Thank you for your interest in acquiring an API from Open Supply Hub, Inc. (“OS Hub”). These Terms of Service (this “Agreement”) constitute an agreement between OS Hub and any Person (as defined below) that orders an API from, or is provided access to an API by, OS Hub (the “Client”). Each of OS Hub and the Client are referred to collectively as the “Parties” and individually as a “Party”.

PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH HEREIN, YOU MAY NOT ORDER OR USE AN API FROM OS HUB.

IF YOU ARE ORDERING AN API FROM OS HUB ON YOUR OWN BEHALF, YOU HEREBY AGREE TO BE BOUND BY THIS AGREEMENT AS THE CLIENT.

IF YOU ARE ORDERING AN API FROM OS HUB ON BEHALF OF AN ENTITY, (A) YOU HEREBY CAUSE, AND YOU REPRESENT AND WARRANT TO OS HUB THAT YOU HAVE THE AUTHORITY TO CAUSE, SUCH ENTITY TO BE BOUND BY THIS AGREEMENT AS THE CLIENT; AND (B) IF SUCH ENTITY IS NOT BOUND BY, OR SUCH ENTITY OR YOU CLAIM THAT YOU DID NOT HAVE THE AUTHORITY TO BIND SUCH ENTITY TO, THIS AGREEMENT AS THE CLIENT, (1) OS HUB MAY IMMEDIATELY TERMINATE YOUR AND SUCH ENTITY’S ACCESS TO OS HUB’S SERVICES, INCLUDING ANY API, WITHOUT ANY OBLIGATION TO PROVIDE ANY NOTICE, REFUND OR OTHER COMPENSATION TO YOU OR SUCH ENTITY AND (2) ANY AND ALL RIGHTS THAT MAY HAVE BEEN GRANTED TO SUCH ENTITY OR YOU SHALL BE DEEMED TO HAVE NEVER COME INTO EFFECT OR GRANTED AB INITIO.

ONLY INDIVIDUALS WHO ARE OVER EIGHTEEN (18) YEARS OF AGE MAY ORDER AN API, WHETHER ON BEHALF OF SUCH INDIVIDUAL OR AN ENTITY.

1. Definitions

As used herein:

“Affiliate” means, with respect to any Person, any other Person that Controls such Person, is Controlled by such Person or is under common Control with such Person.

“Agreement” has the meaning set forth in the preamble.

“Annual Fee” means the per-annum fee for the Annual Plan at the time of the Client’s initial order for the Licensed API or the date on which the License Period is extended, as the case may be, as stated on OS Hub’s order page or separately in writing by OS Hub.

“Annual Plan” has the meaning set forth in Section 2.1(a)(i).

“API” means an application programming interface.

“API Documentation” means a copy of the key for the Licensed API and documentation regarding the installation and operation of the Licensed API.

“Business Day” means any day other than Saturday, Sunday, any public holiday in the United States or any day on which commercial banks in the United States are closed for business.

“Change of Control” means, with respect to any Person, any transaction or a series of related transactions that results in (a) the acquisition of Control of such Person by any other Person that did not previously Control such Person or (b) the sale, assignment, transfer or other disposition of all or substantially all of such Person’s assets except to any Affiliate of such Person.

“Client” has the meaning set forth in the preamble.

“Client Contributions” means any information or materials submitted to the Registry or to OS Hub via or in connection with the Services, including the Licensed API, by or on behalf of the Client or any of its Affiliates.

“Client Derivative Works” has the meaning set forth in Section 3.1(b)(i).

“Client Products” has the meaning set forth in Section 3.1(b)(ii).

“Complementary Access Plan” has the meaning set forth in Section 2.1(b).

“Confidential Information” has the meaning set forth in Section 12.1.

“Control” means, with respect to any Person, the direct or indirect (a) ownership of more than 50% of the common shares or other ownership interests in such Person representing the right to vote for the board of directors or similar body of such Person or (b) possession of the right to control or manage such Person, and “Controlled by” and “under common Control” shall have correlative meanings.

“Derivative Work” means, with respect to any work, a new or modified work that is based on or derived from such work or any portion thereof, including any revision, modification, translation, abridgment, condensation, expansion, collection or compilation of such work or a portion thereof.

“Disclosing Party” has the meaning set forth in Section 12.1.

“Dispute” has the meaning set forth in Section 13.4.

“Encumbrances” means any lien, pledge, hypothecation, charge, mortgage, security interest, interference, option, right of first refusal, right of first negotiation, license, covenant not to assert or other immunity from suit, equitable interest, preemptive right, community property interest, technology escrow, title retention or title reversion agreement, prior assignment, or any other encumbrance or restriction of any nature.

“Entity” means any corporation, limited liability company, partnership, limited partnership, association, joint stock company, trust, joint venture, unincorporated organization or other entity.

“Facility Information” means information regarding supply chain facilities made available by OS Hub via the Registry.

“Force Majeure Event” has the meaning set forth in Section 13.6.

“Governmental Authority” means any (a) national, prefectural, federal, state, local, municipal, foreign or other government, (b) governmental or quasi-governmental authority of any nature (including any governmental agency, branch, board, commission, department, instrumentality, office or other entity, and any court or other tribunal) and/or (c) other Person exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power of any nature.

“Indemnified Parties” has the meaning set forth in Section 9.1.

“Insolvency Event” means, with respect to any Person, (a) such Person’s commencing a voluntary case or other proceeding, or an involuntary case or other proceedings being commenced against such Person and remaining undismissed and unstayed for a period of sixty (60) days, in either case, seeking relief with respect to such Person or its debts under any applicable bankruptcy, reorganization, insolvency or other applicable law now or hereafter in effect, or seeking the appointment of a trustee, receiver or liquidator, custodian or other similar official of such Person or any substantial part of its property, (b) such Person’s consenting to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, (c) such Person’s admitting in writing its inability to pay its debts generally as they become due or generally failing to pay such debts as they become due, (d) such Person’s making or consenting to any assignment of any material portion of its assets for the benefit of creditors or (e) the corporate dissolution of such Person.

“Intellectual Property” means all discoveries, inventions, improvements, developments, procedures, processes, know-how, trademarks, service marks, trade dress, designs, logos, packaging, confidential information, technical information, techniques, works of authorship, drawings, models, algorithms, manuals, systems and other technology or intellectual property, whether or not patentable or copyrightable or otherwise registerable.

“Intellectual Property Rights” means any and all (a) rights associated with works of authorship throughout the world, including copyrights, moral rights, and mask work rights, whether or not registered or registerable, (b) trademark, trade dress and trade name rights, domain name rights and similar rights, whether or not registered or registerable, (c) trade secret rights, (d) rights in or to inventions (whether or not patentable), patents, designs, algorithms and other industrial property rights, (e) all other intellectual and proprietary rights and other rights in or to Intellectual Property (of every kind and nature throughout the world, however designated and whether or not registered or registerable) (including logos, character rights, “rental” rights and moral rights), whether arising by operation of Law, contract, license or otherwise and (f) registrations, applications, renewals, extensions, continuations, divisions or reissues thereof (including rights in any of the foregoing).

“Law” means any (a) laws, statutes, ordinances, regulations, rules, notice requirements, agency guidelines, principles of law and legal requirements of any Governmental Authority and (b) judgment, decision, consent decree, injunction, arbitration award, ruling or order of any Governmental Authority or arbitrator.

“License Effective Date” has the meaning set forth in Section 2.2(a)(i).

“License Period” has the meaning set forth in Section 2.2(a).

“Licensed API” means (a) the API selected by the Client on OS Hub’s order page or (b) the API that OS Hub has separately agreed in writing to provide the Client.

“Licensed Facility Information” has the meaning set forth in Section 3.1(b).

“Losses” means all claims, losses, damages, liabilities, costs (including reasonable legal fees), charges, interest, penalties, and expenses of any kind, including any amounts paid in relation to any compromise or settlement of a claim.

“Monthly Fee” means the monthly fee for the Monthly Plan at the time of the Client’s initial order for the Licensed API or the date on which the License Period is extended, as the case may be, as stated on OS Hub’s order page or separately in writing by OS Hub.

“Monthly Plan” has the meaning set forth in Section 2.1(a)(ii).

“OS Hub” has the meaning set forth in the preamble.

“OS Hub Materials” means (a) (i) any API provided or made available by OS Hub, including the Licensed API, (ii) all API Documentation and (iii) all information or materials made available via the Services, including Facility Information and (b) Derivative Works of any item set forth in clause (a).

“Party” and “Parties” each have the respective meanings set forth in the preamble.

“Permitted Outages” has the meaning set forth in Section 5.1.

“Person” means any individual or Entity.

“Receiving Party” has the meaning set forth in Section 12.1.

“Registry” means the registry of supply chain facilities provided by OS Hub via the Site.

“Representatives” has the meaning set forth in Section 12.1.

“Services” means the Registry, the Site and other products and services provided, sold or distributed by OS Hub.

“Site” means the website(s), including sub-domains thereof, operated by OS Hub from time to time, including the website at https://opensupplyhub.org/.

“Term” means the period during which this Agreement is effective pursuant to Section 11.1.

“Third Party Claim” has the meaning set forth in Section 9.2.

“Trial Period” has the meaning set forth in Section 2.3(a).

“User Account” has the meaning set forth in Section 4.3(a).

“Website Terms of Service” means the Terms of Service posted at https://info.opensupplyhub.org/terms-of-service or the successor webpage thereto.

2. API ORDER and Delivery

2.1 - Subscription Plans.

(a) The Client may order (i) an annual subscription to the Licensed API (the “Annual Plan”) or (ii) a monthly subscription to the Licensed API (the “Monthly Plan”).

(b) OS Hub may, in its sole discretion, agree to provide the Client complementary access to the Licensed API pursuant to a separate written agreement between the Parties (the “Complementary Access Plan”).

2.2 - License Period and Extensions.

(a) The “License Period” shall be the period:

(i) beginning on:

(A) if (1) the Client has ordered the Annual Plan or the Monthly Plan and (2) OS Hub has elected to provide the Trial Period in accordance with Section 2.3(a)(i), the date on which the Client has completed an order for the Licensed API;

(B) if (1) the Client has ordered the Annual Plan or the Monthly Plan and (2) OS Hub has elected to not provide the Trial Period in accordance with Section 2.3(a)(i), the date on which OS Hub has received the full amount of the initial Annual Fee or the Monthly Fee, as the case may be; or

(C) if OS Hub has agreed in writing to provide the Client the Complementary Access Plan, the start date that has been separately agreed in writing between the Parties

(the “License Effective Date”); and

(ii) ending on the earlier of:

(A) the date on which this Agreement or the License Period has been terminated in accordance with the terms herein; or

(B) unless the License Period has been extended in accordance with this Agreement:

(1) if the Client has ordered the Annual Plan, the date that is one (1) year following the License Effective Date;

(2) if the Client has ordered the Monthly Plan, the date that is one (1) month following the License Effective Date; or

(3) if OS Hub has agreed in writing to provide the Complementary Access Plan, the end date that has been separately agreed in writing between the Parties.

(b) The License Period may be extended as follows:

(i) If the Client has ordered the Annual Plan, the License Period shall be automatically extended for extension terms of twelve (12) months each, unless a Party has notified the other Party in writing (or, if made available by OS Hub, via the API cancellation page on the Site) that it has elected to not extend the License Period by no later than one (1) Business Days prior to the date on which the applicable extension term would begin, provided that such extension shall be subject to the Client’s payment of the then-applicable Annual Fee prior to the date on which the applicable extension term would begin.

(ii) If the Client has ordered the Monthly Plan, the License Period shall be automatically extended for extension terms of one (1) month each, unless a Party has notified the other Party in writing (or, if made available by OS Hub, via the API cancellation page on the Site) that it has elected to not extend the License Period by no later than one (1) Business Days prior to the date on which the applicable extension term would begin, provided that such extension shall be subject to the Client’s payment of the then-applicable Monthly Fee prior to the date on which the applicable extension term would begin.

(iii) If OS Hub has agreed in writing to provide the Client the Complementary Access Plan, the License Period shall only be extended by written agreement of the Parties.

(c) If the License Period is extended, effective as of the date on which the extension term begins, the Client shall be, and hereby agrees to be, bound by the then-current version of this Agreement (as published to the Site or separately provided in writing by OS Hub)

2.3 -Trial Period and Payments.

(a) If the Client has ordered the Annual Plan or the Monthly Plan:

(i) OS Hub may, in its sole discretion, provide the Client complementary access to the Licensed API for a trial period specified by OS Hub on its order page or separately in writing (such period, the “Trial Period”).

(ii) If OS Hub has elected to provide the Trial Period:

(A) if the Client elects to retain the Annual Plan or the Monthly Plan after the expiration of the Trial Period, the Client shall pay the initial Annual Fee or Monthly Fee, as the case may be, by no later than the expiration of the Trial Period; and

(B) if OS Hub does not receive the initial Annual Fee or Monthly Fee by the expiration of the Trial Period, the License Period shall terminate as of the expiration of the Trial Period.

(iii) If OS Hub has not elected to provide the Trial Period:

(A) the Client shall pay the initial Annual Fee or Monthly Fee, as the case may be, within one (1) Business Days following the date on which the Client has placed its order for the Annual Plan or the Monthly Plan, as the case may be; and

(B) the License Period shall not begin until OS Hub has received the full amount of the initial Annual Fee or Monthly Fee, as the case may be, from the Client.

2.4 - Payment Terms

(a) Payments of any amount due under this Agreement to OS Hub shall be made via reasonable means specified by OS Hub, which may include OS Hub’s charging such amount to a credit card or debit card specified by the Client, or the Client’s transferring such amount to a bank account specified by OS Hub.

(b) The Client acknowledges and agrees that, unless either Party has elected to not extend the License Period beyond the then-applicable expiration date thereof in accordance with Section 2.2(b), the Annual Fee or Monthly Fee, as applicable, for each extension of the License Period may be charged by OS Hub to the credit card or debit card provided by the Client.

(c) All amounts paid to OS Hub shall be non-refundable.

2.5 - API Delivery.

Promptly following the date on which OS Hub receives the Client’s order for the Licensed API or such other date that is separately agreed in writing by the Parties, OS Hub shall enable the Client’s access to the Licensed API and provide Client the API Documentation. During the License Period, OS Hub may provide updates to the API or API Documentation, but nothing herein shall obligate OS Hub to update the Services, including any API.

3. API License

3.1 - License.

Subject to the Client’s compliance with this Agreement, OS Hub hereby grants to the Client, during the License Period, a non-exclusive, non-transferable, non-sublicensable (except as expressly set forth in Section 3.2) license under the Intellectual Property Rights owned or licensable by OS Hub in:

(a) the Licensed API, to install and use the Licensed API solely to:

(i) access and search the Registry;

(ii) retrieve Facility Information from the Registry; and

(iii) add information regarding supply chain facilities to the Registry,

in each case of clauses (i), (ii) and (iii), in accordance with the API Documentation; and

(b) the Facility Information retrieved by the Client via the Licensed API (the “Licensed Facility Information”), to use, reproduce, modify, display and create Derivative Works of Licensed Facility Information for purposes of:

(i) internal use of Licensed Facility Information and Derivative Works of Licensed Facility Information created by the Client (“Client Derivative Works”), including to develop, test and create prototypes of the Client Products;

(ii) integrating and displaying Licensed Facility Information and Client Derivative Works in products and services of the Client (“Client Products”); and

(iii) providing, selling and distributing Client Products that integrate or display Licensed Facility Information or Client Derivative Works.

3.2 - Third Party Rights

(a) The Client shall have the right to grant to each customer of any Client Product a sublicense, under the Intellectual Property Rights owned or licensable by OS Hub in Licensed Facility Information or Client Derivative Works, to use any Licensed Facility Information or Client Derivative Works integrated or displayed in such Client Product to the extent necessary for such customer to use, install or operate such Client Product in accordance with the Client’s specifications therefor.

(b) If the Client is an Entity, the Client may allow its employees to access and use the Licensed API, the API Documentation and the User Account on the Client’s behalf to the same extent the Client is permitted to use the Licensed API, API Documentation and the User Account pursuant to this Agreement, provided that:

(i) the Client shall cause its employees to comply with this Agreement;

(ii) the Client shall be liable for any breach of this Agreement by any of its employees; and

(iii) any act or omission by any of the Client’s employees that would, if committed by the Client, constitute a breach of this Agreement shall be deemed a breach of this Agreement by the Client.

(c) Except as expressly set forth in this Section 3.2, the license and other rights granted to the Client hereunder are personal to the Client and the Client may not, without OS Hub’s prior written consent, permit any Person to access or use OS Hub Materials.

3.3 - Post-Termination Rights.

Unless OS Hub terminates this Agreement pursuant to Section 11.2 or, if applicable, the License Period expired at the end of the Trial Period due to the Client’s failure to pay the initial Annual Fee or Monthly Fee, as applicable by the expiration of the Trial Period, subject to the Client’s continued compliance with its surviving obligations under this Agreement, the Client’s license under Section 3.1(b)(ii) and Section 3.1(b)(iii) shall survive the expiration or termination of this Agreement, but shall be limited solely to:

(a) Client Products that have been commercially released as of such expiration or termination; and
(b) existing uses of Licensed Facility Information and Client Derivative Works in relation to such Client Products as of such expiration or termination that were within the scope of the Client’s license under Section 3.1(b)(ii) and Section 3.1(b)(iii) prior to such expiration or termination.

3.4 - Reservation of Rights.

Except as expressly set forth in this Section 3, OS Hub grants the Client no license or other rights under, and hereby expressly retains all its rights with respect to, any Intellectual Property Rights of OS Hub.

4. Client Contributions and Obligations.

4.1 - License Under Client Contributions.

Client hereby grants, and causes its Affiliates to grant, to OS Hub a non-exclusive, royalty-free, perpetual, irrevocable, sublicensable (in multiple tiers) license, under the Client’s and its Affiliates’ Intellectual Property Rights in Client Contributions, to use, reproduce, modify, display and create Derivative Works of Client Contributions for purposes of:

(a) internal use of Client Contributions and Derivative Works thereof, including to develop, test and create prototypes of Services;

(b) integrating and displaying Client Contributions and Derivative Works thereof in Services; and

(c) providing, selling and distributing Services that integrate or display Client Contributions or Derivative Works thereof.

4.2 - Creative Commons License.

Without limitation to Section 4.1, the Client hereby grants, and causes its Affiliates to grant, to OS Hub the right to grant a license under the Client’s and its Affiliates’ Intellectual Property Rights in Client Contributions and Derivative Works thereof to any user of the Services in accordance with section 2.2 of the Website Terms of Service.

4.3 - User Account.

(a) The Client acknowledges and agrees that the Client’s access to the Licensed API and receipt of other services hereunder is subject to the Client’s creation of an account on OS Hub’s website or, if the Client is an Entity, the creation of an account on OS Hub’s website by one of the Client’s employees on behalf of the Client (the “User Account”).

(b) The Client represents, warrants and covenants to OS Hub that:

(i) (A) if the Client is an individual, the Client is over eighteen (18) years of age or (B) if the Client is an Entity, the employee registering a User Account on behalf of the Client and any employee who will have access to the User Account is over eighteen (18) years of age;

(ii) all information provided in connection with creating the User Account is accurate and the Client shall keep such information up-to-date and accurate;

(iii) the Client shall not have more than one User Account without OS Hub’s prior written consent;

(iv) the Client shall (A) keep the credentials for the User Account confidential and secure, (B) not share such credentials with any other Person and (C) not cause, allow or assist any other Person to use the User Account or any other user account on OS Hub’s website that is not such Person’s user account, provided that if the Client is an Entity, the Client may share the credentials for the User Account with its authorized employees and allow such employees to use the User Account, in each case, in accordance with Section 3.2(b); and

(v) the Client shall be solely responsible and liable for all activities that occur through the Client’s User Account.

4.4 - Attribution.

Client shall, in a manner reasonably satisfactory to OS Hub, provide attribution to OS Hub as the source of Licensed Facility Information in Client Products, including by:

(a) identifying OS Hub as the provider of Licensed Facility Information and placing a link to the Site in a reasonably prominent location in each Client Product that integrates Licensed Facility Information or any Derivative Works thereof; and

(b) ensuring that the “OSID” provided by OS Hub via the Licensed API for each facility is prominently visible in each location in any Client Product that displays Licensed Facility Information or Derivative Works thereof that pertains to such facility.

4.5 - Reporting.

Upon OS Hub’s written request from time to time, the Client shall provide a description of:

(a) how the Client is using Licensed Facility Information or Derivative Works thereof; and

(b) any Derivative Works of Licensed Facility Information developed or created by or on behalf of Client.

4.6 - Restrictions.

(a) The Client shall not resell, exchange, or share the Facility Information to or with any other brokers of the same or similar data.

(b) During the Term, and for a period of twelve (12) months following the expiration or termination of this Agreement, the Client shall not (and shall not assist or authorize any Person to) develop, or externally provide or make available, services that directly compete with the Registry.

(c) The Client acknowledges and agrees that it shall not acquire any right, title or interest in Intellectual Property Rights of OS Hub, except the license rights expressly set forth in this Agreement.

(d) The Client shall, and shall cause its employees and sublicensees to:

(i) use the Services and Facility Information solely in accordance with applicable Laws and this Agreement; and

(ii) not use the Services or Facility Information to aid or implement practices violating basic human rights or civil liberties, including to assist in the creation of databases of identifying information for any Governmental Authority to abrogate any human rights, civil rights, or civil liberties of individuals on the basis of race, gender, gender identity, sexual orientation, religion, immigration status, national origin or otherwise.

5. Service Levels

5.1 - Service Level Commitment

OS Hub shall use commercially reasonable efforts to ensure that the Licensed API has an uptime of 99.0% or greater during each month during the License Period, excluding any downtime caused by routine maintenance of the Services in the ordinary course of business (“Permitted Outages”). OS Hub shall notify the Client in writing in advance of any Permitted Outage that is expected to last for more than four (4) hours.

5.2 - Service Credits

If the uptime of the Licensed API during any month falls below 99.0%, excluding any downtime caused by Permitted Outages, OS Hub may provide the Client an extension to the License Period that is equal to or greater than period that the Licensed API was inoperable, excluding any downtime cause by Permitted Outages. The Client acknowledges and agrees that if OS Hub elects to provide the Client such extension, such extension shall be the Client’s sole remedy with respect to any Losses suffered by the Client in relation to such downtime of the Licensed API, including the inability to access Facility Information during to such downtime.

5.3 - Exclusion

Notwithstanding anything to the contrary herein, if the Licensed API experiences downtime or Facility Information is otherwise inaccessible by the Client due to the Client’s or its employees’ failure to install and/or operate the Licensed API in accordance with the API Documentation therefor, OS Hub shall not be liable for, and shall not be obligated to provide the Client with any remedy (including any extension to the License Period) with respect to, any Losses suffered by the Client due to such downtime of the Licensed API or inability to access the Facility Information.

6. Third Party Materials

6.1 - Third Party Materials.

The Services integrate or contain links to websites, content and services provided by third parties (“Third Party Materials”). OS Hub does not validate or endorse such Third Party Materials, including as to the accuracy, appropriateness, completeness, security, reliability, safety, suitability, availability or efficacy of such Third Party Materials. The Client’s access to and use of such Third Party Materials is at the Client’s own risk. The Client’s access to, or use of, such Third Party Materials may be subject to separate terms, conditions and policies, which the Client should review prior to accessing or using such Third Party Materials.

6.2 - No Liability.

WITHOUT LIMITATION TO SECTION 8.2, OS HUB MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THIRD PARTY MATERIALS AND HEREBY EXPRESSLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES OF ANY KIND IN CONNECTION OR IN RELATION TO THIRD PARTY MATERIALS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. IN NO EVENT SHALL OS HUB BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY LOSSES INCURRED IN CONNECTION WITH THE CLIENT’S ACCESS TO OR USE OF THIRD PARTY MATERIALS

7. OS Hub’s Intellectual Property

7.1 - OS Hub Materials.

The Client acknowledges and agrees that, as between OS Hub and the Client, all right, title and interest in and to OS Hub Materials shall be solely owned by OS Hub.

7.2 - Further Assurances.

If any right, title or interest in or to any OS Hub Material vests with the Client, the Client shall assign all such right, title and interest to OS Hub free and clear of Encumbrances. The Client shall take all actions, and execute and deliver to OS Hub all documents, as may be reasonably required to fully assign all such right, title and interest to OS Hub.

8. Representations and Warranties

8.1 - Client Representations and Warranties.

The Client represents, warrants and covenants to OS Hub that:

(a) the Client has full power, right and authority to enter into this Agreement and to carry out the Client’s obligations pursuant to this Agreement;

(b) Client Contributions will be accurate;

(c) Client Contributions do not, and will not, infringe, misappropriate or violate the rights of any third party, including any Intellectual Property Rights or data privacy rights of any Person;

(d) the Client has and will maintain all necessary consents to (i) provide Client Contributions to OS Hub and users of the Services, (ii) allow OS Hub and users of the Services to use Client Contributions and Derivative Works thereof as contemplated by this Agreement and (iii) allow OS Hub to grant the licenses under Client Contributions and Derivative Works thereof contemplated by this Agreement;

(e) Client Contributions do not and will not include any content that is pornographic, obscene, defamatory or violation of applicable Law;

(f) the Client is not, and is not Controlled (whether directly or indirectly) by, a Person that is on the restricted or sanctioned party list maintained by, or is the target of sanctions imposed by, the United States, the European Union or the United Kingdom.

8.2 - Disclaimer

THE SERVICES AND ALL OS HUB MATERIALS ARE PROVIDED TO THE CLIENT ON AN “AS-IS,” “AS-AVAILABLE,” AND “WITH ALL FAULTS” BASIS AND OS HUB HEREBY EXPRESSLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES OF ANY KIND IN CONNECTION OR IN RELATION TO THE SERVICES OR OS HUB MATERIALS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

9. Indemnities

9.1 - Indemnification Obligation.

The Client shall indemnify, hold harmless and, at OS Hub’s written request, defend OS Hub, its Affiliates, and its and their directors, officers and employees (the “Indemnified Parties”) from and against all Losses incurred by, suffered by or imposed on an Indemnified Party as a result of or arising from (whether directly or indirectly, including in relation to any third party claim) (a) any breach by the Client of any of the Client’s obligations herein or (b) any inaccuracy, misrepresentation or breach of any of the Client’s representations or warranties herein.

9.2 - Third Party Claims.

If a third party asserts a claim in respect of which an Indemnified Party may seek indemnification under Section 9.1 (a “Third Party Claim”), upon OS Hub’s written request, the Client shall assume the defense of such claim at the Client’s cost. In such case (a) OS Hub shall provide its reasonable support with respect to such defense, (b) the Client shall keep OS Hub reasonably informed of any developments with respect to such defense and (c) the Client shall not compromise or settle such Third Party Claim without the prior written consent of OS Hub.

10. Limitation of Liability

IN NO EVENT SHALL OS HUB BE LIABLE TO THE CLIENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA, OR USE OR COST OF COVER), EVEN IF ANY SUCH PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF OS HUB HEREUNDER SHALL NOT EXCEED AN AMOUNT EQUAL TO THE ANNUAL FEE THAT WAS MOST RECENTLY PAID BY THE CLIENT TO OS HUB AS OF THE APPLICABLE CLAIM (IF THE CLIENT HAS SELECTED THE ANNUAL PLAN) OR THE SUM OF THE MONTHLY FEES THAT WERE PAID BY THE CLIENT TO OS HUB DURING THE TWELVE (12) MONTHS PRIOR TO THE APPLICABLE CLAIM.

11. Termination

11.1 - Term.

This Agreement shall:

(a) be effective upon the date on which the Client has placed an order for the Licensed API or, if OS Hub has separately agreed in writing to provide the Client complimentary access to the Licensed API, the effective date agreed in writing by the Parties; and

(b) unless terminated earlier in accordance with its terms, remain in effect until the expiration of the License Period.

11.2 - Termination by OS Hub.

OS Hub may terminate this Agreement by providing the Client written notice (which may be by email at the email address provided by the Client) if:

(a) OS Hub does not timely receive in full any amount payable by the Client hereunder;

(b) the Client is in material breach of this Agreement and such breach remains uncured for thirty (30) days following the Client’s receipt of notice thereof;

(c) the Client undergoes a Change of Control; or

(d) the Client is subject to an Insolvency Event.

11.3 - Survival.

(a) Except as set forth in Section 3.3 and this Section 11.3, all rights and obligations under this Agreement shall terminate upon the expiration or termination of this Agreement.

(b) Sections 1, 2.4(c), 3.4, 4.1, 4.2, 4.3(b)(v), 4.4, 4.5, 4.6, 5.3, 6, 7, 8, 9, 10, 11.3, 12 and 13 shall survive the expiration or termination of this Agreement.

(c) Notwithstanding Section 3.3, if OS Hub terminates this Agreement pursuant to Section 11.2 or, if applicable, the License Period expired at the end of the Trial Period due to the Client’s failure to pay the initial Annual Fee or Monthly Fee, as applicable by the expiration of the Trial Period, the Client’s license and other rights hereunder shall immediately terminate in their entirety.

12. Confidentiality

12.1 - Confidential Information

“Confidential Information” means any non-public information disclosed by or on behalf of a Party (in such capacity, the “Disclosing Party”) to the other Party (in such capacity, the “Receiving Party”) or its directors, officers or employees (“Representatives”) pursuant to this Agreement. The API Documentation shall constitute Confidential Information of OS Hub.

12.2 - Confidentiality Obligations.

Until the third (3rd) anniversary of the expiration or termination of this Agreement:

(a) each Party shall hold all Confidential Information of the Disclosing Party in strict confidence and not use, reproduce or disclose to any Person the Confidential Information of the Disclosing Party, in each case, except as specifically permitted in this Agreement or as necessary to exercise its rights or comply with its obligations hereunder; and

(b) the Receiving Party shall keep confidential the Confidential Information of the Disclosing Party, and protect such Confidential Information from unauthorized use or disclosure using at least the same degree of care that the Receiving Party would use for its own non-public information of a similar nature (but in no event less than reasonable care).

12.3 - Permitted Disclosures.

Each Party may disclose:

(a) the Confidential Information of the other Party to its Representatives who need to know such Confidential Information for such Party to exercise its rights or comply with its obligations hereunder, in each case, provided that each such Representative is bound by confidentiality obligations that are no less protective the other Party’s Confidential Information than this Section 12; or

(b) the Confidential Information of the other Party to the extent required under applicable Law or by a Governmental Authority, provided that such Party shall, if legally permissible and reasonably practicable, provide written notice to the other Party of such requirement and cooperate with the other Party to seek a protective order or confidential treatment for the Confidential Information of the other Party.

12.4 - Exceptions.

The confidentiality obligations of this Section 12 shall not apply to Confidential Information that:

(a) the Receiving Party learns from a third party which has the right to disclose such information to the Receiving Party without a breach of confidentiality obligations owed, provided that the Parties comply with any restrictions imposed by the third party;

(b) is rightfully in possession of the Receiving Party prior to the time of disclosure and not acquired by the Parties under a confidentiality obligation;
is independently developed of the Receiving Party without using the Confidential Information of the Disclosing Party, as evidenced by contemporaneous written records; or
becomes publicly available without breach of any confidentiality obligation by the Receiving Party.

12.5 - Return or Destruction.

Following the expiration or termination of this Agreement, upon the Disclosing Party’s request, the Receiving Party shall return to the Disclosing Party or destroy (as instructed by the Disclosing Party) all copies of the Disclosing Party’s Confidential Information that are in the possession of the Receiving Party or its Representatives and certify in writing the completion of the foregoing, provided that the Receiving Party may retain Confidential Information of the Disclosing Party to the extent required under applicable Law or by any order of a Governmental Authority.

13. Miscellaneous

13.1 - Entire Agreement.

This Agreement constitutes the entire understanding of the Parties, supersedes all prior agreements between the Parties, and is intended as a final expression of the Parties’ agreement with respect to the subject matter hereof.

13.2 - Amendments.

Except as stated in this Section 13.2, this Agreement shall not be modified or amended except in writing signed by the Parties. OS Hub may amend or update this Agreement by providing written notice to the Client (including by publishing the amended version of this Agreement to the Site), provided that any such amendment or update shall not be effective unless and until the Client has accepted such amendment or update in writing or such amendments or updates become binding on the Client pursuant to Section 2.2(c).

13.3 - Legal Compliance.

Each Party shall at all times, and at its sole expense, perform its obligations hereunder in compliance in all material respects with all applicable Laws.

13.4 - Governing Law; Dispute Resolution.

This Agreement shall be governed by and construed in accordance with the Laws of New York, without regard to its conflict of laws rules. Any claim, controversy or dispute arising out of or in connection with this Agreement, including any breach of this Agreement, (each, a “Dispute”) shall be resolved by confidential, final and binding arbitration in New York, NY administered by the American Arbitration Association under its Commercial Arbitration Rules and Mediation Procedures in effect at such time. Such arbitration shall be conducted by a single arbitrator. The award rendered by the arbitrator shall be final and binding on the Parties and may be entered and enforced in any court having competent jurisdiction. Either Party may seek equitable relief, including the remedies of specific performance and injunction, in any court of competent jurisdiction with respect to any actual or attempted breach of this Agreement that is the subject of a Dispute pending the resolution of such Dispute pursuant to binding arbitration in accordance with this Section 13.4.

13.5 - Notices.

(a) All notices, requests, demands, and other communications required under this Agreement shall be in writing and delivered to:

(i) in the case of OS Hub:
E-mail: natalie@opensupplyhub.org
Address: 350 Fairview Avenue, #1001, STE 108, Hudson, NY 12534
Attention: Natalie Grillon

(ii) in the case of the Client, the e-mail address and mailing address stated in the Client’s order form.

(b) Notices, requests, demands and other communications shall be deemed to have been duly delivered as of:

(i) if sent by electronic mail (e-mail), the earlier of (A) the date on which the recipient acknowledges in writing having received that e-mail, including by replying via e-mail (provided, that an automatic “read receipt” shall not constitute acknowledgement of an e-mail for purposes of this sub-clause (A)) and (B) the date on which such e-mail is delivered if followed within two (2) Business Days by delivery of such notice pursuant to Section 13.5(b)(ii);

(ii) if sent by overnight delivery with a reputable national overnight delivery service, the date of delivery; or

(iii) if sent by certified mail, return receipt requested, and postage prepaid, five (5) days after such mailing, to the respective address for Client or OS Hub, as applicable, as set forth on the cover page to this Agreement.

13.6 - Force Majeure.

OS Hub shall not be shall be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control, including natural disasters, war, embargo, riot and civil disobedience (each, a “Force Majeure Event”). If any Force Majeure Event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.

13.7 - Interpretation.

The section headings contained in this Agreement are for reference purposes only, in no way are intended to define or describe the scope or content of any provision of this Agreement, and shall not affect in any way the meaning or interpretation of this Agreement. The words “include,” “includes” and “including,” when used in this Agreement, shall be deemed to be followed by the phrase “without limitation.” The words “herein,” “hereof,” “hereunder” and words of like import shall refer to this Agreement as a whole.

13.8 - Assignment, No Third-Party Beneficiaries.

The Client may not assign this Agreement, in whole or in part, or any rights or obligations hereunder, to any Person without the prior written consent of the other Party. OS Hub may assign this Agreement without the Client’s consent, provided that OS Hub shall notify the Client in writing of such assignment. This Agreement shall inure to the benefit of and be binding upon each Party and its respective successors and permitted assigns. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.