Terms
HYYPHEN SOFTWARE LICENSE AGREEMENT
BEFORE CLICKING ON THE "ACCEPT" BUTTON, YOU, AS THE CUSTOMER, MUST CAREFULLY READ THE TERMS AND CONDITIONS SET OUT BELOW GOVERNING CUSTOMER’S SUBSCRIPTION FOR, ACCESS TO AND USE OF THE HYYPHEN VISITOR MANAGEMENT SERVICES (THE “SERVICES”). BY CLICKING ON THE "ACCEPT" BUTTON, CUSTOMER ACCEPTS AND AGREES TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT (“AGREEMENT”). IF YOU, AS CUSTOMER, ARE ENTERING INTO THIS AGREEMENT ON BEHALF AN ORGANIZATION OR OTHER ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO LEGALLY BIND SUCH ORGANIZATION OR ENTITY. “CUSTOMER” SHALL REFER TO SUCH ORGANIZATION OR ENTITY. IF THE CUSTOMER DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CLICK ON THE “DO NOT ACCEPT” BUTTON AT THE END OF THIS AGREEMENT AND DO NOT SUBSCRIBE TO THE SERVICES OR USE THE SOFTWARE.
1. LICENSE
1.1. License - Services. Hyyphen Corporation (“Hyyphen”) grants and Customer hereby accepts, upon payment by Customer of the Fees (as defined below) and subject to the terms and conditions contained herein, a limited, nontransferable, nonexclusive, worldwide, enterprise-wide and revocable license (the “License”), without the right to sublicense, to use the Services and to access and use all material, information and technology offered as part of the Services including but not limited to documents, articles, reports, software, graphics, text, images and logos, algorithms, processes, user interfaces, designs and know-how (the “Content”) solely for Customer’s internal business purposes.
1.2. Restrictions. Customer acknowledges that the Services and the Content, constitute valuable trade secrets of Hyyphen and its licensors. Except as otherwise set out in this Agreement, Customer shall not (i) copy or use the Services or the Content; (ii) alter, modify, duplicate, translate, de-compile, reverse engineer, or attempt to recreate the Services or the Content, in whole or in part; (iii) modify or create any derivative works from the Services or the Content any part thereof; (iv) merge the Services or the Content with any other software; (v) disclose to any third party any performance information or analysis relating to the Services and the Content; (vi) license, sublicense, sell, convey, assign, transfer, give, lend, rent, transfer or otherwise grant any right to any of the Services or the Content or any of Customer’s rights hereunder, in whole or in part, voluntarily or involuntarily, by operation of law or otherwise, to any person, individual, legal or personal representative, partnership, company, corporation, syndicate, association, trust or governmental body otherwise; (vi) build an identical product to the Software or the Services or a product with similar ideas, features and functionality as the Software or the Services; and (vii) copy any ideas, features of functions of the Services. Customer agrees to retain, on all copies of any Content Customer downloads, all copyright and other proprietary notices contained in the Content. The Services and the Content are protected by Canadian and worldwide copyright laws and treaty provisions. Customer agrees to comply with all copyright laws worldwide in Customer’s use of the Services and the Content and to prevent any unauthorized copying of the Content. Except as expressly provided herein, Hyyphen does not grant any express or implied right or license to Customer under any intellectual property right, including under any patent, trade-mark, copyright, trade secret or confidential information of Hyyphen or its licensors.
2. CUSTOMER DATA
2.1. Customer Data. In the course of using the Services, Customer may upload certain information, data and material through the Services (the "Customer Data"). Customer agrees that the Customer Data will (i) comply with all applicable laws; (ii) not contain infringing, obscene, threatening, libellous, or other illegal material; (iii) not include material containing software viruses, worms, Trojan horses or other harmful computer codes, files scripts or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware telecommunications equipment; and (iv) not knowingly contain any content, work, name, logo or mark that infringes any intellectual property right of any person. Customer acknowledges that Customer has obtained the consent to use any Personal Information (as that term is defined in the Personal Information Protection and Electronic Documents Act (S.C. 2000, c.5) (“PIPEDA”) and all other applicable privacy legislation) contained in the Customer Data from the person to whom the Personal Information pertains, and that Customer has complied with all relevant privacy laws in collecting, using the disclosing such Personal Information.
2.2. Ownership. Customer acknowledges that Customer owns the Customer Data and all intellectual property rights therein, or that Customer has the right to grant the license to Hyyphen to use such Customer Data. Customer will have sole responsibility for the accuracy, quality, integrity, reliability, appropriateness and intellectual property ownership and for obtaining the right to use all of the Customer Data submitted by Customer. Customer acknowledges that Hyyphen will have no responsibility for the Customer Data.
2.3. License. Customer agrees to grant Hyyphen and its third party service providers a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable right to use (i) the Customer Data for the purposes of analyzing, aggregating and preparing reports and recommendations and other outputs; and (ii) to provide aggregate and anonymous metadata generated as a result of Customer’s use of the Services to third parties. Hyyphen will use the Customer Data in accordance with Hyyphen’s Privacy Policy.
3. FEES.
3.1. Fees. Customer shall pay Hyyphen a subscription fee for use of and access to the Services (the “Fees”). The Fees will be set out in the binding order between Hyyphen and the Customer (an “Order”). Payment by the Customer will be due immediately upon receipt of the invoice. All overdue amounts will collect interest at a rate of 1.5% per month. Hyyphen reserves the right to terminate Customer’s access to the Services if Customer fails to pay any Fees when due or if Customer provide false or fraudulent billing or contact information.
3.2. Taxes. All fees and other charges specified in this Agreement are exclusive of all applicable goods and services taxes and any other taxes imposed or levied by any government or government agency, including sales or use taxes (the “Purchase Taxes”). Customer will pay all Purchase Taxes, other than taxes on Hyyphen’s net income, as a result of the transactions contemplated by this Agreement.
4. CUSTOMER RESPONSIBILITIES
4.1. Account. Customer is responsible for all of the activity associated with Customer’s account and Customer agrees to notify Hyyphen immediately in the event of any unauthorized use of its account or password or if Customer suspects its account or password has been compromised in any way. Customer agrees not to misrepresent itself in order to gain access to the Services. Customer is responsible for advising Hyyphen of any change in its billing or contact information.
4.2. Applicable Laws. Customer must abide by all applicable local, provincial, state and national laws and all relevant treaties and directives in Customer’s use of the Services.
4.3. No Responsibility. Hyyphen accepts no responsibility and shall not be held liable for any delays, performance issues, stoppages, outages, increased costs or other similar events relating to the Services resulting from Customer’s failure to adhere to the provisions set out in this Section.
5. THIRD PARTIES.
5.1. Content. The Services may from time to time contain materials, data or information provided, posted or offered by third parties. Customer agrees that Hyyphen will have no liability whatsoever to Customer for any such third party material, data or information.
6. OWNERSHIP
6.1. Services and Content. Hyyphen and its licensors own all right, title and interest in and to Services and the Content, including without limitation, all copyrights, trade secrets, patents, and other intellectual property rights. Upon termination of this Agreement unless otherwise provided herein, all of Customer’s rights in connection with the Services and the Content, including but not limited to the right to access and use the Services and the Content, will terminate.
6.2. Trade-marks. The trade-marks, logos and company names of Hyyphen or any of its affiliates and licensors used as part of the Services and the Content may not be copied, imitated or used, in whole or in part, without the prior written consent of Hyyphen or any such affiliate or licensor. Other products, services logos and company names mentioned as part of the Services and in the Content may be the trade-marks of their respective owners.
6.3. Proprietary Notices. Customer agrees not to alter, remove, deface or destroy any copyright, trade-mark or proprietary markings or confidential legends placed upon or contained in the Services and the Content or in or on any related material.
7. WARRANTIES
7.1. Software and Services. Hyyphen warrants that the Services are designed to and shall operate in substantial conformity with the specifications set out in the user documentation.]
7.2. Content. The Content may contain inaccuracies and typographical errors. Hyyphen makes no representation or warranty regarding the accuracy or completeness of the Content or information accessible while using the Services, or the reliability of any advice, opinion, statement or other information displayed or distributed through the Services. Customer acknowledges that any reliance on any of the foregoing and Customer’s use of the Services and the Content shall be at Customer’s sole risk. Hyyphen reserves the right, in its sole discretion, to correct any errors or omissions in any part of the Services or in any portion of the Content. Hyyphen may make any other changes to the Services and the Content at any time without notice.
7.3. General Warranty. Hyyphen warrants that (i) Hyyphen has the right to enter into this Agreement; (ii) to Hyyphen’s knowledge, neither the Services nor the Content infringes upon the Proprietary Rights of any third party; (iii) to Hyyphen’s knowledge, there are no liens, encumbrances or claims pending or threatened against Hyyphen or that adversely relate to the rights or licenses granted in this Agreement or to the Services and the Content; and, (iv) subject to the standard conditions applicable to shrinkwrap software and other foundational software used in the creation of, or required in conjunction with the Services, no licenses, permission or releases of third party rights are necessary for Customer’s use of the Services in accordance with the terms of this Agreement. For purposes of this Agreement, “Proprietary Rights” means any or all intellectual property and other property or proprietary rights, including, without limitation, patents, copyrights, trade secrets and trademarks.
7.4. Warranty Disclaimer. EXCEPT FOR THE WARRANTIES IN THIS SECTION 7, THE SERVICES AND THE CONTENT ARE PROVIDED “AS IS” AND HYYPHEN AND ITS LICENSORS HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. HYYPHEN DOES NOT WARRANT THAT THE SERVICES AND THE CONTENT WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SERVICES AND/OR THE CONTENT WILL BE FREE FROM ERRORS OR FUNCTION WITHOUT INTERRUPTION, THAT ANY STORED DATA WILL BE ACCURATE OR RELIABLE NOR THAT ANY CUSTOMER DATA CAN BE RESTORED FROM ANY PARTICULAR BACKUP PROCEDURE. HYYPHEN DOES NOT WARRANT THAT USE OF THE SERVICES WILL ENABLE CUSTOMER TO ACHIEVE ANY PARTICULAR RESULT OR RESULTS IN CUSTOMER’S BUSINESS OPERATIONS.
8. LIMITATION OF LIABILITY
8.1. IN NO EVENT WILL HYYPHEN BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF DATA, LOSS OF PROFITS, COST OF COVER, ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICES OR THE CONTENT, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. IN ADDITION, EXCEPT WITH RESPECT TO CLAIMS BASED ON WILFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT WILL HYYPHEN BE LIABLE FOR ANY DAMAGES OF ANY KIND GREATER THAN THE AMOUNTS PAID TO HYYPHEN HEREUNDER. HYYPHEN WILL NOT BE LIABLE FOR ANY DELAYS OR DAMAGES ATTRIBUTABLE TO PROBLEMS INHERENT IN INTERNET AND ELECTRONIC COMMUNICATION. THESE LIMITATIONS WILL APPLY EVEN IF HYYPHEN HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF THIS SECTION SHALL APPLY EVEN IN THE EVENT OF A FAILURE OF THE ESSENTIAL PURPOSE OF THIS PROVISION.
8.2. Hyyphen will not be liable for the deletion of, correction to, destruction of, damage to, loss of or failure to store the Customer Data.
9. INDEMNIFICATION
9.1. Indemnification by Hyyphen. Hyyphen shall indemnify, defend and hold Customer harmless from any claims, demands, liabilities, losses, damages, judgments or settlements, including all reasonable costs and expenses related thereto including legal fees, directly or indirectly resulting from any claimed infringement or violation by Hyyphen of any Proprietary Right with respect to the Services and the Content; provided, however, that the foregoing notwithstanding, Hyyphen’s obligation to indemnify will not apply to an infringement or violation that is attributable to any unauthorized use, access or modification of the Services or Content by Customer, Customer’s employees, agents or customers or any third parties.
9.2. Cooperation. Notwithstanding Section 9.1 of this Agreement, Hyyphen is under no obligation to indemnify and hold Customer harmless unless (i) Hyyphen receives notice of the suit or claim from Customer and is furnished with a copy of each communication, notice or other action relating to said claim promptly after Customer receives such notice and each such communication; provided that, failure to deliver timely notice shall not relieve Hyyphen of its obligations hereunder unless Hyyphen is materially prejudiced by such failure; (ii) Hyyphen will have the right to assume sole authority to conduct the trial or settlement of such claim or any negotiations related thereto at Hyyphen’s expense; and (iii) Customer will provide reasonable information and assistance requested by Hyyphen in connection with such claim or suit, at Hyyphen's cost and expense.
9.3. Indemnification by Customer. Customer shall indemnify, defend and hold Hyyphen harmless from any claims, demands, liabilities, losses, damages, judgments or settlements, including all reasonable costs and expenses related thereto including legal fees, directly or indirectly resulting from (a) any allegation that Customer has engaged in conduct, which if true would breach Customer’s warranties or obligations under this Agreement; (b) any allegation that the Customer Data infringes the Proprietary Rights of any third party; (c) Customer’s negligent or willful misconduct; and (d) any violation by Customer of any privacy laws, regulations and directives relating to the collection, use or disclosure of any Personal Information provided to Hyyphen hereunder. Hyyphen reserves the right to
participate in the defence of any such claim and to be represented by counsel of its choice.
10. TERM AND TERMINATION
10.1. Term. This Agreement will commence as of the date on which Customer pays the fees associated with the initial Order (the “Effective Date”) and will continue in full force and effect for the term set out in the Order (the “Initial Term”) or until terminated in accordance with the terms of this Agreement. After the Initial Term, this Agreement shall automatically renew on an annual basis unless one party provides the other party with thirty (30) days written notice.
10.2. Termination Upon Insolvency. This Agreement will terminate, effective upon delivery of written notice by a party hereto, (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party, (ii) upon the making of an assignment for the benefit of creditors by the other party, or (iii) upon the dissolution of the other party.
10.3. Termination Upon Default. The non-breaching party may terminate this Agreement in the event that the other party materially defaults in performing any obligation under this Agreement and such default continues and is not remedied for a period of thirty (30) days following written notice of default; provided, however, that if either party contests either the existence or the basis of a breach asserted by the other party (a “Dispute”), then such Dispute shall be resolved pursuant to Section 12.3 and if such Dispute is resolved in favour of the party asserting such breach, then the other party shall have thirty (30) days to cure such breach as directed by the third party resolving such Dispute.
10.4. Termination for Convenience. Hyyphen may terminate this Agreement for convenience upon sixty (60) days notice to Customer.
10.5. Survival of Certain Terms. All provisions of this Agreement reasonably required to survive termination based on the terms of this Agreement shall survive termination of this Agreement. All other rights and obligations of the parties will cease upon termination of this Agreement.
10.6. Effect of Termination. Upon termination of this Agreement for any reason Customer’s access to the Services will end immediately and Customer’s account will be disabled. Customer agrees and acknowledges that Hyyphen is not obliged to retain the Customer Data, and after thirty (30) days following termination, may delete such Customer Data.
11. CONFIDENTIAL INFORMATION
Neither party shall use or disclose any Confidential Information of the other party. A party receiving Confidential Information from the other party will use the highest commercially reasonable degree of care to protect that Confidential Information. The Services, Software and the Content, including methods, ideas or concepts utilized therein, all information identified by a disclosing party as proprietary or confidential and all information, which would reasonably be considered in the circumstances and manner of disclosure to be proprietary or confidential (“Confidential Information”) will remain the sole property of such disclosing party, and will not be used or disclosed to any third party without the express written consent of the disclosing party (except to employees or consultants who are bound by a written agreement with such party to maintain the confidentiality of such Confidential Information in a manner consistent with this provision). Items shall not be considered to be Confidential Information if they are (i) available to the public other than by a breach of this Agreement or an agreement with the disclosing party, (ii) rightfully received from a third party not in breach of an obligation of confidentiality, (iii) independently developed by employees of recipient without access to the Confidential Information of the disclosing party, (iv) rightfully known to the recipient at the time of disclosure, or (v) produced in compliance with applicable law or a court order, provided the other party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production. Customer agrees that the terms and conditions of this Agreement will be considered to be Confidential Information of Hyyphen.
12. MISCELLANEOUS
12.1. Notices. Any notice required or permitted hereunder will be in writing and will be given by electronic mail at cancel@hyyphen.io Such notice will be deemed to have been received twenty four (24) hours after it was sent.
12.2. Assignment. This Agreement may not be transferred or assigned, in whole or in part, by either party either voluntarily or by operation of law without the prior written consent of the other party, which consent shall not be unreasonably withheld.
12.3. Governing Law; Arbitration. This Agreement will be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. Except for disputes for which injunctive relief is sought (for example, to prevent the unauthorized use or disclosure of proprietary materials or information) the following procedures shall be used to resolve any dispute arising out of or in connection with this Agreement. Promptly after the written request of either party, each of the parties shall appoint a designated representative to meet in person or by telephone to attempt in good faith to resolve any dispute. If the designated representatives do not resolve the dispute within ten (10) days of such request, then an executive officer of each party shall meet in person or by telephone to review and attempt to resolve the dispute in good faith. The executive officers shall have ten (10) days to attempt to resolve the dispute. Any disputes that are not otherwise resolved by the parties shall be submitted to binding arbitration in Ottawa, Ontario in accordance with the Arbitration Act, 1991 (Ontario) (the “Act”). Before entering into arbitration, the parties shall each appoint an arbitrator, and these two arbitrators shall select a third arbitrator to be a member of the arbitration panel. Should the two arbitrators not be able to agree on a choice of the third arbitrator, then the parties shall defer to the procedure for selection of an arbitrator under the Act. None of the arbitrators shall be officers or employees of the parties. Each such arbitrator shall be a lawyer having experience and familiarity with information technology disputes. The arbitrators shall have the right to award costs, fees and expenses, including but not limited to the arbitrators' fees and reasonable lawyers' fees, to the prevailing party. The parties will jointly pay arbitration costs pending a final allocation by the
arbitrators. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The arbitrator’s decision shall be final and binding upon the parties.
12.4. Force Majeure. Under no circumstances will either party be liable to the other for any failure to perform its obligations where such failure results from causes beyond that party’s reasonable control.
12.5. Independent Contractors. The relationship of Hyyphen and Customer established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (i) give either party the power to direct and control the day-to-day activities of the other, (ii) constitute the parties as legal partners, joint venturers, co-owners or otherwise as participants in a joint undertaking, or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. All financial and other obligations associated with the businesses of Hyyphen and Customer are their sole respective responsibilities.
12.6. Entire Agreement and Waiver. This Agreement and all documents incorporated by reference hereto will constitute the entire agreement between the parties with respect to its subject matter, and all prior agreements, representations, and statements with respect to such subject matter are superseded. This Agreement may be changed by Hyyphen upon notification to Customer. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such breaches and the waiver of any breach will not act as a waiver of subsequent breaches.