Hibou Professional + Hibou Roost Terms and Conditions
By subscribing to Hibou Professional services (the “Services”) provided by Hibou Corp. (“Hibou”) in relation with Hibou Professional modules and apps (the “Software”), you (the “Customer”) are agreeing to be bound by the following terms and conditions (the “Agreement”).
1 Term of the Agreement
The duration of this Agreement (the “Term”) shall be specified in writing on conclusion of this Agreement, beginning on the date of conclusion. It is automatically renewed for an equal Term, unless either party provides a written notice of termination minimum 30 days before the end of the Term to the other party.
For the purposes of modules that are charged per user, any active user account with access to the Software. Deactivated user accounts and accounts used by external people (or systems) who only have limited access to the Software through the portal facilities (known as “portal Users”) are not counted as Users.
For the purposes of modules that are charged per employee, an employee is any employee for which a payslip has been run during the billing period.
App or Module
An “App” or "Module" is a specialized group of features available for installation in the Software, and listed in the Shop section of Hibou’s website.
A Bug is considered any failure of the Software that results in a complete stop, error traceback or security breach, and is not directly caused by a defective installation or configuration. Non-compliance with specifications or requirements will be considered as Bugs at the discretion of Hibou (typically, when the Software does not produce the results or performance it was designed to produce, or when a country-specific feature does not meet legal accounting requirements anymore).
Unless specified otherwise, the Services provided under this Agreement are applicable only to the Covered Versions of the Software, which include the 3 (three) most recently released major versions.
To be covered by the current Agreement, the Customer has to run the most recent Covered Version at the time of conclusion of this Agreement. When this is not the case, additional costs are applicable, as described in 5 Charges and Fees.
3 Access to the Software
For the duration of this Agreement, Hibou gives the Customer a non-exclusive, non-transferable license to use (execute, modify, execute after modification) the Hibou Professional software, under the terms set forth in 9 Appendix A: Hibou Professional License.
The Customer agrees to take all necessary measures to guarantee the unmodified execution of the part of the Software that verifies the validity of the Hibou Professional usage and collects statistics for that purpose, including but not limited to the running of an instance, the number of active employees and installed Apps/Modules.
Hibou commits not to disclose individual or named figures to third parties without the consent of the Customer.
Upon expiration or termination of this Agreement, this license is revoked immediately and the Customer agrees to stop using the Hibou Professional software.
Should the Customer breach the terms of this section, the Customer agrees to pay Hibou an extra fee equal to 300% of the applicable list price for the actual number of employees and installed Apps/Modules.
4.1 Bug Fixing Service
For the duration of this Agreement, Hibou commits to making all reasonable efforts to remedy any Bug of the Software submitted by the Customer through the appropriate channel (typically, Hibou’s service desk) and to start handling such Customer submissions within two business days.
The Customer understands that Bugs caused by a modification or extension that is not part of the official Software will not be covered by this service.
As soon as the Bug is fixed an appropriate remedy will be communicated to the Customer.
When a Bug is fixed in any Covered Version, Hibou commits to fixing the Bug in all more recent Covered Versions of the Software.
Both parties acknowledge that as specified in the license of the Software and in the 7.3 Limitation of Liability section of this Agreement, Hibou cannot be held liable for Bugs in the Software.
4.2 Security Updates Service
For the duration of this Agreement, Hibou commits to sending a “Security Advisory” to the Customer for any security Bug that is discovered in the Covered Versions of the Software, at least 2 weeks before making the Security Advisory public, unless the Bug has already been disclosed publicly by a third party. Security Advisories include a complete description of the Bug, its cause, its possible impacts on the Customer’s systems, and the corresponding remedy for each Covered Version.
The Customer understands that the Bug and the information in the Security Advisory must be treated as Confidential Information as described in 6.4 Confidentiality during the embargo period prior to the public disclosure.
4.3 Hosting Services
For the duration of this Agreement, when the Customer chooses to use Hibou Roost ("Hosting Services"), Hibou commits to providing at least the following services:
Choice of multiple hosting regions
Hosting in Tier-III data centers or equivalent, with 99% network uptime*
Grade A SSL (HTTPS) Encryption of communication
Fully automated, verified backups
* Based on upstream server vendor and service availability
4.4 Support Services
For the duration of this Agreement, the Customer may open an unlimited number of support tickets free of charge, exclusively for questions regarding Bugs (see 4.1 Bug Fixing Service) or guidance with respect to the use of the standard features of the Software and Services (functionalities, intended use, configuration, troubleshooting).
Other assistance requests, such as questions related to development, customizations, installation, or services requiring to access the Customer’s database, may be covered through the purchase of separate development and support hours. In case it’s not clear if a request is covered by this Agreement, the decision is at the discretion of Hibou.
Tickets can be submitted online at https://www.hibou.io/helpdesk.
5 Charges and Fees
5.1 Standard charges
The standard charges for the Hibou Professional subscription is based on the number of payroll employees and the installed Apps/Modules.
During the Term, the Customer agrees to pay the charges for their usage on a monthly basis.
5.2 Renewal charges
Hibou reserves the right to increase the price of Apps/Modules and per employee charges (where applicable) at any time.
All fees and charges are exclusive of all applicable federal, provincial, state, local or other governmental taxes, fees or charges (collectively, “Taxes”). The Customer is responsible for paying all Taxes associated with purchases made by the Customer under this Agreement, except when Hibou is legally obliged to pay or collect Taxes for which the Customer is responsible.
6 Conditions of Services
6.1 Customer Obligations
The Customer agrees to:
pay Hibou any applicable charges for the Services of the present Agreement, in accordance with the payment conditions specified in the corresponding invoice ;
immediately notify Hibou when their actual number of payroll employees or their installed Apps/Modules exceed the numbers specified in their subscription, and in this event, pay the applicable additional fee as described in section 5.1 Standard charges;
take all measures necessary to guarantee the unmodified execution of the part of the Software that verifies the validity of the Hibou Professional usage, as described in 3 Access to the Software ;
appoint 1 dedicated Customer contact person for the entire duration of the Agreement;
When the Customer chooses to use Hosting, the Customer further agrees to:
take all reasonable measures to keep their user accounts secure, including by choosing a strong password and not sharing it with anyone else;
make a reasonable use of the Hosting Services, to the exclusion of any illegal or abusive activities.
When the Customer chooses the Hosting option, the Customer further agrees to:
take all reasonable measures to protect Customer’s files and databases and to ensure Customer’s data is safe and secure, acknowledging that Hibou cannot be held liable for any data loss;
grant Hibou the necessary access to verify the validity of the Hibou Professional usage upon request (e.g. if the automatic validation is found to be inoperant for the Customer);
6.2 No Soliciting or Hiring
Except where the other party gives its consent in writing, each party, its affiliates and representatives agree not to solicit or offer employment to any employee of the other party who is involved in performing or using the Services under this Agreement, for the duration of the Agreement and for a period of 12 months from the date of termination or expiration of this Agreement.
Except where notified otherwise in writing, each party grants the other a non-transferable, non-exclusive, royalty free, worldwide license to reproduce and display the other party’s name, logos and trademarks, solely for the purpose of referring to the other party as a customer or supplier, on websites, press releases and other marketing materials.
Definition of “Confidential Information”:
All information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. In particular any information related to the business, affairs, products, developments, trade secrets, know-how, personnel, customers and suppliers of either party should be regarded as confidential.
For all Confidential Information received during the Term of this Agreement, the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own similar Confidential Information, but not less than reasonable care.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure, to the extent permitted by law.
In the event that either Party fails to fulfill any of its obligations arising herein, and if such breach has not been remedied within 30 calendar days from the written notice of such breach, this Agreement may be terminated immediately by the non-breaching Party.
Further, Hibou may terminate the Agreement immediately in the event the Customer fails to pay the applicable fees for the Services within the due date specified on the corresponding invoice.
The sections “6.4 Confidentiality”, “7.2 Disclaimers”, “7.3 Limitation of Liability”, and “8 General Provisions” will survive any termination or expiration of this Agreement.
7 Warranties, Disclaimers, Liability
For the duration of this Agreement, Hibou commits to using commercially reasonable efforts to execute the Services in accordance with the generally accepted industry standards provided that:
the Customer’s computing systems are in good operational order and, for Hosting, that the Software is installed in a suitable operating environment;
the Customer provides adequate troubleshooting information and, for Hosting, any access that Hibou may need to identify, reproduce and address problems;
all amounts due to Hibou have been paid.
The Customer’s sole and exclusive remedy and Hibou’s only obligation for any breach of this warranty is for Hibou to resume the execution of the Services at no additional charge.
Except as expressly provided herein, neither party makes any warranty of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law.
Hibou does not warrant that the Software complies with any local or international law or regulations.
7.3 Limitation of Liability
To the maximum extent permitted by law, the aggregate liability of each party together with its affiliates arising out of or related to this Agreement will not exceed 50% of the total amount paid by the Customer under this Agreement during the 12 months immediately preceding the date of the event giving rise to such claim. Multiple claims shall not enlarge this limitation.
In no event will either party or its affiliates be liable for any indirect, special, exemplary, incidental or consequential damages of any kind, including but not limited to loss of revenue, profits, savings, loss of business or other financial loss, costs of standstill or delay, lost or corrupted data, arising out of or in connection with this Agreement regardless of the form of action, whether in contract, tort (including strict negligence) or any other legal or equitable theory, even if a party or its affiliates have been advised of the possibility of such damages, or if a party or its affiliates’ remedy otherwise fails of its essential purpose.
7.4 Force Majeure
Neither party shall be liable to the other party for the delay in any performance or failure to render any performance under this Agreement when such failure or delay is caused by governmental regulations, fire, strike, war, flood, accident, epidemic, embargo, appropriation of plant or product in whole or in part by any government or public authority, or any other cause or causes, whether of like or different nature, beyond the reasonable control of such party as long as such cause or causes exist.
8 General Provisions
8.1 Governing Law
Both parties agree that the laws of the United States of America will apply, should any dispute arise out of or in connection with this Agreement, without regard to choice or conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereinabove, both parties agree to submit to the sole jurisdiction of Washington (state, USA) court for the purpose of litigating all disputes.
In case any one or more of the provisions of this Agreement or any application thereof shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement and any application thereof shall be in no way thereby affected or impaired. Both parties undertake to replace any invalid, illegal or unenforceable provision of this Agreement by a valid provision having the same effects and objectives.