The following Terms of Service (the “Terms“) govern Customer’s (as defined on the Order From) use of the Software (as defined below) as agreed on the Order Form. The Terms, together with the Order From, shall be referred to as the “Agreement.”
1. Access to Software.
1.1. License Grant. Subject to the terms and conditions of the Agreement, HyThere Corp. (“HyThere“) grants to Customer a non-exclusive, non-transferable, limited term, license to access and use the software as a service, which include applications developed, owned, and hosted by HyThere, as identified on the Order Form (the “Software“) solely for Customer’s internal business purposes. HyThere and its licensors reserve all rights in and to the Software not expressly granted to Customer. Customer will provide, at Customer’s location, hardware, software, and communications equipment which will allow Customer to access and use the Software. Customer will be responsible for providing all additional equipment and internet connectivity at its own expense.
1.2. Updates. From time to time, HyThere may make updates to the Software, which will be governed by these Terms. HyThere is not responsible for performance of updates in connection with any unauthorized plugins installed by Customer. Except as provided on an applicable Order Form, HyThere is not obligated to provide any updates or other modifications to Customer. Customer may purchase upgrades, which might include new features to the Software for an additional fee not to exceed the then-current price of such upgrades offered by HyThere.
1.3. Support Services. HyThere will provide routine support and troubleshooting services (“Support Services“) to Customer. Customer may request Support Services by emailing firstname.lastname@example.org.
1.4. Data Retention. HyThere will hold Customer data only as long as is necessary to implement, administer, and manage Customer’s use of the Software, or to comply with legal or regulatory obligations. When HyThere no longer needs Customer’s data for any of the foregoing purposes, Customer understands that HyThere will remove it from its systems. Customer further understands it is responsible for its own data retention and storage.
1.5. Sharing of Information. Customer understands and agrees that it has sole control and discretion over, and responsibility for, the information shared with users of the Software and other third parties with whom Customer interacts through the Software. HyThere has no control over any information shared with or by any user or third party through use of the Software, and HyThere shall have no responsibility or liability for any such sharing of information.
1.6. Security Practices. Throughout the term of this Agreement and at all times while Customer Confidential Information is in the possession or under the control of HyThere, HyThere shall establish and maintain commercially reasonable administrative, technical, and physical policies, procedures, and safeguards for the protection of Customer Confidential Information. “Confidential Information” means all non-public information disclosed by Customer to HyThere that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, and includes any information uploaded or submitted by Customer to the Software.
2. Restrictions on Use.
2.1. Customer may not: (a) copy or otherwise reproduce or permit the copying or other reproduction of all or any part of the Software except as otherwise permitted herein; (b) reverse engineer, decompile, disassemble or create derived works based on the Software; (c) modify, adapt, translate into other programming forms or languages or extend the Software to operate in other environments or on other platforms, except in accordance with these Terms; or (d) allow access to the Software by other software products for any purpose without prior approval of HyThere.
2.2. Customer shall not, or permit any user to, enter or upload into the Software any of the following information: (a) financial account or payment card information; (b) patient, medical, or other protected health information; (c) personal information of children under the age of eighteen (18) years; (d) social security, national identity, or similar personal identifiers; or (e) any other personal data or information subject to additional regulatory or industry privacy laws, rules, or requirements.
3. Fees and Payment. Customer will pay HyThere for the Software in accordance with the pricing set forth in the Order Form. Rates described on the Order Form are exclusive of taxes, levies, duties, governmental charges or expenses. If license fees for the Software are to be recurring, Customer will provide HyThere with valid and updated credit card information or as otherwise approved by HyThere. If Customer provides credit card information to HyThere, Customer authorizes HyThere to charge such credit card for all license fees as provided on the Order Form. Such charges shall be made in accordance with the billing frequency set forth in the Order Form. Fees remaining unpaid for more than sixty (60) days from receipt will accrue interest at a rate of the lesser of one and one-half (1.5%) percent per month or the highest rate allowed by law, whichever is less. Customer will be liable for all costs and expenses related to collection of past due amounts, including legal and other professional fees and expenses of litigation.
4. Proprietary Rights.
4.1. Software Applications. All right, title and interest (including all intellectual property rights embodied therein) in and to the Software and will remain the sole and exclusive property of HyThere or its licensors. These Terms grant Customer no title or right of ownership in or to the Software, or any component thereof including source code, or to any associated materials, documentation, intellectual property, or in or to any derivates of the Software, enhancements, modifications, or improvements thereto. Customer will not, at any time, take or cause any action, which would be inconsistent with or tend to impair the rights of HyThere or its affiliates in the Software. Customer may not remove or alter any proprietary or copyright notices, trademarks, or logos of HyThere.
5. Term and Termination. The Agreement will commence upon the Effective Date as stated on the Order Form and remain effective for the period set forth in the Order Form unless terminated as permitted in this Section (the “Initial Term“). Unless otherwise agreed upon in the Order Form, the Initial Term will automatically renew for successive one-year periods (together, the “Term“). Either party may terminate the Agreement if such party provides notice of termination at least sixty (60) days prior to the expiration of the Term. In the event of a breach of the Agreement, the non-breaching party may terminate the Agreement if the breach is not cured within ten (10) business days after notice of the same is given to the party alleged to be in breach. Termination of the Agreement will relieve HyThere of all obligations to provide Customer access to the Software and any licenses granted under the Agreement will immediately cease.
6.1. By HyThere. HyThere will indemnify and defend Customer and its affiliates, directors, officers, employees, and agents with respect to any claims, liabilities, damages, and expenses, including reasonable attorneys’ fees, arising out of any third-party claim that the Software as provided by HyThere infringes on any copyright, patent, trademark, trade secret, or other intellectual property right of any third party. Notwithstanding the foregoing, HyThere will have no obligation pursuant to the foregoing indemnification provision to the extent that any claim is based on or related to: (a) any use of the Software in violation of the Agreement, (b) any use of the Software in conjunction with any third-party service, data, hardware, or software not provided by HyThere, or (c) any material or data provided by Customer. If Customer’s use of the Software becomes, or is likely to become, the subject of an infringement claim, HyThere may, at its option and expense (i) procure the right for Customer to continue using the Software, (ii) replace or modify the infringing components of the Software with non-infringing components of substantially equivalent functionality, or (iii) terminate the Agreement and reimburse Customer any prepaid fees covering the remainder of the Term after the effective date of termination. The foregoing states the entire liability of HyThere with respect to this Section, and Customer hereby expressly waives any other remedies for infringement claims.
6.2. By Customer. Customer will indemnify and defend HyThere and its affiliates, directors, officers, employees, and agents with respect to any claims, liabilities, damages, and expenses, including reasonable attorneys’ fees, arising out of (a) Customer’s misuse of the Software; (b) Customer’s breach of any applicable laws or regulations; (c) a breach of any of Customer’s representations, warranties, obligations, covenants, or agreements under the Agreement; (d) Customer’s, or its user’s input or upload into the Software any information listed in Section 2.2; or (e) any sharing of information by Customer, a user, or third party through such party’s use of the Software.
6.3. Indemnification Procedures. A party seeking indemnification hereunder (an “Indemnified Party“) will give the party from whom indemnification is sought (the “Indemnifying Party“): (a) reasonably prompt notice of the relevant claim; (b) reasonable cooperation and assistance, at the Indemnifying Party’s request and expense, in the defense or settlement of such claim; and (c) sole control of the defense and settlement of any such claim; provided, however, that the Indemnifying Party will not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party will have the right to participate in the defense at its own expense.
7. WARRANTY AND WARRANTY DISCLAIMER.
7.1. No Harmful Code. HyThere warrants that: (a) the Software does not and will not contain any undisclosed feature, including, without limitation, a time bomb, virus, software lock, drop-dead device, malicious logic, worm, Trojan horse, or spyware, that is designed to (or that allow an untrusted party to be capable of) (i) accessing, modifying, or deleting in an unauthorized manner, or (ii) damaging, disabling, deactivating, interfering with, or otherwise harming any computers, networks, data, other electronically stored information, or computer programs or systems; and (b) to HyThere’s knowledge, the content and information contained in the Software is not materially incorrect or incomplete.
7.2. LIMITATION. EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN SECTION 7.1, ALL WARRANTIES, CONDITIONS, AND OTHER TERMS IMPLIED BY STATUTE, COMMON LAW, OR IN ANY OTHER WAY, INCLUDING ANY IMPLIED WARRANTIES AS TO QUALITY, PERFORMANCE, TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, AND USAGE OF TRADE, ARE EXCLUDED FROM THE AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS AND CUSTOMER’S USE OF THE SOFTWARE IS AT ITS OWN RISK. HYTHERE DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR COMPLETELY SECURE OR ERROR-FREE. FURTHER, USE OF OR CONNECTION TO THE INTERNET PROVIDES THE OPPORTUNITY FOR UNAUTHORIZED THIRD PARTIES TO CIRCUMVENT SECURITY PRECAUTIONS AND ILLEGALLY GAIN ACCESS TO THE SOFTWARE, HYTHERE’S SYSTEMS, AND CUSTOMER DATA AND CONFIDENTIAL INFORMATION. ACCORDINGLY, HYTHERE CANNOT AND DOES NOT GUARANTEE OR WARRANT THE PRIVACY, SECURITY, OR AUTHENTICITY OF ANY INFORMATION TRANSMITTED OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET. IN ORDER TO PROTECT CUSTOMER’S DATA AND CONFIDENTIAL INFORMATION, HYTHERE MAY SUSPEND CUSTOMER’S USE OF THE SOFTWARE IMMEDIATELY, WITHOUT PRIOR NOTICE, PENDING AN INVESTIGATION BY HYTHERE IF ANY BREACH OF SECURITY IS SUSPECTED.
8. Limitation of Liability. EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 6, IN NO EVENT WILL (A) HYTHERE BY LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE SOFTWARE; AND (B) HYTHERE’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER EXCEED THE AMOUNT PAID TO HYTHERE UNDER THE AGREEMENT DURING THE PREVIOUS TWO (2) MONTH PERIOD.
9.1. Assignment. Customer may not assign the Agreement or any right created hereunder without the prior written consent of HyThere. Any prohibited assignment is void. The Agreement shall inure to the benefit of the parties’ respective permitted successors and assigns
9.2. Amendments; Waiver; Severability. The Agreement may only be amended or modified in a writing duly executed by authorized representatives of both parties. Any waiver of any breach of any term or any condition of the Agreement will not be construed as a waiver of any subsequent breach of any term or condition of the Agreement. If any part, term, or provision of the Agreement will be held to be illegal or unenforceable it will not affect the validity or enforceability of the remainder of the Agreement. The parties will replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision.
9.3. Publicity. Customer agrees that HyThere may use Customer’s name and logo to identify Customer as a customer of HyThere on HyThere’s website, in investor documents, and in a list of HyThere’s customers for reference in HyThere’s marketing literature.
9.4. Disputes. The Agreement will be governed and construed in accordance with the laws of the State of Minnesota without giving effect its conflict of law principles. The 1980 U.N. Convention on Contracts for the International Sale of Goods does not apply to the Agreement. All disputes arising from or relating to the Agreement will be within the exclusive jurisdiction of the state and/or federal courts located within Hennepin County, Minnesota. Any claim arising from or related to the Agreement must be brought in the state or federal courts located in Minneapolis, Minnesota.
9.5. Entire Agreement. The Agreement, including the Order Form and any other exhibits, comprises the entire agreement between the parties relating to the subject matter hereof. The Agreement supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of the Agreement. The Agreement may be executed in several counterparts, each of which will be deemed to be an original, and all of which, when taken together, will constitute one and the same instrument. Sections 4 (Proprietary Rights), 7 (Warranty Disclaimer), 8 (Limitation of Liability), and 9 (Miscellaneous) survive termination of the Agreement.