accounts
(a) By submitting Image Data and Property Information through the HOVER App, you represent and warrant to HOVER that you own or have all necessary rights, permissions, and licenses to submit and provide the Image Data and Property Information, and grant to HOVER the license and rights granted herein;
(b) You hereby grant to HOVER and its affiliates, licensees, agents, and sub-licensees, without compensation to you or others, a perpetual, irrevocable, non-exclusive, royalty-free, transferable, assignable, sub-licensable, worldwide license, to copy, adapt, create derivative works of, reproduce, incorporate, distribute, publicly display or otherwise use or exploit the Image Data throughout the world in any format or media (whether now known or hereafter created) for the duration of any copyright or other rights in such Image Data. Further, to the extent permitted under applicable law, you waive and release and covenant not to assert any moral rights that you may have in any Image Data submitted by you;
(c) You may provide suggestions, comments or other feedback (collectively, “Feedback”) to HOVER with respect to its products and services, including the Software and Services. Feedback is entirely voluntary. In the event you furnish any Feedback to HOVER, HOVER may use Feedback for any purpose without obligation of any kind. To the extent a license is required under your intellectual property rights to make use of the Feedback, you hereby grant HOVER an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with HOVER’s business, including the enhancement of Software and Services; and
(d) You agree to indemnify, defend and hold HOVER, any Sponsor, any Sponsor affiliate and any Service Provider (including our and their assignees, subsidiaries, affiliated companies, and the respective officers, directors, employees, shareholders, agents and representatives of any thereof) free and harmless from and against any liability, loss, injury, damage, demand, action, cost, expense, or claim of any kind or character, arising out of or in connection with any breach of this Agreement and use or possession by you of the Software and Services.
7. HOVER Rights and Responsibilities
HOVER shall provide the following in accordance with the Software and Services, subject to the ordering of such HOVER Deliverables and payment of fees:
(a) HOVER Deliverables. Upon successful upload of the Image Data, HOVER will use the HOVER Production Process to build a HOVER Model and/or the other HOVER Deliverables as ordered.
(b) Estimation Platform. If set forth on the Order Documentation and made available to Sponsor and its Sponsored Users, an Estimate Deliverable shall be made available to enable quoting and ordering materials for Sponsored Users to generate work orders of a Subject Property based on a HOVER Model. IN THE EVENT THE HOVER APP OR ESTIMATION PLATFORM CAUSES SPONSOR OR ITS USERS TO ORDER AN INCORRECT AMOUNT OF MATERIALS, SPONSOR’S SOLE REMEDY WILL BE ACTUAL, DIRECT DAMAGES (NO CONSEQUENTIAL DAMAGES) EQUAL TO AN AMOUNT NOT TO EXCEED THE PRICE PAID FOR THE ESTIMATION DELIVERABLE.
(c) Technical Support. HOVER shall provide technical support by telephone during its normal business hours (9:00 am to 5:00 pm EST) and provide necessary maintenance and update services to ensure that the Software and Services perform as intended. Support services may also be accessed by email at [email protected] or through the chat feature in the HOVER App.
(d) Compliance with Laws. HOVER shall ensure that all information related to Users provided hereunder are used, maintained and accessed by HOVER in compliance with applicable laws and regulations with respect to privacy and data security, including without limitation, Data Privacy Laws, the Telemarketing Sales Rule (as amended), the Telephone Consumer Protection Act of 1991 and the CANSPAM Act of 2003. Further, HOVER warrants and represents that it or its service providers maintain physical, administrative and electronic safeguards to prevent the unauthorized use, access, disclosure or modification of information that can be used, alone or in conjunction with other generally available information, to identify any specific natural person, and that such safeguards are in compliance with applicable laws and regulations.
8. Sponsor Responsibilities
Sponsor shall ensure that all information related to Consumer Users provided hereunder are used, maintained and accessed by Sponsor in compliance with applicable Data Privacy Laws, including without limitation, the Telemarketing Sales Rule (as amended), the Telephone Consumer Protection Act of 1991 and the CANSPAM Act of 2003.
(a) If so indicated on the Order Documentation, HOVER will perform the specified Customization Services for a Sponsor, if any (the “Specifications”). Upon completion of the Customization Services (the “Customization Deliverables”), HOVER shall notify Sponsor of such completion (“Notice”). Sponsor shall have five (5) business days (the “Acceptance Period”) from receipt of the Notice to determine whether the completed Customization Deliverables substantially conform to the Specifications. Upon expiration of the Acceptance Period, the completed Customization Deliverables shall be deemed accepted by Sponsor unless HOVER has received from Sponsor prior to the expiration of the Acceptance Period, a written statement detailing any substantial nonconformance (“Notice of Nonconformance”). If HOVER receives a Notice of Nonconformance during the Acceptance Period, HOVER will use reasonable commercial efforts to correct and redeliver the applicable Customization Deliverables to Sponsor. In the event the applicable Customization Deliverable was originally performed on a time and materials basis, Sponsor will pay for the correction work on the same time and materials. The Acceptance Period and procedure of this Section shall repeat itself with respect to such redelivered Customization Deliverables until accepted or deemed accepted by Sponsor.
(b) If at any time after acceptance of a Customization Deliverables Sponsor desires to modify or enhance the Customization Deliverables, or any portion thereof, Sponsor shall notify HOVER with respect to all such requested modifications, supplements or enhancements and provide to HOVER such proposed specifications as then exist. HOVER will thereupon notify Sponsor of the charges to be incurred with respect to such proposed modifications, supplements or enhancements, and time estimated for completion thereof.
(a) General. The fees and other charges, if any, for the Software and Services and HOVER Deliverables provided thereunder may be subject to additional taxes and duties (such as sales, use, value-added, or excise); HOVER may be required to collect or pay now or at any time in the future additional amounts with respect to such fees owed and User or applicable Sponsor shall pay any such tax (excluding taxes on HOVER’s net income). Specific payment structure may be set out in an Order Documentation; fees are payable by the User or party as set forth on the Order Documentation. All pricing is in U.S. Dollars. Subscription fees, if applicable, are subject to proration and are non-refundable.
(b) Billing. Payment of the amounts due to HOVER shall be made in accordance with the payment method and credit terms as selected by User or as set forth on an associated Order Documentation. If you have provided a credit card to HOVER, you authorize HOVER to charge your credit card with the amount of any purchase of Software or Services or HOVER Deliverables. Any amount due but not paid within thirty (30) days shall bear a finance charge at the rate of 1.5% per month.
(c) Reliance on charges. Sponsor is responsible for paying applicable fees for all HOVER Deliverables ordered by, distributed to or purchased by a User through Sponsor’s account. Sponsor is solely responsible for, and HOVER will bear no responsibility for, unauthorized access to or use of the Software and Services by any person who uses Sponsor credentials. HOVER shall be entitled to rely on User’s username, password and any Sponsor identifier code and/or claim number supplied by any User to determine whether such user is an authorized User on Sponsor’s account.
11. Production and Delivery of HOVER Deliverables
HOVER does not guarantee the production and delivery of HOVER Deliverables. If HOVER is unable to produce a HOVER Deliverable due to failure to submit the required Image Data or other required information, or for any other reason, you will receive an email stating that your order cannot be processed and no charges will accrue for your order. Once a HOVER Deliverable is successfully produced, you will be charged for the order at the time the HOVER Deliverable is delivered to you.
A link to any HOVER Deliverables ordered by you shall be emailed to you upon completion. HOVER Reports shall be delivered through the HOVER App, by email in PDF format, or by other means as specified in an Order Documentation.
12. Warranties and Limitation of Liability
(a) Sponsor Indemnification. Sponsor hereby agrees to defend and indemnify HOVER against, and hold HOVER harmless from, any loss, claim, cost, judgment, liability or expense (collectively, “Claims“), including court costs and reasonable fees of attorneys and other professionals, arising out of or in connection with any third party Claims arising from (i) a breach of this Agreement or any of the covenants contained herein by Sponsor, or (ii) the use of any Sponsor products and services.
(b) HOVER Indemnification
(i) In General. HOVER will indemnify, defend and hold harmless Sponsor, its affiliates and their respective directors, officers, employees and agents from and against any and all third party Claims, including court costs and reasonable attorneys’ and other professionals’ fees, arising out of or in connection with (i) HOVER’s negligence, willful misconduct or other tortious action, (ii) a claim that the Services and Software or Sponsor’s use thereof infringes or violates any patent, copyright, trademark, or other intellectual property right of a third party or misappropriates any trade secret, or (iii) any personal injury (including death) or damage to property resulting from HOVER’s acts or omissions, provided that Sponsor promptly notifies HOVER of any such claim in writing and HOVER is given sole control over the defense and settlement of such claim. HOVER may, without the knowledge or consent of Sponsor, agree to any resolution of the dispute that does not require on the part of Sponsor a payment or an admission of wrongdoing. Without limiting the preceding sentence, HOVER may, in its sole discretion and in the event of a third party infringement claim, (A) seek to obtain through negotiation the right of Sponsor to continue using the Software and Services; (B) rework the Software and Services so as to make them non-infringing; or (C) replace the Software and Services, as long as the reworked or replacement Software and Services does not result in a material adverse change in the operational characteristics of the Software and Services. If none of these alternatives is reasonably available in HOVER’s sole discretion, HOVER may terminate this Agreement and the license granted herein, and Sponsor shall have no further obligation to HOVER.
(ii) Exceptions. The foregoing warranty and indemnity shall not apply to infringement caused by (A) Sponsor’s unauthorized modification or use of the Software and Services, including, without limitation, HOVER Deliverables; (B) Sponsor’s failure to use corrections or enhancements made available by HOVER, after actual notice of the corrections or enhancements is provided to Sponsor, and to the extent that such corrections or enhancements would make the Software and Services non-infringing; or (C) use of the Software and Services in excess of the rights granted in this Agreement.
(c) No Other Warranties; Limitation of Liability. THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND SPONSOR AND ITS USERS AGREE TO USE THEM AT THEIR OWN RISK. HOVER MAKES NO OTHER GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, CONTENT, QUALITY, ACCURACY, COMPLETENESS, EFFECTIVENESS, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, USEFULNESS, USE OR RESULTS TO BE OBTAINED FROM THE SOFTWARE AND SERVICES EXCEPT THOSE SET FORTH HEREIN. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY HOVER OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE ANY OTHER WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF HOVER’S OBLIGATIONS HEREUNDER. HOVER (INCLUDING ITS LICENSEES, ASSIGNEES, SUBSIDIARIES, AFFILIATES, AND THE RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS AND REPRESENTATIVES) SHALL NOT BE LIABLE FOR ANY LOSS OF PROFIT, REVENUE, CONTRACTS OR SAVINGS, OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR SPONSOR’S OR ANY USER’S USE OF OR INABILITY TO USE THE SOFTWARE AND SERVICES, ANY DEFECT OR ERROR IN ANY SOFTWARE AND SERVICES, OR ANY BREACH OF THIS AGREEMENT, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY. SUBJECT TO ITS INDEMNIFICATION OBLIGATIONS IN SECTION 7(C), THE AGGREGATE LIABILITY OF HOVER (INCLUDING ITS LICENSEES, ASSIGNEES, SUBSIDIARIES, AFFILIATES, AND THE RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS AND REPRESENTATIVES) FOR ALL CLAIMS AND DAMAGES OF EVERY KIND AND TYPE, WHETHER IN CONTRACT OR TORT ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING RESULTING FROM THE USE OR POSSESSION OF THE SOFTWARE AND SERVICES, SHALL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID HEREUNDER BY SPONSOR IN THE THREE MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. IN THE EVENT OF A MATERIAL ERROR IN ANY HOVER MODEL OR OTHER HOVER DELIVERABLE, SPONSOR’S SOLE REMEDY WILL BE A REFUND OF THE FEES PAID TO OBTAIN THE HOVER MODEL OR OTHER HOVER DELIVERABLE.
(a) Duration. Except as otherwise set forth on Order Documentation, the initial term of this Agreement shall be one (1) year from the date this Agreement is entered into, unless earlier terminated by any party in accordance with the terms hereof (the “Term”). Either party may terminate this Agreement (i) immediately 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 or (ii) upon thirty (30) days written notice to the other party if a material breach occurs and if such breach remains uncured at the expiration of such period. Any subscription fee or jobs commitment fee set forth on the Order Documentation shall be applicable for the term set forth in the Order Documentation. If this Agreement is terminated by HOVER in accordance with this Section, Sponsor will pay any unpaid fees incurred prior to the date of termination under this Agreement. In no event will termination relieve Sponsor of its obligation to pay any commitments or other fees payable to HOVER. The sections of this Agreement which by their nature are intended to survive shall survive any termination or expiration of this Agreement, including without limitation the provisions relating to license and use restrictions, intellectual property rights, limitations of liability and confidentiality, which shall specifically survive termination of this Agreement.
(b) Effect of Termination. Upon any termination of this Agreement, except as otherwise provided in Section 2(b), the right to use the Software and Services shall terminate.
14. Intellectual Property
The Software and Services, including all HOVER Models and other HOVER Deliverables, are the property of HOVER, and subject to the copyright and other intellectual property rights of HOVER and its licensors. Use of the Software and Services or HOVER Production Process does not create a work-for-hire relationship agreement (as that term is defined in 17 U.S.C. § 101).
Any technology developed in connection with providing the Software and Services or any Customization Services, or improvements or modifications to the foregoing, shall be owned by HOVER; provided however, that HOVER does not have the right to incorporate any Confidential Information into the Software and Services or any other product or service.
Subject to the foregoing, HOVER shall have the exclusive right to apply for or register any patents, mask work rights, copyrights, and such other proprietary rights protections with respect thereto, and you hereby grant all right, title and interest you may have in the foregoing to HOVER.
HOVER will review allegations of copyright violations in accordance with the Digital Millennium Copyright Act (“DMCA”); notices of allegedly infringing Image Data or other content (collectively, “Content”) shall be sent to [email protected] or:
HOVER – Copyright Notices
634 2nd Street, 3rd Floor
San Francisco, CA 94107
15. Confidentiality and Security
(a) Confidentiality. Any and all confidential documentation and information provided by one party to the other party under this Agreement (“Confidential Information”) is confidential and proprietary to the disclosing party, and shall remain the property of the disclosing party. The receiving party agrees that it will not permit the duplication, use or disclosure of any such Confidential Information to any person (other than its own employees, agents or representatives who must have such information for the performance of its obligations hereunder), unless such duplication, use or disclosure is specifically authorized in writing in advance by the disclosing party. Confidential Information of the disclosing party may include, without limitation, the disclosing party’s past, present and future research, development and business activities, inventions, software code, database lists, technical information, plans, methods, know-how, processes and techniques regarding manufacturing and sale, and disclosing party’s customers, creditors and suppliers, whether in oral, written, graphic or electronic form. All Confidential Information will remain the exclusive property of disclosing party and nothing contained in this Agreement shall be construed as granting to the receiving party any rights therein, by license or otherwise, except the limited right to use such Confidential Information solely in the performance of this Agreement. The receiving party agrees to destroy or return upon request of the disclosing party all Confidential Information which is in written, graphic or other tangible form furnished to the receiving party or acquired by the receiving party under this Agreement. Confidential Information shall not include any information which at the time of disclosure: (i) was previously known to the receiving party without obligations of confidentiality; (ii) is obtained after the date hereof from a third party which is lawfully in possession of such information and not in violation of any contractual or legal obligation to a disclosing party with respect to such information; (iii) is or becomes part of the public domain or otherwise accessible by the public through no fault of receiving party or its employees; (iv) is independently ascertainable or developed by receiving party or its employees; (v) is required to be disclosed by administrative or judicial action provided that receiving party immediately after receiving notice of such action notifies disclosing party of such action to give the disclosing party an opportunity to seek any other legal remedies to maintain such Confidential Information in confidence; or (vi) is approved for release by written authorization of disclosing party. For the avoidance of doubt, the Derived Data shall not be deemed to be the Confidential Information of Sponsor.
(b) Security of Derived Data and Photos. HOVER covenants that except to perform its obligations under this Agreement, all Derived Data will only be used in an anonymized format and any Image Data will only be used for internal purposes.
16. Relationship of Parties
Each party will be and act as an independent contractor and not as an agent or partner of, joint-venturer with the other party for any purpose related to this Agreement or the transactions contemplated hereunder, and neither party will by virtue of this Agreement have any right, power or authority to act or create any obligation, expressed or implied, on behalf of the other party.
The rights and obligations described herein and as may be further described in any Order Documentation may not be assigned in whole or in part by either party without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed, except that (a) a Sponsor may assign its rights to any subsidiary or affiliate without prior written consent, but with notice to HOVER and (b) HOVER may assign in connection with a sale of all, or substantially all, of the assets, business or equity of HOVER so long as the sale or transfer of assets is not to a competitor of an applicable Sponsor.
All notices concerning, required or permitted under this Agreement will be sent to [email protected] unless otherwise designated in Order Documentation.
(a) Neither party will incur any liability to the other on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond its control and without negligence of the parties. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquakes, fire and explosions, but the ability to meet financial obligations is expressly excluded.
(b) Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed to be deemed a waiver of such party’s rights and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action.
(c) If any term, condition or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
(d) This Agreement contains the entire agreement of the parties with respect to the subject matter herein and supersedes all previous communications, proposals representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. No employee, agent, representative or affiliate of HOVER or Sponsor has authority to bind HOVER or Sponsor, respectively, to any oral representations or warranty concerning any HOVER products or services or additional Sponsor obligations. Any written representation or warranty not expressly contained in this Agreement is unenforceable.
(e) No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Sponsor may use in connection with the acquisition or licensing of the Software and Services will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement regardless of any failure of HOVER to object to such terms, provisions, or conditions, except where the same have been mutually agreed-to in writing by the parties.
(f) This Agreement may be executed in counterparts, including by .pdf format, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same instrument.
(g) This Agreement will be interpreted and construed pursuant to the laws of the State of New York and the United States without regard to conflict of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. In the event of a dispute arising under this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs, provided that if a party prevails only in part the court shall award fees and costs in accordance with the relative success of each party.
(h) The parties agree to waive any future challenge to the validity and enforceability of any document submitted hereunder on the grounds that it was electronically transmitted and/or authorized.
(i) The language of this Agreement shall be construed in accordance with its fair meaning and not for or against any party. The parties acknowledge that each party has had the opportunity to review this Agreement with counsel, and accordingly the rule of construction that would resolve ambiguities in favor of non-drafting parties shall not apply to the interpretation of this Agreement.
(j) All section and paragraph titles and captions contained in this Agreement are for convenience only and are not deemed a part of the context hereof.