Terms of Use
Last Updated: July 14, 2023
Welcome, and thank you for your interest in Hyperproof Inc.
Hyperproof Inc. (“Hyperproof,” “we,” “our,” or “us”) offers a variety of compliance management and security tools and services (the “Services”), including www.hyperproof.io and hyperproof.app (the “Websites”). These Terms of Use(the “Terms”) are a binding legal contract between you as a “Customer” or “User” (both defined below) and Hyperproof. These Terms explain the rules governing your use of the Services.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY ACCEPTING THESE TERMS, WHETHER AS A CUSTOMER OR A USER, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING OR OTHERWISE ENTERING INTO AN ORDER OR OTHER DOCUMENT THAT REFERENCES THESE TERMS, USING OR OTHERWISE ACCESSING (OR MAKING ANY PAYMENT FOR) ANY SERVICE, OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THESE TERMS, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU ARE NOT ELIGIBLE TO ACCESS OR USE THE APPLICABLE SERVICE, OR DO NOT AGREE TO THESE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF ANY SERVICES, AND HYPERPROOF’S PROVISION OF ANY SERVICES TO YOU, CONSTITUTES AN AGREEMENT BY HYPERPROOF AND BY YOU TO BE BOUND BY THESE TERMS.
1. OVERVIEW; STRUCTURE
1.1. Platform; Customers. In addition to the Websites, the Services may include access to certain features and functions of Hyperproof’s proprietary compliance management and security platform (the “Platform”). With respect to the Platform, a “Customer” is the entity that has acquired access to the Platform for use by its Covered Users. The scope of rights to access the Platform may be tied to specific Programs (or amount of Programs) or specific Modules (or amount of Modules), as specified in the applicable Order (defined below) or by Hyperproof. “Program” means an instantiated compliance framework authorized by Customer to use within the Platform, for whom Customer has purchased an appropriate Subscription (defined below) (or for whom the Platform has been appropriately provisioned). “Module” refers to an additional Hyperproof component authorized by Customer to use within the Platform and for which Customer has purchased an appropriate Subscription (or for whom the Platform has been appropriately provisioned).
1.2. Orders. The commercial terms and other additional terms applicable to Customer and its Covered Users (defined below) may be specified in an Order. “Order” means a quote, order form, statement of work, or other ordering document entered into between the applicable Customer and Hyperproof specifying Services to be provided hereunder that: (a) is signed by or otherwise expressly agreed to by Customer and Hyperproof and (b) expressly references and incorporates these Terms. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity and “control,” as used in this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.3. Users. Each individual user of a Service is a “User.” Each User will fall into one or more of the below three categories:
a. a “Site Visitor” is an individual user of public-facing portions of a Website;
b. an “Internal User” is an individual (i) who is an employee, consultant, contractor, or agent of the applicable Customer or its Affiliates, (ii) who is authorized by that Customer to use the Platform (as provisioned for that Customer by Hyperproof) on Customer’s behalf for Customer’s sole benefit, (iii) for whom that Customer has purchased a Subscription (defined below) (or for whom access to the Platform has been provisioned), and (iv) to whom that Customer has supplied (or facilitated the supply of) user identification and authentication; and
c. an “External User” is an individual (i) who is an employee, consultant, contractor, or agent of an entity other than the applicable Customer or its Affiliates (an “Authorized Third Party” or “ATP”), (ii) who is authorized by the applicable Customer and the applicable ATP to use the Platform (as provisioned for that Customer by Hyperproof) on the ATP’s behalf for the ATP’s sole benefit, (iii) for whom that Customer has purchased a Subscription (or for whom access to the Platform has been provisioned), and (iv) to whom that Customer has supplied (or facilitated the supply of) user identification and authentication.
Each Internal User and External User of a Customer whose use of the Platform is pursuant to an Order entered into by such Customer or that otherwise obtains access to the Platform from that Customer is a “Covered User.”
1.4. Terms Applicable to Customers. If and to the extent you are entering into these Terms as a Customer, the provisions applicable to you in your role as a Customer include those applicable to and that are obligations of “Customer” or “Users” generally as well as those applicable to and that are obligations of the type(s) of User(s) you that are using a Service on your behalf. Customers are responsible for ensuring their Users comply with these Terms. The terms applicable to Site Visitors (see Section 1.5) are also applicable to you and your Users to the extent your Users are acting as Site Visitors.
1.5. Terms Applicable to Site Visitors. If and to the extent you are entering into these Terms as a Site Visitor, the only provisions applicable to you in your role as a Site Visitor, notwithstanding anything in these Terms to the contrary, are the following sections of these Terms: Sections 1 (Overview; Structure), 2 (Eligibility), 7.4 (Feedback), 8.2 (Ownership; Proprietary Rights), 9 (Restrictions), 11.2 (Linked Websites), 14 (Modification of Terms), 15 (Term, Termination, and Modification of the Services), 17 (Disclaimers; No Warranties); 18 (Limitation of Liability), and 19 (Miscellaneous). IN YOUR CAPACITY AS A SITE VISITOR, HYPERPROOF MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED) TO YOU RELATING TO ANY SERVICES, WHICH ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS.
1.6. Terms Applicable to Covered Users. If and to the extent you are entering into these Terms as a Covered User (including where an ATP is entering into these Terms on behalf of its External Users), (a) the only provisions applicable to Users in the role as a Covered User, notwithstanding anything in these Terms to the contrary, are following sections of these Terms: Sections 1 (Overview; Structure), 2 (Eligibility), 6 (Free Trials and Beta Features), 8.2 (Ownership; Proprietary Rights), 9 (Restrictions), 11.1 (Third-Party Services), 11.2 (Linked Websites), 13 (Communications), 14 (Modification of Terms), 15 (Term, Termination, and Modification of the Services), 17 (Disclaimers; No Warranties); 18 (Limitation of Liability), 19 (Miscellaneous), and the DPA (defined below), and (b) AS BETWEEN HYPERPROOF AND CUSTOMER, YOU ACKNOWLEDGE AND AGREE THAT IT IS SOLELY CUSTOMER’S RESPONSIBILITY TO (A) INFORM YOU AND ANY OTHER COVERED USERS OF ANY RELEVANT CUSTOMER POLICIES, PRACTICES, AND SETTINGS THAT MAY IMPACT THE PROCESSING OF CUSTOMER DATA (defined below); (B) OBTAIN ANY RIGHTS, PERMISSIONS OR CONSENTS FROM YOU AND ANY OTHER COVERED USERS THAT ARE NECESSARY FOR THE LAWFUL USE OF CUSTOMER DATA AND THE OPERATION OF THE SERVICES; (C) ENSURE THAT THE TRANSFER AND PROCESSING OF CUSTOMER DATA UNDER THE THESE TERMS IS LAWFUL; AND (D) RESPOND TO AND RESOLVE ANY DISPUTE WITH YOU AND ANY OTHER COVERED USERS RELATING TO CUSTOMER DATA, THE SERVICES, OR CUSTOMER’S FAILURE TO FULFILL ANY OBLIGATIONS. IN YOUR CAPACITY AS A COVERED USER, HYPERPROOF MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED) TO YOU RELATING TO ANY SERVICES, WHICH ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS.
2. ELIGIBILITY.
Each User must be at least 18 years old to use the Services. By agreeing to these Terms, you represent and warrant to Hyperproof that: (a) each User is at least 18 years old; (b) if you are a User, you are at least 18 years old; (c) neither you nor, with respect to Customer, any Covered Users, have previously been suspended or removed from any of the Services; and (d) your registration and use of the Services is in compliance with any and all applicable laws and regulations. All acts or failures to act by a Customer’s Covered Users are deemed acts or failures to act by such Customer, and all obligations of a Customer under these Terms apply to Customer and its Covered Users.
3. PLATFORM ACCOUNTS AND REGISTRATION.
In order to use the Platform, each Covered User must register for an account. Customer agrees that the information any Covered User provides to Hyperproof is accurate and that Customer will keep it accurate and up to date at all times. When a Covered User registers, the Covered User will be asked to provide a password. Each Customer (with respect to its Covered Users) and each Covered User is solely responsible for maintaining the confidentiality of all accounts and passwords associated with the applicable Customer and its Covered Users. Customer accepts responsibility for all activities that occur under Customer’s account (including all accounts of Customer’s Covered Users). If Customer believes that any of Customer’s accounts is no longer secure, then Customer must immediately notify Hyperproof at [email protected].
4. PAYMENT TERMS
4.1. Fees. Access to or use of certain features of the Services may be conditioned on Customer’s agreement to pay the fees specified in these Terms and the applicable Order. All fees are denominated and payable in U.S. Dollars. Fees payable pursuant to these Terms and each Order are non-cancellable and non-refundable. The fees listed in the Order will be fixed for the term listed in the Order (if any). Hyperproof may change the fees for any feature of the Services, including additional fees or charges, if Hyperproof gives Customer advance notice of changes before they apply. Except as may be otherwise agreed in an Order, Hyperproof’s then-current pricing applicable to Customer’s use of the Platform (or relevant portions thereof) will apply to Customer’s use of the Platform. Hyperproof, at its sole discretion, may make promotional offers with different features and different pricing to any of Hyperproof’s customers. These promotional offers, unless made to Customer, will not apply to Customer’s offer or these Terms. Hyperproof reserves the right to quote additional fees for certain Services that may be arranged by mutual written agreement or paid for via invoice.
4.2. Payment. Customer agrees to pay all undisputed invoices within 30 days, unless different payment terms are agreed in the applicable Order, and Customer agrees that Hyperproof may charge interest of 1.5% monthly (or, if less, the highest rate permitted by law) for past due invoices. If Customer fails to make a payment for more than 90 days past the date the invoice was received by Customer, Hyperproof reserves the right to terminate these Terms or any Order. In addition to the amount due for the Services, Customer may be charged with fees, charges or expenses (including reasonable attorneys’ fees) that are incidental to any chargeback or collection or any unpaid amount, including collection fees.
4.3. Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments, including, value-added, sales, use or withholding taxes, assessable by any jurisdiction (“Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Hyperproof has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Hyperproof will invoice Customer and Customer will pay that amount unless Customer provides Hyperproof with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Hyperproof is solely responsible for taxes assessable against it based on its income, property, and employees. If Customer is located in the European Union, all fees are exclusive of any VAT and Customer represents that Customer is registered for VAT purposes in Customer’s member state. At its request, Customer will provide Hyperproof with the VAT registration number under which Customer is registered in Customer’s member state. If Customer does not provide Hyperproof with a VAT registration number prior to Customer’s transaction being processed, Hyperproof will not issue refunds or credits for any VAT that was charged. If Customer is subject to GST, all fees are exclusive of GST.
4.4. Delinquent Accounts. Hyperproof may suspend or terminate access to the Services, including fee-based portions of the Services, for any account for which any amount is due but unpaid. In addition to the amount due for the Services, a delinquent account will be charged with fees or charges that are incidental to collection of any unpaid amount, including collection fees. Hyperproof will not suspend access due to non-payment while Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If a Subscription is suspended for non-payment, Hyperproof may charge a re-activation or interest fee to reinstate the Subscription.
5. SUBSCRIPTIONS
5.1. Paid Versions and Subscriptions. The Platform is generally made available through certain subscription-based plans with automatically recurring payments for periodic charges (a “Paid Version”). There may be more than one type of Paid Version available to Customer (e.g., with different levels of access or usage allowances). Each of a Customer’s subscriptions to a Paid Version (whether on an entity-wide basis, per-Program or per-Module basis, or otherwise) is a “Subscription.”
5.2. Subscription Fees. The fees charged to access Paid Versions (including any applicable Taxes) are the “Subscription Fees.” Subscription Fees for each of Customer’s Subscriptions are assessed, in advance, for each Subscription Term (defined below). Hyperproof may, at its discretion, increase Subscription Fees for Customer effective upon the commencement of a Renewal Term (defined below). Hyperproof will give Customer prior notice of any fee increase in Subscription Fees at least 45 days before the start of the applicable renewal Subscription Term. Customer authorizes Hyperproof or its third-party payment processors to periodically charge Customer the applicable Subscription Fees (which will be the then-current list price Subscription Fees, unless otherwise expressly agreed in the applicable Order) for that Subscription for each Subscription Term when they become due, on a going-forward basis and until cancellation of either the Subscription (see Section 5.5) or Customer’s account(s) associated with the Subscription. If Customer pays any fees with a credit card, Hyperproof may seek pre-authorization of Customer’s credit card account prior to Customer’s purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Customer’s purchase. Hyperproof will bill the periodic Subscription Fee to the payment method Customer provides to Hyperproof during registration (or to a different payment method if Customer changes Customer’s payment information). Unless and until the applicable Subscription Term ends, Customer’s account will be charged the Subscription Fees for each Subscription Term automatically, on or about the first day of each Subscription Term, unless an alternate billing cycle is expressly agreed between Customer and Hyperproof.
5.3. Subscription Term. A Subscription will begin on the date specified in the applicable Order and continue for the Subscription Term specified in the applicable Order (such period, the “Initial Term”) and, unless terminated in accordance with these Terms, will renew for successive periods of the same duration as the Initial Term (each, if any, a “Renewal Term” and each of the Initial Term and each Renewal Term, if any, a “Subscription Term”). If the Subscription start date is not specified in the applicable Order, the first Subscription Term for a particular Subscription begins on the date Customer agrees to the applicable Order. Unless otherwise specified on the applicable Order, the length of the Initial Term is one year.
5.4. Changes. Quantities of access rights (with respect to the number of Covered Users, modules, features, etc.) purchased cannot be decreased during the then-current Subscription Term. Additional Subscription Fees may become payable during a Subscription Term (and for subsequent Subscription Terms) if any of the following occur (each, a “Change”): (i) Customer exceeds applicable limits, if any, on the number or type of Covered Users or other applicable limits, (ii) Customer’s Program or Module count exceeds the then-current number of Programs or Modules covered by its then-current Subscription(s), (iii) Customer upgrades to a different product or base package, (iv) Customer subscribes to additional features or products, or (v) as otherwise agreed to in the applicable Order. With respect to the Changes described in parts (i) and (ii), Hyperproof may provide notice to Customer (which may be through the Platform) that Customer has exceeded applicable limits or coverage levels and may, in Hyperproof’s sole discretion, provide a period during which Customer is required to reduce its usage back to the limits specified in the applicable Order and these Terms and, if Customer does not do so within 30 days of that notice (or other period specified in that notice), Customer will pay the applicable fees for the additional usage. The Subscription Fee will increase to the list price that corresponds with the applicable usage levels or other changes to Customer’s usage or access rights. That increase will be prorated for the Subscription Term in which the Change occurred, based on the remaining time in the Subscription Term.
5.5. Canceling a Subscription (Non-Renewal). CUSTOMER MUST FOLLOW THE CANCELLATION REQUIREMENTS IN THIS SECTION IN ORDER TO AVOID A CHARGE FOR THE NEXT SUBSCRIPTION TERM FOR EACH SUBSCRIPTION. Customer can cancel a Subscription by following the applicable instructions within the Platform or by emailing Hyperproof at [email protected], calling Hyperproof at +1-833-497-7663 (USA) or completing the “Contact Hyperproof” form available at hyperproof.io/contact-us/ or as may be specified within the Platform and must do so prior to the date that is 30 days from the end of the then-current Subscription Term to avoid having the applicable Subscription renew for subsequent Subscription Terms. Upon cancellation of a Subscription by Customer (and not as a result of Customer’s violation of these Terms), Customer will continue to have use of and access to the Platform under the Covered User account(s) associated with the applicable Subscription(s) for the remainder of the then-current paid Subscription Term (subject to ongoing compliance with these Terms).
5.6. Termination of a Subscription. Either party may terminate a Subscription upon 30 days’ written notice to the other party of a material breach of these Terms (including failure to pay amounts when due) if such breach remains uncured at the expiration of such period. If these Terms are terminated by Customer in accordance with this section, Hyperproof will refund Customer, on a pro rata basis, any prepaid Subscription Fees covering the period between the date termination is effective and the end of the then-current Subscription Term (had there not been a termination). Hyperproof will not otherwise provide any refunds of prepaid or unused Subscription Fees.
5.7. Effect of Termination. Upon expiration or termination of the Subscription Term or applicable Order, access to the Platform will terminate and Customer will immediately cease accessing and using the Platform. Hyperproof will use commercially reasonable efforts to retain Customer Data for a period of at least 30 days after that expiration or termination to enable Customer to extract the data but has no obligation to retain, maintain, or provide the data beyond that period.
6. FREE TRIALS AND BETA FEATURES
6.1. Free Trials. Hyperproof may make the Platform or certain features thereof available to Customer on a trial basis at its sole discretion (“Free Trial”) for a trial period designated by Hyperproof (or if not designated, 30 days) (“Trial Period”). During the Trial Period, Hyperproof grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to allow Internal Users (subject to any limit on quality or otherwise specified by Hyperproof) access and use the Platform or designated features solely for Customer’s internal evaluation and no other purposes. The Free Trial will automatically terminate at the end of the applicable Trial Period.
6.2. Beta Access. Hyperproof may, at its sole discretion from time to time, add new features to the Service that may be described as “beta” or pre-release features or services (collectively, “Beta Features”). These Beta Features will be considered part of the Services and all provisions of these Terms relating to the Services apply to these Beta Features. Beta Features may include partially functional or non-functional features of the Service. If Customer or a Covered User uses Beta Features, Customer expressly authorizes Hyperproof access to Customer’s and its Covered Users’ usage data for product development research and analysis. Access to Beta Features is available at Hyperproof’s sole and revocable discretion and where access is permitted, access by Customer or its Covered Users is optional. If Customer elects to use a Beta Feature (including through use by any Covered User), such use is at Customer’s own risk. Beta Features may be inoperable, incomplete, or include features that Hyperproof may never release, and their features and performance information are deemed to be Hyperproof’s Confidential Information (defined below).
6.3. Disclaimers. Free Trials and Beta Features are provided “as is” without warranty of any kind, express or implied. Hyperproof will have no obligation to maintain, correct, update, change, modify, or otherwise support Free Trials or Beta Features and may discontinue providing Free Trials or Beta Features at any time, with or without notice. Hyperproof will not be liable for any lost revenue, lost profits, or other direct, indirect, incidental, or consequential damages arising out of or related in any way to the Free Trials or the Beta Features, even if advised of the possibility of such damages.NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, HYPERPROOF PROVIDES NO WARRANTY, INDEMNITY, OR SUPPORT FOR FREE TRIALS AND BETA FEATURES AND ITS LIABILITY FOR FREE TRIALS AND BETA FEATURES WILL NOT EXCEED US$50.00.
7. GRANT OF ACCESS; LICENSES AND RELATED TERMS
7.1. Use of Platform. Subject to Customer’s complete and ongoing compliance with these Terms, Hyperproof hereby grants Customer a limited, nonexclusive, non-transferable right during the Subscription Term to allow its Covered Users who have a then-current Subscription to the Platform or applicable portion thereof to access and use it solely for the Authorized Use and solely to process data that Customer or, where applicable, the applicable ATP, is authorized to process. Except to the extent otherwise specified on the applicable Order, (a) Customer has no right to sublicense or sell access to any Services, and (b) “Authorized Use” means use solely by Internal Users and solely for the internal business purposes of Customer and its Affiliates. An Order may specify (i) an expanded or alternative Authorized Use and (ii) the scope of rights under a Subscription that Customer may extent to Authorized Third Parties and their associated External Users.
7.2. Use of the Documentation. Hyperproof’s online help FAQs, user guides, training manuals, and similar product documentation for the Platform and SDKs (defined below) are available for review at https://docs.hyperproof.io/ (or such other URL as designated by Hyperproof), as updated or revised by Hyperproof from time to time (the “Documentation”). Subject to Customer’s and its Covered Users’ complete and ongoing compliance with these Terms, Hyperproof hereby grants to Customer a limited, worldwide, non-exclusive, non-transferable license, without right of sublicense (other than to Covered Users), during the Subscription Term to allow Covered Users to reproduce, without modification, and use a reasonable number of copies of the Documentation solely in connection with its Covered Users’ use of the Platform (or, if applicable, any SDK) in accordance with these Terms and only in connection with the Authorized Use.
7.3. License Grant for SDKs. If and to the extent that an Order indicates that Customer will receive a license from Hyperproof to a software development kit (each, an “SDK”), then Customer’s use of that SDK or related SDK materials is subject to Customer’s compliance with these Terms and the additional SDK terms that are specified in the applicable Order. If no other SDK license terms are specified in the applicable Order or distributed in connection with a particular SDK, then Hyperproof hereby grants to Customer, during the applicable Subscription Term, a non-exclusive, non-transferable, non-sublicensable right and license under Hyperproof’s rights in that SDK to allow Covered Users to do the following: (a) use the object code libraries, application programming interfaces, and Documentation specified in that SDK solely to enable applications in connection with the Platform, and (b) modify any sample code included within that SDK in accordance with the Documentation included in the SDK and subject to any restrictions and limitations specified in that Documentation.
7.4. Feedback. If Customer (including through its Covered Users) chooses to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Services (including any suggestion, enhancement request, recommendation, correction, or other feedback relating to the operation or use of any Services) (“Feedback”), then Customer hereby grants Hyperproof an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve any Services and create other products and services. Hyperproof has no obligation to provide Customer with attribution for any Feedback that Customer or its Covered Users provide to Hyperproof. Hyperproof acknowledges that all Feedback is provided “as is,” and that Customer makes no representation or warranty, express or implied, as to the accuracy, non-infringement, or completeness thereof.
8.1. Compliance. As between Customer and Hyperproof, Customer will: (a) be responsible for its Covered Users’ compliance with these Terms and the applicable Order, (b) be responsible for the accuracy, quality, and legality of Customer Data, the means by which Customer or the applicable ATP acquired Customer Data, Customer’s and any Covered User’s use of Customer Data with the Platform, (c) be responsible for maintaining control over all Covered User accounts for the Platform, including all activities that occur on Covered User’s accounts for the Platform, (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform, and notify Hyperproof promptly of any such unauthorized access or use, and (e) use and allow Covered Users to use the Platform only in accordance with these Terms, the applicable Order, and applicable laws and government regulations. If Customer breaches its payment obligations, Hyperproof may suspend delivery of access to the Platform to Customer and its Covered Users after providing 30 days’ notice (including by phone or email) in the event such breach remains uncured at the end of such period.
8.2. Ownership; Proprietary Rights. The Services are, as between the you and Hyperproof, owned and operated by Hyperproof. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Services provided by or on behalf of Hyperproof (“Materials”) are protected by intellectual property and other laws. All Materials included in the Services are the property of Hyperproof or its third-party licensors. Except as expressly authorized by Hyperproof, neither Customer nor any User may make use of the Materials. There are no implied licenses in these Terms and Hyperproof reserves all rights to the Materials not granted expressly in these Terms.
BY USING ANY SERVICE OR ALLOWING ANY COVERED USER TO USE THE SERVICE, YOU AGREE NOT TO: (a) use the Services for any illegal purpose or in violation of any local, state, national, or international law; (b) violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right; (c) attempt to gain unauthorized access to the Services or related systems or networks or attempt to access or search the Services or Materials or download Materials from the Services through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, data mining tools, and the like) other than the software or search agents provided by Hyperproof or other generally available third-party web browsers; (d) use the Services to store third-party credit card information or social security numbers or other personally identifiable information of third parties (as that term or similar terms may be defined under applicable laws); (e) interfere with security-related features of the Services, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering, disassembling, or decompiling any Service or portion thereof or otherwise attempting to discover the source code of any portion of the Services except to the extent that the activity is expressly permitted by applicable law; (f) interfere with the operation of the Services or any User’s enjoyment of the Services, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) stealing another User’s data, misusing the data, or sharing the data outside of a User’s own enterprise in violation of these Terms; (iii) making any unsolicited offer or advertisement to another User of the Services; (iv) collecting personal information about another User or third party without consent; or (v) interfering with or disrupting the integrity or performance of the Services or any network, equipment, or server connected to or used to provide the Services; (g) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Services account without permission, or falsifying any age or date of birth; (h) except as may be expressly permitted under the applicable Order, sell, resell, license, sublicense, distribute, make available, rent, or lease the Services, or include the Services in a service bureau or outsourcing offering, or otherwise transfer the access granted under these Terms or any Materials or any right or ability to view, access, or use any Materials; (i) use the Services to access or use the Materials or any of Hyperproof’s or its licensors’ intellectual property except as permitted under these Terms; (j) modify, copy, or create derivative works based on the Services or any part, feature, function, or user interface thereof; (k) except as may be expressly permitted under the applicable Order, frame or mirror any part of the Services, other than framing on Customer’s own intranets or otherwise for its own internal business purposes; (l) access any portion of the Service to: (i) build a competitive product or service; (ii) build a product or service using similar ideas, features, functions, or graphics of the Services; or (iii) copy any ideas, features, functions, or graphics of the Services; or (m) attempt to do any of the acts described in this Section 9 or assist or permit any person in engaging in any of the acts described in this Section 9.
10.1. Confidential Information. “Confidential Information” means all information disclosed by either Customer or Hyperproof (as “Discloser”) to Hyperproof of Customer, respectively (as “Recipient”), whether orally or in writing, 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. “Confidential Information” of Customer includes Customer Data; “Confidential Information” of Hyperproof includes the Services, any Beta Features, and all Orders (including pricing). “Confidential Information” of each of Customer and Hyperproof includes technology and technical information, product plans and designs, and business processes disclosed by such party. However, “Confidential Information” does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to Discloser; (b) was known to Recipient prior to its disclosure by Discloser without breach of any obligation of confidentiality; (c) is received from a third party without breach of any obligation of confidentiality; or (d) was independently developed by Recipient without reference to Confidential Information from Discloser.
10.2. Protection of Confidential Information. As between Customer and Hyperproof, each party retains all ownership rights in and to its Confidential Information. Recipient will use the same degree of care it uses to protect its own confidential information of like kind to limit access to Confidential Information of Discloser to those of its and its Affiliates’ employees and contractors, and subcontractors who need that access for purposes consistent with these Terms and who have signed confidentiality agreements with the Recipient that are not materially less protective than those herein. Neither party will disclose the terms of any Order to any third party without the other party’s prior written consent, except that a party may disclose such information to its Affiliates, legal counsel, and accountants provided that Discloser remains responsible for their compliance with this section. Recipient may disclose Confidential Information of Discloser to the extent compelled by law, provided Recipient gives Discloser prior notice (to the extent legally permitted) and provides reasonable assistance, at Discloser’s cost, if Discloser wishes to contest the disclosure. If Recipient is compelled by law to disclose Discloser’s Confidential Information as part of a civil proceeding to which Discloser is a party, and Discloser is not contesting the disclosure, Discloser will reimburse Recipient for its reasonable cost of compiling.
11 THIRD-PARTY TERMS
11.1. Third-Party Services. Hyperproof may provide tools through the Services that enable Users to export information, including Content (defined below), to third-party services, including through features that allow Covered Users to link their accounts on the Platform with an account on the third-party service, or through its implementation of third-party buttons (such as “like” or “share” buttons). By using or allowing Covered Users to use any of these tools, Customer agrees that Hyperproof may transfer that information to the applicable third-party service. Third-party services are not under Hyperproof’s control, and, to the fullest extent permitted by law, Hyperproof is not responsible for any third-party service’s use of exported information (whether from a User, Customer, ATP, or otherwise). Once sharing occurs, Hyperproof will have no control over the Content that has been shared.
11.2. Linked Websites. The Services may contain links to third-party websites. Linked websites are not under Hyperproof’s control, and Hyperproof is not responsible for their content.
11.3. Third-Party Software. The Services may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Services are provided to Customer subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict Customer from obtaining Third-Party Components under the applicable third-party licenses or to limit Customer’s use of Third-Party Components under those third-party licenses.
12 CONTENT; DATA
12.1. Content Generally. Certain features of the Services may permit Users to submit, upload, publish, broadcast, or otherwise transmit (“Post”) content or other information to any of the Services, including video, images, folders, data, text, and any other works of authorship or other works (“Content”). Content, electronic data, and information Posted by or for Customer or its Covered Users to any Service, including from third-party platforms, are “Customer Data.” As between Hyperproof and Customer, Customer retains any copyright and other proprietary rights that Customer or its licensors may hold in Customer Data, subject to the licenses granted in these Terms.
12.2. Limited License Grant to Customer Data. If and to the extent any Covered User Posts Customer Data to or via any of the Services, Customer hereby grants to Hyperproof a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to use, process, transmit, store, and disclose the Customer Data: (a) during the term these Terms (including successor versions of these Terms) are in effect for the purpose of exercising Hyperproof’s rights and performing its obligations under these Terms (including to make that Customer Data available to Covered Users), and (b) in perpetuity (i) to derive or generate Customer Metadata (defined below) for the uses specified in these Terms; (ii) to create and compile Aggregated Data (defined below) for the uses specified in these Terms; (iii) in a form that does not identify Customer as the source thereof, for Hyperproof and its Affiliates’ business purposes, including to develop and improve Hyperproof’s and its Affiliates’ products and services; (iv) as specified in the DPA; and (v) as otherwise required by applicable law or as agreed to in writing between Customer and Hyperproof.
12.3. Aggregated Data. Hyperproof may process Aggregated Data for internal business purposes, such as to: (a) track use of Services for billing purposes; (b) provide support for Services; (c) monitor the performance and stability of the Services; (d) prevent or address technical issues with the Services; (e) to improve any of the Services, Hyperproof’s and its Affiliates’ other products and services; (f) to develop new products and services; and (g) for all other lawful business practices, such as analytics, benchmarking, and reports. “Aggregated Data” means Customer Data that has been deidentified or aggregated with other data such that the resulting data no longer reasonably identifies Customer or a specific individual.
12.4. Customer Metadata. Hyperproof may store and use metadata associated with Customer’s and its Covered Users’ use of the Services, including IP addresses, stored sessions, network metadata, technical logs, data, and learnings about Customer’s and its Covered Users’ use of the Services (collectively, “Customer Metadata”) for its internal business purposes and for the purpose of providing the Services to Customer. For example, Hyperproof may track and analyze the usage of the Services for purposes of security and helping Hyperproof improve both the Services and the user experience in using the Services. For example, to improve product functionality we may use this information to understand and analyze trends or track which features are used most often. Hyperproof may aggregate Customer Data and Customer Metadata with data and metadata from other Hyperproof customers or other sources, provided that such data and metadata is not identifiable as Customer Data or Customer Metadata and Customer cannot be recognized as its source. Hyperproof may share anonymous usage data with Hyperproof’s service providers for the purpose of helping Hyperproof in such tracking, analysis, and improvements. Additionally, Hyperproof may share such anonymous usage data on an aggregate basis in the normal course of operating our business.
12.5. Hyperproof Protection of Customer Data. Hyperproof will maintain no less than commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data. Those safeguards will include measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or External Users). The then-current version of the data processing addendum published by Hyperproof (“DPA”) (available at Data Processing Addendum or such other URL as may be specified by Hyperproof from time to time) is hereby incorporated and will apply to the extent Customer Data includes Personal Data (as defined in the DPA). To the extent Personal Data from the European Economic Area (EEA), the United Kingdom (UK) and Switzerland are processed by Hyperproof, the Standard Contractual Clauses (as defined in the DPA) and the UK Addendum (as defined in the DPA) will apply as needed, and as further set forth in the DPA. For the purposes of the Standard Contractual Clauses and the UK Addendum, Customer is the data exporter, and Customer’s acceptance of these Terms, and any applicable execution of an Order by Customer, will be treated as its execution of the Standard Contractual Clauses, the UK Addendum, and related Appendices, as applicable.
12.6. Applicable Privacy Laws. To the extent Hyperproof will process Customer’s Personal Data (as defined in the DPA) to provide Services to Customer pursuant to these Terms, you and Hyperproof will comply with its obligations pursuant to Applicable Data Protection Laws (as defined in the DPA) outlined in the DPA.
12.7. Restrictions. Customer and Covered Users must not Post any Content if Customer is not the owner of or is not fully authorized to grant rights in all of the elements of that Content. Hyperproof disclaims any and all liability in connection with Content. As between Customer and Hyperproof, Customer is solely responsible for Customer Data and the consequences of providing Content via any of the Services. By providing Content (via Covered Users or otherwise) via any of the Services, Customer affirms, represents, and warrants to Hyperproof that: (a) Customer is the creator and owner of the Customer Data, or has the necessary licenses, rights, consents, and permissions to authorize Hyperproof and Users of the Services to use and distribute the Customer Data as necessary to exercise the licenses granted by Customer in this Section 12, in the manner contemplated by Hyperproof, the Services, and these Terms; (b) Customer Data, and the Posting or other use of Customer Data as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity, or other property rights of any other person; or (iii) cause Hyperproof to violate any law or regulation or require Hyperproof to obtain any further licenses from or pay any royalties, fees, compensation, or other amounts or provide any attribution to any third parties; and (c) Customer Data could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
12.8. Content Disclaimer. Hyperproof is under no obligation to edit or control Content that Customer or Users Post and will not be in any way responsible or liable for Content. Hyperproof may, however, at any time and without prior notice, screen, remove, edit, or block any Content that in its sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. Customer agrees to waive, and does waive, any legal or equitable right or remedy Customer has or may have against Hyperproof with respect to Content. If notified by a user or content owner that Content allegedly does not conform to these Terms, Hyperproof may investigate the allegation and determine in its sole discretion whether to remove the Content, which Hyperproof reserves the right to do at any time and without notice. For clarity, Hyperproof does not permit infringing activities on the Service.
12.9. Monitoring Content. Hyperproof does not control and does not have any obligation to monitor: (a) Content; (b) any content made available by third parties; or (c) the use of the Services by any Users. Customer acknowledges and agrees that Hyperproof reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Services for operational and other purposes. If at any time Hyperproof chooses to monitor the content, Hyperproof assumes no responsibility or liability for the content or any loss or damage incurred as a result of the use of the content. During monitoring, information may be examined, recorded, copied, and used in accordance with its Privacy Policy (defined below). Hyperproof may block, filter, mute, remove or disable access to any Content uploaded to or transmitted through the Services without any liability to the User who Posted such Content to the Services or to any other Users of the Services.
13 COMMUNICATIONS.
Hyperproof may send Customer and Users emails concerning Hyperproof’s products and services, as well as those of third parties. Customer and Users may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself. Hyperproof and those acting on our behalf may send text (SMS) messages to the phone number provided by or on behalf of the applicable Customer or User. These messages may include operational messages about use of the Service, as well as marketing messages. Text messages may be sent using an automatic telephone dialing system. Standard data and message rates may apply whenever Customer or a User sends or receives such messages. Customer or any User may opt out of text messages from Hyperproof by contacting support at [email protected]. Customer or any User may opt out of marketing messages by texting “STOP” to the number that sends the text messages and may opt out of all text messages from Hyperproof by texting “STOPALL” to the number that send the text messages. Customer or Users may continue to receive text messages for a short period while Hyperproof processes the opt-out request. Customer’s or a User’s agreement to receive marketing texts is not a condition of any purchase on or use of any of the Services.
14. MODIFICATION OF TERMS.
Hyperproof may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for Customers and with respect to Covered Users, material revisions will, unless otherwise stated, take effect upon the earlier of (a) the beginning of the next Subscription Term; or (b) Customer’s execution of an Order that expressly references and incorporates the modified version of the Terms. If Customer does not agree to the modified version of the Terms, Customer should remove all Customer Data and discontinue use of the Services. Except as expressly permitted in this Section 14, these Terms may be amended only by a written agreement signed by authorized representatives of you and Hyperproof.
15 TERM, TERMINATION, AND MODIFICATION OF THE SERVICES
15.1. Term. These Terms are effective beginning when you accept the Terms or first access or use any of the Services (including, with respect to Customer, when the first of any of Customer’s Covered Users access or use the Platform) and ending when terminated as described in Section 15.2.
15.2. Termination. If Customer or any of its Covered Users violates any provision of these Terms, these Terms and Customer’s authorization to access (and to allow Covered Users to access) the Services will automatically terminate. In addition, with respect to Free Trials or other Services for which Hyperproof does not charge a fee, Hyperproof may, at its sole discretion, terminate these Terms or any or all account(s) with respect to the applicable Service, or suspend or terminate any User’s access to the applicable Service, at any time for any reason or no reason, with or without notice. Customer may terminate Customer’s account(s) (including accounts for its Covered Users) and these Terms at any time by clicking the “Cancel Account” (or similarly designated) button in the Platform’s “Account” section or following other termination procedures as may be specified within the Platform or by contacting customer service at [email protected].
15.3. Effect of Termination. Upon termination of these Terms: (a) Customer’s and its Covered Users’ license rights will terminate and you and any associated Covered Users must immediately cease all use of the Services; (b) you and any associated Covered Users will no longer be authorized to access accounts on the Platform; (c) Customer must pay Hyperproof any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 7.4 (Feedback), 8 (Responsibilities and IP), 9 (Restrictions), 10 (Confidentiality), 11.2 (Linked Websites), 12.2 (Limited License to Customer Data), 12.3 (Aggregated Data), 12.4 (Customer Metadata), 12.7 (Restrictions), 15.3 (Effect of Termination), 16 (Indemnification), 17 (Disclaimers; No Warranties); 18 (Limitation of Liability), and 19 (Miscellaneous) will survive. If your account (or, with respect to Customer, any of your Covered Users’ accounts) has been terminated for a breach of these Terms, then you are prohibited from creating (or, as applicable, allowing your Covered Users to create) a new account on any of the Services using a different name, email address, or other form of account verification.
15.4. Modification of the Services. Hyperproof reserves the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services), temporarily or permanently, without notice to you. Hyperproof will have no liability for any change to the Services or any suspension or termination of Customer’s or any User’s access to or use of the Services. Hyperproof has no obligation to include or retain, or provide notice regarding changes to, any particular design, functionality, or features in any version or portion of the Services. Customer’s purchases are not contingent on any future functionality or features, or dependent on any oral or written public comments made by or on behalf of Hyperproof regarding future functionality or features.
16.1. Indemnification by Hyperproof. Hyperproof will defend Customer from and against any third-party claim to the extent alleging that a Service, as operated by Hyperproof, when used by Customer as permitted under these Terms and the applicable Order, infringes or misappropriates a third-party’s U.S. patent, copyright, trademark, or trade secret, and will indemnify Customer against any damages and costs awarded against Customer (including reasonable attorneys’ fees) or agreed in a settlement by Hyperproof resulting from the claim.
16.2. Indemnification by Customer. Customer will defend Hyperproof and its Affiliates (the “Hyperproof Group”) from and against any third-party claim to the extent resulting from Customer Data or Customer’s (including any of its Covered Users’) breach or alleged breach of Section 8.1 (Compliance), and will indemnify Hyperproof against any damages and costs awarded against Hyperproof (including reasonable attorneys’ fees) or agreed in a settlement by Customer resulting from the claim.
16.3. Procedures. The indemnifying party’s obligations in this Section 16 are subject to it receiving: (a) prompt written notice of the claim; (b) the exclusive right to control and direct the investigation, defense, and settlement of the claim; and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Services, when Hyperproof is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
16.4. Mitigation. In response to an actual or potential infringement or misappropriation claim or otherwise relating to violation of intellectual property rights, if required by settlement or injunction or as Hyperproof determines necessary to avoid material liability, Hyperproof may at its option: (a) procure rights for Customer’s continued use of the applicable Service; (b) replace or modify the allegedly infringing portion of the applicable Service to avoid infringement or misappropriation without reducing the Service’s overall functionality; or (c) terminate the affected Order and refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term.
16.5. Exceptions. Hyperproof’s obligations in this Section 16 do not apply: (a) to infringement or misappropriation resulting from Customer’s modification of Services or use of Services in combination with items not provided by Hyperproof (including third-party platforms); (b) to unauthorized use of any Service; (c) if Customer settles or makes any admissions about a claim without Hyperproof’s prior consent; or (d) to free or evaluation use of any Service.
16.6. Exclusive Remedy. This Section 16 sets out Customer’s exclusive remedy and Hyperproof’s entire liability regarding infringement or misappropriation of third-party intellectual property rights.
17 DISCLAIMERS; NO WARRANTIES
17.1. THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. HYPERPROOF DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. HYPERPROOF DOES NOT WARRANT THAT THE SERVICES OR ANY PORTION OF THE SERVICES, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICES, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND HYPERPROOF DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
17.2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER OR ANY USER FROM THE SERVICES OR ANY MEMBER OF THE HYPERPROOF GROUP OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING THE HYPERPROOF GROUP OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. THE HYPERPROOF GROUP IS NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICES. CUSTOMER AND ANY USER USE ANY PORTION OF THE SERVICE AT CUSTOMER’S OR USER’S OWN DISCRETION AND RISK, AND THE HYPERPROOF GROUP IS NOT RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S OR ANY USER’S OR ANY THIRD PARTY’S PROPERTY (INCLUDING COMPUTER SYSTEMS OR MOBILE DEVICES USED IN CONNECTION WITH THE SERVICES) OR ANY LOSS OF DATA.
17.3. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION 17 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Hyperproof does not disclaim any warranty or other right that Hyperproof is prohibited from disclaiming under applicable law.
18 LIMITATION OF LIABILITY
18.1. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL ANY MEMBER OF THE HYPERPROOF GROUP BE LIABLE TO CUSTOMER OR ANY USER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO CUSTOMER’S OR ANY USER’S ACCESS TO OR USE OF, OR CUSTOMER’S OR ANY USER’S INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY HYPERPROOF ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
18.2. TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE HYPERPROOF GROUP TO CUSTOMER (AND ITS COVERED USERS) OR ANY SITE VISITOR FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICES OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT CUSTOMER HAS PAID TO HYPERPROOF FOR ACCESS TO AND USE OF THE SERVICES IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US $100.
18.3. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN YOU AND HYPERPROOF UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND HYPERPROOF. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 18 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
19 MISCELLANEOUS
19.1. General Terms. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Hyperproof regarding your use (and, with respect to Customer, Covered Users’ use) of the Services and supersede all previous oral and written communications regarding these matters, all of which are merged into these Terms, except that these Terms do not supersede any prior nondisclosure or comparable agreement between you and any member of the Hyperproof Group executed prior to entering into these Terms. The failure to require performance of any provision will not affect Hyperproof’s right to require performance at any other time after that, nor will a waiver by Hyperproof of any breach or default of any provision of these Terms be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
19.2. Assignment. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without Hyperproof’s prior written consent. Hyperproof may assign these Terms and all rights granted under these Terms, including with respect to Customer Data, at any time without notice or consent. Notwithstanding the foregoing, Customer may assign these Terms in whole to a successor in connection with a merger, consolidation, or acquisition of all or substantially all of Customer’s assets, for which no consent shall be required.
19.3. Force Majeure. Neither you nor Hyperproof will be in breach due to any delay or failure to perform resulting from any cause or condition beyond such party’s reasonable control (each, a “Force Majeure Event”). If a Force Majeure Event materially delays or prevents Hyperproof’s performance, the fees (if any) paid by Customer with respect to the delayed or prevented performance will be equitably adjusted. The party seeking relief from performance must (a) provide notice of the circumstances as soon as practicable; (b) use commercially reasonable efforts to avoid or mitigate them; and (c) resume performance as soon as practicable. If the failure or delay continues for more than 30 days, then the other party may terminate these Terms without liability, except that, if Customer terminates these Terms due to Hyperproof’s failure to perform as a result of a Force Majeure Event, Hyperproof shall provide a prorated refund for any prepaid fees for the remaining portion of the Subscription Term for Subscriptions then in effect. This section will not apply to any accrued payment obligations.
19.4. Relationship of the Parties and Third-Party Beneficiaries. You and Hyperproof are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between you and Hyperproof. Each of you and Hyperproof will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes. There are no third-party beneficiaries under these Terms.
19.5. Governing Law. These Terms are governed by the laws of the State of Washington without regard to conflict of law principles that would result in the application of the laws of another jurisdiction. Customer and Hyperproof submit to the personal and exclusive jurisdiction of the state courts and federal courts located within King County, Washington for resolution of any lawsuit or court proceeding permitted under these Terms.
19.6. Privacy Policy. Please read Hyperproof’s Privacy Policy at https://hyperproof.io/privacy-policy (the “Privacy Policy”) carefully for information relating to its collection, use, storage, and disclosure of Customer’s personal information.
19.7. Additional Terms. Customer’s use of the Services is subject to all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that Hyperproof may post on or link to from the Services (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
19.8. Consent to Electronic Communications. By using the Services and agreeing to these Terms, Customer consents to receiving certain limited electronic communications from Hyperproof Customer agrees that any notices, agreements, disclosures, or other communications that Hyperproof sends to Customer electronically will satisfy any legal communication requirements, including that those communications be in writing.
19.9. Contact Information. The Services are offered by Hyperproof Inc. located at 600 1st Ave Ste 330 PMB 78059, Seattle, WA, 98104-2246. Customer may contact Hyperproof by sending correspondence to that address or by emailing Hyperproof at [email protected].
19.10. Notice to California Residents. If Customer is a California resident, under California Civil Code Section 1789.3, Customer may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.
19.11. No Support. Hyperproof is under no obligation to provide support for the Services unless the applicable Subscription is a Paid Version that Customer is current in payments for and specifically includes support (and in such case, Hyperproof is only obligated to use commercially reasonable efforts to provide the support specified for that Subscription). In instances where Hyperproof may offer support, the support will be subject to published policies.
19.12. International Use. Hyperproof makes no representation that the Services are appropriate or available for use outside of the United States. Access to the Services from countries or territories or by individuals where such access is illegal is prohibited.
* * * * *
Online Community Terms of Use
Last updated October 31, 2024
These Hyperproof Community Terms are applicable to participants and viewers of content provided throughout Hyperproof’s online community web pages. Please contact [email protected] for details.
The Community is a place for users to publicly share feedback, ideas, work and templates about or made using the Company Services.Participation in the Community is governed by these Community Terms (“Terms”), along with all other agreements and/or terms that you or your company has agreed to with Hyperproof, including our Privacy Policy and other guidelines or policies we post on the Community (collectively, the “Terms”). By participating in the Community or otherwise indicating your agreement to these Terms, you agree to be bound by these Terms, which form an agreement between you and Hyperproof (“Company,” “we” or “us”). If you are participating in the Community on behalf of a company, organization or other entity, then “you” means that entity, and you are binding that entity to these Terms and represent and warrant that you have all necessary authority to do so. If you do not have authority or if you do not agree with these Terms, you may not participate in the Community. In addition, you may not participate in the Community if you are under the age of 13.
We may modify these Terms from time to time as described in Section 3 (Changes to Terms).
Definitions
“Community” means any community features or forums made available by Company.
“Content” means any text, information, data, graphics, messages, sounds, videos, content, code, scripts, software or other materials.
“Company Service” means the software and tools offered by the Company on www.hyperproof.app.
“User Content” means any Content that a user submits to Hyperproof for the Community, including templates, descriptions, testimonials, feedback, comments, suggestions, requests, questions or other inquiries regarding the Company Service. The term “submit” includes submitting, posting, uploading or otherwise making available User Content on or through the Community.
Use of the Community
You are required to set up an account in order to submit Content to the Community. Content is publicly available to all approved members of the Community. You are responsible for your account and everything that happens under your account in accordance with the Terms of Use and/or other governing agreement(s) between you and the Hyperproof regarding your Company Service account. We reserve the right to change, add to or disable the Community at any time, without notice or liability.
Changes to Terms
Hyperproof may modify these Terms from time to time. Unless we specify otherwise, changes become effective upon our posting of the updated Terms, and the updated Terms will apply to all use of the Community after they are posted. We will use reasonable efforts to notify you of the changes as provided in Section 11 (General Terms).
User Content
Generally
You are responsible for any User Content you submit to the Community. You do not lose any ownership rights you may have to User Content that you submit, but you understand that the User Content will be publicly available within the Community. By submitting User Content, you grant us and, at our sole discretion, other Community users a worldwide, non-exclusive, royalty-free, irrevocable, perpetual, fully-paid, sub licensable and transferable license to use, reproduce, distribute, prepare derivative works of, and publicly display and perform your Content in any form or format and through any media (including, for Hyperproof, in connection with our products and services and in our marketing and publicity). If your User Content contains your name, image or likeness, you waive any claim under any rights of privacy or publicity (including under California Civil Code 3344 and similar laws) related to use of the same in connection with use of your User Content.
Hyperproof Not Responsible
We have no obligation to (but may, in our discretion) monitor or review User Content. You are solely responsible for the enforcement of any of your rights to the User Content, and the Company shall not be held liable or responsible for providing assistance to you regarding the same. We have no responsibility for and make no promises about User Content you may encounter on the Community, including whether it infringes third-party rights or its reliability, accuracy, usefulness or safety. You may find User Content on the Community to be offensive, indecent or objectionable. However, you agree not to hold us responsible in any way for any User Content you encounter.
Removal of User Content
We reserve the right to remove any User Content at any time without notice, for any or no reason, including if it violates these Terms. We do not promise to store or make available on the Community any of your User Content or any other Content for any length of time. Your use of the Community is subject to the terms of these Terms and our takedown policy, as may be changed or updated from time to time. If you believe that anything on the Community infringes your copyright or trademark rights, you should notify us at [email protected].
Social Media
The Community may support sharing User Content on social media platforms such as Twitter, Facebook or LinkedIn (“Social Media”), and allowing other users (or Company) to share your User Content on Social Media. You may share other users’ User Content on Social Media, as long as you include a link to the Community in your post.
Proprietary Rights
The Community contains proprietary and confidential information that is protected by intellectual property and other laws. Company and its suppliers retain all right, title and interest in and to the Community, any Content on the Community (other than User Content) and the Company Service. Company retains all rights to its branding, logos, trademarks and service marks, and nothing in these Terms grant you rights to use them.
Termination
We may terminate or suspend these Terms or your access to the Community at any time, with or without notice and for any or no reason. Upon any termination or suspension of these Terms, we may delete your account, passwords and User Content, and we may bar you from further use of the Community. You understand that we may also continue to make your User Content available on the Community, or elsewhere as permitted under these Terms, even if your use of the Community is terminated or suspended. We will have no liability to you or any third party for any termination or suspension, nor will termination or suspension limit any other rights or remedies we may have. The following Sections will survive any termination of these Terms: 5 (Proprietary Rights), 6 (Termination), 7 (Warranty Disclaimer), 8 (Limitation of Liability), 9 (Indemnity), 10 (Governing Law) and 11 (General Terms).
Warranty Disclaimer
THE COMMUNITY AND ALL CONTENT IS PROVIDED BY COMPANY “AS IS”, AND USE IS AT YOUR OWN DISCRETION AND RISK. WE DO NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. WE DO NOT WARRANT THAT YOUR USE OF THE COMMUNITY WILL BE UNINTERRUPTED OR ERROR-FREE. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
Limitation of Liability
TO THE FULL EXTENT PERMITTED BY LAW, COMPANY AND ITS SUPPLIERS HAVE NO LIABILITY FOR (1) ANY USER CONTENT, (2) ANY ACTIONS YOU TAKE (OR DO NOT TAKE) BASED ON ANY CONTENT IN THE COMMUNITY, (3) ANY VIRUSES OR HARMFUL CODE ON OR IN THE COMMUNITY OR ANY CONTENT, OR (3) OTHERWISE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS OR INTERRUPTION OF BUSINESS. TO THE EXTENT ANY OF THE ABOVE LIMITATIONS ARE NOT ENFORCEABLE AT APPLICABLE LAW, COMPANY’S ENTIRE LIABILITY UNDER THESE TERMS WILL NOT EXCEED $100. These limitations and exclusions apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, and even if Company is informed of the possibility of such damages in advance. You understand that Company would not be able to provide the Community without the limitations and exclusions in this Section 8, which will survive and apply even if any limited remedy in these Terms is found to have failed of its essential purpose.
Indemnity
You will defend (at our request), indemnify and hold harmless us from and against any claim by a third party arising from or related to: (a) your use or attempted use of the Community in violation of these Terms, (b) your violation of any law or rights of any third party, or (c) any User Content you submit to the Community, including any claim of infringement, misappropriation or violation of any intellectual property, privacy or other rights.
Governing Law
These Terms will be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts. Notwithstanding the foregoing, Company may bring a claim for equitable relief in any court with proper jurisdiction.
General Terms
We may provide you with notices via email or the Community, as determined by us in our discretion. Any notices you give to us under these Terms will be deemed given only when personally delivered, delivered by reputable international courier requiring signature for receipt, or three (3) business days after being deposited in the mail, first class, postage prepaid, in each case to the Company at the current postal address listed at https://hyperproof.io/contact-us/. The parties are independent contractors, and there is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. If a court having proper authority decides that any portion of these Terms is invalid, only the part that is invalid will not apply, and the rest of these Terms will still be in effect. If we waive any of our rights under these Terms in any particular instance, it does not mean that we are waiving our rights generally or in the future. Furthermore, just because we may not enforce all our rights all of the time, it does not mean that we are waiving our rights, as we may decide to enforce them at a later date. Except as set forth herein, all amendments to these Terms must be in writing and signed by both parties. These Terms are the entire agreement between the parties with respect to their subject matter and supersede any prior agreements relating to such subject matter. For the avoidance of doubt, use and provisioning of the Company Service are subject to separate terms, such as our Terms of Use and/or other governing agreement(s) between you and the Company regarding your Company Service account, and these Terms do not apply to use of or access to the Company Service. In these Terms, headings are for convenience only and the term “including” (and similar terms) will be construed without limitation. These Terms, and any rights and licenses granted under these Terms, may not be transferred or assigned by you without our prior written consent, but may be transferred and assigned by us without restriction. We will not be liable to you for any delay or failure to perform any obligation we have under these Terms if the delay or failure is due to events which are beyond our reasonable control, including any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency. We may use the services of subcontractors and permit them to exercise the rights granted to us in order to provide the Community under these Terms.
