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, the “Agreement”), is entered into by and between Hyper Labs, Inc. d/b/a Hyperscience, a Delaware corporation (“Hyperscience”) and the end user of the Hyperscience Software (“End User” or “You”). Hyperscience and End User may each be referred to herein as a “Party” and collectively as the “Parties.”
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 OTHER LEGAL ENTITY, YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF 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 ACCESS OR USE, OR AUTHORIZE ANY ACCESS OR USE, OF THE HYPERSCIENCE SOFTWARE.
As used herein: (a) the term “Order Form” means a document executed between End User, and Hyperscience or a Hyperscience-authorized reseller of the Software and Services (an “Authorized Reseller”), that references this Agreement and identifies the software application(s) that are licensed to End User hereunder; and (b) the term “Statement of Work” means a document executed by Hyperscience and End User that references this Agreement and identifies any Services (as defined below) to be provided by Hyperscience to End User. All Order Forms and Statements of Work shall be deemed part of and subject to this Agreement. In the event of inconsistencies or conflicts between this Agreement, and any Order Form or Statement of Work, the terms of this Agreement will control, unless the Order Form or Statement of Work expressly states that it supersedes a specifically identified provision of this Agreement.
In consideration of the mutual promises contained herein, the Parties hereby agree to the following:
(i) Hyperscience hereby grants End User a non-transferrable, 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 End User’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 end users 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.
(ii) 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 End User when made available to other Hyperscience end users.
(b) Restrictions. Except as expressly permitted in this Agreement, End User will not, directly or indirectly, attempt to or allow any third party to:
(i) Modify or create derivative works of the Software;
(ii) 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 End User must inform Hyperscience in writing before exercising this right);
(iii) Rent, lease, share, distribute, or sell the Software to any third party, including on a time-sharing, service bureau, or other similar basis;
(iv) Remove, alter, or deface proprietary notices, labels, or marks in the Software or Documentation;
(v) Disclose the results of testing or benchmarking of any Software;
(vi) Circumvent or disable the Software’s copyright protection mechanisms or license management mechanisms;
(vii) Use the Software in violation of any applicable law or to violate the rights of any third party; or
(viii) Use the Software to create a product that competes with the Software.
(c) Data. The term “End User Data” means: (i) any data provided or transmitted by End User into the Software; and (ii) the End User-specific output resulting from End User’s use of the Software. End User Data will be stored and analyzed locally on End User’s information systems, and no such data will be transmitted to Hyperscience. End User shall own all End User Data. Notwithstanding anything to the contrary herein, End User acknowledges and agrees that Hyperscience shall have the right, during and after the Term (as defined below), to collect, analyze, use, and disclose Usage Data for the purposes of calculating fees (if any), contributing to the 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 End User’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 or End User Data. End User 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.
(d) 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 the Service Level Agreement available at hyperscience.com/sla (which may be amended from time to time by Hyperscience without notice to End User); (ii) provide End User with all Updates at no additional cost; and (iii) provide End User 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. End User will install the latest major release version of the Software as soon as reasonably practicable after it is made available by Hyperscience.
(i) 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, including but not limited to Module and Updates.
(ii) Usage Data. Hyperscience retains ownership of all right, title, and interest in and to Usage Data, and any modifications and derivative works thereof.
(iii) Feedback. Hyperscience retains ownership of all right, title, and interest (including all intellectual property rights) in and to any and all comments, suggestions, ideas, or other information or materials regarding End User’s use of and experience with the Software that End User may provide to Hyperscience (“Feedback”).
(iv) End User Data. End User retains ownership of all right, title, and interest in and to End User Data.
2. SERVICES AND OBLIGATIONS.
(a) Services. End User may request, and Hyperscience may agree to provide, certain services in connection with End User’s use of the Software (“Services”), including additional support services and services related to the implementation or integration of the Software with End User’s systems. The terms, requirements, and pricing for any Services will be agreed to and set forth in one or more Statements of Work.
(b) Hyperscience Obligations. Hyperscience will use commercially reasonable efforts: (i) to perform the Services and deliver the Deliverables (as defined in any applicable Statement of Work) to End User; and (ii) meet agreed performance dates or milestones specified in a Statement of Work, but any such dates shall be estimates only.
(c) End User Obligations. End User will: (i) cooperate with Hyperscience in all matters relating to the Services; (ii) provide Hyperscience, its agents, subcontractors, consultants, and employees with access to End User’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.
(a) Fees. End User 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”). End User acknowledges and agrees that, unless otherwise agreed to by Hyperscience, any use of the Software to process pages in excess of any use limits specified in an Order Form will be subject to overage fees. Unless otherwise set forth on an Order Form, all Fees for the License for the Order Form Initial Term (as defined below) will be invoiced in full upon execution of the applicable Order Form. Hyperscience may modify the Fees for the License for any Order Form Renewal Term (as 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 End User’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 End User paying any Fees for the Order Form Initial Term or any Order Form Renewal Term, then End User 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, as applicable. If applicable, and whether or not End User issues such purchase order, Hyperscience or Authorized Reseller will invoice End User for the applicable Fees due promptly following such fifteen (15) day period. End User must pay all undisputed Fees identified in an invoice within forty-five (45) days of receipt of the applicable invoice. Hyperscience rejects any additional or different terms and conditions on such purchase order. End User acknowledges and agrees that if such purchase orders contain any additional or different terms and conditions that conflicts with this Agreement, the terms of this Agreement will govern.
(b) Billing Policies and Procedures. Payment(s) shall be made in accordance with the policies and procedures set forth in the applicable Order Form.
(c) Late Payments; Disputed Fees. For Fees due to Hyperscience, Hyperscience may assess a late payment charge of one and one-half percent (1.5%) per month or the maximum rate allowed under applicable law, whichever is less, on any Fees that are not received when due. End User 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. End User will pay the undisputed amounts on any invoice when due, regardless of a dispute regarding other amounts on such invoice.
(d) Taxes. The Fees do not include any taxes, duties, or similar assessments that may be imposed on the License or Services (“Taxes”). End User will be responsible for paying all Taxes associated with End User’s receipt of the License and Services (except for Taxes based on Hyperscience’s income).
4. TERM AND TERMINATION.
(a) 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 (the “Term”).
(b) Term of Order Forms. The initial term of each Order Form will commence on the date set forth on 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 on 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 specific in such Order Form (each, an “Order Form Renewal 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.
(c) Termination for Material Breach. If either Party materially breaches this Agreement (including any applicable 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 End User must be provided directly to Hyperscience in accordance with Section 9(j) below.
(d) Other Termination Events. Hyperscience will be entitled to terminate this Agreement (or, at its option, any or all of the Order Forms or Statements of Work) immediately by giving written notice to End User, if End User:
(i) Fails to pay any amount when due, and such amount remains unpaid ten (10) business days after being notified by Hyperscience that the amount is overdue;
(ii) 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 End User and not dismissed within sixty (60) days, or if the business of End User shall be placed in the hands of a receiver, assignee or trustee for the benefit of creditors, whether by the voluntary act of End User or otherwise; or
(iii) Commits any breach or attempted breach of Section 1(b).
(e) Effects of Termination. Upon the expiration or termination of this Agreement for any reason, (i) all rights and licenses to the Software granted to End User under this Agreement will terminate; (ii) End User 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, End User may export End User Data from the Software prior to deleting the Software, if necessary, to preserve such End User Data. Notwithstanding anything to the contrary herein, End User acknowledges and agrees that it has no right or license to use the Software unless an applicable Order Form is in effect, and that End User 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.
(a) 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 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. End User Data is Confidential Information of End User.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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
(a) Performance. Services will be performed in a professional and workmanlike manner consistent with industry standards.
(b) Software As-Is. Hyperscience provides the Software and any Documentation “AS IS” and without representation or warranty of any kind.
(c) 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, commitments, or modifications.
(d) 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. END USER UNDERSTANDS AND AGREES THAT END USER IS RESPONSIBLE FOR MAINTAINING THE SECURITY OF END USER DATA, THE SOFTWARE, AND THE RELATED DOCUMENTATION. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.
(a) By Hyperscience. Hyperscience will indemnify and hold harmless End User 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 End User; (ii) any combination of the Software with other materials or technology by End User; (iii) any End User Data; (iv) any breach of this Agreement by End User, or negligence, abuse, misapplication or use of the Software outside of the purpose, scope or manner authorized by this Agreement, by End User, 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 made available to End User by Hyperscience; or (vi) a claim which is indemnifiable by End User 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 End User 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 End User’s sole and exclusive remedy therefor, refund End User the portion of any prepaid and unused End User Fees attributable to the terminated portion of the Agreement.
(b) By End User. End User 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 End User 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).
(c) 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.
(a) 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 AGREEMENT, 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 END USER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE APPLICABLE CLAIM.
(b) 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) End User’s failure to make payments due hereunder; (e) a Party’s willful misconduct or fraud; or (f) the extent precluded by applicable law.
(a) 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.
(b) Relationship of the Parties. The Parties are independent contractors, and this Agreement does not constitute a partnership, joint venture or agency between the parties. End User 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 End User.
(c) 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.
(d) 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.
(e) Assignment. End User 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.
(f) Audit Rights. Hyperscience is permitted 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 End User, Hyperscience will be entitled to conduct an audit of the usage of the Software at End User’s or its subcontractor’s premises (wherever the Software is hosted) subject to End User’s bona fide internal policies. End User 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 End User ‘s (or its subcontractors) premises and systems to the required extent. Hyperscience will give End User reasonable prior notice of an audit to be conducted at End User’s (or its subcontractors) premises. Hyperscience will have reasonable regard to the interests of End User’s confidentiality and to the protection of End User’s business operations. The costs of Hyperscience’s audit shall be paid by End User if the audit results indicate usage in breach of this Agreement.
(g) Export Laws. The Software, including Documentation and technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. End User agrees to comply strictly with all such regulations, and acknowledges that it has the responsibility to obtain licenses to export, re-export or import Software, Documentation and/or technical data.
(h) Attribution. End User agrees that Hyperscience may indicate that End User is a client of Hyperscience on its website and in its marketing materials, provided that any such use will comply with End User’s style guidelines or requirements as communicated from time to time to Hyperscience by End User. Other uses related to marketing (e.g., case studies, events) will be subject to agreement in writing by the Parties.
(i) 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 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 Section 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.
(j) 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.
Hyper Labs, Inc.
One World Trade Center
285 Fulton St., Floor 88
New York, NY 10007
Attn: Legal Department
All legal communications to Hyperscience must include a copy delivered by email to email@example.com.
(k) 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 Section shall limit or exclude any liability for fraud.
(l) Amendment. No alterations or modifications of this Agreement will be valid unless made in writing and signed by the Parties.