Customer Agreement On-Premises
MASTER SUBSCRIPTION AGREEMENT
This Master Subscription Agreement, including the applicable Exhibit A governs Customer’s access to and use of HYPR products and services. By accepting this Agreement, which includes the Supplemental Terms selected, or by executing an Order Form that references this Agreement, Customer agrees to the terms and conditions herein. Each person executing this Agreement on behalf of a company or other legal entity represents that they have the authority to bind such entity to these terms and conditions. Each Party agrees that this Agreement, INCLUDING the Supplemental Terms selected and any mutually executed Order Forms and Statements of Work, states the Parties’ entire agreement on this subject matter, and neither Party’s representatives have authority to enter into side agreements or promises not expressly contained herein.
HYPR Corp Master Subscription Agreement
1.1 “Affiliate” means, when used with respect to a Party, any legal entity controlled by, controlling, or under common control with that Party, where “control” (and its derivatives) means: (a) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation, person, or other entity through the ownership of voting securities; or (b) direct or indirect ownership in the aggregate of fifty percent (50%) or more of any class of voting or equity interests in the other corporation, person, or entity.
1.2 “Agreement” means, collectively, this Master Subscription Agreement, applicable Supplemental Terms, Order Forms and SOWs as mutually executed by the Parties, and any amendments to the foregoing executed by authorized representatives of the Parties. No provisions of either Party’s pre-printed purchase orders, acknowledgements, or click-through terms may modify this Agreement, and such other or additional terms or conditions are void and of no effect. In the event of a conflict between other provisions of this Agreement and any Supplemental Terms, Order Form or SOW, the provisions of the Supplemental Terms, Order Form or SOW will govern and control, but only with respect to the Software or Services provided under the applicable Supplemental Terms, Order Form or SOW, as the case may be.
1.3 “Confidential Information” means with respect to either Party, any information disclosed by such 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. Without limiting the generality of the foregoing, Customer acknowledges that the Software and Documentation shall be deemed the Confidential Information of HYPR.
1.4 “Configuration Services” means the professional services, if any, as further described in a mutually executed SOW by which HYPR will provide support, training, or other assistance in Customer’s configuration and integration of HYPR solutions to Customer’s systems and requirements. For the avoidance of doubt, Configuration Services do not include custom development work or newly created deliverables which, if required by Customer and agreed to by HYPR, will be the subject of a separate agreement for professional services between the parties.
1.5 “Documentation” means the generally available technical documentation accompanying Software or Services, as may be further defined in the Supplemental Terms.
1.6 “Fees” means collectively, the fees for Software and Services.
1.7 “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.
1.8 “Master Subscription Agreement” means the terms and conditions contained in Sections 1 through 11 of this document, but excluding any Supplemental Terms, Order Forms or Statements of Work.
1.9 “Order Form” means the mutually executed document(s) for placing orders for Software or Services under this Agreement that are entered into between Customer and HYPR, including referenced attachments or supplements included with or incorporated into the Order Form.
1.10 “Party” means either HYPR or Customer, individually as the context indicates; and “Parties” means HYPR and Customer, collectively.
1.11 Personal Data” means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
1.12 “SaaS Platform” means the online, Software-as-a-Service applications and platform made available by HYPR under this Agreement via https://www.hypr.com/passwordless-authentication as the same may be updated from time-to-time (such updates referred to collectively as “Revisions”).
1.13 “Services” means access to the SaaS Platform, and any Support Services, Configuration Services, or other services provided by or for HYPR under this Agreement.
1.14 “Software” means the HYPR software specified in an Order Form, provided to Customer and described in the Documentation.
1.15 “Statement of Work” or “SOW” means a statement of work or professional services supplemental terms executed by HYPR and Customer pursuant to this Agreement, which describes, among other things, certain Configuration Services to be provided by HYPR to Customer. Upon execution by both Parties, each Statement of Work will be deemed to be a part of this Agreement.
1.16 “Supplemental Terms” mean the supplemental terms to this Master Subscription Agreement executed by the Parties or attached hereto, and containing additional terms and conditions that govern the acquisition of Software or Services.
1. Ordering Procedure. The Parties agree that the Agreement governs transactions whereby Customer may procure Software and/or Services from HYPR by submitting an Order Form to HYPR. Each purchase of Configuration Services shall also be evidenced by a SOW.
2. Invoicing, Payment Terms, and Taxes.
2.1. Invoicing and Payment. HYPR shall invoice Customer as provided in the applicable Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net thirty (30) days from the invoice date. Customer shall pay to HYPR all Fees or other costs due hereunder in U.S. dollars. All Fees are non-refundable. With respect to any amount due to HYPR which is not paid within thirty (30) days following the date of Customer’s receipt of HYPR’s invoice, HYPR may apply interest at the rate of one and one-half percent (1½%) per month, or such lesser amount required by law, assessed from the due date through the date of payment.
2.2. Taxes. Customer shall, in addition to the other amounts payable under this Agreement, bear and pay all sales and other taxes, federal, state or otherwise, however designated that are levied or imposed by reason of the transactions contemplated hereunder, but excluding taxes on HYPR’s income. Without limiting the foregoing, if any such taxes are imposed upon and paid by HYPR, Customer shall reimburse HYPR within thirty (30) days of receipt of an invoice from HYPR for such amount. If, at any time, Customer claims that its purchase of Software or Services hereunder is exempt from any taxes, it shall be Customer’s responsibility to provide HYPR with the appropriate tax exemption certificate(s). In the absence of valid proof of exemption, HYPR reserves the right to charge Customer for, and Customer agrees to pay, the applicable taxes.
2.3 Suspension of Service. 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 and, if applicable, Customer’s access to the SaaS Platform 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 to Customer and, if applicable, Customer’s access to the SaaS Platform.
3. Warranty Disclaimer. HYPR DOES NOT WARRANT THAT ANY INFORMATION, COMPUTER PROGRAM, HYPR’S EFFORTS OR ANY SOFTWARE OR SERVICES PROVIDED BY HYPR WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES OR NEEDS, NOR DOES HYPR WARRANT THAT THE OPERATION OF THE SOFTWARE OR ACCESS TO OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT AS EXPRESSLY STATED IN ANY SUPPLEMENTAL TERMS, 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.
4. Confidential Information.
4.1 Confidentiality. The Receiving Party shall keep the Disclosing Party’s Confidential Information confidential and secure 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 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. 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. The Receiving Party shall promptly notify the Disclosing Party in writing of any actual or suspected loss or unauthorized use, disclosure, or access of the Disclosing Party’s Confidential Information of which it becomes aware, and take all steps necessary to limit, stop, or otherwise prevent such loss or unauthorized use, disclosure, or access.
4.2 Exclusions. The term “Confidential Information” does not include any information as to which the Receiving Party is able to demonstrate: (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.
4.3 Representatives. The Receiving Party will restrict the possession, knowledge, and use of the Disclosing Party’s Confidential Information to its and its Affiliates’ officers, directors, employees, professional advisors, or subcontractors (collectively, “Representatives”) who have a need to know such Confidential Information for purposes directly related to the exercise of its rights and discharge of its responsibilities as set forth in this Agreement, and who are bound, in writing or by enforceable professional obligation, to obligations of confidentiality no less restrictive than those set forth herein. Without limiting the effect of the foregoing, the Receiving Party shall take reasonable actions, legal or otherwise, necessary to cause its Representatives to comply with the provisions of this Section 5 and to prevent any unauthorized disclosure of the Disclosing Party’s Confidential Information by any of them. The Receiving Party shall be responsible for the acts and omissions of its Representatives with respect to the Disclosing Party’s Confidential Information.
4.4 Certain Information. The Parties hereby agree to comply with all applicable national and international laws, regulations, notices, and guidelines relating to data privacy (collectively, “Data Privacy Laws”) provided, however, that Customer hereby represents, warrants, and covenants that: (i) it shall not use the Software or Services to store, reproduce, process, or transmit any Personal Data without HYPR’s prior written consent, which may be withheld by HYPR at its sole discretion; and (ii) prior to any approved transfer to HYPR of any Personal Data or other data protected by Data Privacy Laws, it will comply with such Data Privacy Laws (including, if applicable, with respect to the obtaining of specific written consent from such individual) prior to such transfer.
4.5 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.
4.6 Injunctive Relief. Each Party acknowledges that the unauthorized disclosure or use of the Disclosing Party’s Confidential Information by the Receiving Party may irreparably damage the Disclosing Party in such a way that adequate compensation could not be obtained from monetary damages alone in an action at law. Accordingly, the actual or threatened unauthorized disclosure or use of any Confidential Information shall give the Disclosing Party the right to seek injunctive relief restraining such unauthorized disclosure or use, without the necessity of proving actual damages, in addition to any other remedy otherwise available to the Disclosing Party.
5. Feedback. HYPR shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Software and/or 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 Software and/or Services, and expressly excluding any Customer Confidential Information.
6.1 Obligation. HYPR shall defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the Software or the Services, or Customer’s use of the Software or Services as permitted hereunder infringes or misappropriates the Intellectual Property Rights of a third party (each a “Third Party Claim”), and shall indemnify Customer for any out-of-pocket damages, attorney fees, costs, judgments, and approved settlement payments, incurred in defending such Third Party Claim (collectively, “Losses”).
6.2 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 Software or Service being modified by, combined with, added to, interconnected with or used with any equipment, apparatus, device, data, software or service not supplied or approved by HYPR in writing (including in the applicable Documentation); (c) the modification to Software or a Service by any person or entity other than HYPR; or (d) use of Software or a Service other than in accordance with its Documentation.
6.3 Remedies. If a Third Party Claim for which Customer is entitled to be indemnified under Section 7.1 above 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 Software or Service; (b) replace with non-infringing alternates or modify the relevant Software or Service so that it becomes non-infringing, but its functionality after modification is substantially equivalent; (c) accept the return of the affected Software, and refund to Customer the pro-rata portion of Fees that Customer actually paid to HYPR for the affected Software corresponding to periods following such termination; or (d) cease providing the Service and refund any prepaid Fees applicable to the period after the Service has ceased. The collective obligations of HYPR pursuant to Section 7.1 and this Section 7.2 are the sole and exclusive liability of HYPR, and Customer’s sole and exclusive remedy, with respect to intellectual property infringement or misappropriation.
6.4 Process. Promptly after Customer obtains knowledge of the existence or commencement of a Third Party Claim for which it is entitled to be indemnified under Section 7.1 above, Customer will notify HYPR of such Third Party Claim in writing, provided, however, that any failure to give such notice will not waive any rights of Customer except to the extent that the rights of HYPR are actually prejudiced or liability increased by such failure. HYPR will have exclusive control of the defense and settlement of such Third Party Claim; provided, however, that Customer may join in the defense and settlement of such Third Party Claim and employ counsel at its own expense, subject to HYPR’s ultimate control of the defense and settlement of such Third Party Claim. HYPR may settle any Third Party Claim without Customer’s written consent unless such settlement: (a) does not include a release of all covered claims pending against Customer; or (b) imposes any obligations upon Customer other than an obligation to cease using any infringing items.
7. Limitation of Liability.
7.1 Limitations. SUBJECT TO SECTION 8.2 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR: (a) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING LOSS OF USE, LOSS OF OR DAMAGE TO RECORDS OR DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, LOST REVENUE AND/OR PROFITS, SUSTAINED OR INCURRED REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE, STRICT LIABILITY, INDEMNITY (EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT) OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN AND REGARDLESS OF WHETHER SUCH PARTY HAD RECEIVED NOTICE OR HAD BEEN ADVISED, OR KNEW OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; OR (b) DIRECT DAMAGES IN EXCESS OF THE AMOUNT PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM OR SOW OVER THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH LIABILITY AROSE. MULTIPLE CLAIMS SHALL NOT EXPAND THIS LIMITATION.
7.2 Exclusions. The limitations in Section 8.1 above shall not apply to: (a) damages occasioned by the breach by either Party, including by their Representatives, of its obligations of confidentiality under Section 5 above; (b) Losses payable by HYPR in accordance with its indemnification obligations pursuant to Section 7 above; (c) either Party’s indemnification obligations as may be set forth in any Supplemental Terms or SoW; (e) a Party’s gross negligence or willful misconduct; or (f) Customer’s payment obligations.
8. Term and Termination.
8.1 Term of Master Subscription Agreement. Subject to the terms and conditions of this Agreement, the term of this Master Subscription Agreement shall commence on the Effective Date and continue until terminated in accordance with this Section 9 (the “Master Subscription Agreement Term”). Unless otherwise provided herein or in the Supplemental Terms, the termination of this Master Subscription Agreement will not operate to terminate any existing Order Forms or SOWs, and the terms of this Master Subscription Agreement shall continue to govern such Order Forms and SOWs until completion or the earlier termination of such Order Forms and SOWs in accordance with this Agreement.
8.2 Term of Software License or SaaS Platform Subscriptions. Software licenses and SaaS Platform 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 or the Supplemental Terms (the “Subscription Term”). If no initial term is specified in the Order Form, the initial term shall be for one (1) year.
8.3 Termination. Either Party may terminate this Agreement, any Order Form or SOW 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; and 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.
8.4 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.
8.5 Survival. Any provision of this Master Subscription Agreement, any Supplemental Terms, SOW 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 Supplemental Terms, SOW or Order Form, and any other provision that by its nature may reasonably be presumed to survive any termination of this Master Subscription Agreement, any Supplemental Terms, SOW or Order Form shall survive its termination.
9.1 General. Notices under this Agreement shall be sent to a party at the address listed on the cover page of these terms and conditions, as may be updated by a party from time-to-time by written notice.
9.2 Manner of Giving Notice. 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, (iii) the next business day after sending by confirmed facsimile, or (iv) 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.
10. General Provisions.
10.1 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.
10.2 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.
10.3 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 11.3 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.
10.4 Waiver, Modification, Severability, Cumulative Remedies.
10.4.1 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.
10.4.2 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.
10.4.3 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.
10.5 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 Software or 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.
10.6 Publicity. Following the execution of this Master Subscription Agreement by both Parties, HYPR shall have the right to issue a press release regarding its relationship with Customer (the “Press Release”). Customer agrees to contribute a quote from a Customer employee involved with the relationship with HYPR to be used in the Press Release. HYPR shall provide a draft of the Press Release to Customer for its review and, within five (5) business days following its receipt of the draft, Customer shall provide HYPR with any proposed changes to the Press Release. Customer agrees to allow HYPR full use of Customer logo as a reference customer on HYPR’s website and marketing properties. Notwithstanding anything to the contrary contained herein, HYPR agrees that it will not make, issue, or release any public statement (including the Press Release), announcement, or acknowledgement of the existence of, or reveal the status of, the Agreement or the terms or transactions provided for herein, without first obtaining the written consent of Customer.
10.7 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.
10.8 Entire Agreement. This Agreement, mutually executed Supplemental Terms, Order Forms and SOWs, 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 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.
Software License Supplemental Terms
These Software License Supplemental Terms (“Software Supplemental Terms”) are an addendum to the HYPR Master Subscription Agreement, and apply to Customer‘s use of the Software specified in the applicable Order Form executed by the Parties. Capitalized terms not defined herein the will have the meanings given to them in the Master Subscription Agreement.
1. Additional Definitions.
1.1 “Authorized End User” means Customer’s own end-user licensees, each of whom is authorized to use the Redistributables as part of the Customer Application for the Permitted Use. The number of Authorized End Users shall be limited to the number specified in an Order Form. Users may include, for example, Customer’s employees, consultants, clients, external users, contractors, agents, and third parties with which Customer does business.
1.2 Availability Date” shall mean either (i) the date the Software becomes available for download, if HYPR is not responsible for installing the Software; or (b) the completion of installation, if HYPR is responsible for such installation.
1.3 “Customer Application” means the software solution developed by Customer in which the Redistributables are integrated. “Customer’s Application” as defined herein, is limited to those software solutions which: (i) are accessed by Authorized End Users; (ii) add substantial functionality beyond the functionality provided by the incorporated components of the Software; and (iii) are not commercial alternatives for, or competitive in the marketplace with, the Software or any components of the Software.
1.4 “Customer Systems” means the networks, systems, IP addresses, assets, and/or hardware owned, licensed, accessed or controlled by Customer and accessed by Authorized End Users.
1.5 “Location” means the location set forth in the Order Form where Customer may install and operate the server portions of the Software.
1.6 “Permitted Use” means use of the Software solely for authentication purposes to enable access to the Customer Systems.
1.7 “Redistributables” means code contained in the Software that Customer may distribute as part of the Customer Application for the Permitted Use.
1.8 “Software Compliance Audit(s)” has the meaning assigned to that term in Section 3.
1.9 “Third Party Software” means any third party software, including without limitation, any freeware or open source software embedded within the Software.
1.10 “Update” means, as designated by HYPR, an updated version of the Software which constitutes a revision, new release, update, improvement, modification and/or additional functionality enhancement, and which is made available to all licensees of the Software entitled to receive support, as described in Section 6.
1.11 “Warranty Period” has the meaning assigned to that term in Section 4.1
2. Software License.
2.1. License. During the Subscription Term, HYPR grants to Customer a non-exclusive, non-transferable, fully-paid license to use the Software specified in the Order Form, together with the Documentation, at the Location for the Permitted Use. Such use shall be on the terms and subject to the conditions set forth in the Agreement, including these Supplemental Terms. Authorized End Users accessing portions of the Software via computing devices or otherwise remotely for the Permitted Purpose as set forth in Section 2.2 may be located worldwide.
2.2 Redistribution. During the Subscription Term, Customer may distribute (i) the Redistributables in object code form as embedded in the Customer Applications for the Permitted Use. For purposes of this Section 2.2, the term “distribute” also means deployment of the Customer Applications for Authorized 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 Redistributables: 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 Authorized End Users; prohibit distribution of the Redistributables by Authorized 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 Redistributables, 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 Authorized End Users’ compliance with the end user license requirements set forth in this Section.
2.3 Restrictions. Except as otherwise permitted by this Agreement, Customer will not, and will not permit any third party to access, sublicense, rent, copy, modify or create derivative works of the Software without the prior written consent of HYPR. Except as permitted under these Supplemental Terms, Customer will not, and will not permit any third party to use the Software on a time-sharing, remote job entry or other multiple user arrangement. Nothing in this Agreement will entitle Customer to receive the source code to the Software, in whole or in part, unless otherwise agreed.
2.4 Ownership. This is a license agreement and not an agreement for sale. No title or ownership of the Software or Documentation is transferred to Customer by way of these Supplemental Terms. Title and ownership of the Software, Documentation, any trademarks or service marks of HYPR, and all modifications, enhancements, improvements, adaptations, translations and derivative works thereof and thereto, and any other Intellectual Property Rights therein or thereto, shall remain at all times with HYPR. The Software and Documentation contain material that is protected by United States and international copyright law and trade secret law, and by international treaty provisions. All rights not expressly granted to Customer herein are reserved to HYPR.
2.5 Proprietary Notices; Copies. Customer shall not remove any proprietary notice of HYPR from any copy of the Software or Software Documentation. Customer may make a reasonable number of copies of the Documentation, provided such reproductions shall include any copyright or proprietary labels, legends or notices placed upon or included in the Documentation by HYPR. Customer may make one (1) back-up archival copy of the Software, provided Customer reproduces all confidentiality and proprietary notices on such copy.
2.6 Unauthorized Use; Indemnification. Customer shall be directly responsible to HYPR for the acts and omissions of any third party that accesses any portions of the Software through, or under rights granted to, Customer. Customer shall defend HYPR against any claim, demand, suit, or proceeding made or brought against HYPR, its affiliates, officers, directors and employees the “HYPR Indemnitees, by a third party resulting from, or arising out of: (a) Customer’s or any Authorized End Users’ use of the Software in violation of this Agreement, and (b) any claim against HYPR (i) brought by or on behalf of any Authorized End User or (ii) arising from a Customer Application, in each case that is not a claim described in Section 6.1 of the Master Subscription Agreement and shall indemnify and hold HYPR Indemnitees harmless from and against any Losses.
2.7 Future Functionality. Customer acknowledges and agrees that the Software licensed hereunder is neither contingent on the delivery of any future functions or features, nor ordered in reliance on any oral or written public comments made by HYPR regarding future functions or features.
3. Audit Rights. Upon reasonable prior written notice to Customer, HYPR shall have the right to inspect, examine, and audit Customer’s compliance with the terms and conditions of this Section 1, including the inspection of the records relating to Customer’s and Authorized End Users’ use of the Software, including at the locations where the server portions of the Software are installed and used (“Software Compliance Audit(s)”). Software Compliance Audits shall be performed by HYPR or HYPR’s representatives during Customer’s normal business hours at the locations where the Software is installed and used, provided that HYPR’s right to perform a Software Compliance Audit shall be limited to no more than once during any rolling twelve (12) month period. In the event that a Software Compliance Audit reveals that Customer is using more licenses of the Software than for which it has paid, HYPR shall invoice Customer and Customer shall, within ten (10) days after the date of Customer’s receipt of HYPR’s invoice, make payment to HYPR for such additional Software licenses.
4.1. HYPR warrants that, during the period beginning upon the Availability Date (as defined below) of the applicable Software and ending on the date that is ninety (90) days thereafter (“Warranty Period”), the Software will be free from defects in materials and workmanship under conditions of normal use and will operate substantially in accordance with the applicable Software Documentation.
4.2. Should the Software fail to comply with the warranty set forth in Section 4.1 above during the Warranty Period, Customer’s sole and exclusive remedy and HYPR’s sole obligation with respect to Software shall be, in HYPR’s sole discretion, to correct or replace any portion of the Software not in compliance with Section 4.1 at no additional charge to Customer.
4.3. The warranty provided in Section 4.1 above does not include damage to Software resulting from a cause other than a defect or malfunction, including: (a) installation, maintenance, servicing or modification of the Software or part thereof performed by anyone other than HYPR; or (b) use of the Software other than in accordance with the Software Documentation.
4.4. HYPR warrants that, prior to delivery to Customer, the Software shall have been screened by HYPR, utilizing commercially standard and updated scanning tools, for any virus, drop-dead device, malicious logic, worm, Trojan horse, or trap or back door, and any such code identified by such tools shall be removed by HYPR. Customer acknowledges that a time-limited license key may be required in order for Customer to utilize the Software.
4.5. To the extent that HYPR includes any Third Party Software within the Software: (a) HYPR shall be fully responsible and liable for the representations, warranties and other obligations set forth herein with regard to such Third Party Software; (b) such Third Party Software shall be deemed to be included within the definition of Software, unless otherwise expressly agreed, in writing; and (c) such Third Party Software shall not obligate Customer to disclose or make available the source code of any Customer software, systems or data. Notwithstanding the foregoing, any open source software that may be delivered by HYPR embedded in or in association with HYPR products is provided pursuant to the open source license applicable to such software.
5. Delivery. HYPR shall deliver the Software to the Customer via HYPR’s electronic software delivery system. If applicable, HYPR shall provide email notification to Customer of the date on which the Software becomes available for download.
6. Support Services; Updates.
6.1 Support Services. HYPR offers support services in accordance with HYPR support plans described at https://www.hypr.com/support/. HYPR shall provide Customer with support services at the Standard Plan level, unless otherwise specified in the Order Form.
6.2 During the Subscription Term, HYPR shall provide to Customer all Updates at no additional charge, as and when released by HYPR.
7. Term and Termination of Software License.
7.1 Subscription Term; Renewal. These Software Supplemental Terms shall continue in effect throughout the applicable Subscription Term, unless earlier terminated in accordance with these Software Supplemental Terms or the Master Subscription Agreement. Notwithstanding anything to the contrary contained herein, HYPR shall be under no obligation to authorize use of the Software by Customer unless and until the associated license Fees are paid by Customer. Except as otherwise set forth in the applicable Order Form, Customer’s license for such Software shall automatically renew upon the expiration of the then-current Subscription Term, for the same subscription term, unless a party notifies the other party in writing at least sixty (60) days prior to the expiration of the then-current Subscription Term that it does not desire to so renew.
7.2 Notwithstanding anything to the contrary contained in Section 9.2 of the Master Subscription Agreement, HYPR shall have the right to terminate the license for the Software granted hereunder by giving written notice of termination to Customer, if Customer fails to pay the specified license Fees for the Software when due, or fails in any other material respect to comply with its obligations regarding the use and protection of the Software and Documentation, and such failure to pay or to comply is not remedied within ten (10) days after Customer receives written notice thereof from HYPR.
7.3 Effect of Termination. Upon termination of these Software Supplemental Terms by HYPR pursuant to Section 7.2 above or Section 9.2 of the Master Subscription Agreement, Customer shall pay to HYPR all unpaid license Fees which have not become due (including any applicable taxes) under any active Order Form for the then-current Order Form Subscription Term(s), which shall automatically accelerate to the date of HYPR’s termination of these Software Supplemental Terms. Any such payment shall be deemed liquidated damages, and not a penalty.
7.4 Return of Software. Upon the termination of the license for the Software by HYPR pursuant to Section 7.2 above or in accordance with Section 9 of the Master Subscription Agreement, Customer shall: (a) within thirty (30) days after the date of termination of the license, and at HYPR’s option, destroy or return to HYPR all copies of the Software and Documentation; and (b) upon the destruction or return of all copies of the Software and Software Documentation, certify to HYPR in writing that it has either destroyed or returned to HYPR all copies of the Software and Documentation.