Last Revised May 15, 2019
THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS CUSTOMER’S ACCESS TO AND USE OF HYPERGRID, INC.’S (“HYPERGRID”) HYPERCLOUD SERVICE (“SERVICE”), WHICH SHALL INCLUDE ALL FEATURES AND FUNCTIONS OF THE HYPERCLOUD INTELLIGENT CLOUD MANAGEMENT PLATFORM AS LAST RELEASED FOR GENERAL USE AND MADE COMMERCIALLY AVAILABLE BY HYPERGRID. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICE.
IF CUSTOMER REGISTERS FOR A FREE TRIAL OF ANY HYPERGRID SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.
BY (1) EXECUTING AN ORDER FORM (“ORDER”) THAT REFERENCES THIS AGREEMENT OR (2) USING THE SERVICE, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. HYPERGRID MAY MODIFY THIS AGREEMENT (INCLUDING ANY POLICIES REFERENCED) AT ANY TIME BY POSTING A REVISED VERSION ON THE HYPERGRID WEBSITE OR BY OTHERWISE NOTIFYING CUSTOMER IN ACCORDANCE WITH SECTION 11.7. OF THIS AGREEMENT. THE MODIFIED AGREEMENT WILL BECOME EFFECTIVE UPON POSTING OR, IF HYPERGRID NOTIFIES CUSTOMER BY EMAIL, UPON DELIVERY OF THE EMAIL NOTICE. BY CONTINUING TO USE THE SERVICE AFTER THE EFFECTIVE DATE OF ANY MODIFICATIONS TO THIS AGREEMENT, CUSTOMER AGREES TO BE BOUND BY THE MODIFIED AGREEMENT. HYPERGRID LAST MODIFIED THIS AGREEMENT ON THE DATE LISTED AT THE BEGINNING OF THIS AGREEMENT.
IF CUSTOMER DOES NOT ACCEPT ALL OF THE TERMS OF THIS AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE SERVICE. IN THE EVENT OF A CONFLICT BETWEEN THIS AGREEMENT AND THE ORDER, THE ORDER SHALL CONTROL.
1. USE OF SERVICE
In order to access and use the Service, Customer will need to register with HyperGrid and create an account (“Account”). Customer is responsible for maintaining the confidentiality of Customer’s Account, including the login and passwords for all users whom Customer has authorized to access Customer’s Account (“Authorized Users”). Customer agrees to notify HyperGrid if any passwords are lost, stolen, or disclosed to an unauthorized third party, or otherwise may have been compromised. Customer is responsible for all activities that occur under Customer’s Account, including those carried out by any Authorized Users associated with Customer’s Account. Customer will promptly notify HyperGrid of any unauthorized use of or access to the Service.
1.2 Rights to Use the Service
Subject to Customer’s compliance with this Agreement, HyperGrid will make the Service available to Customer and Customer’s Authorized Users during the subscription term specified in the applicable customized Order (“Subscription Term”). HyperGrid hereby grants Customer and Customer’s Authorized Users a non-assignable, non-sublicensable, non-exclusive, non-transferable, worldwide limited right to access and use the Service during the Subscription Term, solely for Customer’s internal business operations. Customer’s rights in the Service will be limited to those expressly granted in this Section 1.2. HyperGrid and its licensors reserve all rights and licenses in and to the Service not expressly granted under this Agreement.
1.3 Restrictions and Responsibilities
Customer will not (a) make the Service available to anyone other than Customer and its Authorized Users, unless expressly stated otherwise in an Order; (b) use the Service for the benefit of anyone other than Customer or its Authorized Users, unless expressly stated otherwise in an Order; (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) use the Service to store or transmit Malicious Code or otherwise interfere with or disrupt the integrity, performance, or availability of the Service or third-party data contained therein; (e) permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit, or use the Service to access or use any of HyperGrid intellectual property except as permitted under this Agreement; (f) modify, copy, or create derivative works based on the Service or any part, feature, function or graphic thereof; (g) directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying structure, ideas, know-how or algorithms relevant to the Service or any software, documentation or data related to the Service; (h) access the Service to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, or (3) copy any ideas, features, functions or graphics of the Service; (i) sell, resell, rent, lease, or sublicense its access to the Service; (j) disable any digital rights management, usage rules, or other security features of the Service; or (k) encourage, authorize, or enable any third-party to do any of the foregoing.
The Service is purchased as a subscription. Each subscription plan is described in the applicable Order and subject to the subscription capacity and/or usage limits set forth in the applicable Order (“Subscription Plan”).
1.5 Audit Rights
HyperGrid may, upon five (5) business days’ advance notice, audit Customer’s use of the Service one (1) time per calendar quarter and one (1) time at end of Term. Customer agrees to cooperate with HyperGrid’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Customer’s normal business operations. Customer agrees to pay within thirty (30) days of written notification any fees related to Customer’s use of the Service in excess of Customer’s rights under the Order and this Agreement.
1.6 Subscription Upgrades
Customer may upgrade Customer’s Subscription Plan to one of HyperGrid’s other Subscription Plans at any time by notifying HyperGrid in writing, and if Customer does so, Customer agrees to pay HyperGrid for any applicable additional fees. HyperGrid will credit any unused portion of Customer’s existing Subscription Plan against the total amount due for Customer’s new Subscription Plan.
1.7 Maintenance and Support
HyperGrid will provide Customer with standard maintenance and support services in accordance with the HyperGrid Support and Service Level Agreement as fully set forth at https://hypergrid.com/support/. HyperGrid will have no obligation of any kind to provide support for any issues relating to the operation or performance of the Service to the extent caused by any of the following: (i) non-HyperGrid software or hardware products or use of the Service by Customer in conjunction therewith; or (ii) use of the Service other than as authorized in this Agreement.
1.8 Modification to Services
HyperGrid may add or make modifications to the features within the Service and/or update the Service from time to time, without prior notice to Customer.
1.9 Free Trial
If Customer registers on HyperGrid’s website for a free trial, HyperGrid will make the applicable Service(s) available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Service, or (b) the start date of any purchased subscription ordered by Customer for such Service, or (c) termination by HyperGrid in its sole discretion (“Trial Period”). Customer may be required to agree to additional trial terms and conditions on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. If Customer chooses to subscribe to the Service at or before the end of the Trial Period, HyperGrid will preserve Customer’s data for continued use with the paid Subscription Plan. If Customer does not subscribe to a paid Subscription Plan at or before the end of the trial period, HyperGrid reserves the right to delete Customer data after the expiration of the trial period.
DURING THE TRIAL PERIOD, THE SERVICE SHALL BE PROVIDED WITHOUT SUPPORT AND “AS-IS” WITHOUT ANY WARRANTY. HYPERGRID SHALL HAVE NO INDEMNIFICATION OBLIGATION NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICE FOR THE FREE TRIAL PERIOD. NO SERVICE LEVEL COMMITMENT WILL APPLY TO THE FREE TRIAL.
2. THIRD PARTY TECHNOLOGY AND SERVICES
Customer may use third party services and technology with the Service (“Third Party Technology”); however, HyperGrid does not endorse and is not responsible or liable for the products or services provided by such third parties and is not responsible for the operation or functionality of such Third Party Technology. Customer is solely responsible for Customer’s use of any Third Party Technology, including compliance with the terms and conditions governing use of such Third Party Technology and Customer enables, uses and accesses them at Customer’s own risk.
ANY THIRD PARTY TECHNOLOGY DOWNLOADED BY CUSTOMER OR OTHERWISE OBTAINED OR USED AT CUSTOMER’S DISCRETION IN CONNECTION WITH THE SERVICE IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK, AND CUSTOMER AND CUSTOMER’S AUTHORIZED USERS WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO SUCH USE, INCLUDING, BUT NOT LIMITED TO ANY DAMAGE TO COMPUTER SYSTEMS, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA, THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH THIRD PARTY TECHNOLOGY.
3. DATA SECURITY
3.1 Data Security Practices
HyperGrid has established and will maintain appropriate administrative, physical, and technical safeguards and information security policies to (i) protect, preserve, and ensure the security, integrity, and confidentiality of Customer’s Data (as defined in Section 6.2) while on HyperGrid’s systems; (ii) protect against anticipated threats or hazards to the security or integrity of Customer’s Data while on HyperGrid’s systems and (iii) protect against unauthorized access to or use of Customer’s Data (other than by Customer or its Authorized Users) while on HyperGrid’s systems that could result in substantial harm or inconvenience to Customer and its customers.
3.2 Security Incident Notification
In the event of any actual or suspected unauthorized access, use, disclosure or loss of Customer’s Data while on HyperGrid’s systems (a “Security Incident”), HyperGrid shall promptly after the confirmation of such Security Incident, notify Customer in writing of the Security Incident (unless prevented by law). HyperGrid shall, at its own expense, reasonably cooperate with Customer in investigating and mitigating the actual or potential harm caused by the Security Incident, provided that HyperGrid may seek reasonable reimbursement for expenses from the Customer in the event that the Security Incident arises from the failure of the Customer or its Authorized Users to comply with this Agreement.
4. TERM AND TERMINATION
4.1 Term of Agreement
This Agreement shall commence on the date Customer first accepts it and will remain in force and effect until all trials and subscriptions hereunder have expired or have been terminated in accordance with Sections 4.3 or 4.4 of this Agreement.
4.2 Term of Purchased Subscription
The term of each subscription shall be as specified in the applicable Order. Except as otherwise specified in an Order, subscriptions will automatically renew for the additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant Subscription Term, or at any time before the end of the Subscription Term in the case of monthly subscriptions.
4.3 Termination by Customer
Customer may terminate this Agreement for cause upon thirty (30) days written notice to HyperGrid of a material breach if such breach remains uncured at the expiration of such period.
4.4 Termination by HyperGrid
At HyperGrid’s sole discretion, HyperGrid may terminate or suspend Customer’s Account and use of the Service, immediately and without notice, if (a) Customer has breached any of the terms of this Agreement, if (b) Customer has acted in a manner that clearly shows it does not intend to, or is unable to, comply with the terms of this Agreement, or (c) Customer has not paid fees due under the Agreement. In addition, HyperGrid may suspend or limit Customer’s Account and use of the Service as HyperGrid deems appropriate to prevent, investigate, or otherwise address any suspected misuse of the Service.
5. FEES AND PAYMENT FOR SERVICES
By subscribing to the Service, Customer shall be responsible for and shall pay to HyperGrid the Fees as set forth in the applicable Order. Except as otherwise specified in an Order, (i) payment obligations are non-cancelable and fees paid are non-refundable, and (ii) quantities purchased cannot be decreased during the relevant Subscription Term. Customer shall be responsible for reimbursing HyperGrid for any and all reasonable costs and expenses incurred in collecting any past due amounts or service charges, including but not limited to, reasonable attorneys’ fees, chargeback fees or other related charges.
5.2 Changes to Fee Schedule
HyperGrid reserves the right to change its fee schedule at any time and we will notify Customer in advance of such changes becoming effective. Changes to the fee schedule will not apply retroactively and will only apply at the conclusion of Customer’s Subscription Term for Customer’s subscription renewal. If Customer does not agree with the changes to the HyperGrid fee schedule, then Customer’s only recourse is to stop using the Service.
5.3 Payment by Payment Card
If Customer provides credit card or debit card (“Payment Card”) information to HyperGrid, Customer authorizes HyperGrid (i) to charge Customer’s Payment Card for verification, pre-authorization and payment purposes at the beginning of each Subscription Term and any renewal Subscription Term(s) as set forth in Section 4.2 (Term of Purchased Subscriptions), and (ii) to bear any additional charges that Customer’s bank or other financial service provider may levy on Customer. Such charges shall be made in advance or in accordance with any different billing frequency stated in the applicable Order. HyperGrid reserve the right to suspend or cancel Customer’s Subscription Plan if HyperGrid is not able to charge Customer’s Payment Card for any payment period. If Customer has any concerns or objections regarding charges, Customer agrees to raise them with HyperGrid first, and Customer agrees not to cancel or reject any Payment Card charges unless Customer has made a reasonable attempt at resolving the matter directly with HyperGrid.
If the Order specifies that payment will be by a method other than a Payment Card, HyperGrid will invoice Customer in advance and otherwise in accordance with the relevant Order. Unless stated otherwise in the Order, invoiced charges are due net thirty (30) days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to HyperGrid and notifying HyperGrid of any changes to such information.
All stated fees are exclusive of taxes or duties of any kind. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with this Agreement or Customer’s use of the Service, except for taxes based on HyperGrid’s net income.
5.6 Future Functionality
Customer agrees that Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by HyperGrid regarding future functionality or features.
6. PROPRIETARY RIGHTS AND LICENSES
6.1 Reservation of Rights
HyperGrid alone (and its licensors where applicable) exclusively owns and will retain all rights related to the Service, including all copyrights, patents, trademarks, enhancements, derivatives and modifications thereof, and any other intellectual property rights relating to the Service. Customer may not remove, alter, or obscure any copyright, trademark, or other proprietary rights notices appearing on the Service.
6.2 License by Customer to Host Customer’s Data
HyperGrid does not claim any ownership rights in any data, files, text, graphics, software, works of authorship of any kind, and information or other materials that are captured, or that Customer transmits to, uploads to, runs on, processes on, stores in, causes to interface with, or uses, in connection with, Customer’s Account on the Service (“Customer Data”). Nothing in this Agreement will be deemed to restrict any rights that Customer may have to use and exploit this Data.
Customer hereby grants to HyperGrid a non-exclusive, worldwide, royalty free, transferable license to use, reproduce and distribute this Customer Data solely in connection with use of the Service and HyperGrid’s provision of the Service to Customer. Customer represents and warrants that Customer or Customer licensors own all right, title and interest in and to the Customer Data and that Customer has all rights in the Customer Data necessary and sufficient to transmit to, upload to, run on, process on, store in, cause to interface with, or use, in connection with, Customer’s Account on the Service, and to grant the rights contemplated by this Agreement. Customer is solely responsible for all of Customer Data, including but not limited to the development, operation, maintenance, and use of the Customer Data.
In order for the Service to perform the functions for which it was designed, the Service will gather and transmit certain technical information, Account information, and metadata associated with Customer’s use of the Service, to HyperGrid’s servers, which may include but not be limited to application telemetry, IP addresses, IP configurations, stored sessions, open ports, account credentials, network metadata, and device operating system, status, version, and configuration (collectively, “Metadata”). For clarity, Metadata does not include Customer Data. Customer agrees and consents to the access, collection, transmittal, storage, monitoring, copying, processing, analysis and use of the Metadata and Customer Data by HyperGrid in order to administer, support, develop and improve the Service and HyperGrid’s other products and services, and to monitor compliance with this Agreement.
Customer represents and agrees that Customer shall not submit any third party personally identifiable information (collectively, “PII”) for use with the Service. PII means any information that, alone or in combination with other data, can be used to identify, contact, or precisely locate an individual person, including, but not limited to, an identifier such as a name, an identification number, location data or an online identifier, or any data that has heightened security requirements imposed by applicable laws, including, but not limited to, the EU General Data Protection Regulation 2016/679.
If Customer provides HyperGrid with any suggestions, comments, or other feedback regarding the Service (“Feedback”), Customer acknowledges that such Feedback will become the exclusive property of HyperGrid, and HyperGrid may use (or not use) any such Feedback in any manner and for any purpose, without compensation to Customer and without implying or creating any interest on Customer’s part in any of HyperGrid’s products or services that may be based on such Feedback. Customer hereby irrevocably assigns to HyperGrid all right, title, and interest in any Feedback provided to HyperGrid.
7.1 Definition of Confidential Information.
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), 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 circumstances of disclosure. Confidential Information of Customer includes Customer Data. Confidential Information of HyperGrid includes the Services and Content, and the terms and conditions of this Agreement and all Orders (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without access to or use of any Confidential Information.
7.2 Protection of Confidential Information
As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order to any third party without the other party’s prior written consent.
8. REPRESENTATIONS, WARRANTIES, WARRANTY REMEDIES, AND DISCLAIMERS
8.1 Mutual Representations
Each party represents that it has validly entered into this Agreement and has the legal power to do so. The undersigned represents and warrants that he or she has the legal authority to bind Customer to the terms of this Agreement.
8.2 HyperGrid Warranties, Warranty Remedies And Disclaimer
HyperGrid represents and warrants that during an applicable Subscription Term the Service will (a) perform substantially in accordance with the standard user documentation for the Service that HyperGrid makes generally available to users (“Documentation”) and (b) be provided in a manner consistent with generally accepted industry standards. The Service may be temporarily unavailable for maintenance, either by HyperGrid or by third-party providers, or because of other causes beyond HyperGrid’s reasonable control. For any breach of a warranty provided in this Section 8.2, Customer’s exclusive remedy will be HyperGrid’s re-performance of the deficient Service.
HOWEVER, HYPERGRID DOES NOT WARRANT THAT THE SERVICE WILL MEET CUSTOMER REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED OR ERROR FREE BASIS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICE IS PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT THE PROVISION OF THE SERVICE DEPENDS ON NECESSARY HARDWARE, SOFTWARE, NETWORKS, STORAGE, AND OTHER PRODUCTS AND SERVICES PROVIDED BY THIRD PARTIES WHICH ARE NOT CONTROLLED BY HYPERGRID. HYPERGRID THEREFORE WILL NOT BE LIABLE FOR ANY UNAVAILABILITY OF THE SERVICE THAT IS DUE TO THE OUTAGE OR FAILURE TO PERFORM OF ANY SUCH THIRD PARTY SERVICES ON WHICH THE SERVICE DEPENDS.
9.1 Indemnification by Customer
Customer will indemnify, defend and hold HyperGrid and its officers, directors, employees and agents harmless from and against any third party claims, disputes, demands, liabilities, damages, losses, costs and expenses including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) Customer’s access or use of the Service, including but not limited to, Customer’s breach of this Agreement or (ii) Customer’s Data, including but not limited to, the transmission and submission of such Data to the Service, and infringement or misappropriation of any third party proprietary rights, provided that HyperGrid: (a) promptly notifies Customer in writing of the claim; (b) grants Customer sole control of the defense and settlement of the claim; and (c) provides Customer, at Customer’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim.
9.2 Indemnification by HyperGrid
HyperGrid will indemnify, defend and hold Customer and its officers, directors, employees and agents, harmless from and against any third-party claims, disputes, demands, liabilities, damages, losses, costs and expenses, including, without limitation, reasonable legal and accounting fees attributable to such claim that are awarded against Customer, arising out of any third-party claim that the Service, as provided under this Agreement and used within the scope of this Agreement, infringes any U.S. patent or any copyright or misappropriates any trade secret, provided that Customer: (i) promptly notifies HyperGrid in writing of the claim; (ii) grants HyperGrid sole control of the defense and settlement of the claim; and (iii) provides HyperGrid, at its expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim.
9.3 Exclusive Remedy
THE PROVISIONS OF THIS SECTION 9 SET FORTH BOTH PARTIES’ SOLE AND EXCLUSIVE OBLIGATIONS, AND BOTH PARTIES’ SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO ANY THIRD PARTY CLAIMS. DESCRIBED IN THIS SECTION.
10. LIMITATION OF LIABILITY
HYPERGRID’S TOTAL LIABILITY TO CUSTOMER AND ITS AUTHORIZED USERS, ARISING OUT OF OR RELATED TO THIS AGREEMENT, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE SERVICE IN THE SIX (6) MONTHS IMMEDIATELY PRECEEDING THE EVENTS GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE THEORY OF LIABILITY.
IN NO EVENT WILL HYPERGRID BE LIABLE TO CUSTOMER FOR ANY INIDRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR COSTS OF SUBSTITUTE GOODS OR SERVICES, OR FOR LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, ARISING IN ANY WAY OUT OF THIS AGREEMENT OR RESULTING FROM ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT HYPERGRID HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF AN EXCLUSIVE REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
11. GENERAL PROVISIONS
11.1 Surviving Provisions
The provisions of Sections 1, 5, 6, 7, 8, 9, 10, and 11 will survive any expiration or termination of this Agreement.
11.2 Export Control
Customer agrees to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Service, nor any direct product thereof, are: (i) downloaded or otherwise exported or re-exported directly or indirectly in violation of such export laws and regulations; or (ii) used for any purposes prohibited by the such export laws and regulations, including but not limited to nuclear, chemical, or biological weapons proliferation.
11.3 S. Government End Users
The Service and Documentation are “commercial items” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212, DFARS 227.7202 and other government acquisition regulations, as applicable. If the Service and Documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Service and Documentation will be only those specified in this Agreement.
11.4 Dispute Resolution
This Agreement and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The parties irrevocably consent to the jurisdiction of, and venue in, the state or federal courts located in Santa Clara County, in the State of California, for any disputes arising under this Agreement, provided that without limiting the parties’ right to seek injunctive or other equitable relief in court, either party may elect to resolve a dispute by binding arbitration in the English language in Mountain View, California under the rules of JAMS, and the other party hereby consents to such arbitration and venue. The decision of the arbitrator will be enforceable in any court. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees.
Customer agrees that HyperGrid may identify Customer as a customer of the Service, and display Customer’s name and logo (if any) in connection with such identification, on the HyperGrid websites and in its other published marketing materials. HyperGrid will use good-faith efforts to comply with any reasonable trademark usage guidelines Customer provide to HyperGrid in connection with Customer’s name and logo.
Customer may not assign any rights or obligations under this Agreement, whether by operation of law or otherwise, without HyperGrid’s prior written consent; provided, however, Customer may assign this Agreement in its entirety, without HyperGrid’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Customer’s assets. Notwithstanding the foregoing, if Customer is acquired by, sells substantially all of Customer’s assets to, or undergoes a change of control in favor of, a direct competitor of HyperGrid, then HyperGrid may terminate this Agreement upon written notice. In the event of such a termination, HyperGrid will refund to Customer any prepaid fees covering the remainder of the term of all Account subscriptions. HyperGrid may assign this Agreement freely to any affiliate or in the event of merger, acquisition, corporate reorganization, or sale of all or substantially all of HyperGrid’s assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) when sent by a legally binding eSignature solution such as DocuSign, Adobe eSign or HelloSign. All such notices will be sent to the addresses set forth above or to such other address as may be specified by either party to the other party in accordance with this Section.
In the event that any provision of this Agreement is held to be invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect.
A party’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of the parties.
11.10 No Election of Remedy
Except as expressly set forth in this Agreement, the exercise by the parties of any of their remedies under this Agreement will be without prejudice to their other remedies under this Agreement or otherwise.
11.11 Force Majeure
Neither party will be responsible for any failure or delay in its performance under this Agreement (except for the payment of money) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.
11.12 Entire Agreement
This Agreement constitutes the entire agreement between the parties regarding the Service, and it supersedes and replaces any prior agreements and understandings between the parties regarding the Service.