HUGHES LEARNING MANAGEMENT PORTAL SOFTWARE HOSTING AGREEMENT
This Software Hosting Agreement (the "Agreement") is entered into between Hughes Network Systems, LLC (“HUGHES”), a Delaware limited liability company, with its principal offices at 11717 Exploration Lane, Germantown, MD 20876, and CUSTOMER, with reference to the facts set forth in the Recitals below and effective as of the date of the initial Sign-up ("Effective Date").
A. HUGHES develops and markets computer software products and services for the creation, management, delivery, and tracking of online presentations.
B. HUGHES is making the Service available to CUSTOMER for a limited time for an evaluation pilot, on the terms and conditions contained herein.
1.1 "CUSTOMER" is the person, company, or entity that subscribed to the HUGHES Learning Management Portal service by completing a sign-up request online. CUSTOMER must accept and agree to this Agreement before using the Service.
1.2. "Sign-up" means the transaction by which CUSTOMER obtained a username and password for a limited-time evaluation of the Service.
1.3. "Host Server" means the server provided by HUGHES or its agent through which CUSTOMER accesses the Hosting System. The Host Server is identified by a URL and a single account and password to be established by CUSTOMER.
1.4. "Hosting System" means HUGHES’ Learning Management Portal computer software, which is being licensed to CUSTOMER for limited use under this Agreement, including any updates, upgrades, and online documentation made generally available.
1.5. "Service" means non-exclusive electronic access to the Host Server and Hosting System to store CUSTOMER Data, and on-demand access to the Host Server via the Internet as more specifically identified herein.
1.6. "CUSTOMER Data" means all information either entered into the Hosting System by CUSTOMER in the course of its authorized use of the Hosting System or stored on the Host Server for access by the Hosting System and retrieval by CUSTOMER.
1.7. "Intellectual Property Rights" means inventions, patent applications, patents, design rights, utility models, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how, and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
1.8 "Prohibited Content or Prohibited Commerce" means any of the following:
A. The provision, sale, or offer to sell of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products; escort services; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades, or other weapons.
B. Display of material that exploits children, or otherwise exploits children under 18 years of age.
C. The provision, sale, or offer to sell of products, services, or content frequently associated with unsolicited commercial email, a.k.a. spam, such as online pharmacies, credit or finance management, mortgage and debt relief offers, DJ/nightclub, event, promotions, and party lists.
D. The provision of material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred, or excessive profanity, or posts of any obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable content.
E. The posting or disclosure of any personally identifying information or private information about children without their consent (or their parents’ consent in case of a minor).
F. The sale or promotion of any products or services that are unlawful in the location at which the content is posted or received.
G. The introduction of viruses, worms, harmful code, and/or Trojan horses on the Internet.
H. The promotion, solicitation, or participation in pyramid schemes.
I. Engaging in any libelous, defamatory, scandalous, threatening, or harassing activity.
J. The posting of any content that advocates, promotes, or otherwise encourages violence against any governments, organizations, groups or individuals, or which provides instruction, information, or assistance in causing or carrying out such violence.
K. The provision of content, including images, of authors, artists, photographers, or others without the express written consent of the content owner.
L. Engaging in sending email to recipients who did not grant their permission to receive messages from CUSTOMER.
1.9 "Authorized Recipients" means recipients of your email with whom you have a pre-existing business relationship or have received informed consent. CUSTOMER is considered to have a pre-existing business relationship with recipients who have made a purchase, requested information, responded to a survey or form, or had offline contact with you. Informed consent means the recipient has been clearly and fully notified of the collection and use of their email address and has consented prior to its collection and use.
1.10 "Unsolicited Commercial Email" means sending email messages through the Service to recipients who are not Authorized Recipients and/or sending email messages through the Service where any of the following conditions are true:
A. Message contains email addresses that have been purchased from a third-party list.
B. Message contains addresses that are not specific to an individual, for example: email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, or other any other general addresses.
C. Message contains email addresses for distribution lists or mailing lists which send indirectly to a variety of email addresses.
D. Message contains email addresses for anyone who has not explicitly agreed to receive emails from CUSTOMER.
E. CUSTOMER has falsified their originating address or transmission path information.
F. CUSTOMER has used a third-party email address or domain name without their permission.
G. Subject line of message contains false or misleading information.
H. Message does not include information on how to unsubscribe from further email communications.
I. Unsubscribe requests received by CUSTOMER are not processed within 10 days of the request.
2. USE OF HOSTING SYSTEM
2.1 License Subscription Rights Granted
A. Subject to all other terms of this Agreement, HUGHES hereby grants CUSTOMER a non-exclusive, non-transferable, time-limited right to use the Hosting System for the creation, management, delivery, and tracking of CUSTOMER content for internal use and for use by third-party customers. CUSTOMER shall have no right to: (i) act as a reseller or distributor of the Hosting System or Service, or as a service bureau for the Hosting System or Service; (ii) use the Hosting System to create, manage, or track any third-party content on behalf of third parties; (iii) use the Hosting System in any other way that is in competition with HUGHES; or (iv) use the Service to store Prohibited Content or engage in Prohibited Commerce. All rights not expressly granted to CUSTOMER are reserved by HUGHES.
B. CUSTOMER agrees not to cause or permit the reverse engineering, disassembly, or decompilation of the Hosting System.
C. HUGHES retains all title, copyright, Intellectual Property Rights, and other proprietary rights in the Hosting System. CUSTOMER does not acquire any rights, express or implied, in the Hosting System, other than those specified in the Agreement. CUSTOMER agrees that it will not use the Hosting System for: (i) Prohibited Content or Prohibited Commerce; (ii) copyrighted materials to which CUSTOMER does not have appropriate rights; (iii) materials offensive to community standards; or (iv) other materials prohibited by applicable international, federal, state, or local laws and regulations. CUSTOMER agrees to send email messages through the Hosting System only to Authorized Recipients. CUSTOMER shall not use Hosting System or Service to engage in sending unsolicited commercial email. CUSTOMER shall fully comply with all federal, state, and local privacy laws in connection with use of the Hosting System and Service.
2.2 Intellectual Property Ownership. HUGHES (and its licensors, where applicable) shall own all right, title, and interest, including all related Intellectual Property Rights, in and to the HUGHES technology, including but not limited to the content (excluding CUSTOMER Data), the Hosting System, the Hosting Server, the Learning Management Portal, and the Service. In the event CUSTOMER provides any suggestions, ideas, enhancement requests, or feedback ("Feedback") to HUGHES with respect to the Service, CUSTOMER agrees that HUGHES may freely use, disclose, reproduce, license, distribute, and otherwise commercialize the Feedback in any HUGHES product or service. This Agreement is not a sale and does not convey any rights of ownership in or related to the Service, the HUGHES technology, or the Intellectual Property Rights owned by HUGHES. The HUGHES name, the HUGHES logo, and the product names including HUGHES’ Learning Management Portal associated with the Service are trademarks of HUGHES or third parties, and no right or license is granted to use them.
2.3. Verification. HUGHES shall have the right to audit CUSTOMER's account on the Hosting System at any time.
3.1. Hosting Services. HUGHES will provide CUSTOMER with access to the online Hosting System for a limited time and will provide for the storage and retrieval of CUSTOMER Data in connection with use of the Hosting System. CUSTOMER is responsible for obtaining access to the Internet using software and hardware that meet HUGHES' minimum requirements, including security requirements.
3.2. Access. CUSTOMER is responsible for the confidentiality and use of its account name and password. HUGHES will deem any communication, data transfer, or use of the Hosting System received under CUSTOMER’s account name and password to be for CUSTOMER's benefit and use. CUSTOMER agrees to notify HUGHES if the account name or password is lost, stolen, or being used in an unauthorized manner. CUSTOMER represents and warrants that it has the rights to all CUSTOMER Data, including the right to upload CUSTOMER Data to the Host Server in connection with its use of the Hosting System under this Agreement. CUSTOMER warrants that the CUSTOMER Data and its use shall not infringe the rights of any third party and agrees to indemnify and hold HUGHES harmless from any third-party claims of infringement under the same terms and conditions as set forth below in Section 5.5. This infringement indemnity states the entire and exclusive obligation of CUSTOMER regarding any claim of infringement or breach of this Section 3.2. For avoidance of doubt, CUSTOMER's liability under this Section is subject to the limitations of liability set forth in Section 5.5.
3.3. Data Retrieval. When required, CUSTOMER agrees to access the Hosting System and to store and retrieve data using third-party programs, including specifically Internet "browser" programs, that support data security protocols compatible with those specified by HUGHES.
3.4. Ownership of Data and License. CUSTOMER shall retain ownership of all CUSTOMER Data stored or retrieved in connection with use of the Hosting System, which data shall be subject to the confidentiality provisions set forth in this Agreement. CUSTOMER agrees that back-up or archival of CUSTOMER Data is not an infringement of any Intellectual Property Rights of CUSTOMER or any third party. CUSTOMER agrees that it will not store data on the Host Server that is subject to the rights of any third parties without first obtaining all required authorizations and rights in writing from such third parties.
4. TERM AND TERMINATION
4.1. Term. CUSTOMER's rights to use the Hosting System and Services shall remain in effect for thirty (30) days. If CUSTOMER desires to continue using the Hosting System and Services after such period, CUSTOMER must enter into a new agreement with HUGHES, depending on the Services selected.
4.2. Termination. This Agreement and CUSTOMER’s access to the Hosting System and Services shall terminate after thirty (30) days. HUGHES may suspend all services immediately if CUSTOMER commits a material breach of this Agreement.
4.3. Effect of Termination. Termination of this Agreement shall not prevent HUGHES from pursuing other remedies available to it, including injunctive relief.
5. INDEMNITY, WARRANTIES, REMEDIES
5.1 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICES OR ANY CONTENT OR INFORMATION. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, HUGHES DOES NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (B) THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE HOST SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT AND INFORMATION IS PROVIDED STRICTLY ON AN "AS-IS" BASIS. ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
5.2. INTERNET DELAYS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. HUGHES IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
5.3 Representations and Warranties. HUGHES represents and warrants that: (a) Hosting System and Services will perform in conformity with its documentation, manuals, and specifications, (b) to its knowledge, there are no suits or proceedings pending or threatened which allege any infringement of any third-party Intellectual Property Rights, and (c) it has the valid right to grant to CUSTOMER the limited rights to the Hosting System and Service as granted herein.
5.4. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.5. CUSTOMER Indemnity. CUSTOMER shall indemnify and defend HUGHES against all costs, including but not limited to reasonable attorney's fees, and losses arising out of any action by a third party against HUGHES arising directly or indirectly out of or incidental to: (i) the breach by CUSTOMER of any of its obligations or covenants hereunder; (ii) the content, disclosure, and distribution of any CUSTOMER Data; or (iii) an alleged infringement of CUSTOMER Data on a third party's intellectual property right(s).
5.6. Exclusive Remedies. For any breach of the warranties contained in Section 5, CUSTOMER's exclusive remedy, and HUGHES's entire liability, shall be:
A. For Hosting System: The correction of Hosting Program errors that caused breach of the warranty. Any error not reported to HUGHES by CUSTOMER within sixty (60) days of its discovery will be deemed waived and accepted by CUSTOMER.
B. For all other Services: The performance of the Services, provided that CUSTOMER notifies HUGHES in writing of any defects in the Services within ninety (90) days of their performance.
6. USAGE PROVISIONS
6.1 Usage Limits. CUSTOMER agrees to use Hosting System in accordance with the usage limits specified in the Sign-Up and as specified in this Agreement. CUSTOMER will not engage in any activities that would circumvent the enforcement of the specified usage limits. Usage Limits include the following:
A. Maximum of 100 MB of data storage.
B. Maximum of 1,000 MB of data transfers.
C. Maximum of 20 unique user accounts
HUGHES reserves the right to impose any other usage limits from time to time that it deems necessary to ensure the performance and stability of Hosting System without notice to CUSTOMER.
7. GENERAL TERMS
7.1. Governing Law and Dispute Resolution. The Agreement, and all matters arising out of or relating to the Agreement, shall be governed by the laws of the State of Maryland, without giving effect to principles regarding conflicts of laws. Any controversy or claim arising out of or relating to the Agreement, or breach thereof, shall be submitted to the following procedure: (a) direct negotiation in a settlement conference to be scheduled as soon as possible after the dispute arises; (b) if no resolution is reached within sixty (60) days of the settlement conference, the parties will submit the dispute to binding arbitration in Montgomery County, Maryland under the rules of the American Arbitration Association.
7.2. Notice. CUSTOMER agrees to make reasonable efforts to notify HUGHES of any changes to CUSTOMER's mailing address, email address, or telephone number within ten (10) days of any change thereto. All notices required or permitted hereunder shall be given by writing, facsimile (fax), or electronic mail (email) so long as the other party acknowledges receipt of the same within five (5) days by any of the same methods. To expedite order processing, CUSTOMER agrees that HUGHES may treat documents emailed or faxed by CUSTOMER to HUGHES, including documents generated by online transactions, as original documents.
7.3. Other Terms. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement will remain in full force. The waiver by either party of any default or breach of the Agreement shall not constitute a waiver of any other or subsequent default or breach. All rights and licenses granted to CUSTOMER in this Agreement shall apply to CUSTOMER's subsidiaries provided CUSTOMER remains fully liable for the acts and any omissions of its subsidiaries under this Agreement. This Agreement constitutes the complete Agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. CUSTOMER may not assign this Agreement or any rights or obligations hereunder without the prior written consent of HUGHES, which consent shall not be unreasonably withheld or delayed; any such assignment without prior consent shall be null and void. Notwithstanding the foregoing, CUSTOMER may assign this Agreement to any entity who acquires (by merger, acquisition, or otherwise) all or substantially all of the business assets of CUSTOMER applicable to the subject matter of this Agreement. It is expressly agreed that, except to the extent Sign-up terms are incorporated herein, the terms of this Agreement shall supersede the terms in any Sign-up or other ordering document.