This End User License Agreement (“EULA”) is an agreement that governs your use of the Hyperproof Software either on a licensed basis or as a Software as a Service offering (as set forth in your applicable Order), and is an agreement between the individual or entity of which you are a duly authorized employee or agent as the party accessing the Software (“Licensee”) and Hyperproof, Inc. (“Hyperproof”). This EULA shall govern Licensee’s initial purchase on the Effective Date as well as any future purchases made by Licensee which reference this EULA. This EULA covers all major and minor releases of Software. Hyperproof provides the Software listed on an Order on a subscription basis (each, a “Subscription”). By downloading, installing, accessing or using Hyperproof Software or services, Licensee is agreeing to these terms.
1.1 License Grant. Your rights hereunder are specifically limited to those purchased by you in a (i) physical document or (ii) online through an order form or purchase UI; and in each case submitted to and accepted by Hyperproof (each an “Order”). If the Order specifies that the Licensee may obtain an object code copy of Hyperproof software for installation on Licensee-owned hardware, subject to all of the terms and conditions of this Agreement; during the Subscription Term, Hyperproof grants to Licensee a non-transferable, non-sublicensable, non-exclusive, limited license to install a single copy of the Software specified in an Order for Licensee’s internal business purposes for the sole benefit of Licensee.
1.2 Evaluation Licenses. In the event a trial or evaluation version of the Software is obtained, then such use is solely for use in a non-production environment for a limited time period (the “Trial Period”). Notwithstanding any other provision in this Agreement, evaluation versions are provided “AS-IS” without indemnification, support, or warranty of any kind, expressed or implied. All such licenses expire at the end of the Trial Period. Evaluation Terms, including but not limited to length of Evaluation Period, will be set on an Order. If the length is not explicitly stated, then the period is 60 days from activation. Once the trial period has expired, certain features may not be accessible and Users will be required to subscribe to a paid version of the Software to access them.
1.3 Authorized Use. The Software may be used only by Licensee, for the benefit of Licensee, to process Licensee’s own data for Licensee’s own internal operations. The Software may also be used by Licensee contractors under obligation of Nondisclosure solely for the benefit of Licensee. Licensee shall ensure that each person authorized to use the Software under the terms of this Agreement is informed of and agrees to conform to the obligations of the Licensee hereunder.
1.4 Assignment. Licensee may not assign this Agreement or any rights or obligations under this Agreement without the prior written consent of Hyperproof, with such consent not to be unreasonably withheld by Hyperproof. Hyperproof may assign this Agreement and its rights and/or obligations to any other party at its discretion, provided that it take reasonable efforts to notify Licensee at least thirty (30) days in advance.
1.5 Use Guidelines. Licensee may not (a) use the Software to offer data processing services to third parties, including but not limited to outsourcing or service bureau use, (b) use the Software in contravention of any applicable laws or government regulations, (c) reverse engineer, distribute, or otherwise tamper with or create copies of the Software unless otherwise permitted to do so.
Hyperproof reserves the right to impose certain technical restrictions on the Software, such as rate limits on the amount of data transported, and other similar restrictions. Hyperproof may revoke the license to the Software at any time, at which point the liability to the Licensee will be limited to that found under the “Termination & Cancellation” section found further below in this Agreement.
1.6 Subscription Term and Renewal. The length of the Subscription Term shall be designated in the Order. In the absence of an Order, the license is limited to use for evaluation purposes as set forth in Section 1.2 above. Hyperproof does not guarantee the same Subscription Terms for renewed Subscription. If the Licensee intends not to renew, Licensee agrees to cease using Software at the expiration of the Subscription Period and will certify cessation of use to Hyperproof, its licensors and/or distributors.
1.7 Software as a Service. When using Software that is hosted by Hyperproof (“Software as a Service” or “Service”), the following terms apply to users of the Service (“Users”).
Users agree to: (1) protect their password, applicable devices and account from all unauthorized use; (2) notify Hyperproof of any activity which is believed to be suspicious, unlawful or unauthorized by Hyperproof; and (3) notify Hyperproof of any security-related deficiencies or concerns related to the Software as a user becomes aware of any such issues. To notify Hyperproof, please email firstname.lastname@example.org. Users agree not to: (1) use the Service in a way that violates any applicable laws or regulations; (2) use Hyperproof to facilitate the transmission or dissemination of anything violent, threatening, pornographic, racist, hateful, or otherwise objectionable according to the opinion of Hyperproof or its delegates; (3) infringe on anyone’s intellectual property rights, defame anyone, impersonate anyone, or otherwise violate the rights of a third party; (4) hack, crack, phish, SQL inject, or otherwise compromise the security or integrity of the Hyperproof Site, Service, or its Users computers; and (5) do anything else which could bring Hyperproof into disrepute or violate the rights of any person.
2. SUPPORT AND MAINTENANCE
Hyperproof provides Support Services to Licensees (“Subscribers”) of the Software under the terms of this Support Policy, as long as a valid subscription is maintained. This Support Policy is part of and subject to an agreement with Hyperproof (the “Agreement”) and the Order under which you purchased the Subscription.
3. ADDITIONAL SERVICES
The parties may agree to have Hyperproof perform certain additional services for Licensee (e.g., implementation, training, or installation services in connection with a Product, etc.) (“Additional Services”), by describing such Additional Services and any fees therefor on (1) an Order, or (2) on a separate, mutually-executed Statement of Work which references this Agreement (each, an “SOW”, which upon mutual execution, will be incorporated into and form a part of the Agreement). Upon payment of any applicable fees set forth in the applicable Order and/or SOW (which shall be paid in accordance with Section 5), Hyperproof agrees to use reasonable commercial efforts to provide the Additional Services described therein for the term specified therein (if any). If Hyperproof provides Additional Services beyond those agreed in an Order or SOW (including, without limitation, in excess of any hours estimate set forth therein), Licensee will pay Hyperproof at its then-current hourly rates for professional services.
HYPERPROOF AND ITS PARTNERS, SUPPLIERS, AND DISTRIBUTORS MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE MERCHANTABILITY OF THE SOFTWARE OR FITNESS FOR ANY PARTICULAR PURPOSE.
YOU AGREE THAT HYPERPROOF IS NOT RESPONSIBLE IN ANY WAY FOR DAMAGES CAUSED BY THIRD PARTIES WHO MAY USE THE SOFTWARE, INCLUDING BUT NOT LIMITED TO PEOPLE WHO COMMIT INTELLECTUAL PROPERTY INFRINGEMENT, DEFAMATION, TORTIOUS INTERFERENCE WITH ECONOMIC RELATIONS, OR ANY OTHER ACTIONABLE CONDUCT TOWARDS YOU.
HYPERPROOF IS NOT LIABLE FOR ANY FAILURE OF THE GOODS OR SERVICES OF THE HYPERPROOF COMPANY OR A THIRD PARTY, INCLUDING ANY FAILURES OR DISRUPTIONS, UNTIMELY DELIVERY, SCHEDULED OR UNSCHEDULED, INTENTIONAL OR UNINTENTIONAL, ON THE HYPERPROOF SERVICE WHICH PREVENT ACCESS TO THE SOFTWARE TEMPORARILY OR PERMANENTLY.
THE SOFTWARE IS PROVIDED ON AN AS IS, WHERE IS BASIS, AND YOU AGREE THAT HYPERPROOF IS NOT LIABLE TO YOU FOR ANY DOWNTIME CAUSED FOR SECURITY, MAINTENANCE, TECHNICAL, LEGAL OR OTHER REASONS, NOR IS HYPERPROOF LIABLE TO YOU IF THE SOFTWARE FAILS TO FUNCTION AS EXPECTED.
THE PROVISION OF THE SOFTWARE TO YOU IS CONTINGENT ON YOUR AGREEMENT WITH THIS AND ALL OTHER SECTIONS OF THIS AGREEMENT. NOTHING IN THE PROVISIONS OF THIS “REPRESENTATIONS AND WARRANTIES” SECTION SHALL BE CONSTRUED TO LIMIT THE GENERALITY OF THE FIRST PARAGRAPH OF THIS SECTION. No Legal or Professional Advice. The Hyperproof Service and associated Software should be used for informational purposes only and is not intended as business or legal advice. SAMPLE PROGRAM CONTENT AND TEMPLATES PROVIDED BY HYPERPROOF ARE PROVIDED ON AN AS-IS BASIS, WITH NO WARRANTIES OF ANY KIND. If Users makes decisions in reliance on information they receives in connection with the Service, they do so at their own risk and Hyperproof, its employees, and its agents will not be liable for any losses that it may sustain. Users should not make any business or legal decision without first conducting their own research and due diligence, and consulting with a legal professional. To the maximum extent permitted by law, Hyperproof disclaims any and all liability in the event any information, commentary, analysis, opinions, advice or recommendations on the Hyperproof Service are inaccurate, incomplete or unreliable or result in any specific decision or other losses. Users alone are solely responsible for determining their compliance with applicable law.
5. LIMITATION OF LIABILITY
IN NO EVENT WILL HYPERPROOF BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR LOST PROFITS OR LOST REVENUE ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE. THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF HYPERPROOF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCT LIABILITY.
UNDER NO CIRCUMSTANCES WILL HYPERPROOF’S COLLECTIVE TOTAL LIABILITY ARISING OUT THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY LICENSEE TO HYPERPROOF UNDER THIS AGREEMENT IN THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM.
6. BILLING & PAYMENT
Licensee’s rights are subject to compliance with the payment terms of the License Agreement. All fees are as set forth in the applicable Order (“License Fees”) and shall be paid by the Customer (“Licensee”).
6.1 Payment Terms. Prices and additional terms may be published on the Hyperproof Site or negotiated with Hyperproof on a case-by-case basis. Whether prices are posted on the Hyperproof Site or communicated to the Customers or Licensors as a custom price, the prices and additional associated terms and conditions are hereby incorporated into this Agreement by reference. Unless otherwise stated, all prices are listed in United States dollars. The Licensee acknowledges and agrees that Hyperproof may charge for the amount of any applicable taxes or duties incurred by Hyperproof as a result of the transaction.
6.2 Billing. Unless otherwise specified in the applicable Order, Licensee shall pay all amounts due within thirty (30) days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. For monthly payment plans, the Software is billed in advance on a monthly basis and is non-refundable.There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. Hyperproof may, but is not obligated to, use a third party payment processor such as Stripe to accept payments.
6.3 Chargebacks and Credit Card Cancellations. Licensees (“Users”) have a duty to ensure that payments are made on time in order to continue using the Software. Where a User conducts a chargeback against Hyperproof, such User shall be liable to Hyperproof for the full amount of the chargeback, as well as any reasonable attorney fees, collection agency fees, court costs, disbursements, and other expenses incurred in Hyperproof’s enforcement of its rights under this paragraph.
If a User’s credit card is declined due to insufficient credit, expiry, or any other reason, Hyperproof may immediately cancel its provision of the Software to the Licensee and delete all associated data. Hyperproof may attempt to first contact the Licensee to rectify the problem, but is not obligated to and may exercise its rights under this paragraph fully and without prior notification or subsequent explanation.
7. TERMINATION & CANCELLATION
7.1 Term. This Agreement will commence upon the Effective Date and continue for the initial term specified in the applicable Order unless this Agreement is terminated earlier in accordance with the terms of this Agreement. Licensees may terminate this License Agreement by providing thirty (30) days written notice to Hyperproof of the decision to terminate this Agreement and ceasing use of the Software. Term-based licenses terminate upon the expiration of the prepaid term, unless all applicable fees to extend the term have been paid.
7.2 Termination for Material Breach. Without prejudice to any other rights, this Agreement will terminate automatically without notice to the Licensee if it is determined the Licensee has breached or failed to comply with any of the limitations or other requirements described herein, including the payment of any applicable fees or in the event Hyperproof determines that continued access would cause harm to Hyperproof, the systems in-use, or any third party. Hyperproof will use commercially-reasonable efforts to provide licensees with thirty (30) days notice of termination or suspension of service, and the opportunity to request restoration of access if, in Hyperproof’s sole discretion, it is deemed appropriate. Further, the Licensee acknowledges and agrees that Hyperproof’s decision to take certain actions, including limiting access to the Software, may be based on confidential criteria that is essential to the management of risk and the security of Users’ Accounts and the Hyperproof system and that Hyperproof is under no obligation to disclose the details of its risk management or its security procedures to the Licensee.
7.3 Post-Termination Obligations. Upon any termination or expiration of the Agreement for any reason, Licensee will pay to Hyperproof any fees or other amounts that have accrued prior to the effective date of the termination, any and all liabilities accrued prior to the effective date of the termination will survive, and Licensee will provide Hyperproof with a written certification signed by an authorized Licensee representative certifying that all use of the Hyperproof Software and documentation by Licensee has been discontinued by Licensee. Any terms of this Agreement which by their nature extend beyond its termination shall remain in effect.
Under no circumstances, including termination or cancellation of the Software to Licensees, will Hyperproof be liable for any losses related to actions of other Users. The Licensee agrees that Hyperproof are not liable for the deletion of any Licensee-owned content upon such termination or cancellation.
8. PROPRIETARY RIGHTS
Title and full ownership rights to the Software and all intellectual property rights therein including patent, copyright, trademark and trade secret rights shall remain with Hyperproof. Hyperproof reserves all rights granted to it under copyright, patent and other intellectual property laws.
8.1 Copyright. Licensee acknowledges and agrees not to copy, distribute, display, disseminate, or otherwise reproduce any of the information on the Software without prior written consent from Hyperproof. All text, audio, video, public relations, datasheets, and other information created by Hyperproof remain the sole property of Hyperproof.
8.2 Trademark. Licensee acknowledges and agrees not to use the Hyperproof trademark, or copy the look and feel of the Software or its design, without prior written consent. Under no circumstances may the Software be used for, or otherwise disclosed to a competitor of Hyperproof.
The Licensee acknowledges that any feedback provided to Hyperproof in connection with the Software may be used at Hyperproof’s discretion and agrees to grant Hyperproof a non-exclusive, universal, perpetual, irrevocable, sublicensable, commercial and noncommercial right to use, distribute, sell, publish, and otherwise make use of any feedback provided.
8.3 Revocation of Consent. Hyperproof may revoke any consent for use of intellectual property or any other permission(s) granted to Licensee under this Agreement, at any time. Licensees acknowledge and agree that if Hyperproof so requests, immediate action must be taken to remove any usage of Hyperproof’s intellectual property even if it would cause a loss.
Each party will regard any information provided to it by the other party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include all information which, to a reasonable person, is of a confidential or proprietary nature. A party will not disclose the other party’s Confidential Information to any third party without the prior written consent of the other party, nor make use of any of the other party’s Confidential Information except in its performance under this Agreement. Each party accepts responsibility for the actions of its agents or employees and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. The parties expressly agree that the Software and the terms and pricing of this Agreement are the Confidential Information of Hyperproof. Licensee will not remove or destroy any proprietary markings or restrictive legends placed upon or contained in the Software. A receiving party shall promptly notify the disclosing party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing party in enforcing its rights.
Information will not be deemed Confidential Information hereunder if such information: (a) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (b) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (c) lawfully becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (d) is independently developed by the receiving party without use of or reference to disclosing Party’s Confidential Information, as shown by documents and other competent evidence in receiving Party’s possession. The receiving party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or governmental regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
10. EXPORT CONTROL
Licensee acknowledges that the Hyperproof Software is subject to export controls under the U.S. Commerce Department’s Export Administration Regulations (“EAR”). Licensee agrees to comply with export control laws and regulations and shall not export, re-export or transfer the Software, directly or indirectly, to: (1) any countries that are subject to US export restrictions; (2) any end user who Licensee knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems; or (3) any end user who has been prohibited from participating in the US export transactions by any federal agency of the US government. In addition, Licensee is responsible for complying with all applicable local laws and regulations governing the export or use of the Software.
11. THIRD PARTY SOFTWARE
The Software which is distributed to Licensees contains various Open Source Software components (“OSS” or “Third Party Software” and together with the Software, the “Package”) which are provided under separate license terms, as may be described in more detail under the applicable OSS license terms. Licensees are permitted to use the Third Party Software in conjunction with the Software, provided that such use is in compliance with all applicable OSS terms and conditions, which shall take precedence over this EULA, solely with respect to such OSS.
Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service to the addresses specified on the applicable ordering document. Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Hyperproof must be addressed to our agent for notice and sent via certified mail to that agent. For Hyperproof’s agents most current contact information, please send a request to support@Hyperproof.io. Lastly, California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
13. GOVERNING LAW
This Agreement shall be governed by and enforced in accordance with the laws of the State of Washington. The offer and acceptance of this Agreement are deemed to have occurred in the State of Washington. Licensee agrees that any dispute arising from or relating to this Agreement will be heard solely by a court of competent jurisdiction in the State of Washington.
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it. If two or more provisions of this Agreement are deemed to conflict with each other’s operation, Hyperproof shall have the sole right to elect which provision remains in force.
Hyperproof reserves all rights afforded under this Agreement as well as under the provisions of any applicable law. Hyperproof’s non-enforcement of any particular provision or provisions of this Agreement or any applicable law should not be construed as a waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
16. ENTIRE AGREEMENT
This Agreement is the complete statement of the understanding between the parties, and supersedes all prior proposals and other communications between the parties, to the exclusion of all other representations, warranties, dealings, or other communications, unless such communications are in writing (including electronic writing) and are incorporated into this Agreement by reference in this Agreement. If parties to this Agreement agree subsequent to this Agreement to waive all or part of this Agreement, provided, that such waiver shall be in writing and signed by the parties in the presence of a witness.
Hyperproof reserves the right to amend this Agreement from time to time, posting the amended version of the Agreement on www.hyperproof.io, provided that disputes arising hereunder will be resolved in accordance with the terms of the Agreement in effect at the time the dispute arose. Licensees are encouraged to review the published Agreement from time to time to make themselves aware of changes. The continued use of the Software shall constitute acceptance of any such changes.
CHANGES TO THESE TERMS
If Hyperproof makes material changes to these Terms, we will notify you via the email address associated with your account or by posting a notice on our site before the changes are effective. Any new features that augment or enhance the current Service, including the release of new features and resources, shall be subject to the most current version of the Terms of Service. Continued use of the Service after any such changes shall constitute your consent to such changes.
Last Updated: November 25, 2019