Revision as of 03/27/17
PLEASE READ THESE HYPERGRID, INC. (“HYPERGRID”) HYPERCLOUD CUSTOMER TERMS (THE “AGREEMENT”) CAREFULLY BEFORE USING THE HARDWARE, SOFTWARE AND SERVICES OFFERED BY HYPERGRID, INC. BY SIGNING A HYPERGRID SERVICE AGREEMENT OR SIGNING AN ORDER DOCUMENT WHICH REFERENCES THIS AGREEMENT INCLUDING ANY AMENDMENT OR UTILITY SCHEDULE THERETO (COLLECTIVELY, THE “HSA”), YOU OR THE ENTITY THAT YOU REPRESENT (“CUSTOMER”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS HYPERCLOUD CUSTOMER TERMS CONSISTING OF THIS PARAGRAPH AND THE FOLLOWING TERMS AND CONDITIONS. PROVISION OF THE PRODUCT IS CONDITIONED ON, AND CUSTOMER’S INSTALLATION OR USE OF THE PRODUCT SHALL CONSTITUTE, CUSTOMER’S ASSENT TO THE TERMS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. THE TERMS OF ANY CUSTOMER SERVICE AGREEMENT, PURCHASE ORDER, ORDER, CONFIRMATION OR SIMILAR DOCUMENT PROVIDED BY CUSTOMER WILL HAVE NO EFFECT AND WILL NOT BE CONSIDERED AGREED TO BY HYPERGRID. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY AND STRICTLY LIMITED TO SUCH TERMS OF THIS AGREEMENT. IN THE EVENT OF A CONFLICT BETWEEN THIS AGREEMENT AND THE HSA, THE HSA SHALL CONTROL.
These terms and conditions apply to the purchase, sale, licensing or usage (as applicable) of the Products listed in the HSA.
- “CapEx Product” means a HyperGrid Hardware and Software package that is paid in full up-front with Support charged separately on a periodic basis.
- “Consumption Product” means a Hardware and Software package for which Customer pays a variable amount based on actual usage.
- “Hardware” means the hardware specified in any IT utility schedules attached to or referencing the HSA (“Utility Schedule(s)”).
- “Products” means, collectively, all of the Software, Hardware, services, and products listed in the HSA (including all Utility Schedules), including, without limitation, Subscription Products, Consumption Products, and CapEx Products.
- “Software” means the software products identified in an HSA object code form, including: (i) related documentation provided by HyperGrid; and (ii) modifications, derivative works, corrections, or updates furnished by HyperGrid.
- “Subscription Product” means any Product(s) leased on a subscription basis (including a combined Hardware and Software subscription package).
- “Usage Period” means the period of time as such may be renewed, extended or continued pursuant to a Renewal Term (as defined below) or a Continued Usage Period (as defined below) from time to time set forth on the HSA (and corresponding Utility Schedule) during which Customer is authorized to use the applicable Products.
- License; Restrictions. Subject to the terms hereof, payment of all fees, and any applicable use or capacity limitations, HyperGrid grants to Customer a personal, non-sublicensable, nonexclusive right to use the Software in object code form only and only in accordance with HyperGrid’s applicable user documentation. HyperGrid retains ownership of all copies, and Customer will maintain the copyright notice and any other notices that appear on the Product, any copies and any media. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE INCLUDES FEATURES DESIGNED TO PREVENT USE AFTER THE APPLICABLE LICENSE OR USAGE PERIOD AND/OR ANY USE INCONSISTENT HEREWITH. Customer acknowledges that Software may contain or be distributed with third party software (“Third Party Software”). All use of Third Party Software shall be governed by the respective licenses for such Third Party Software. Customer will not (and will not knowingly allow any third party to) (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Software (except to the extent that applicable law prohibits reverse engineering restrictions), (ii) provide, lease, lend, disclose, use for timesharing or service bureau purposes, or otherwise use or allow others to use for the benefit of any third party, any Software (except as expressly and specifically authorized by HyperGrid), (iii) possess or use any Software, or allow the transfer, transmission, export, or re-export of any Software or portion thereof in violation of any export control laws or regulations, (iv) disclose to any third party any benchmarking or comparative study involving any Software, or (v) modify any Software. For clarity, the limitation set forth in clause (ii) above shall not prevent Customer from operating and providing Customer’s end users with access to its products and services identified on an HSA (“Customer Services”) as an application installed on the Product by Customer in accordance with HyperGrid’s published documentation; provided that, no third party (including, without limitation, any end user) is provided access to the Product or any substantial portion of the Product’s functionality. Prior to disposing of any Product containing any part of the Software, Customer shall completely destroy any Software contained therein.
- Hardware. HyperGrid will provide to Customer the Hardware specified in an HSA (including any corresponding Utility Schedule), as follows: (a) CapEx Products shall be shipped F.O.B. HyperGrid or its designated warehouse, and Customer shall reimburse such charges at the rates set forth in the applicable invoice. Where permitted by law, Customer hereby grants to HyperGrid or its financial partner, as applicable, a purchase money security interest covering each shipment of Products made hereunder (and any proceeds thereof) in the amount of HyperGrid’s invoice for such shipment until payment in full is received by HyperGrid; and (b) HyperGrid shall be responsible for shipment costs of Consumption Products and Subscription Products. All HSAs, Utility Schedules and other order are subject to written acceptance by HyperGrid in its sole discretion and subject to this Agreement and shipment schedules established in accordance with Product availability and Customer’s credit status; however, HyperGrid shall not have any liability for failure to meet a delivery date. HyperGrid reserves the right to allocate inventories and current production in its sole discretion. HyperGrid reserves the right to modify, change, or discontinue any of the Products at any time. All Products are deemed accepted upon delivery.
- Cancellation/Rescheduling. All HSAs (including corresponding Utility Schedules) and orders are non-cancellable once received and accepted by HyperGrid. Customer may reschedule an accepted order one time until the fifteenth (15th) day following acceptance of the order; provided that no order may be modified by Customer without HyperGrid’s prior written approval. The rescheduled shipment date cannot be later than fifteen (15) days after originally scheduled.
- Payment; Taxes. Subject to credit approval, Customer shall pay the amounts stated on an invoice within thirty (30) days after the date of invoice, unless otherwise set forth in an HSA. HyperGrid reserves the right to require alternative payment terms, including payment in advance, posting of an irrevocable letter of credit, or C.O.D. All prices are in U.S. dollars, and all payments shall be made in U.S. dollars, free of any restrictions. HyperGrid reserves the right to charge Customer interest on any delinquent balance, computed on a daily basis for each day that the payment is delinquent at the lesser of twelve percent (12%) per year and the maximum rate permitted by law. HyperGrid reserves the right to refuse shipment to Customer if Customer is delinquent in making any payments owed to HyperGrid or any HyperGrid Channel Partner (as defined below). Except as otherwise required by applicable law or as agreed to in writing by the parties (and subject to Customer providing HyperGrid with a tax exemption certificate acceptable to the taxing authorities), Customer shall pay or reimburse HyperGrid for all applicable U.S. or foreign taxes.
- On-Prem Hardware Terms. Customer shall handle, operate and maintain any Subscription Products or Consumption Products that include Hardware (“On-Prem Hardware”) under proper conditions to preserve its quality and prevent damage or other loss, and Customer shall be solely liable for any damage or loss thereof. Customer shall insure the replacement value of On-Prem Hardware against loss or damage during the Usage Period. Customer acknowledges that HyperGrid may lease the Hardware from a third party (the “Lessor”) or otherwise finance the Hardware, Software, products and/or services through a third party (“Financial Partner”). Customer shall allow HyperGrid and any applicable Lessor or Financial Partner to inspect the On-Prem Hardware on Customer’s premises, wherever located or relocated, on reasonable advance notice. On-Prem Hardware shall be segregated from all other material at Customer’s facility and clearly marked “Property of HyperGrid, Inc.” or otherwise as may be directed from time to time by the applicable Lessor or Financial Partner and communicated to Customer. HyperGrid and each applicable Lessor and Financial Partner reserve the right to enter immediately upon Customer’s property and take possession of the On-Prem Hardware (or Customer shall immediately return such On-Prem Hardware to HyperGrid or the applicable Lessor or Financial Partner in good condition, reasonable wear and tear excepted, at HyperGrid’s request), or to terminate or suspend Customer’s access to the Software, if the applicable Products are being misused or used in breach of this Agreement or if Customer fails to make any payment under this Agreement when due.
- Additional On-Prem Hardware Terms. Customer agrees that the transfer of On-Prem Hardware to it under this Agreement shall be a bailment and shall not constitute a sale of the On-Prem Hardware. Customer shall, upon the request of HyperGrid or the applicable Lessor or Financial Partner, authorize statements (which may be publicly filed) to the effect that the On-Prem Hardware is made available to Customer for its use only, but that such On-Prem Hardware is the property of HyperGrid or the applicable Lessor or the Financial Partner. Customer shall execute and deliver to HyperGrid or the applicable Lessor or Financial Partner, upon such party’s request, such further instruments and assurances as HyperGrid or the applicable Lessor or Financial Partner deems necessary or advisable for the confirmation of HyperGrid’s or such Lessor’s or such Financial Partner’s rights hereunder. Customer shall not sell, pledge, or otherwise dispose of or encumber, or allow any lien to be attached under law or equity, to the On-Prem Hardware. Upon expiration of the initial Subscription Period or initial minimum Usage Period, as applicable, Customer: (i) shall promptly return the On-Prem Hardware to HyperGrid in the same condition in which it was received, reasonable wear and tear excepted, or (ii) with respect to a Subscription Product, notify HyperGrid of its intent to renew its license for additional successive periods of one (1) year each (each, a “Renewal Term”), or (iii) in the case of a Consumption product, continue to use the Product after the initial term (“Continued Usage Term”). During each Renewal Term or Continued Usage Term, Customer shall pay HyperGrid’s then-current list pricing for Subscription Products or then-current usage pricing for Consumption Customer acknowledges and agrees that each applicable Lessor and Financial Partner is an intended third-party beneficiary of this Section 7 and shall be entitled to enforce its rights and Customer’s obligations under this Section 7 directly against Customer.
- Additional Consumption Product Terms. Billing for the Consumption Products shall begin on the earlier of (a) the date that Customer first uses such Consumption Product, or (b) thirty (30) days following the date that the applicable Consumption Product is shipped to Customer. The amount invoiced to Customer shall be based on Customer’s Usage of all installed Consumption Products during a billing period. “Usage” means (i) the minimum usage level of a Consumption Product set forth on the applicable HSA (including a corresponding Utility Schedule) (the “Minimum”), plus (ii) Customer’s Actual Consumption over the Minimum. “Actual Consumption” means, with respect to a billing period, the total number of active virtual machines, whether or not being used, on each Consumption Product during any part of such billing period. In the event that Customer’s Usage of the Consumption Products is less than thirty percent (30%) of the total capacity of the installed Consumption Products, calculated as the running three-month average of Usage, then HyperGrid reserves the right to enter immediately upon Customer’s property and take possession of the applicable Consumption Product (or Customer shall immediately return such Consumption Product to HyperGrid in good condition, reasonable wear and tear excepted, upon HyperGrid’s request, and in any event, Customer shall reasonably cooperate with HyperGrid’s efforts to do so), and to terminate or suspend Customer’s access to the Software.
- Consumption Metering. In addition to HyperGrid’s right to inspect the On-Prem Hardware (as set forth in Section 6 above), HyperGrid may, upon five (5) days’ advance notice, enter Customer’s premises where Consumption Products are installed one (1) time per calendar quarter and perform an in-person audit of Customer’s Usage. Customer shall keep and maintain complete and accurate records and books of account related to this Agreement, Customer’s Usage, and the payments made or due under this Agreement, in each case, sufficient to enable HyperGrid to calculate Customer’s Usage and determine the amounts due to HyperGrid for any billing period (“Records”). At HyperGrid’s reasonable request, Customer shall provide HyperGrid with the Records. If Customer fails to permit HyperGrid’s access to the premises or to timely provide such Records, then HyperGrid may estimate Customer’s Usage and invoice Customer based on such estimated amount. If additional capacity for the Consumption Products is requested by Customer, HyperGrid may, in its discretion, provide such additional capacity and revise the pricing for the installed Consumption Products and Customer agrees to pay such revised pricing.
- Support. As its only support obligation to Customer, HyperGrid shall make commercially reasonable efforts (as to matters within its control) to maintain the reasonable availability of the Products for Customer. Support for the Subscription Products and Consumption Products is included at no additional cost. Support for the CapEx Products, if any, is offered separately subject to payment of any applicable fees. For additional information on HyperGrid’s support response timelines, Customer must send an email to email@example.com.
- Professional Services. In the event that Customer desires to obtain any professional, consulting or custom services from HyperGrid, such services shall be outlined in and subject to a separate written agreement between HyperGrid and Customer.
- Warranty; Disclaimer. For CapEx Products that are Hardware (“CapEx Hardware”), HyperGrid warrants to Customer that, for two (2) years following the date of shipment to Customer (the “Warranty Period”), the CapEx Hardware and/or each component thereof will substantially conform to HyperGrid’s published specifications for such CapEx Hardware. The foregoing warranty shall expire and be of no further force or effect following the Warranty Period. An extended warranty plan for the CapEx Hardware may be offered separately at HyperGrid’s discretion and, if any such extended warranty is offered to Customer, such extended warranty shall be provided solely in accordance with HyperGrid’s then-current extended warranty terms and subject to payment of any applicable fees. For On-Prem Hardware, HyperGrid warrants to Customer that, during the Usage Period, such On-Prem Hardware and/or each component thereof will substantially conform to HyperGrid’s published specifications for such On-Prem Hardware. The foregoing warranties do not apply to (a) expendable or consumable parts, (b) any software contained on the Hardware, (c) Hardware which is returned in any manner that is not in compliance with HyperGrid’s then-current RMA policies, (d) any Hardware from which the serial number has been removed, or (e) any Hardware that has been damaged or rendered defective (i) as a result of accident, misuse, abuse, contamination, improper or inadequate maintenance or calibration or other external causes; (ii) by operation outside the usage parameters stated in the user documentation that shipped with the product; (iii) by software, interfacing, parts or supplies not supplied by HyperGrid; (iv) due to improper site preparation or maintenance; (v) due to virus infection; (vi) due to loss or damage in transit; or (vii) by modification or service by anyone other than HyperGrid or a HyperGrid authorized service provider. HyperGrid’s sole obligation under the express warranties set forth in this Section 12 or any product defects shall be, at HyperGrid’s option and expense and as Customer’s sole remedy, to repair or replace the applicable component and/or Product; provided that in the event of a breach of the foregoing warranty within thirty (30) days of shipment, HyperGrid will replace any non-compliant Hardware within ten (10) business days of receipt of notice via its then-current RMA procedure. Customer must contact HyperGrid’s technical support center within the applicable warranty period to obtain a Return Material Authorization (RMA) number. In order to obtain warranty services, dated proof of purchase may be required by HyperGrid in its sole discretion. Hardware may not be returned without an RMA number. Access to HyperGrid’s technical support center for any and all questions, consultation, deployment assistance, or problem reports shall be provided only pursuant to the applicable support terms, if any. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 12 OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, ALL PRODUCTS, HARDWARE, SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER, AND HYPERGRID AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND FITNESS FOR A PARTICULAR PURPOSE. HYPERGRID ALSO EXPRESSLY DISCLAIMS AND MAKES NO WARRANTY REGARDING LOSS OF PROFITS, ERROR-FREE USE, NON-INTERRUPTION OF USE OR FREEDOM FROM BUGS. HYPERGRID WILL HAVE NO LIABILITY FOR THE LOSS OR CORRUPTION OF ANY DATA STORED ON ANY PRODUCT FOR ANY REASON. CUSTOMER IS SOLEY RESPONSIBLE FOR BACKING UP, PRESERVING, ENCRPYTING, SECURING OR REMOVING DATA FROM ALL HARDWARE, AS APPROPRIATE.
- Confidentiality. Without obtaining HyperGrid’s prior written consent, Customer shall not disclose to any third party the existence or substance of this Agreement or the relationship between the parties.
- Indemnification. HyperGrid shall defend, indemnify and hold Customer harmless from liability to third parties resulting from infringement by a Product of any United States patent or any copyright or misappropriation of any trade secret owned by such third party, provided HyperGrid is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. HyperGrid will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to a Product or portions or components thereof to the extent (i) not created by HyperGrid (including, without limitation, any Third Party Software or third-party Hardware), (ii) made in whole or in part in accordance to Customer specifications, (iii) that are modified after delivery by HyperGrid, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of such Product is not strictly in accordance herewith. Customer will indemnify HyperGrid from all damages, costs, settlements, attorneys’ fees and expenses related to (a) any claim of infringement or misappropriation excluded from HyperGrid’s indemnity obligation by the preceding sentence, or (b) any claim resulting from or arising out of the Customer Services.
- LIMITATION OF LIABILITY. EXCEPT FOR BODILY INJURY OR AS OTHERISE REQUIRED BY APPLICABLE LAW, NEITHER HYPERGRID (OR ITS SUPPLIERS, LICENSORS OR OTHER AFFILIATED THIRD PARTIES) WILL BE LIABLE WITH RESPECT TO ANY PRODUCT OR OTHER SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, INDEMNITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNTS PAID TO HYPERGRID HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION FIRST AROSE, OR (II) ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR (III) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES.
- Publicity. Customer agrees to reasonably participate in press announcements, case studies, trade shows, or other forums as reasonably requested by HyperGrid. HyperGrid is permitted to disclose that Customer is one of its customers to any third-party or to the public in HyperGrid’s sole discretion (including, without limitation, by including Customer in a customer list or other reasonable reference on HyperGrid’s public website).
- Direct Payments. If Customer has agreed to pay fees to a HyperGrid reseller, distributor, sales agent or other HyperGrid authorized third party (each a “Channel Partner”) for the HyperGrid Product(s), Customer agrees that HyperGrid may directly invoice Customer and require direct payment from Customer for the Products in the event that a Channel Partner: (i) materially breaches an agreement with HyperGrid, (ii) fails to timely remit payment to HyperGrid giving; (iii) has its credit materially impaired as reasonably determined by HyperGrid, or (iv) has become insolvent or bankrupt, admitted in writing its inability to pay its debts as they mature or taken any action for the purpose of entering into winding-up, dissolution, bankruptcy, reorganization or similar proceedings. For these purposes, Customer agrees that HyperGrid is a third party beneficiary of all of Customer’s relevant agreements with such Channel Partner(s). To the extent that Customer timely remits such payments in full directly to HyperGrid under this Section 17, HyperGrid will indemnify and hold harmless Customer for any portion of such payments owed to or claimed to be owed to such Channel Partner(s).
- Miscellaneous. This Agreement shall constitute the complete and exclusive statement of the terms of agreement between HyperGrid and Customer. A waiver of any default hereunder or of any provision of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other provision, but shall apply solely to the instance to which such waiver is directed. In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, a modified provision shall be substituted which carries out as nearly as possible the original intent of the Parties, and the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired thereby. For international shipments, Customer or its properly authorized agent or freight forwarder shall be the exporter of record from the United States. Customer shall be the importer of record and is responsible for fulfilling quota terms, obtaining import licenses, paying import license or permit fees, duties and customs fees, and any other governmental or import taxes or fees, and preparing and submitting all required documentation in connection with importing the Products. HyperGrid shall not be liable to Customer for any alleged loss or damages resulting from delays in performance (including loss or damages resulting from delivery of the Products being delayed) caused by acts of Customer, acts of civil or military authority, governmental priorities, earthquake, fire, flood, epidemic, quarantine, energy crisis, strike, labor trouble, component shortage, war, riot, accident, shortage, delays in transportation, or any other causes beyond HyperGrid’s reasonable control. In general, neither HyperGrid nor Customer may assign this Agreement or the applicable HSA (including, without limitation, the Utility Schedules thereunder) without the prior written signed consent of the other party; provided, however, that (i) HyperGrid may assign its rights (including, without limitation, its rights to payments and enforcement of payment obligations) but not its obligations under this Agreement without the consent of Customer; and (ii) HyperGrid may assign this Agreement and the applicable HSA (including, without limitation, the Utility Schedules thereunder) to a successor without the prior written consent of Customer in the event of a sale of all or substantially all of its assets (whether by merger, acquisition, sale of stock, sale of assets or similar transaction) without the consent of Customer. This Agreement shall be construed in accordance with and all disputes hereunder shall be governed by the laws of the State of California as applied to contracts made and to be performed in California, without applying conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to this Agreement. Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved thereby within a period of thirty (30) days after written notice of a dispute has been given by one party hereunder to the other, shall be finally settled by arbitration in San Jose, California, using the English language in accordance with the Arbitration Rules and Procedures of JAMS (“JAMS”) then in effect, by an arbitrator with substantial experience in resolving complex commercial contract disputes, who will be chosen from the appropriate list of JAMS arbitrators. If the parties cannot agree upon the identity of an arbitrator within fifteen (15) days following the Arbitration Date, then an arbitrator shall be selected on an expedited basis in accordance with the Arbitration Rules and Procedures of JAMS. Any arbitrator so selected shall have substantial experience in the networking industry. The arbitrator shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. 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. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the arbitrator. The parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California. The following provisions shall survive the termination of this Agreement or the relationship with Customer: 1, 3, 4, 5, 6, 7, 12 (disclaimer only), 13, 14, 15, 17 and 18.