Standard Agreement
This document describes the terms and conditions of the Services offered by TheClubHub.org LLC (“Club Hub” or “we”) and purchased by you on behalf of your school or organization (the “School,” “you,” or “Customer”).
This agreement, along with any applicable Order Form that is mutually executed by the parties and which references this agreement (the “Agreement”) governs the School’s access to and use of the Services and is effective as of (a) the applicable Order Form Effective Date (if the School has entered into an Order Form with Club Hub) or (b) the date an authorized representative of the School purchases the Services via our website (the “Effective Date”).
If you purchase the Services via our website, you represent and warrant that you are an authorized representative of the School with full power and authority to enter into and bind your School to this Agreement. Any terms used but not defined herein will have the meaning set forth in the Order Form. In the event of any conflict between these terms and conditions and the Order Form, the Order Form will prevail.
1. Definitions
As used in this Agreement and the Order Form, the following terms will be defined as set forth below:
“Admin Account(s)” means the administrative account(s) provided to the School by Club Hub for the purpose of administering the Services. The use of the Admin Account(s) requires a password, which Club Hub will provide to the School.
“Administrators” mean the Customer-designated technical personnel who administer the Services to End Users on the School’s behalf.
“Ads” means online advertisements, excluding advertisements provided by any advertising products that are not part of the Services that the School chooses to use in connection with the Services, displayed by Club Hub to End Users.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.
“Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
“Confidential Information” means information disclosed by a party to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances. Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.
“Customer Data” means data, including email and chats, provided, generated, transmitted or displayed via the Services by the School or End Users.
“Emergency Security Issue” means either: (a) the School’s use of the Services in violation of the End User Agreements, which could disrupt: (i) the Services; (ii) other End Users’ use of the Services; (iii) the Club Hub network or servers used to provide the Services; or (b) unauthorized third party access to the Services; or (c) an actual or suspected security breach.
“End Users” means the individuals that the School permits to use the Services.
“End User Account” means a Club Hub-hosted account established through the Services for an End User.
“Fees” means the amounts set forth in an Order Form (if applicable) or the purchase price for the Services invoiced to the School by Club Hub for the Services (if applicable) as described in this Agreement.
“FERPA” means the United States Federal Educational Rights and Privacy Act.
“Intellectual Property Rights” means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
“Order Form” means an order form, which is the written document provided by Club Hub specifying the Services the School will purchase from Club Hub for a Fee under the Agreement. The Order Form will contain: (a) a signature block for the School, or for both the School and Club Hub; and (b) Fees.
“Purchase Order” means a Customer-issued purchase order.
“Services” means those products, features and functionality provided by Club Hub to the School in connection with the Admin Account and described on the applicable Order Form. The Services are described here: clubhub.co. The End User Services (as defined below) are separate from the Services to be provided hereunder.
“Service Commencement Date” is the date upon which Club Hub makes the Services available to Customer.
“Services Term” refers to the period from Service Commencement Date to the end of the Term.
“suspend” means the immediate disabling of all or a portion of access to the Services, or components of the Services, as applicable, to prevent further use of the Services.
“Taxes” means any duties, customs fees, or taxes (other than Club Hub’s income tax) associated with the sale of the Services, including any related penalties or interest.
“Term” means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of: (i) the end of the last Services Term (if set forth in an applicable Order form) or (ii) the Agreement is terminated as set forth herein.
2. Security and Data Transfer
Club Hub uses commercially reasonable security standards. Club Hub and the third-party vendors Club Hub relies upon to process Customer Data have implemented generally adopted industry standard systems and procedures to protect the security, confidentiality, and integrity, and prevent against unauthorized access to or use of Customer Data. To provide the Services, Club Hub may transfer, store, and process Customer Data in the United States or any other country in which Club Hub or its third-party vendors maintain facilities. By using the Services, your School consents to this transfer, processing, and storage.
3. Modifications To the Services and Terms
Club Hub may make commercially reasonable changes to our Services (including improving the Services with new applications, features or functionality or changing third-party providers). The School will facilitate any commercially reasonable changes to the Services, if necessary. If Club Hub makes a material (determined by Club Hub in its discretion) change, Club Hub will inform the school by posting any change to our website or messaging the School’s designated contact directly. The School will be deemed to have accepted any changes unless the School objects by written notice to Club Hub within thirty (30) days after notice of such changes. End Users associated with Customer’s Admin Account must agree to the Terms of Service and Privacy Policy applicable to End Users prior to use of the end user services (“End User Services”). The Terms of Use and Privacy Policy (the “End User Agreements”) may change from time to time as set forth therein and are not governed by or subject to the terms of this Agreement, nor is Customer a third-party beneficiary thereof. The End User Services are separate from the Services.
4. Customer Obligations
The School will use Club Hub’s Services only as permitted under this Agreement. The School will specify one or more Administrators to access and manage the Admin Account(s). The School is responsible for (a) designating those individuals who are authorized to access the Admin Account(s), and (b) ensuring that all activities that occur in connection with the Admin Account(s) comply with the Agreement. Club Hub provides a school communication tool, which means we cannot and will not manage the School’s use of the Services or the behavior of the designated Administrators.
5. End Users, Parental Consent and Compliance with Applicable Laws
The School acknowledges that all End Users of the platform, including students and staff, are subject to the platform’s End User Agreements. The School agrees to inform its users about these End User Agreements, obtain any necessary consents and take reasonable steps to ensure compliance. In addition, as Administrators may access, monitor, use, or disclose Customer Data in End User Accounts, the School must obtain all required consents of End Users and their parents or guardians. The School understands and agrees that once an End User has agreed to the End User Agreements, any Customer Data that personally identifies such End User is not Confidential Information of the School, but rather is governed by the End User Agreements, and not by this Agreement. Notwithstanding the foregoing, Club Hub will continue to handle Customer Data and any End User personal information in compliance with applicable law, including but not limited to COPPA and FERPA, to the extent such obligations apply. Additionally, the School is solely responsible for, and represents and warrants it is in, compliance with COPPA and FERPA, including by obtaining parental consent for the collection and disclosure of personal information through the Services. If the School permits End Users under the age of 13 to access the Services, the School represents and warrants that it has obtained all necessary parental consents as required by applicable law, including COPPA. Without limiting the foregoing, the School represents and warrants that it will comply with all applicable laws, and further, that its disclosure of any information to Club Hub, and/or Club Hub’s use of such information subject to the restrictions of this Agreement, does not and will not violate any applicable laws (including COPPA or FERPA). Club Hub complies with applicable laws regarding online advertising and will not serve behaviorally targeted Ads. Advertising by companies other than Club Hub is not permitted on the Services.
6. Restrictions
The School will not allow unauthorized third parties to use the Services and must notify Club Hub promptly if the School becomes aware of any unauthorized use. The School will not (and will not allow a third party to): reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services; use the Services for timesharing or service bureau purposes or for any purpose other than its own internal, non-commercial, educational use; attempt to create a substitute or similar service through use of, or access to, the Services; sell, resell, lease or the functional equivalent thereof, the Services to a third party; or use the Services other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any applicable privacy laws), intellectual property, consumer and child protection, obscenity or defamation).
7. Suspension
Club Hub may, without liability to the School or any End User, suspend the account of any End User who violates the End User Agreements and we may suspend an account in the event of an Emergency Security Issue.
8. Confidential Information and Personal Information
Neither party will disclose the other’s Confidential Information, except to Affiliates, employees, independent contractors, and agents who need to know it and who have agreed in writing to keep it confidential. Each party may disclose the other party’s Confidential Information solely to the extent required by law or court order but only after it, if legally permissible (a) uses commercially reasonable efforts to notify the other party, and (b) gives the other party the chance to challenge the disclosure.
9. Intellectual Property Rights and Licenses.
Unless explicitly stated, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. The School owns all Intellectual Property Rights in Customer Data and Club Hub owns all Intellectual Property Rights in the Services. The School hereby grants to Club Hub a non-exclusive, royalty-free, fully paid-up, worldwide, sublicensable and transferable license to use the Customer Data as necessary to fulfill its obligations and exercise its rights hereunder. For clarity, Customer Data includes User Submissions (as defined in the Terms of Use) submitted by End Users associated with the School’s Admin Account.
10. Publicity
The School permits Club Hub to include the School’s name or Brand Features in a list of Club Hub customers, online or in promotional materials, and to verbally reference the School as a customer.
11. Limited Warranty and Warranty Disclaimers
11.1
Club Hub warrants to Subscriber that: (a) Club Hub will comply with all applicable laws, rules and regulations in the performance of its obligations under this Agreement, and (b) the Services will perform substantially in accordance with their specifications in all material respects. In the event the Services fail to conform to these warranties, Club Hub will use commercially reasonable efforts to correct the Services. If Club Hub is unable to correct the error after using commercially reasonable efforts, the School may terminate the affected Services and receive a prorated refund of any prepaid, unused Fees for such Services. The limited warranties provided in this Section are void if the failure of Services results from (x) use of the Services in connection with software or hardware not compatible with the Services or not meeting the technical specifications provided by Club Hub; (y) improper or inadequate maintenance of the School’s equipment, devices or software; or (z) inadequate Internet connectivity or bandwidth.
11.2
In the event of the Service’s failure to comply with the Agreement, Customer’s sole and exclusive remedy shall be the remedies described in Section 11.1 above. The parties further agree that, NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN THE AGREEMENT, to the extent not prohibited by Law, WE SHALL NOT BE LIABLE FOR ANY DEATH, PERSONAL INJURY, OR DAMAGES ARISING OUT OF OR RELATED TO USE OF THE SERVICES OR ANY RELATED PRODUCTS.
11.3
EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY SET FORTH IN SECTION 11.1, THE SERVICES, CONFIDENTIAL INFORMATION AND ANYTHING ELSE PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. CLUB HUB (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
12. Indemnification
12.1
The School agrees to indemnify, defend, and hold harmless Club Hub, and its officers, directors, employees, agents, and representatives, from and against any and all third-party claims, actions, proceedings, damages, losses, expenses, judgments, and fines (including reasonable attorneys’ fees) arising out of or relating to: (a) the School’s breach of this Agreement; (b) the School’s or any End User’s use of the Services; or (c) any information, instructions, data, or other materials provided or made available by the School or any End User, except to the extent any such claim arises from Club Hub’s express indemnification obligations under this Agreement.
12.2
Club Hub agrees to indemnify, defend, and hold harmless the School, and its officers, directors, employees, agents, and representatives, from and against any and all third-party claims, actions, proceedings, damages, losses, expenses, judgments, and fines (including reasonable attorneys’ fees) to the extent arising from: (a) a claim that the Services (excluding any Customer Data, third-party content, or non-Club Hub components) infringe such third party’s United States intellectual property rights, except to the extent such claim results from (i) any information, instructions, data, or other materials provided or made available by the School or any End User, (ii) any modification of the Services not made by or on behalf of Club Hub, (iii) any combination of the Services with any non-Club Hub product, service, or technology (where such infringement would not have occurred but for such combination), or (iv) the School’s or an End User’s breach of this Agreement; or (b) Club Hub’s material breach of its obligations under Sections 5, 6, 8. 9 or 13 of this Agreement.
13. Privacy
Club Hub shall treat all information collected through the End User Services in accordance with the terms of Club Hub’s Privacy Policy, which are hereby incorporated by reference.
14. Fees; Payment; Interest Charged for Late Payments
The School will pay Fees for the Services as set forth in an applicable Order Form or as otherwise agreed upon. Unless specified otherwise in the Order Form (if applicable), all Fees are due thirty (30) days from the invoice date. If the School fails to make a payment when due, interest will accrue on the overdue amount at the rate of one-and-one-half percent (1.5%) per month (or the highest rate permitted by law, if less), calculated from the payment due date until the overdue amount is paid in full. The School will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Club Hub in collecting delinquent amounts.
15. Purchase Orders
If the School requires a Purchase Order number on its invoice, it must inform Club Hub and issue a Purchase Order to Club Hub. Any terms and conditions on a Purchase Order do not apply to this Agreement and are null and void as to this Agreement. This Agreement in conjunction with our End User Agreements constitute our complete Agreement.
16. Taxes
The School is responsible for any Taxes and will pay Club Hub in full for the Services without any reduction for Taxes. If Club Hub is obligated to collect or pay Taxes, the Taxes will be invoiced to the School, unless the School provides Club Hub with a valid tax exemption certificate. If the School is required by law to withhold any Taxes from its payments to Club Hub, it must provide Club Hub with an official tax receipt or other appropriate documentation.
17. Term
This Agreement will remain in effect for the Term as stated in the Order Form or, if no Order Form exists, until terminated in accordance with this document. Unless the parties agree otherwise in writing, End User Accounts added during any Services Term will have a prorated term ending on the last day of that Services Term. At the end of each Services Term, the Services (and all End User Accounts previously purchased for a Fee) will automatically renew for an additional Services Term of twelve months. If either party does not want the Services to renew, then it must notify the other party in writing at least sixty (60) days prior to the end of the then-current Services Term. This notice of non-renewal will be effective upon the conclusion of the then-current Services Term. Club Hub can revise its rates for Services that the School has purchased for a Fee for the following Services Term by providing the School written notice (which may be by email) at least thirty (30) days prior to the start of the subsequent Services Term.
18. Termination
18.1
Either party may suspend performance or terminate this Agreement if: (a) the other party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice; (b) the other party ceases its operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days; or (c) the other party is in material breach of this Agreement more than two (2) times notwithstanding any cure of such breaches.
18.2
The School may terminate this Agreement for any reason (or no reason) with thirty (30) days prior written notice to Club Hub, but the School will remain obligated to pay any Fees for Services applicable to the remainder of the then-current Services Term for those Services. Club Hub may terminate this Agreement and cease providing the Services if the School fails to pay invoices within a timely fashion.
18.3
If this Agreement terminates, then: (a) the rights granted by one party to the other will cease immediately; (b) If Customer subsequently requests termination of all services and deletion of accounts, Club Hub will offer End Users the choice whether to continue using Club Hub, and if so, provide each End User with control over his or her Club Hub account; (c) after a commercially reasonable period of time and only upon explicit, written request of your School, Club Hub will delete Customer Data for those individual accounts that have not been claimed by End Users by overwriting the Customer Data over time; and, (d) upon explicit, written request each party will promptly use commercially reasonable efforts to return, delete (by overwriting over time) or destroy all other Confidential Information of the other party.
19. Limitation of Liability
19.1
NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION COST OF PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
19.2
THE TOTAL LIABILITY OF EITHER PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE THE LESSER OF (A) ONE THOUSAND DOLLARS OR (B) THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO CLUB HUB UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
19.3
These limitations of liability apply to the fullest extent permitted by applicable law, but do not apply to breaches of confidentiality obligations or violations of a party’s Intellectual Property Rights by the other party.
20. General Provisions
20.1 Relationship of the Parties
The Parties are independent contractors, and nothing herein shall be deemed to constitute the relationship of employer-employee, a partnership, or a joint venture between the Parties hereto. Neither Party is an agent of the other neither Party is authorized to make any representation, contract, or commitment on behalf of the other Party.
20.2 Notices
Unless specified: (a) all notices must be in writing and addressed to the attention of the other party’s legal department or primary point of contact; and (b) notice will be deemed given: (i) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email.
20.3 Assignment; Change of Control
The School may not assign or transfer this Agreement in part or in whole without the prior written consent of Club Hub. Club Hub may freely transfer and assign any of its rights and obligations under this Agreement.
20.4 Force Majeure
Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, epidemic, pandemic, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
20.5 No Waiver
Failure to enforce any provision of this Agreement will not constitute a waiver.
20.6 Severability
If any provision of this Agreement is found unenforceable, the balance of the Agreement will remain in full force and effect.
20.7 Governing Law
(a) For City, County and State Government Entities: if the School is a city, county, or state government entity, then the parties agree to remain silent regarding governing law and venue, and (b) For All Other Entities: this Agreement is governed by New York law, without regard to its conflict of laws principles. FOR ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE OR FEDERAL COURTS IN NEW YORK, NEW YORK.
20.8 Amendments
Any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.
20.9 Survival
The following sections will survive expiration or termination of this Agreement: Confidential Information and Personal Information, Intellectual Property Rights and Licenses (excluding the last sentence thereof), Termination, and Limitation of Liability.