Terms of Service
HYPR Corp. Terms of Service
LAST UPDATED: November 16, 2021
IMPORTANT, READ CAREFULLY: USE OF AND ACCESS TO THE SERVICES OF HYPR CORP. AND ITS AFFILIATES (“HYPR”) IS CONDITIONED UPON COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS OF SERVICE. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING. BY CLICKING THE “I AGREE” BUTTON/BOX, ACCESSING THE HYPR WEBSITE OR BY UTILIZING THE HYPR SERVICES, CUSTOMER AGREEES TO BE BOUND BY THESE TERMS AND CONDITIONS AND ALL EXHIBITS, ORDER FORMS, AND INCORPORATED ADDENDUMS AND POLICIES (THE “AGREEMENT”). THE SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS.
See the Terms of Service Definitions Exhibit attached for definitions of capitalized terms not defined herein.
HYPR will provide the Services, and Customer may access and use the Services in accordance with this Agreement.
- Overview. HYPR is the Passwordless Cloud Platform that helps its customers eliminate passwords and accelerate adoption of multifactor security.
- Customer Access and Use of the Services.
- Access. Subject to the terms of this Agreement, HYPR will use commercially reasonable efforts to provide you the Services during the Subscription Term for the Permitted Use, in accordance with: (a) the Service Level Agreement; (b) the Security Policy; (c) the Support Agreement; and (d) the Documentation, each of which may be updated from time to time.
- Application Software License. In order to enable access to the SaaS Platform by Application End Users, during the Subscription Term, Customer may distribute the Application Software in object code form as embedded in the Customer Applications for the Permitted Use. For purposes of this Section, the term “distribute” also means deployment of the Customer Applications for Application End Users to access over the Internet. Such distribution must be pursuant to an end-user license that meets the requirements of this Section. Customer is not permitted to distribute the Application Software: as a standalone product; or as a part of any product other than Customer’s Application. Customer’s end-user license agreement must impose the following limitations on Customer’s Application End Users; prohibit distribution of the Application Software by Application End Users; limit the liability of Customer’s licensors or suppliers to the maximum extent permitted by applicable law; and prohibit any attempt to disassemble the code, or attempt in any manner to reconstruct, discover, reuse or modify any source code or underlying algorithms of the Application Software, except to the limited extent as is permitted by law notwithstanding contractual prohibition. Notwithstanding the foregoing, Customer may distribute the Customer Application to Customer employees without an end user license agreement. Customer shall be solely liable and responsible for Application End Users’ compliance with the end user license requirements set forth in this Section.
- Restrictions. Customer shall not, nor permit Application End Users or anyone under its control to: (i) allow any third party who is not an Application End User or authorized administrator to access the Services; (ii) decompile, reverse engineer, disassemble or otherwise attempt to reconstruct or discover the source code of the Services (iii) create unauthorized copies of any portion of the Services or make any unauthorized modifications to the Services; (iv) conduct benchmark or performance tests, or disclose the results of any such tests; (v) access the Services or its output for the purpose of developing a competitive product or service; (vi) use the Services to store illegal content, including Malicious Code; or (vii) attempt to gain access by unauthorized means to the SaaS Platform or related systems or networks (including Customer attempts to conduct penetration testing against HYPR systems without HYPR’s prior written consent).
- Usage Limitations. Access to Services is subject to other limitations as stated in the Order Form, including limits on the number of Application End Users.
- Data Protection
- Data Protection Addendum. If HYPR processes any Customer Data comprised of personal data, as defined in the Data Protection Legislation, each party shall adhere to the provisions set out in the HYPR Data Processing Addendum , which incorporates the applicable Standard Contractual Clauses (processors) (the “SCCs”) and is incorporated herein by reference. Execution of the Agreement constitutes execution of the DPA and the SCCs.
- HYPR Access and Use of Customer Data and Customer Applications
- Customer Data. Customer hereby grants HYPR the non-exclusive worldwide, royalty-free right to use, reproduce, store, transmit, perform, adapt, or display Customer Data solely to the extent required for HYPR’s provision of the Services under this Agreement. Subject to the limited rights granted by Customer hereunder, HYPR acquires no right, title or interest from Customer or its licensors under this Agreement in or to Customer Data, including any Intellectual Property Rights therein.
- Customer Applications and Code. If Customer, a third party acting on Customer’s behalf, or an Application End User creates applications or program code for use with the SaaS Platform (the “Customer Applications”), Customer authorizes HYPR to host, copy, transmit, display and adapt such applications and program code, solely as necessary for HYPR to provide the Services to Customer in accordance with this Agreement. Subject to the above, HYPR acquires no right, title or interest from Customer or its licensors under this Agreement in or to such applications or program code, including any Intellectual Property Rights therein.
- Customer Responsibilities. Customer shall: (i) be responsible for its Application End Users’ compliance with this Agreement; (ii) be responsible for the accuracy and integrity of Customer Data and possessing the legal rights to provide the Customer Data to HYPR for HYPR to use, reproduce, store, transmit, and process in accordance with this Agreement; (iii) prohibit the sharing or disclosing of encryption keys, or otherwise allowing unauthorized access to the Services; (iv) use the Services only in accordance with the Documentation and applicable law.
- Payment Terms. The payment terms below only apply when Customer purchases Services directly from HYPR. When Customer purchases from an authorized reseller, Customer’s use of the Services will be governed by this Agreement, provided that the payment terms are between Customer and the authorized reseller.
- Fees. Customer agrees to pay all fees specified in the Orders. Fees are non-cancelable and non-refundable, except as otherwise expressly set forth in this Agreement. Without limiting any of HYPR’s other rights or remedies herein, overdue charges may accrue interest monthly at the rate of 1.5% of the then-outstanding unpaid balance, or the maximum rate permitted by law, whichever is lower. Fees are due and payable either within 30 days from the date of HYPR’s invoice or as otherwise stated in the Order.
- Credit Card Payments. If Customer pays by credit, or debit card Customer: (i) will provide HYPR or its designated third-party payment processor with valid credit or debit card information; and (ii) hereby authorizes HYPR or its designated third-party payment processor to charge such credit or debit card for all items listed in the applicable Order. Such charges must be paid in advance or in accordance with any different billing frequency stated in the applicable Order Form. Customer is responsible for providing complete and accurate billing and contact information and notifying HYPR in a timely manner of any changes to such information.
- Taxes. All fees quoted are exclusive of applicable taxes and duties, including any applicable sales and use tax. Customer is responsible for paying any taxes or similar government assessments (including, without limitation, value-added, sales, use or withholding taxes). HYPR will be solely responsible for taxes assessable against us based on our net income, property, and employees.
- Suspension of Services. If any undisputed amount owing by Customer under this or any other agreement is thirty (30) or more days overdue, HYPR may, without limiting its other rights and remedies, suspend Services to Customer until such amounts are paid in full. HYPR will give Customer at least seven (7) days’ prior written notice that Customer’s account is overdue before suspending the Services. In addition, HYPR may suspend Customer’s access to and use of the Services if Customer’s or an Application Authorized User’s actions risk harm to other customers or the security, availability or integrity of the Services. Where practicable, HYPR will use reasonable efforts to provide Customer with prior notice of the suspension. Once Customer resolves the issue requiring suspension, HYPR will promptly restore Customer’s or the Authorized Application User’s access to the Services in accordance with this Agreement.
- Proprietary Rights
- Ownership of Customer Data and Customer Applications. HYPR makes no claim of ownership as to Customer Data or Customer Applications.
- Reservation of Rights. Subject to the limited rights expressly granted hereunder, HYPR reserves all rights, title and interest in and to the Services provided by or for HYPR, including all related Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
- Feedback. HYPR shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by or on behalf of Customer, solely as such information relates to the Services, and expressly excluding any Customer Confidential Information.
- Warranties and Disclaimers
- HYPR Warranties. Subject to “Exclusion from Warranties” below, HYPR warrants that (i) HYPR has validly entered into this Agreement and has the legal power to do so, (ii) the Services will perform materially in accordance with the Documentation, this Agreement and any specifications or descriptions set forth in the applicable Order Form, (iii) the functionality of the Services will not be materially decreased during a subscription term, and (iv) HYPR will use industry standard measures to not transmit Malicious Code to Customer, provided it is not a breach of this subpart if Customer or a an Authorized User uploads a file containing Malicious Code into the SaaS Platform and later downloads the same file, unmodified by HYPR, containing Malicious Code. For any breach of a warranty above, Customer’s exclusive remedy shall be termination for cause as provided under “Term and Termination” and HYPR shall promptly refund Customer any prepaid fees covering the remainder of the Subscription Term of all terminated subscriptions after the effective date of termination.
- Exclusion from Warranties. The warranties subsections (ii) and (iii) under “HYPR Warranties” are void to the extent any failure to perform in accordance with the Documentation or any decrease in functionality is the result of (i) the Services not being used in accordance with the applicable Documentation or this Agreement, (iii) the Services having been modified or altered by Customer without HYPR’s knowledge and written permission, or (iv) Internet or network connections, streaming services, computers, equipment or devices not supplied by HYPR. Further, HYPR makes no warranties of any sort applicable to Non-GA Services, which are made available by HYPR “AS IS”.
- Warranty Disclaimer. HYPR DOES NOT WARRANT THAT ANY INFORMATION, COMPUTER PROGRAM, HYPR’S EFFORTS OR ANY SERVICES OR SOFTWARE PROVIDED BY HYPR WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES OR NEEDS, NOR DOES HYPR WARRANT THAT THE OPERATION OF THE SERVICES OR SOFTWARE OR ACCESS TO OR USE OF THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT AS EXPRESSLY STATED HEREIN, NO WARRANTIES, EXPRESS OR IMPLIED, ARE MADE BY HYPR TO CUSTOMER, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, WHICH ARE SPECIFICALLY EXCLUDED.
- Customer Warranties. Customer warrants that (i) Customer has validly entered into this Agreement and has the legal power to do so, (ii) that HYPR’s use of Customer Data will not infringe or violate the Intellectual Property Rights of any third party; and (iii) Customer’s entry into this Agreement and performance of its obligations hereunder will not violate or conflict with any other agreement or obligations to which Customer is bound.
- Confidential Information.
- Confidentiality. The Receiving Party shall keep the Disclosing Party’s Confidential Information confidential and shall use at least the same standard of care to protect the Disclosing Party’s Confidential Information as the Receiving Party employs for the protection of its own proprietary information of a similar nature, but in no event less than a reasonable standard of care. The Receiving Party will not disclose the Disclosing Party’s Confidential Information to any third party, except to those of its and its affiliates’ employees, contractors and agents (“Representatives”) who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. The Receiving Party shall be responsible for the acts and omissions of its Representatives with respect to the Disclosing Party’s Confidential Information. Receiving Party shall not use or reproduce in any form the Disclosing Party’s Confidential Information, except as required to exercise its rights and discharge its responsibilities set forth in this Agreement.
- Exclusions. The term “Confidential Information” does not include any information that : (a) is, or after the date of disclosure under this Agreement becomes, generally available to the public other than as a result of any actions or omissions of the Receiving Party; (b) was already known by the Receiving Party prior to the time of disclosure under this Agreement; (c) was disclosed to the Receiving Party on a non-confidential basis by a third party that did not owe an obligation of confidentiality to the Disclosing Party; or (d) is developed by the Receiving Party, independently without use of or reference to the Disclosing Party’s Confidential Information.
- Compelled Disclosure. Notwithstanding anything to the contrary contained herein, the Receiving Party may disclose Confidential Information of the Disclosing Party pursuant to an order made pursuant to applicable law, regulation or legal process, provided that (a) to the extent permitted, the Receiving Party gives the Disclosing Party prompt written notice of such order so that the Disclosing Party has an opportunity to seek a protective order, confidential treatment, or other appropriate remedy to such order; (b) the Receiving Party provides the Disclosing Party with all reasonable assistance, at the Disclosing Party’s expense, in opposing such required disclosure or seeking a protective order or confidential treatment for all or part of such Confidential Information; and (c) the Receiving Party discloses only such portion of the Confidential Information as is either permitted by the Disclosing Party or required by the court, tribunal, governmental agency or other authority, subject to any protective order or confidential treatment obtained by the Disclosing Party.
- Indemnification by HYPR. HYPR shall defend Customer against any claim, demand, suit, or proceeding (each a “Claim”) made or brought against Customer by a third party alleging that the Services, or Customer’s use of the Services as permitted hereunder infringe or misappropriate the Intellectual Property Rights of a third party (each a “Claim Against Customer”), and shall indemnify Customer for any out-of-pocket damages, attorney fees, costs, judgments, and approved settlement payments, incurred in defending such Claim Against Customer (collectively, “Losses”). The indemnification obligations hereunder shall not apply to claims to the extent Customer is to provide indemnification under “Indemnification by Customer”.
- Exclusions. The foregoing indemnity shall not apply if the infringement arises out of: (a) specifications or designs furnished by Customer and implemented by HYPR at Customer’s request; (b) the Services being modified by, combined with, or used with any equipment, device, data, software or service not supplied or approved by HYPR in writing (including in the applicable Documentation); (c) the modification to Services by any person or entity other than HYPR; or (d) use of Services other than in accordance with its Documentation.
- Remedies. If a Claim Against Customer for which Customer is entitled to be indemnified has occurred, or in HYPR’s opinion is likely to occur, HYPR shall, at HYPR’s expense, do one of the following: (a) procure for Customer the right to continue using the affected Services; (b) replace with non-infringing alternates or modify the relevant Service so that it becomes non-infringing, but its functionality after modification is substantially equivalent; or (c) cease providing the Services and refund any prepaid Fees applicable to the period after the Services have ceased. The collective obligations of HYPR set forth under “Indemnification by HYPR” and “Remedies” are the sole and exclusive liability of HYPR, and Customer’s sole and exclusive remedy, with respect to Claims Against Customer.
- Indemnification by Customer. Customer shall defend HYPR, its Affiliates, and its contractors and sub-processors (collectively “HYPR Indemnified Parties”) against any Claim made or brought against a HYPR Indemnified Party by a third party arising from or in connection with (i) the Customer Application (ii) HYPR’s use of the Customer Data as permitted hereunder or (each a “Claim Against HYPR”), and shall indemnify HYPR Indemnified Parties for any Losses incurred in defending such a Claim Against HYPR. The indemnification obligations hereunder shall not apply to claims to the extent HYPR is to provide indemnification under “Indemnification by HYPR”.
- Process. Promptly after an indemnified party obtains knowledge of the existence or commencement of a Claim for which it is entitled to be indemnified under “Indemnification”, the indemnified party will notify the indemnifying party of such Claim in writing, provided, however, that any failure to give such notice will not waive any rights of the indemnified party except to the extent that the rights of indemnified party are actually prejudiced or liability increased by such failure. Indemnifying party will have exclusive control of the defense and settlement of such Claim; provided, however, that the indemnified party may join in the defense and settlement of such Claim and employ counsel at its own expense, subject to indemnifying party’s ultimate control of the defense and settlement of such Claim. Indemnifying party may settle any Claim without indemnified party’s written consent unless such settlement: (a) does not include a release of all covered claims pending against indemnified party; or (b) imposes any obligations upon other than an obligation to cease using any infringing items.
- Limitations of Liability.
- Limitations. THE DISCLAIMER IN THIS SECTION (LIMITATIONS OF LIABILITY) WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAWS. EXCEPT FOR EXCLUDED CLAIMS, NEITHER PARTY (NOR ITS SUPPLIERS, SERVICE PROVIDERS’ OR LICENSORS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING ANY DOCUMENTS INCORPORATED BY REFERENCE HEREIN, FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, REVENUES, GOODWILL, INTERRUPTION OF BUSINESS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S (AND ITS SUPPLIERS’ SERVICE PROVIDERS’ OR LICENSORS’) ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING ANY DOCUMENTS INCORPORATED BY REFERENCE HEREIN, WILL NOT EXCEED IN AGGREGATE THE GREATER OF AMOUNTS PAID OR PAYABLE BY CUSTOMER TO HYPR DURING THE PRIOR 12 MONTHS UNDER THIS AGREEMENT (THE “LIABILITY CAP”) OR $500.
- “Excluded Claims” means: (i) Customer’s payment obligations under “Invoicing, Payment Terms, and Taxes” (ii) Customer’s breach of HYPR’s Intellectual Property Rights; (iii) a party’s indemnification obligations under “Indemnification”; (iv) a party’s gross negligence or willful misconduct; or (v) HYPR’s breach of is obligations under “Data Protection” that results in the unauthorized access to or use of Customer Data, provided, however that in no event shall such liability exceed two times (2X) the Liability Cap.
- Term and Termination.
- Term. The term of this Agreement shall commence on the Effective Date and continue until terminated in accordance with this this Section (the “Agreement Term”). Unless otherwise provided herein, the termination of this Agreement will not operate to terminate any existing Order Forms, and shall continue to govern such Order Forms until the completion or the earlier termination of such Order Forms.
- Term of Services Subscriptions. Services subscriptions commence on the start date specified in the applicable Order Form and continue for the term specified therein, including renewal terms, if any, as provided in the Order Form (the “Subscription Term”), unless either Party delivers a notice of termination to the other at least thirty (30) days prior to the end of the applicable Subscription Term. If no initial term is specified in the Order Form, the initial term shall be for one (1) year.
- Termination. Either Party may terminate this Agreement or any Order Form for cause upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period or if either Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
- Return of Materials. Upon the written request of the Disclosing Party, the Receiving Party shall: (a) promptly return to the Disclosing Party such of its Confidential Information (and all copies thereof) as the Disclosing Party may request, or upon written request from the Disclosing Party, destroy such Confidential Information and provide the Disclosing Party with written certification of such destruction; and (b) cease all further use of such Confidential Information.
- Survival. Any provision of this Agreement or Order Form containing proprietary rights, confidentiality obligations, disclaimers, limitations of liability and/or indemnity terms, or that contemplates performance or observance subsequent to a termination of the Order Form, and any other provision that by its nature may reasonably be presumed to survive any termination of this Agreement or Order Form shall survive its termination.
- Third-Party Applications and Non-GA Services
- Acquisition of Third-Party Products and Services. HYPR may from time-to-time make available optional third-party products or services. Such products and services shall be designated by provider name in the applicable Order Form. Any acquisition by Customer of such third-party products and services, and any exchange of data between Customer and any third-party provider, is solely between Customer and the applicable third-party provider. HYPR does not provide, maintain, warrant, guarantee, indemnify for, or support products or services not provided by HYPR. If a product or service has been designated by HYPR as “Certified,” that indicates only that the interoperability of that product or service as previously provided to HYPR was tested and verified as interoperable at the time. No testing or assessment of any other features or functions of Third-Party Applications is performed as part of certification
- Non-GA Services. From time-to-time HYPR may invite Customer to try, at no charge, HYPR products or services that are not generally available to HYPR customers (“Non-GA Services”). Customer may accept or decline any such trial in its sole discretion. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES ARE NOT PART OF THE “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND. HYPR may discontinue Non-GA Services at any time in its sole discretion and may choose to never make them generally available.
- General Provisions.
- Independent Parties/Third Party Beneficiaries. Customer and HYPR are independent parties. Nothing in this Agreement will be construed to make either Party an agent, employee, franchisee, joint venturer or legal representative of the other Party. Neither Party will either have, or represent itself to have, any authority to bind the other Party or act on its behalf. Nothing in this Agreement is intended or shall be construed as a third party beneficiary agreement, nor shall this Agreement confer, convey or be deemed to accord any rights to any third party.
- Force Majeure. Neither Party shall be deemed to be in default of any provision of this Agreement, or for failure in performance of its obligations hereunder (excluding payment obligations), resulting from acts or events beyond the reasonable control of such Party, including acts of God, civil or military authority, acts or threats of terrorism, civil disturbance, war, riot, pandemic, strike or labor dispute (not related to either Party’s workforce), fires, floods, or act of government (each a “Force Majeure Event”). Such Force Majeure Event, to the extent it prevents a Party’s performance or any other undertaking under this Agreement, will extend the time for performance for as many days beyond the applicable performance date as is required to correct the effects of such Force Majeure Event.
- Notice. Notices under this Agreement shall be sent to the attention of the other party’s legal department and point of contact designated in an Order Form, as may be updated by a party from time-to-time by written notice. A copy of any notice to HYPR should also be sent to email@example.com. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the fifth business day after mailing, or (iii) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer in the Order Form.
- Assignment. Neither Party may assign or otherwise transfer this Agreement or any of its rights hereunder without the other Party’s prior written approval, which will not be unreasonably withheld, provided, however, that each Party may assign this Agreement, in its entirety and upon prior written notice to the other Party, in connection with a (i) transaction involving a change in control or (ii) sale or other disposition of all or substantially all of the assets, business or operations of the assigning Party. Any assignment or attempt to do so other than as provided in this Section will be void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Waiver, Modification, Severability, Cumulative Remedies.
- Waiver, Modification. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. No other course of conduct shall operate to waive, amend or modify this Agreement. The waiver by either Party of any of its rights or remedies in a particular instance will not be construed as a waiver of the same or different right or remedy in subsequent instances.
- Severability. All provisions of this Agreement are severable, and the unenforceability or invalidity of any of the provisions of this Agreement shall not affect the validity or enforceability of the remaining provisions of this Agreement.
- Injunctive Relief. Notwithstanding any other provision of this Agreement, both Parties acknowledge that any breach of this Agreement may cause the other party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, the parties agree that, in addition to any other remedy to which the disclosing party may be entitled hereunder, at law or equity, the disclosing party shall be entitled to seek an injunction to restrain such use in addition to other appropriate remedies available under applicable law
- Cumulative Remedies. Except as expressly provided to the contrary herein, all remedies set forth in this Agreement are cumulative and not exclusive of any other remedies at law or in equity, statutory or otherwise.
- Legal Compliance. Each Party shall perform its obligations in a manner that complies with all applicable laws and regulations, compliance with which is required of such Party or for which such Party is responsible hereunder. HYPR and Customer agree that they will individually obtain any export licenses that may be required under applicable U.S. laws prior to any export or re-export of Services or information provided under this Agreement. Customer represents and warrants that Customer and Customer’s Affiliates are not included in the U.S. Department of the Treasury, Office of Foreign Asset Control (OFAC) list of Specially Designated Nationals and Blocked Persons, US Department of Commerce, Bureau of Industry and Security (BIS) Denied Persons List, BIS Entity List, or BIS Unverified List and will promptly inform HYPR if Customer is included on any of the above-referenced lists.
- Publicity. Customer agrees that HYPR may add its name to the HYPR customer list and identify Customer as a HYPR customer on HYPR’s websites. Any further public use of Customer’s name in connection with HYPR’s marketing activities (e.g., press releases) will require Customer’s prior approval.
- Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of New York, U.S.A., excluding its conflicts of laws principles. Any controversy or claim arising out of or relating to this Agreement or the existence, validity, breach or termination thereof, whether during or after the Term, will be brought in the federal or state courts having jurisdiction over New York County, New York, to whose exclusive jurisdiction the Parties hereby irrevocably submit for such purposes. Both Parties hereby exclude the application of the Uniform Computer Information Transactions Act (“UCITA”), the United Nations Convention on the International Sale of Goods (“CISG”) and any law of any jurisdiction that would apply UCITA or CISG or terms equivalent to UCITA or CISG to this Agreement.
- Entire Agreement. This Agreement, Order Forms, and any schedules, exhibits and other incorporated attachments, constitute the complete and entire statement of all terms, conditions and representations of the agreement between HYPR and Customer with respect to its subject matter and supersede all prior agreements, writings or understandings, whether oral or in writing. No terms or conditions stated in a Customer order form or in any other Customer order documentation shall be incorporated into, or form any part of, this Agreement, and all such terms or conditions shall be null and void.
Terms of Service Definitions Exhibit
“Agreement” means, collectively, these terms of service, including documents incorporated herein, and applicable Order Forms as mutually executed by the Parties, and any amendments to the foregoing.
“Application Software” means certain software licensed by HYPR that Customer may distribute as part of a Customer Application in order to enable access to the SaaS Platform for the Permitted Use.
“Application End Users” means Customer’s own end-user licensees, each of whom is authorized to use the SaaS Platform as part of the Customer Application for the Permitted Use. The number of Application End Users shall be limited to the number specified in an Order Form. If Customer has not executed an Order Form, the number of Application End Users authorized will be as set forth in the HYPR Zero plan. Application End Users may include, for example, Customer’s employees, consultants, clients, external users, contractors, agents, and third parties with which Customer does business.
“Confidential Information” means any information disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with this Agreement, which is either marked as confidential (or words of similar import) or is of a nature or disclosed in such a manner as would put a reasonable person on notice as to the confidential or proprietary nature of the information. HYPR’s Confidential Information includes any technical or performance information about the Services.
“Customer Application” means the software solution developed by Customer in which the Application Software is integrated. “Customer’s Application” as defined herein, is limited to those software solutions which: (i) are accessed by Application End Users; (ii) add substantial functionality beyond the functionality provided by the incorporated components of the Application Software; and (iii) are not commercial alternatives for, or competitive in the marketplace with, the Application Software or any components of the Application Software.
“Customer Data” means all electronic data or information submitted by or on behalf of Customer to the SaaS Platform pursuant to this Agreement. For the avoidance of doubt, Customer Data does not include machine learning, know-how, statistics, or artificial intelligence developed by HYPR in and as part of the SaaS Platform during its normal operation (“AI”), provided that such AI is completely anonymized and cannot be traced back to Customer Data or to Customer in any manner.
“Customer Systems” means the networks, systems, IP addresses, assets, and/or hardware owned, licensed, accessed or controlled by Customer and accessed by Application End Users.
“Documentation” means the generally available technical documentation accompanying the Services.
“Data Protection Legislation” means all applicable laws and regulations relating to the processing of personal data under this Agreement.
“Fees” means collectively, the fees for the Services.
“Intellectual Property Rights” means collectively all patent, trade secret, trademark, copyright (including any moral rights or statutory termination rights), and similar rights for the protection of inventions, works of authorship, recordings, mask works, and identification of source or sponsorship for goods or services in commerce.
“Malicious Code” means viruses, worms, Trojan horses and other code, files, scripts, agents, or programs designed for a harmful or malicious purpose
“Order Form” means the mutually executed document(s) for placing orders for the Services under this Agreement that are entered into between Customer and HYPR.
“Party” means either HYPR or Customer, individually as the context indicates; and “Parties” means HYPR and Customer, collectively.
“Permitted Use” means the use by Application End Users solely for authentication purposes to enable access to the Customer Systems.
“SaaS Platform” means the specific hosted HYPR services ordered by Customer pursuant to the Order Form, as such services may be modified, enhanced and/or updated from time to time (such updates referred to collectively as “Revisions”).
“Services” means access to the SaaS Platform, associated software, including Application Software, and any Support Services or other services provided by or for HYPR under this Agreement.
“Usage Limitations” means those limitations on Customer’s use of the SaaS Platform as stated in the applicable Order Form or in the Documentation, including the number of permitted Application End Users.
“Website” means HYPR’s website available at https://www.hypr.com/ or successor sites.