Hyphen Solutions: Construction Management Software for Home Builders
  

1.Payment.

a.

Fees.

Supplier shall pay Hyphen the Initial Set-up Fee. In addition, Supplier shall pay Hyphen the License and Maintenance Fee and the Monthly Transaction Fee for Purchase Orders, as may be modified from time to time in accordance with Paragraph 1(f), set forth on the Order Form. Supplier may choose to make the payment either by recurring credit card payment or monthly invoicing, by checking the relevant box on the Order Form.1


b.

Recurring Credit Card Payment.

Supplier may elect to authorize recurring credit card payment by completing Recurring Credit Card Payment Authorization Form attached as Exhibit A or online by completing the Credit Card Information section. If a charge to Supplier’s credit card is denied, Supplier shall immediately give Hyphen an alternative method of payment and pay a $25.00 (US Dollars) administrative charge. If Supplier does not provide an alternative method of payment, Hyphen reserves the right to suspend performance and/or to terminate this Agreement and may begin collection proceedings.


c.

Monthly Invoice.

If Supplier has chosen the monthly invoice option as set forth on the Order Form, Supplier shall pay Hyphen the Initial Set-up Fee, the License and Maintenance Fee and the Monthly Transaction Fee for Purchase Orders (the “Fees”) set forth on the Order Form. The Fees are payable in advance and Hyphen will invoice Supplier for the Fees prior to the commencement of the portion of the Term (as defined below) to which such Fees apply. The Fees are payable to Hyphen at the address set forth on the Order Form. The Fees are non-refundable. Supplier will pay each Hyphen invoice in accordance with the payment terms. Late payments are subject to a late charge equal to the lesser of: (i) one and one-half percent (1½%) per month; and (ii) the highest rate permitted by applicable law. Notwithstanding anything to the contrary in this Agreement, Hyphen reserves the right to suspend performance and/or to terminate this Agreement in the event of any past due Fees.


d.

Taxes.

Supplier is responsible for paying all taxes relating to this Agreement (except for taxes based on Hyphen’s net income or capital stock). Applicable tax amounts (if any) are not included in the License and Maintenance Fee.


e.

Audit.

Hyphen (including any third party auditor retained by Hyphen) may audit the records and systems of Supplier to ensure compliance with the terms of this Agreement and each applicable Order Form. Hyphen will notify Supplier in writing at least seventy-two (72) hours prior to any such audit. Any such audit will be conducted during regular business hours and will not interfere unreasonably with Supplier’s business activities. Hyphen may audit Supplier no more than once in any twelve (12) month period. If an audit reveals that Supplier is using the Licensed Product(s) beyond the scope of the license granted herein (for example, in excess of the License Restriction), then, in addition to any other remedies available to Hyphen, Supplier will promptly pay Hyphen the underpaid Fees associated therewith based on Hyphen’s then-current list rates, as well as any applicable late charges.


f.

Modification of Fees.

Hyphen will have an annual increase of 5% for each fee hereunder, including the License and Maintenance Fee and/or the Monthly Transaction Fee for Purchase Orders (as applicable). Upon the completion of the Primary Term, Hyphen may modify those fees for any Renewal Term (as defined below) upon thirty (30) days’ notice.


2.Limited License.

Subject to the terms of this Agreement and the applicable Order Form, Hyphen grants to Supplier a limited, revocable, nonexclusive, and nontransferable license (without the right to sublease or sublicense) to access the Licensed Product(s) on Hyphen’s computer server, and to use related documentation, to store, process, and retrieve information concerning Supplier’s business operations solely for Supplier’s internal use only by the Authorized Users and who agree to the terms and conditions herein, including without limitation the confidentiality provisions of Section 4, (“Supplier’s Users”). Supplier is expressly prohibited from using the Licensed Product(s) or any portion thereof for any other purpose or by any users other than the Supplier’s Users.

a.

Documentation.

Supplier may make a reasonable number of copies of the then-current Hyphen-provided documentation relating to the features, functions, and use of the Licensed Products(s) (the “Documentation”) for the Licensed Product(s) for its internal use in accordance with the terms of this Agreement.


b.

License Restrictions.

Supplier’s use of the Licensed Product(s) is subject to any limitation on the use of the Licensed Product(s) (e.g., number of Authorized Users, locations, connections) specified in the applicable Order Form.


c.

Additional Restrictions on Use of the Licensed Product(s).

In no event shall Supplier access the Licensed Product(s) on any environment outside the hosted environment selected by Hyphen as part of the Licensed Product(s). In no event shall Supplier or Supplier’s Users possess or control the Licensed Product(s) or any related software code. Supplier is prohibited from causing or permitting the reverse engineering, disassembly or de-compilation of the Licensed Product(s). Supplier acknowledges and agrees that U.S. export control laws and other applicable export and import laws govern its use of the Licensed Product(s) and Supplier will neither export or re-export, directly or indirectly, the Licensed Product(s), nor any direct product thereof in violation of such laws, or use the Licensed Product(s)for any purpose prohibited by such laws.


3.Service Description.

a.

Licensed Products and Services.

This agreement and the selected products and services provide access to the duly licensed products for the purpose of enabling the SUPPLIER to electronically support business automation and to connect with Hyphen’s systems. Hyphen shall own all rights in and to SupplyPro and other selected products and services, and SUPPLIER rights to access and use these products shall be governed by the license grant, license restrictions and other terms of the Agreement. “Transactions” shall mean the per home or per order fee assessed for usage in which SupplyPro and/or other selected products and services are rendered.


b.

SupplyPro and SupplyPro Connect.

“SupplyPro” shall mean the Hyphen software and supply chain network platform where home building suppliers and vendor partners can view job schedules and purchase order information, receive change notifications, access job documents, and manage invoicing processes. “SupplyPro Connect” shall mean the certain application program interface that connects the SupplyPro application to the Supplier ERP or other back-office software, which may be licensed to Supplier under the Agreement.


c.

SupplyPro Renditions Services.

“SupplyPro Renditions Services” shall mean access to the “SupplyPro Renditions Software” for the purpose of transferring Supplier data from specified builder web portals into Hyphen SupplyPro. SUPPLIER hereby acknowledges that as builders make changes to their web portals additional services may be required to repair the Renditions services that become broken as a result of said changes. These repairs will be subject to separate Statements of Work to have Hyphen restore the services. In addition, as part of the SupplyPro Renditions Services, Hyphen agrees to provide maintenance and support for the SupplyPro Renditions Software in accordance with its then current Service Level Agreement, subject to change by Hyphen at any time. The “SupplyPro Renditions Software” shall mean that certain application program interface that connects builder portals to the SupplyPro application, which may be licensed to SUPPLIER under the Agreement. Hyphen shall own all rights in and to the SupplyPro Renditions Software, which shall be deemed part of SupplyPro, and SUPPLIER’s rights to access and use the SupplyPro Renditions Software shall be governed by the license grant, license restrictions and other terms of the Agreement. The pricing shall be in accordance with page 1 of this document.


d.

SkuSphere.

Shall mean the process by which Hyphen converts builder supplied descriptions and item numbers to SUPPLIER descriptions and SKU numbers for the purpose of supporting the automation of orders using SupplyPro Connect for either BuildPro or Renditions transactions as may be required by SUPPLIER.


4.Ownership.

a.

Ownership and Intellectual Property.

Use of the Licensed Product(s) does not grant any ownership rights in or to the Licensed Product(s) and any updates, modifications and enhancements thereto or the Documentation. “Intellectual Property Rights” means all patents, copyrights, trademarks, trade secrets, databases, processes, moral rights and any other intellectual property rights (registered or unregistered) throughout the world. Hyphen owns any and all Intellectual Property Rights related to the Licensed Product(s) and Documentation. Supplier acquires only the right to use the Hyphen Intellectual Property Rights strictly in accordance with the limited license set out in Section 2 and does not acquire any other rights or ownership interests in same. To the extent that, as between Supplier and Hyphen, ownership of the Hyphen Intellectual Property Rights do not automatically vest in Hyphen, Supplier hereby assigns any right, title and interest it would otherwise have in same to Hyphen, and agrees to execute any and all necessary assignments and other instruments. Information provided, entered or uploaded for use by or with the Licensed Products by the Supplier or Supplier’s Users (the “Supplier Data”) shall be the sole property of Supplier. Hyphen may collect anonymous data related to Supplier Data or use of the Licensed Product(s) (collectively “Anonymous Data”), and such Anonymous Data (which in no event will include Personal Information) shall be the sole property of Hyphen and not considered Supplier Data. “Personal Information” means information provided to Hyphen by or at the direction of Supplier, or to which access was provided to Hyphen in the course of Hyphen’s performance under this Agreement that: (i) identifies or can be used to identify an individual (including, without limitation, names, signatures, addresses, telephone numbers, e-mail addresses and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, financial account numbers, credit report information, biometric or health data, answers to security questions and other personal identifiers). Personal Information shall include any non-public personal information regarding any individual that is subject to applicable national, state, regional, and/or local laws and regulations governing the privacy, security, confidentiality and protection of non-public personal information.


b.

Intellectual Property Rights Notices.

Supplier is prohibited from removing or altering any notices regarding the Intellectual Property Rights notice(s) embedded in the Licensed Product(s) or that Hyphen otherwise provides with the Licensed Product(s). Supplier must reproduce the unaltered Intellectual Property Rights notice(s) in any full or partial copies that Supplier makes of the Documentation.


5.Confidentiality.

a.

Proprietary and Confidential Information.

Proprietary and confidential information includes information related to research, development, pricing, trade secrets, customer lists, salaries, business affairs of the parties to this Agreement, and information of material value to a party which is not generally known within the industry. The Licensed Product(s) and the documentation contain proprietary and confidential information. Supplier agrees to hold all proprietary and confidential information embodied in the Licensed Product(s) and any documentation in strictest confidence. Supplier and Hyphen each agree to hold in strictest confidence any information and material which is related to either party's business or is designated as proprietary and confidential, herein or otherwise, by either party in connection with the transactions contemplated by this Agreement. Each party agrees not to make use of such designated information and material other than for the performance of this Agreement. However, nothing shall prohibit Hyphen from using information collected in connection with the transactions contemplated by this Agreement for marketing or statistical purposes so long as Supplier’s name is not directly associated with the information. Notwithstanding the foregoing, with respect to personally identifiable information that Supplier provides to Hyphen such information shall be governed by the then-current version of the Hyphen privacy policy (available at http://www.hyphensolutions.com ); for the avoidance of doubt such privacy policy shall not apply to personally identifiable information provided by Supplier relating to information supplied by Supplier’s customers, which remains governed by this Section 4. The foregoing notwithstanding, nothing shall prohibit Hyphen from providing job specific or product specific data to Supplier manufacturers to support their demand signal, rebate processing and tracking. The parties' obligations of confidentiality under this Agreement shall survive the termination of this Agreement.


b.

Internet Security and Privacy.

Hyphen shall establish and maintain administrative, technical, and physical safeguards designed to protect against the destruction, loss, unauthorized access or alteration of Supplier Data and Personal Information in the possession or under the control of Hyphen or to which Hyphen has access, which are: (i) no less rigorous than those maintained by Hyphen for its own information of a similar nature; (ii) no less rigorous than generally accepted industry standards; and (iii) required by applicable laws.


6.Base Requirements, Support Services and Updates.

a.

Base Requirements.

Supplier is solely responsible for acquiring and maintaining hardware and connectivity to access SupplyPro.


b.

Software Services.

During the Term of the Agreement, Hyphen shall provide software hosting services for the Licensed Product(s), including hosting of the Supplier data in a secure environment, web access to the Licensed Product(s) via Hyphen’s cloud based platform using industry standard Internet protocols, and nightly backups of the Supplier data.


c.

Support and Update Services.

During the Term of the Agreement, Hyphen shall provide Supplier’s Users with telephone support during its normal business hours and updates that Hyphen makes generally available on the Licensed Product(s).


7.Term and Termination.

a.

Term.

With respect to the Licensed Products, the Primary Term shall be as set forth on the applicable Order Form. After the Primary Term, the Primary Term shall renew for successive one-year periods (each a “Renewal Term” and together with the Primary Term, the “Term”), unless either party provides written notice of non-renewal to the other party at least sixty (60) days prior to expiration of the Term. Except as set forth in Section 6(b), the then current Term cannot be terminated prior to its expiration date.


b.

Right of Termination.

If either party breaches any material obligation in this Agreement or an Order Form (including, without limitation, any obligation to pay the Fees), and fails to remedy such breach (if such breach can be remedied) within thirty (30) days of receipt of written notice of such breach, the other party may terminate this Agreement (including all Order Forms hereunder). Notwithstanding the foregoing, to the extent such material breach cannot be remedied through efforts of the breaching party, the other party has the right to terminate this Agreement (including all Order Forms hereunder) on less than thirty days’ written notice. In addition, if Supplier chooses to terminate the agreement prior to the end of contract term, Supplier shall pay an early termination fee equal to the remaining number of months in the term multiplied by the monthly subscription fee.


c.

Effect of Termination.

Upon termination of this Agreement by either party, Supplier’s license to access and use the Licensed Product(s) shall immediately terminate as of the effective date of such termination. Termination of this Agreement will not release Supplier from making payments which may be owing to Hyphen under the terms of this Agreement through the effective date of such termination. If Supplier terminates contract prior to the end date of contract term, Supplier will be required to make payment to Hyphen equal to the monthly subscription fee multiplied by the number of remaining months of the contract term. Termination of this Agreement will be without prejudice to the terminating party’s other rights and remedies pursuant to this Agreement, unless otherwise expressly stated herein. Supplier shall immediately return to Hyphen all copies of the Licensed Product(s) and all documentation and materials related to the Licensed Product(s) in Supplier’s possession.


d.

Survival of Obligations.

All obligations relating to non-use and non-disclosure of Confidential Information, limitation of liability, and such other terms which by their nature survive termination, will survive termination or expiration of this Agreement.


 

8.Training.

Supplier must provide Hyphen a list of any Authorized Users. Supplier’s Authorized User(s) will be contacted by telephone or e-mail to receive a User Name and Password for using SupplyPro. Hyphen offers several training options including online videos, classroom training and web-based training. Hyphen may also make available an Online Users Guide.


9.Service Interruptions.

Due to the nature of the Internet and the reliance on third party providers, Supplier enjoys no expectation of uninterrupted error free uptime, service, access, or communication with SupplyPro. Hyphen does not warrant that the functions contained in SupplyPro will meet the requirements of Supplier.


10.Limited Warranties, Disclaimer of Warranties, and Remedies.

a.

Right to Grant License.

Hyphen warrants that it owns all right, title and interest in and to the Licensed Product(s) or has obtained rights in such Licensed Product(s) sufficient to grant the licenses granted to Supplier under this Agreement. Supplier’s exclusive remedy, and Hyphen’s exclusive obligation, for a breach of this warranty is set forth in Section 10 (Indemnification).


b.

Limitation of Remedies and Damages.

Supplier’s sole and exclusive remedy under this Agreement shall be the repair or replacement by Hyphen of the Licensed Product(s) or appropriate portion thereof. IN NO EVENT SHALL HYPHEN BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR DATA) ARISING OUT OF THIS AGREEMENT OR WITH RESPECT TO THE USE, OPERATION, OR SUPPORT OF THE LICENSED PRODUCT(S), EVEN IF HYPHEN HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. SUPPLIER SPECIFICALLY AGREES THAT ANY LIABILITY ON THE PART OF HYPHEN ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT, OR ANY OTHER LEGAL THEORY SHALL NOT EXCEED THE FEES PAID BY SUPPLIER DURING THE SIX MONTHS PRIOR TO THE ACCRUAL OF THE CLAIM OR CAUSE AGAINST HYPHEN. HYPHEN MAKES NO OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO THE LICENSED PRODUCT(S) AND DOCUMENTATION PROVIDED UNDER THIS AGREEMENT AND/OR ANY ORDER FORM, IN WHOLE OR IN PART. HYPHEN EXPLICITLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. HYPHEN EXPRESSLY DOES NOT WARRANT THAT THE LICENSED PRODUCT(S) OR THE DOCUMENTATION, IN WHOLE OR IN PART, WILL BE ERROR FREE, OPERATE WITHOUT INTERRUPTION OR MEET SUPPLIER’S REQUIREMENTS.


c.

Compliance with Laws.

Each party warrants that neither its grant of the rights or licenses hereunder nor its performance of any services or other obligations under this Agreement does or at any time will, to the best of its knowledge using commercially reasonable efforts, conflict with or violate any applicable law, rule or regulation including any law, rule or regulations relating to data privacy, data security, or Personal Information and each party shall promptly notify the other party in writing if it becomes aware of any change in any applicable law, rule or regulation that would preclude its performance of its obligations hereunder.


d.

Abrogation of Limited Warranty.

Hyphen will have no obligation under this Section 9 to the extent that any alleged breach of warranty is caused by any modification of the Licensed Product(s) not performed by or on behalf of Hyphen.


e.

FAILURE OF ESSENTIAL PURPOSE.

THE PARTIES HAVE AGREED THAT THE LIMITATIONS SPECIFIED IN SECTIONS 9 AND 10 WILL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, AND REGARDLESS OF WHETHER SUPPLIER HAS ACCEPTED ANY LICENSED PRODUCT(S) UNDER THIS AGREEMENT.


11.Indemnification.

Each party shall indemnify, defend and hold harmless the other party, its employees, representatives, agents, directors, officers and shareholders, from and against damages, liability, loss or expenses (including all court costs, reasonable expenses and reasonable attorneys’ fees) incurred as a result of third party claims, including any and all losses, actions, damages, liabilities, costs and expenses, arising out of or resulting from (i) its breach or alleged breach of any representation or warranty contained in this Agreement, or (ii) its breach of this Section 9 of this Agreement. Hyphen will defend, indemnify and hold Supplier harmless from and against any loss, cost and expense to the extent arising from a third party claim against Supplier that the Licensed Product(s) infringes any Intellectual Property Rights of others. Hyphen’s obligations under this indemnification are expressly conditioned on the following: (i) Supplier must promptly notify Hyphen of any such claim; (ii) Supplier must, in writing, grant Hyphen sole control of the defense of any such claim and of all negotiations for its settlement or compromise so long as such settlement or compromise does not result in payment of money by Supplier or an admission of guilt by Supplier (if Supplier chooses to represent its own interests in any such action, Supplier may do so at its own expense, but such representation must not prejudice Infor’s right to control the defense of the claim and negotiate its settlement or compromise); (iii) Supplier must reasonably cooperate with Hyphen to facilitate the settlement or defense of the claim. Hyphen will not have any liability hereunder to the extent the claim arises from (a) any modification of the Licensed Product(s) by, on behalf of, or at the request of Supplier without Hyphen’s authorization; or (b) the use or combination of the Licensed Product(s) with any computer, computer platform, operating system and/or data base management system not provided, authorized, or approved by or on behalf of Hyphen. If any Licensed Product(s) is, or in Hyphen’s opinion is likely to become, the subject of an Intellectual Property Rights infringement claim, then Hyphen, at its sole option and expense, will either: (A) obtain for Supplier the right to continue using the Licensed Product(s) under the terms of this Agreement; (B) replace the Licensed Product(s) with products that are substantially equivalent in function, or modify the Licensed Product(s) so that it becomes non-infringing and substantially equivalent in function; or (C) refund to Supplier the un-used portion of the License and Maintenance Fee, if any, paid to Hyphen for the Licensed Product(s) giving rise to the infringement claim, and discontinue Supplier’s use of such Licensed Product(s). THE FOREGOING SETS FORTH HYPHEN’S EXCLUSIVE OBLIGATION AND LIABILITY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.


12.Arbitration.

Except for the right of either party to seek equitable relief to preserve the status quo or prevent irreparable harm, any controversy or claim arising out of or relating to this Agreement or to its breach shall be resolved by an expedited arbitration governed by the Federal Arbitration Act and conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. In deciding the substance of the parties’ claims, the arbitrators shall refer to the laws of Texas, without regard to the conflict of laws provisions. The validity, construction, and interpretation of this Agreement to arbitrate, and all procedural aspects of the arbitration conducted pursuant hereto shall be decided by the arbitrators. Except for violations of the license restrictions, the arbitrators shall have no authority to award treble, exemplary or punitive damages of any type under any circumstances whether or not such damages may be available under state or Federal law. The arbitration shall be confidential.


13.General.

a.

Complete Agreement; Amendment.

Each party acknowledges that it has read this Agreement and any exhibits, understands them, and agrees to be bound by their terms, and further agrees that they are the complete and exclusive statement of the agreement between the parties which supersedes and merges all prior proposals, understandings, and all other agreements, oral and written, between the parties relating to this Agreement. Except for the modification of fees provided for under Paragraph 1(f), this Agreement may not be modified or altered except by written instrument duly executed by both parties.


b.

Notice.

Any notice or other communication in this Agreement shall be in writing via email or within the SupplyPro application or written correspondence and shall be deemed to have been given on the day of service if served personally, emailed, within the Software, or three (3) days after mailing if mailed by first class mail, registered or certified, postage prepaid, to the address or email address on the Order Form of this agreement. Such address or email may be changed from time to time by providing written notice of the change via email or within the SupplyPro application.


c.

Force Majeure.

Neither party shall be liable for any delay or failure to perform other than the failure to make payments due hereunder by reason of any event or circumstance beyond its reasonable control, including, without limitation, acts of God, war, riot, strike, labor disturbance, fire, explosion, flood, or shortage or failure of suppliers.


d.

Choice of Law; Venue.

The laws of the State of Texas shall govern this Agreement, performance under this Agreement and any dispute arising out of or related to this Agreement without regard to its conflict of laws provisions. Venue shall lie exclusively in Dallas, Texas for any dispute arising out of or related in any way to this Agreement.


e.

Assignment.

Supplier may not assign or sublicense its rights, duties, or obligations under this Agreement to any person or entity, in whole or in part, without the prior express written consent of Hyphen, which consent shall not be unreasonably withheld. Hyphen may assign this agreement to any successor in interest.


f.

Severability.

If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible.


g.

Waiver.

The waiver or failure of Hyphen to exercise in any respect or any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.


h.

Headings.

The headings appearing at the beginning of the several sections contained in this Agreement have been inserted for identification and reference purposes only and shall not be used in the construction and interpretation of this Agreement.


i.

Relationship.

Neither party shall represent itself as the agent or legal representative of the other or as a joint venture for any purpose whatsoever, and neither party shall have any right to create or assume any obligations of any kind, express or implied, for or on behalf of the other in any way whatsoever.


j.

Counterparts/Signatures/Original.

This Agreement may be executed in several counterparts. All counterparts so executed shall together constitute one final agreement, if signed by all the parties, and each counterpart shall be an original. The parties agree that facsimile signatures of the parties are binding. Once this Agreement is executed, unless prohibited by applicable law or specified otherwise, any reproduction of it by reliable means (for example, photocopy or facsimile) is considered an original.