End User License Agreement

This End User License Agreement, together with any Order Form (as defined below) or Statement of Work (as defined below) collectively constitute a binding agreement (the “Agreement”), is made by and between Hyper Labs, Inc., d/b/a Hyperscience, a Delaware corporation (“Hyperscience”) and the End User of the Hyperscience software (“Licensee”). The Agreement shall also apply if Licensee purchases a right to use the Software (as defined in Section 1(a) below) and Services (as defined in Section 2(b) below) pursuant to an Order Form entered into between Licensee and a Hyperscience-authorized agent, vendor, or reseller of the Software and Services (an “Authorized Reseller”).

THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS THE USE OF AND ACCESS TO THE HYPERSCIENCE SOFTWARE AND SERVICES DESCRIBED HEREIN BY YOU, YOUR AGENTS AND YOUR OTHER AUTHORIZED END-USERS.


BY USING THE HYPERSCIENCE SOFTWARE, OR AUTHORIZING OR PERMITTING ANY THIRD PARTY TO ACCESS OR USE THE HYPERSCIENCE SOFTWARE, YOU AGREE TO BE BOUND BY THIS AGREEMENT AS OF THE DATE OF SUCH ACCESS OR USE (THE “EFFECTIVE DATE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, ORGANIZATION OR ANOTHER LEGAL ENTITY, YOU ARE AGREEING TO THIS AGREEMENT FOR THAT ENTITY AND REPRESENTING TO HYPERSCIENCE THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS SET FORTH IN THIS AGREEMENT YOU MUST NOT USE OR AUTHORIZE ANY USE OF THE HYPERSCIENCE SOFTWARE.

As used herein: (a) the term “Order Form” means a document agreed to and executed by each of Hyperscience (or an Authorized Reseller) and Licensee that references this Master Software License Agreement and identifies the software application(s) that are licensed to Licensee hereunder, and (b) the term “Statement of Work” means a document agreed to and executed by each of Hyperscience and Licensee that references this Master Software License Agreement and identifies any Services to be provided by Hyperscience to Licensee.  All Order Forms and Statements of Work shall be deemed part of and subject to this Master Software License Agreement.  In the event of inconsistencies or conflicts between this Master Software License Agreement and any Order Form or Statement of Work, the terms of this Master Software License Agreement will control, unless the Order Form or Statement of Work expressly states that it supersedes a specifically-identified provision in this Master Software License Agreement

In consideration of the mutual promises contained herein, the parties hereby agree to the following:

1. LICENSE.

  1. Grant.
    1. Hyperscience hereby grants Licensee a non-transferable, non-sublicensable, non-exclusive license during the term of the applicable Order Form (the “License”) (a) to install and use the software application(s) set forth on the applicable Order Form (the “Software”) in the Territory set forth on such Order Form in executable form as made available by Hyperscience for Licensee’s internal use on computers it owns or controls, up to the use limits indicated on such Order Form (and thereafter subject to any overage fees indicated on such Order Form); and (b) to make and use a reasonable number of copies of any written or online descriptions of the functionality, technical requirements, or use of the Software provided by Hyperscience (collectively, “Documentation”). The License includes the right to use any modifications, improvements, bug fixes, or other new versions of the Software made available to all licensees of such Software (each, an “Update”) at no additional cost as and when each Update is made generally available. This license should be strictly construed. It is understood that any use exceeding the license granted above will be deemed a material breach of this Agreement. Any rights not expressly granted in this Agreement are expressly reserved by Hyperscience.)
    2. Hyperscience may make additional features or modules for the Software (i.e., industry-specific templates) available for an additional fee during the Term (each such offering, a “Module”). Modules are not required for the proper functioning of the Software, and will be made available to Licensee when made available to other Hyperscience customers.
  2. Restrictions. Except as explicitly permitted in this Agreement, Licensee will not, directly or indirectly, attempt to or allow any third party to: 
    1. modify or create derivative works of the Software;
    2. decompile, reverse engineer, or otherwise translate any portion of the Software into human-readable form (except to the extent that this subsection is limited by applicable law, in which case Licensee must inform Hyperscience in writing before exercising this right); 
    3. rent, lease, share, distribute, or sell the Software to any third party, including on a time sharing, service bureau, or other similar basis; 
    4. remove, alter or deface proprietary notices, labels or marks in the Software or Documentation;
    5. disclose the results of testing or benchmarking of any Software;
    6. circumvent or disable the Software’s copyright protection mechanisms or license management mechanisms;
    7. use the Software in violation of any applicable law or to violate the rights of any third party; or 
    8. use the Software to create a product that competes with the Software.
  3. Data. The term “Licensee Data” means (i) any data provided or transmitted by Licensee into the Software, and (ii) the Licensee-specific output resulting from Licensee’s use of the Software.  Licensee Data will be stored and analyzed locally on Licensee’s information systems, and no such data will be transmitted to Hyperscience.  Licensee shall own all Licensee Data. Notwithstanding anything to the contrary herein, Licensee acknowledges and agrees that Hyperscience shall have the right, during and after the Term, to collect, analyze, use, and disclose Usage Data for the purposes of calculating overage fees, if any, contributing to analytical models used by Hyperscience, improving the Software, performing services related to the Software, and for other development, diagnostic, and corrective purposes in connection with the Software and any other Hyperscience offerings.  The term “Usage Data” means data related to the performance of the Software and generated by Licensee’s use of the Software, including but not limited to average processing and response times, total pages processed, total forms processed, percentage of fields correctly transcribed, average time per transcription, activity logs, and other performance related data and usage statistics. For clarity, Usage Data will not include any personally identifiable information.  Licensee agrees to provide to Hyperscience, on a monthly basis during the Term, Usage Data in the format and medium enabled by the Software or as otherwise reasonably requested by Hyperscience.
  4. Support. As part of the License, Hyperscience will (i) use commercially reasonable efforts to promptly resolve issues with the Software reported via email in accordance with our Service Level Agreement available at: https://hyperscience.com/sla (as may be amended from time to time by Hyperscience without notice to Licensee), (ii) provide Licensee with all Updates at no additional cost, and (iii) provide Licensee with access to standard Documentation, which may be online.  Hyperscience will support and accept support requests for only the latest major release version of the Software and the two immediately preceding major release versions.  Licensee will install the latest major release version of the Software as soon as reasonably practicable after it is made available by Hyperscience.
  5. Ownership
    1. Software. Hyperscience and its suppliers retain ownership of all right, title and interest in and to the Software (including all intellectual property rights therein) and any modifications and derivative works thereof.
    2. Usage Data. Hyperscience retains ownership of all right, title and interest in and to Usage Data and any modifications and derivative works thereof.
    3. Licensee Data. Licensee retains ownership of all right, title and interest in and to the Licensee Data.

2. SERVICES.

  1. Services. Licensee may request, and Hyperscience may agree to provide certain services, which may be performed by or in partnership with Hyperscience’s approved subcontractors, in connection with Licensee’s use of the Software (“Services”), including additional support services and services related to the implementation or integration of the Software with Licensee’s systems. The terms, requirements, and pricing for any Services will be agreed to and set forth in one or more Statements of Work.
  2. Hyperscience Obligations. Hyperscience will use commercially Reasonable Efforts: (i) to perform the Services and deliver the Deliverables (as defined in any applicable SOW) to Licensee; (ii) meet agreed performance dates or milestones specified in a Statement of Work, but any such dates shall be estimates only.
  3. Licensee Obligations. Licensee will: (i) co-operate with Hyperscience in all matters relating to the Services; (ii) provide Hyperscience, its agents, subcontractors, consultants and employees, with access to Licensee’s premises, data and other facilities as reasonably required by Hyperscience to perform the Services and its other obligations pursuant to this Agreement; and (iii) provide to Hyperscience in a timely manner all documents, information, items and materials in any form required under a Statement of Work or otherwise reasonably required by Hyperscience in connection with the Services.

3. FEES.

  1. Fees. Licensee will pay Hyperscience (or the applicable Authorized Reseller) the amounts set forth on the applicable Order Form for the License and set forth on the Statements of Work for any Services performed by Hyperscience (collectively, the “Fees”). Licensee acknowledges and agrees that any use of the Software to process pages in excess of any use limits specified in an Order Form will be subject to the overage fees indicated on such Order Form. Unless otherwise set forth on an Order Form, all Fees for the License for the Order Form Initial Term (defined below) will be invoiced in full upon execution of the applicable Order Form. Hyperscience (or an Authorized Reseller) may modify the Fees for the License for any Order Form Renewal Term (defined below) by providing at least sixty (60) days written notice thereof prior to the expiration of the Order Form Initial Term or the then-current Order Form Renewal Term. Fees for any Order Form Renewal Term will be invoiced within thirty (30) days after the start of such Renewal Term. Notwithstanding the foregoing, if Licensee’s internal policy requires it to issue a purchase order to Hyperscience or the Authorized Reseller (in addition to executing the applicable Order Form) prior to Licensee paying any Fees for the Order Form Initial Term or any Order Form Renewal Term, then Licensee must (i) notify Hyperscience or the Authorized Reseller in writing of such requirement prior to the start of the Order Form Initial Term and each Order Form Renewal Term (if any), and (ii) issue such purchase order to Hyperscience or the Authorized Reseller within fifteen (15) days after the start of the Order Form Initial Term and each Order Form Renewal Term (if any).  If applicable and whether or not Licensee issues such purchase order, Hyperscience or the Authorized Reseller will invoice Licensee for the applicable Fees due promptly following such fifteen (15) day period.  Licensee must pay all undisputed Fees identified in an invoice within forty-five (45) days of receipt of the applicable invoice.
  2. Billing Policies and Procedures. Payment(s) shall be made in accordance with the policies and procedures set forth on the applicable Order Form or Licensee purchase order (as may be amended from time to time), or in accordance with such other invoicing methods as Licensee shall reasonably request in writing.
  3. Late Payments; Disputed Fees. Hyperscience or the Authorized Reseller may assess a late payment charge of one and one-half percent (1.5%) per month or the maximum rate allowed under applicable law, if less, on any Fees that are not received when due. Licensee may dispute Fees by providing written notice prior to the date such Fees are due with reasonable specificity of the grounds for such dispute. The parties will work in good faith to promptly resolve such disputes. Licensee will pay the undisputed amounts on any invoice when due, regardless of a dispute regarding other amounts on such invoice.
  4. Taxes. The Fees do not include any taxes, duties or similar assessments that may be imposed on the Services or License (“Taxes”). Licensee will be responsible for paying all Taxes associated with Licensee’s receipt of the License and Services (except for Taxes based on Hyperscience’s income).

4. TERM AND TERMINATION.

  1. Term of this Agreement. This Agreement will commence on the Effective Date and, unless earlier terminated in accordance with the terms of this Agreement, will remain in effect for one (1) year following the expiration of the last applicable Order Form or Statement of Work unless earlier terminated in accordance with this Section 4 (the “Term”).
  2. Term of Order Forms.  The initial term of each Order Form will commence on the date set forth in such Order Form and, unless earlier terminated in accordance with Section 4(c), will remain in effect for the “Initial Term” specified therein (the “Order Form Initial Term”).  If a “Renewal Term” is specified in an Order Form, upon the expiration of the applicable Order Form Initial Term, such Order Form will automatically renew for successive periods equal to the length of the “Renewal Term” specified in such Order Form (each, an “Order FormRenewal Term”) unless either party notifies the other in writing of an intent not to renew at least thirty (30) days prior to the expiration of the Order Form Initial Term or the then-current Order Form Renewal Term (or upon written notice provided to an Authorized Reseller and then passed along by an Authorized Reseller to Licensee or Hyperscience, as applicable).
  3. Termination for Material Breach. If either party materially breaches this Agreement (including any Order Form or Statement of Work), the other party may terminate this Agreement (or, at its option, only the applicable Order Form or Statement of Work that has been materially breached) upon thirty (30) days’ written notice, unless the breach is cured within such time. Any such notice by Licensee must be provided directly to Hyperscience in accordance with Section 9(i) below.
  4. Other Termination Events. Hyperscience will be entitled to terminate this Agreement (or, at its option, any or all of the Order Forms or Statement of Works) immediately by giving written notice to the Licensee (or to the Authorized Reseller, and then passed along by the Authorized Reseller to Licensee), if the Licensee:
    1. fails to pay any amount when due, and such amount remains unpaid 10 business days after being notified that the amount is overdue by Hyperscience;
    2. shall become (or is reasonably likely to become) bankrupt, or shall file a petition in bankruptcy or insolvency or for reorganization or for an arrangement or for the appointment of a receiver or trustee of its assets, or if an involuntary petition for any of the foregoing shall be filed with respect to Licensee and not dismissed within sixty (60) days, or if the business of Licensee shall be placed in the hands of a receiver, assignee or trustee for the benefit of creditors, whether by the voluntary act of Licensee or otherwise; 
    3. commits any breach or attempted breach of Section 1(b).
  5. Effects of Termination. Upon the expiration or termination of this Agreement for any reason, (i) all rights and licenses to the Software granted to Licensee under this Agreement will terminate; (ii) Licensee will immediately discontinue all use of the Software, remove all copies of the Software from its systems and confirm such removal in writing to Hyperscience, and remove or destroy any copies of the Documentation in its possession; and (iii) Sections 1(b), 1(c), 1(d), 3, 4(d), 5, 6(c), 7, 8, and 9 will survive in accordance with their terms. For clarity, Licensee may export Licensee Data from the Software prior to deleting the Software if necessary, to preserve such Licensee Data. Notwithstanding anything to the contrary herein, Licensee acknowledges and agrees that it has no right or license to use the Software unless an applicable Order Form is in effect, and that Licensee must immediately discontinue all use of the Software if the applicable Order Form has expired or been terminated unless and until the parties agree in writing to extend a particular Order Form or enter into a new Order Form for the Software.

5. CONFIDENTIALITY.

  1. Confidential Information. The terms of this Agreement and all non-public information (“Confidential Information”) of either party (“Disclosing Party”) provided to the other party (“Receiving Party”) hereunder (including through an Authorized Reseller) will be maintained in confidence and not be disclosed by the Receiving Party except to the Receiving Party’s employees, contractors, and professional advisors who have a need to know such information in connection with this Agreement, provided such recipient is under a written obligation respecting confidentiality that is no less restrictive than this Section 5. In maintaining the confidentiality of Confidential Information of the Disclosing Party, the Receiving Party will exercise the same degree of care that it exercises with its own confidential information of a similar nature, and in no event less than a reasonable degree of care. The Software, Documentation, and Usage Data are Confidential Information of Hyperscience. Licensee Data is Confidential Information of Licensee.
  2. Exceptions. Section 5(a) will not apply to the extent that the Receiving Party is required to disclose information by applicable law; provided, however, that, to the extent permitted by law, the Receiving Party will not make any such disclosure without first notifying the Disclosing Party and allowing the Disclosing Party a reasonable opportunity to seek injunctive relief from (or a protective order or confidential treatment with respect to) the obligation to make such disclosure. Confidential Information will not include information that the Receiving Party can demonstrate through competent evidence (i) was generally known to the public other than as a result of the Receiving Party’s breach of its obligations hereunder; (ii) was rightfully known to the Receiving Party prior to the date of disclosure; or (iii) was independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party.
  3. Required Disclosure. Notwithstanding the above, the Receiving Party may disclose certain Confidential Information of the Disclosing Party, without violating the obligations of this Agreement, to the extent such disclosure is required by pursuant to the lawful requirement of any governmental agency having competent jurisdiction and authority or by any subpoena, summons, order or other valid judicial process, provided that to the extent permissible under applicable law, the Receiving Party promptly provides the Disclosing Party with prior written notice of such disclosure and makes a reasonable effort to obtain, or to assist the Disclosing Party in obtaining, a protective order preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed be used only for the purposes for which the law or regulation required, or for which the order was issued.
  4. Ownership. Confidential Information is and shall remain the sole property of the Disclosing Party. The Receiving Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information of the Disclosing Party, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Neither Receiving Party will make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the Disclosing Party. Any trade secrets included in the Confidential Information will be entitled to all of the protections and benefits under applicable trade secret law. Trade secrets shall expressly include formulas and methods. Nothing in this Agreement is intended to or shall be interpreted as diminishing or otherwise limiting either party’s rights under applicable state or federal law to protect its trade secrets and other Confidential Information.
  5. Injunctive Relief. The Receiving Party agrees that (i) the remedies available at law for any breach of this Section 5 may be inadequate and that the damages resulting from any such breach may not be addressed by monetary compensation, and (ii), therefore, upon any breach by it of this Section 5, the Disclosing Party will be entitled to seek immediate injunctive relief, including an order restraining any threatened or future breach from any court of competent jurisdiction without the requirement to post bond. Such relief will be in addition to any remedies at law or in equity available to the Disclosing Party for such breach. 
  6. Return of Information. Upon expiration or termination of this Agreement, the Receiving Party will return to the Disclosing Party all Disclosing Party Confidential Information obtained in connection with this Agreement, including all copies thereof, or, at the Disclosing Party’s option, destroy or purge its systems and files of all such Confidential Information.
  7. Prior Agreements. The terms of this Section 5 supersede the terms of any confidentiality agreement previously entered into between the parties, which prior agreement shall have no further force or effect.

6. WARRANTIES AND DISCLAIMERS

  1. Performance. Services will be performed in a professional and workmanlike manner consistent with industry standards.
  2. Software As-Is. Hyperscience provides the Software and any “AS IS” and without representation or warranty of any kind.
  3. Authorized Resellers. Notwithstanding anything in this Agreement to the contrary, the warranties provided by Hyperscience hereunder with respect to the Software or the Services may not be extended, supplemented or modified by an Authorized Reseller, and if an Authorized Reseller makes any additional warranty, representation or commitment regarding the Software or the Services (or modifies an existing warranty, representation or commitment granted by Hyperscience regarding the Software or the Services), the Authorized Reseller shall be solely responsible for any such additional warranties, representations or commitments or modifications.
  4. Disclaimer. ASIDE FROM THE LIMITED WARRANTY PROVIDED IN SECTION 6(a), HYPERSCIENCE EXPRESSLY DISCLAIMS ALL WARRANTIES IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL (INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT) OR ARISING FROM A COURSE OF DEALING. IN ADDITION, HYPERSCIENCE DOES NOT WARRANT THAT THE SOFTWARE OR ANY SERVICES RENDERED HEREUNDER WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL DEFECTS WILL BE CORRECTED. LICENSEE UNDERSTANDS AND AGREES THAT LICENSEE IS RESPONSIBLE FOR MAINTAINING THE SECURITY OF THE LICENSEE DATA, THE SOFTWARE AND THE RELATED DOCUMENTATION. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.

7. INDEMNIFICATION.

  1. By Hyperscience. Hyperscience will indemnify and hold harmless Licensee and its officers, directors and employees against any third party claim (including reasonable attorneys’ fees and court costs) to the extent alleging that the Software, as used in accordance with its Documentation, infringes the intellectual property rights of a third party, except to the extent the alleged infringement arises out of or relates to (i) any modification of the Software made by Licensee; (ii) any combination of the Software with other materials or technology by the Licensee; (iii) any Licensee Data; (iv) any breach of this Agreement by the Licensee, or negligence, abuse, misapplication or use of the Software outside of the purpose, scope or manner authorized by this Agreement, by Licensee, its representatives or a third party, (v)  as a result of not using the latest release of the Software or failure to timely implement any modification or Update provided to Licensee by Hyperscience or (vi) a claim which is indemnifiable by Licensee under Section 7(b). If the Software or any element thereof is or in Hyperscience’s view is likely to be found to infringe any third party intellectual property rights, Hyperscience, in its sole discretion and at its cost and expense, will either (x) procure the right for Licensee to continue to use the Software; or (y) modify the Software to be non-infringing without materially diminishing its functionality. If neither (x) nor (y) is commercially reasonable or practicable, Hyperscience may terminate this Agreement and, as Licensee’s sole and exclusive remedy therefor, refund Licensee the portion of any prepaid and unused License Fees attributable to the terminated portion of the Agreement.
  2. By Licensee. Licensee will indemnify and hold harmless Hyperscience and its officers, directors and employees against any third party claim (including reasonable attorneys’ fees and court costs) to the extent alleging that the Licensee Data infringes or otherwise violates the rights of any third party, including intellectual property and privacy rights, except to the extent such claims is indemnifiable by Hyperscience under Section 7(a).
  3. Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any claim or action for which such Party believes it is entitled to be indemnified pursuant to this Section 7. The Party seeking indemnification (the “Indemnitee“) shall cooperate with the other Party (the “Indemnitor“) at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 7(c) will not relieve the Indemnitor of its obligations under this Section 7, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure.

8. LIMITATION OF LIABILITY.

  1. Disclaimer; Cap. SUBJECT TO SECTION 8(b), (I) NEITHER PARTY, NOR ANY OF ITS AFFILIATES, SUBCONTRACTORS, LICENSORS, VENDORS, SUPPLIERS OR RESELLERS,  WILL HAVE ANY LIABILITY TO THE OTHER PARTY WITH RESPECT TO ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, MULTIPLE, PUNITIVE OR OTHER INDIRECT DAMAGES, ARISING OUT OF THIS AGREMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II)IN NO EVENT WILL A PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH OR UNDER THIS AGREEMENT (UNDER ANY THEORY OF LIABILITY) EXCEED THE FEES PAID OR PAYABLE BY LICENSEE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE APPLICABLE CLAIM.
  2. Exclusions. The limitations set forth in Section 8(a) will not apply to (a) either party’s indemnification obligations; (b) claims related to an unauthorized disclosure of Confidential Information; (c) claims related to one party’s misappropriation, infringement or violation of the other party’s intellectual property rights; (d) Licensee’s failure to make payments due hereunder; (e) a party’s willful misconduct or fraud, or (f) the extent precluded by applicable law. 

9. GENERAL

  1. Governing Law; Venue. This Agreement, including its formation, will be governed by and interpreted in accordance with the laws of the State of New York without giving effect to any conflicts of laws principles that would require a different result. Each party irrevocably consents to the jurisdiction of the state and federal courts located in New York County, New York for any action or proceeding arising out of or relating to this Agreement, and expressly waives any objection it may have to such jurisdiction or venue.
  2. Relationship of the Parties. The parties are independent contractors and this Agreement does not constitute a partnership, joint venture or agency between the parties. Licensee acknowledges that its use of the Software and Services is non-exclusive and Hyperscience may provide software and services that are the same as or similar to the Software and Services to third parties, including competitors of Licensee.
  3. Audit Rights. Hyperscience is permitted at any time to audit the usage of the Software in accordance with its standard procedures by system measurement. If Hyperscience has reasonable grounds to suspect a breach or infringement by Licensee, Hyperscience will be entitled to conduct an audit of the usage of the Software at Licensee’s or its subcontractor’s premises (where the Software is hosted) subject to Licensee’s bona fide internal policies. Licensee must cooperate reasonably with Hyperscience in the conduct of audits and must, among other things, provide Hyperscience with (or obtain for Hyperscience) any access into the Licensee’s (or its subcontractors) premises and systems to the required extent. Hyperscience will give Licensee reasonable prior notice of an audit to be conducted at Licensee’s (or its subcontractors) premises. Hyperscience will have reasonable regard to the interests of Licensee’s confidentiality and to the protection of the Licensee’s business operations. The costs of Hyperscience’s audit shall be paid by Licensee if the audit results indicate usage in breach of this Agreement.
  4. Waiver. No waiver by either party of any right or remedy hereunder will be valid unless in writing and signed by the party giving such waiver. No waiver will be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder.
  5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, then the remaining provisions of this Agreement, if capable of substantial performance, will remain in full force and effect. 
  6. Attribution. Licensee agrees that Hyperscience may indicate that Licensee is a client of Hyperscience on its website and through its marketing materials, including but not limited to press releases, case studies, white papers and webinars. Any such attribution will be consistent with Licensee’s style guidelines or requirements as communicated to Hyperscience from time to time. 
  7. Assignment. Licensee may not assign or transfer this Agreement, whether by operation of law, by merger, sale of all or substantially all of its assets or otherwise, without the prior written consent of Hyperscience. Any such purported assignment or transfer in violation of the preceding sentence will be null and void. This Agreement will inure to the benefit of the parties and their successors and permitted assigns.
  8. Force Majeure. Except for payment obligations, neither party will be liable to the other party for a failure to perform its obligations under this Agreement as a result of events or actions beyond its reasonable control that cannot be mitigated through the exercise of due care, provided that the party seeking to excuse its performance under this clause must provide written notice to the other party of the occurrence of any such event as soon as reasonably practicable, and use commercially reasonable efforts to resume performance once the event has passed.
  9. Notices. All notices or other communications required or permitted to be given under this Agreement will be in writing and sent via commercial overnight courier to each party at its respective address specified below or such other address as the party provides to the other in writing following the Effective Date. Operational communications, including changing a party’s notice address, may be delivered by email. 

    If to Hyperscience:

    Hyper Labs, Inc.
    One World Trade Center
    285 Fulton St. Suite 45A
    New York, NY 10007
    Attn: Legal Department
    legal@hyperscience.com
  10. Entire Agreement. This Agreement is the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements, arrangements, statements, representations, warranties and understandings (whether oral or written) of any nature whatsoever between the parties relating to that subject matter. Each party acknowledges that, in entering into this Agreement, it does not rely on, and will have no remedy in respect of, any statement, representation, warranty or undertaking (whether made negligently or innocently) of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement. The only remedy available to either party in respect of any such statement, representation, warranty or undertaking will be for breach of contract under the terms of this Agreement. Nothing in this Clause shall limit or exclude any liability for fraud.
  11. Amendment. No alterations or modifications of this Agreement will be valid unless made in writing and signed by the parties. 

Last updated: May 15, 2021