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.

 

1. 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

Subscriber shall not use the Services in a manner that violates generally recognized industry guidelines, which includes but is not limited to the strict prohibition at Sabrhub against the use of our platform for any form of SMS Campaign traffic. This encompasses (i) the utilization of mass SMS broadcasts and any homogeneous messaging sent to multiple recipients, often involving the distribution of identical or substantially similar messages, which includes the use of bots, scripts, or any automated systems designed to send messages or perform actions on behalf of a user without direct and active human involvement in each communication instance, (ii) the use of non-permission based email and SMS lists, where recipients have not explicitly agreed to receive messages, (iii) employing purchased or rented email and SMS lists, (iv) unauthorized use of third-party email addresses, phone numbers, domain names, or mail servers, (v) sending messages to non-specific addresses or numbers, (vi) distributing messages that result in an excessive number of spam or unsolicited commercial complaints, (vii) failing to include a working “unsubscribe” link in emails or a clear opt-out option in SMS messages, (viii) not adhering to removal requests from mailing or messaging lists within ten days, (ix) omitting a link to the current privacy policy in each email (x) using misleading content or falsifying message origins, and (xi) including prohibited content such as “junk mail,” “chain letters,” or “pyramid schemes.” Our monitoring and enforcement of these policies are rigorous, with violations potentially leading to monetary fines and/or penalties, ranging from warnings to account suspension or termination. 

 

 

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. list of restricted parties, are not operating from, established under the laws of, or ordinarily resident in, and will not use the Services in a Sanctioned Country.

b. Privacy and Cookie Notices–      Subscriber shall provide and make available to End-Users a privacy notice      that describes the collection, use and disclosure of End-Users’ Personal Information in      connection with      Subscriber’s use of the Services, including without limitation, such collection, use and      disclosure contemplated by this Agreement. If      Subscriber is subject to the GDPR or ePrivacy Directive      or other Laws requiring      Subscriber to give notice of, or obtain consent to, the use of cookies or similar      technologies on      Subscriber’s websites or other online services, then      Subscriber shall give such notices and      obtain such consents with respect to any Sabrhub cookies or similar technologies utilized on           Subscriber’s websites or other online services.

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).

g. Permitted Users and End-Users–      Subscriber shall ensure that each of      Subscriber’s Permitted Users and      End-Users is legally bound by      Subscriber’s terms of use, terms of service or such other legally binding      agreement between      Subscriber and each such End-User in a manner that prohibits End-Users from      infringing or otherwise violating third-party rights including, without limitation, third-party      intellectual property rights.      Subscriber is solely responsible for all acts, omissions and activities of      Permitted Users and End-Users, including their compliance with this Agreement.

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

a.      Subscriber instructs Sabrhub to use account registration information and other Personal Information of      Permitted Users collected in connection with their use of the Services as described in Sabrhub’s      Privacy Policy, as updated from time to time (currently available https://www.sabrhub.com/privacy-policy/).      Subscriber is responsible for any use of the Services by its      Permitted Users and their compliance with this Agreement.      Subscriber shall keep confidential its and      its Permitted Users’ user IDs and passwords for the Services and shall be responsible for any      actions taken through their respective accounts.

 

 

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: contact@sabrhub.com, 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