Last updated January 12, 2022
THIS END USER LICENSE AGREEMENT ("EULA") FORMS AN INTEGRAL PART OF THE ACCOMPANYING ORDER FORM. THE ORDER FORM (DEFINED BELOW) AND THE EULA SHALL COLLECTIVELY BE REFERRED TO AS THIS "AGREEMENT". IN THE EVENT OF A CONFLICT BETWEEN THIS EULA AND THE APPLICABLE ORDER FORM, THE ORDER FORM SHALL PREVAIL.
IF YOU ARE ENTERING INTO THIS EULA ELECTRONICALLY AND YOU HAVE ALREADY ENTERED INTO A SEPARATE LICENSE AGREEMENT OR MASTER SERVICE AGREEMENT DIRECTLY WITH HYRO AI INC., HAVING ITS PRINCIPAL PLACE OF BUSINESS AT 340 S LEMON AVE #5861, WALNUT, CA, 91789 (“HYRO”) IN CONNECTION WITH THE ACCESS OR USE OF THE PLATFORM THEN THIS AGREEMENT SHALL NOT APPLY, EVEN IF YOU ARE REQUIRED TO CLICK “I AGREE”, “ACCEPT” OR OTHER SIMILAR BUTTON AFFIRMING YOUR CONSENT TO THIS AGREEMENT. OTHERWISE, PLEASE READ THE FOLLOWING CAREFULLY BEFORE INSTALLING AND/OR USING THE PLATFORM (DEFINED BELOW).
PLEASE READ THE FOLLOWING CAREFULLY BEFORE INSTALLING, ACCESSING AND/OR USING THE PLATFORM (DEFINED BELOW). BY SIGNING THE AGREEMENT, OR CLICKING “I AGREE”, “ACCEPT” OR OTHER SIMILAR BUTTON, OR BY INSTALLING, ACCESSING AND/OR USING THE PLATFORM YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU, ON BEHALF OF YOURSELF OR YOUR ORGANIZATION, (“YOU” OR “CUSTOMER”) ARE ENTERING INTO A LEGAL AGREEMENT WITH HYRO (YOU AND COMPANY, EACH, A “PARTY” AND COLLECTIVELY, THE “PARTIES”), AND HAVE UNDERSTOOD AND AGREE TO COMPLY WITH, AND BE LEGALLY BOUND BY, THE TERMS AND CONDITIONS OF THIS AGREEMENT. TO THE EXTENT THAT YOU AGREE TO THIS AGREEMENT BY CLICKING “I AGREE”, “ACCEPT” OR OTHER SIMILAR BUTTON, YOU HEREBY WAIVE ANY APPLICABLE RIGHTS TO REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT NOT PROHIBITED UNDER APPLICABLE LAW.
WHEREAS, Hyro is the developer, owner and provider of certain conversational AI software and services; and
WHEREAS, Customer wishes to engage Hyro for the provision of certain Services (as defined below) and Hyro agrees to provide such Services, and the Parties wish to set forth in this Agreement the terms and conditions applicable to their engagement.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.1 “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
1.2 “Authorized User” means each of the employees of Customer authorized to use the Services in accordance with the terms and conditions of this Agreement.
1.3 “Customer Data” means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer, an Authorized User or any third party, by or through the Services and/or Professional Services, or that incorporates or is derived from the Processing of such information, data or content by or through the Services and/or Professional Services. Specifically, Customer Data includes, without limitation, information reflecting the access or use of the Services and/or Professional Services by or on behalf of Customer.
1.4 “Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
1.5 “Documentation” means any manuals, instructions or other documents or materials that Hyro provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services, Professional Services or Hyro Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
1.6 “Effective Date” means the date specified in the applicable Order Form.
1.7 “Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services, Professional Services or Hyro Systems as intended by this Agreement.
1.8 “Hyro Materials” means the Platform, Documentation and Hyro Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Hyro or any Subcontractor, as applicable, in connection with the Services, Professional Services, or that otherwise comprise or relate to the Services, Professional Services or Hyro Systems. Specifically, Hyro Materials include any information, data or other content derived from Hyro’s monitoring of Customer’s access to or use of the Services and/or Professional Services, but do not include Customer Data.
1.9 “Hyro Personnel” means all individuals involved in the performance of Services and/or Professional Services as employees, agents, or independent contractors of Hyro.
1.10 “Hyro Systems” means the information technology infrastructure used by or on behalf of Hyro in performing the Services and Professional Services, including all computers, software, platforms, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Hyro or through the use of third-party services.
1.11 “Intellectual Property Rights” means all intangible legal rights, titles and interests evidenced by, embodied in, connected or related to: (i) all inventions, whether patentable or unpatentable and whether or not reduced to practice, all improvements thereto, and all patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions and reexaminations thereof; (ii) all trademarks, service marks, trade dress, logos, trade names, corporate names, domain names together with all translations, adaptations, derivations and combinations thereof, including all goodwill associated therewith, and all applications, registrations and renewals in connection therewith; (iii) any work of authorship, regardless of copyright ability, all compilations, all copyrightable works, all copyrights (including moral rights) and all applications, registrations and renewals in connection therewith; (iv) all mask works and all applications, registrations and renewals in connection therewith; (v) all trade secrets, Confidential Information and business information; (vi) all computer software (including data and related documentation), source code and any other related documentation; and (vii) all other proprietary rights, industrial rights and any other similar rights, in each case on a worldwide basis, and all copies and tangible embodiments thereof, or any part thereof, in whatever form or medium.
1.12 “Law” means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule of any jurisdiction.
1.13 “Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder.
1.14 “Order Form” means each written or electronic order form issued by Hyro and agreed to by Customer by clicking and/or execution, as applicable, that identifies the Parties’ respective obligations under this Agreement and regarding the Services and/or Professional Services.
1.15 “Permitted Use” means use of the Services by an Authorized User for the benefit of Customer solely in or for Customer’s internal business operations.
1.16 “Platform” means the Hyro platform as described in an applicable Order Form.
1.17 “Process” means to take any action or perform any operation or set of operations that the Services and/or Professional Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, access, analyze, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. “Processing” and “Processed” have correlative meanings.
1.18 “Professional Services” means the professional services described in an applicable Order Form.
1.19 “Services” means access to the relevant Platform as described in the applicable Order Form and any other services as described therein but excluding Professional Services.
1.20 “Subcontractors” mean third Parties engaged by Hyro to perform Services and/or Professional Services.
1.21 “Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Platform, Services and/or Professional Services that are not proprietary to Hyro.
2.1 Services and Professional Services
2.1.1 Subject to Customer’s and Customer’s Authorized Users’ compliance with the terms and conditions of this Agreement, during the Term, Hyro shall use commercially reasonable efforts to provide to Customer the Services and, if applicable, the Professional Services, subject to the terms and conditions of this Agreement, Hyro shall provide Professional Services only if specifically set forth in a separate Order Form.
2.1.2 With regard to the Order Form, Hyro shall perform the Services and, to the extent applicable, Professional Services, in substantial conformity with the Documentation and terms and conditions set forth in this Agreement and the applicable Order Form (collectively, the “Requirements”), all subject to the following exceptions: (a) Service and/or Platform downtime or degradation due to a Force Majeure Event; (b) any other circumstances beyond Hyro’s reasonable control, including without limitation Customer’s or any Authorized User’s use of Third Party Materials, misuse of the Services, Professional Services and/or the Platform or use of the Services, Professional Services and/or the Platform other than in compliance with the express terms of this Agreement; and (c) any suspension or termination of Customer’s or any Authorized Users’ access to or use of the Services, Professional Services and/or the Platform as permitted by this Agreement.
2.2 Subcontractors. Hyro may engage Subcontractors to support the provision of the Services and/or, Professional Services provided that Hyro shall at all times remain responsible for the performance of its obligations and duties under this Agreement.
2.3 Points of Contact. Each Party shall, throughout the Term (as defined below), maintain within its organization a primary point of contact (“POC”) to serve as such Party’s primary point of contact for day-to-day communications, consultation and decision-making regarding the Services and Professional Services. Each POC shall be responsible for providing all day-to-day consents and approvals on behalf of such Party under this Agreement. The Parties shall identify their POC to each other and each Party shall use commercially reasonable efforts to maintain the same POC in place throughout the Term.
2.4 Changes. Hyro reserves the right, in its sole discretion and without the need to notify Customer in advance, submit a Change Request (as defined below) or amend this EULA or any Order Form, to make any changes to the Services, Platform and/or Professional Services, and to any Hyro Materials, where Hyro deems such change necessary or useful to: (i) maintain or enhance: (a) the quality or delivery of Hyro’s Platform, Services or Professional Services to its clients, (b) the competitive strength of or market for Hyro’s Platform, Hyro’s Services or Professional Services, or (c) the Platform’s, Services’ and Professional Services’ cost efficiency or performance; or (ii) to comply with applicable Law. Without limiting the foregoing, either Party may, at any time during the Term, request in writing changes limited to modifications or maintenance of existing Services or Professional Services, or project requests to install a new or upgraded Service or Professional Service (“Change Request”). No changes will be effective unless and until approved and memorialized in a written Order Form signed by both Parties. Change Requests do not apply to, and Hyro will not approve, changes to test systems, provided they are isolated from the live environments.
3. Authorization and Restrictions
3.1 Authorization. Subject to Customer’s payment of the Fees and all other terms and conditions of this Agreement and any applicable Order Form, Hyro hereby authorizes Customer to access and use, solely during the Term, the Services and Professional Services and such Hyro Materials as Hyro may supply or make available to Customer for the Permitted Use, only by and through Authorized Users, and subject to the conditions and limitations set forth in this Agreement and the applicable Order Form.
3.2 Usage Limitations and Restrictions. Customer shall not, and shall not permit any Authorized User or third-party to, access or use the Services, Professional Services or Hyro Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, directly or indirectly, except as this Agreement expressly permits:
3.2.1 copy, modify or create derivative works or improvements of the Services, Professional Services or Hyro Materials;
3.2.2 rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available, and/or allow any third-party to use (other than as expressly permitted in this Agreement), any Services, Professional Services or Hyro Materials to any person or entity, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
3.2.3 reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, Professional Services or Hyro Materials (or any components thereof), in whole or in part;
3.2.4 bypass, disable or breach any security-related feature or protection (including without limitation, any password protection) used by, or features that enforce limitations on use of, the Services, Professional Services or Hyro Materials or access or use the Services, Professional Services or Hyro Materials, provided that access by an Authorized User solely for the Permitted Use, as applicable and subject to the limitations of this Agreement, and through the use of his or her own then valid Access Credentials;
3.2.5 use any automated means to access the Services, Professional Services or Hyro Materials;
3.2.6 input, upload, transmit or otherwise provide to or through the Services, Professional Services or Hyro Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
3.2.7 damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Professional Services, Hyro Systems or Hyro’s provision of services to any third-party, in whole or in part or take any action that imposes or may impose, at Hyro’s sole discretion, a disproportionately large load on Hyro’s infrastructure;
3.2.8 remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright notices, trademarks or other intellectual property or proprietary rights notices affixed to or provided as part of any Services, Professional Services or Hyro Materials, including any copy thereof or use or display logos of the Platform differing from those of Hyro; access or use the Services, Professional Services or Hyro Materials for purposes of competitive analysis of the Services, Professional Services or Hyro Materials, or for the development, provision or use of a competing service or product (including any service or product which the same as, or substantially similar to, the Services, Professional Services or Hyro Materials) or any other purpose that is to Hyro’s detriment or commercial disadvantage; or
3.2.10 access or use the Services, Professional Services or Hyro Materials in, or in association with, the design, construction, maintenance, operation of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services and/or Professional Services could lead to personal injury or severe physical or property damage; or
3.2.11 otherwise access or use the Services, Professional Services or Hyro Materials in a manner that is not in accordance with this Agreement or in an unlawful manner.
4. Customer Obligations
4.1 Customer Systems and Cooperation. Customer shall, at all times during the Term: (i) set up, maintain and operate in good repair all Customer Systems on or through which the Services or Professional Services are accessed or used; (ii) provide Hyro Personnel with such access to Customer’s premises and Customer Systems as is necessary for Hyro to perform the Services and Professional Services; and (iii) provide all cooperation and assistance as Hyro may reasonably request to enable Hyro to exercise its rights and perform its obligations under and in connection with this Agreement and any Order Form.
4.2 Effect of Customer Failure or Delay. Hyro is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement and/or any Order Form.
4.3 Corrective Action and Notice. With respect to any actual or suspected activity prohibited by Section 3.2, Customer shall, and shall cause its Authorized Users to, immediately: (i) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or suspected activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services, Professional Services and Hyro Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (ii) immediately notify Hyro of any such actual or suspected activity.
4.4 Non-Solicitation. During the Term and for two years after, Customer shall not, and shall not assist any other person or entity to, directly or indirectly recruit or solicit for employment or engagement as an independent contractor any person or entity then or within the prior twelve months employed or engaged by Hyro or any Subcontractor and involved in any respect with the Services, Professional Services, or the performance of this Agreement. In the event of a violation of this Section 4.4. Hyro will be entitled to liquidated damages equal to the compensation paid by Hyro to the applicable employee or contractor during the prior twelve months.
4.5 Calls List. Customer shall provide Hyro with a list of contact details of individuals residing in the United States ("List"), which Hyro may reach out to, including via outbound telephone calls, as part of the Services. Customer shall be responsible for the accuracy, legality and reliability of the information contained in the List.
4.6 Communication. If Customer requests from Hyro and instructs Hyro (i) to send communications to Authorized Users - as defined in the Agreement - (e.g., via SMS, email or phone call) or (ii) to obtain directly from Authorized Users their consent in order for Hyro or Customer to send communication messages related to the provision of the Services under this Agreement, Customer hereby agrees to be bound by the obligations set forth in Exhibit 17 - Communication”.
5. Privacy and Security
5.1 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (i) all Customer Data, including its content and use; (ii) all information, instructions and materials provided by or on behalf of Customer, any Authorized User or any third party in connection with any part of the Services or Professional Services; (iii) Customer Systems; (iv) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (v) all access to and use of any part of the Services, Professional Services and Hyro Materials directly or indirectly by or through the Customer Systems or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
5.2 Privacy. Customer hereby warrants, represents and, to the extent relevant, covenants, that it has and will: (i) provide(d) all appropriate notices; (ii) obtain(ed) all required informed consents and/or have any and all ongoing legal bases; and (iii) complied and comply at all times with any and all applicable privacy and data protection Laws and regulations, for providing Customer Data (or access thereto) to Hyro and for allowing Hyro to use and Process the Customer Data in accordance with this Agreement (including, without limitation, the provision of such Customer Data to Hyro and its affiliates and or access of Hyro and/or its affiliates thereto, and the transfer of such Customer Data by Hyro to its affiliates, subsidiaries and subcontractors, including transfers outside of the European Economic Area), for the provision of the Services and/or Professional Services and the performance of this Agreement. For the avoidance of doubt, the List shall be considered as "Customer Data" for the purpose of this Section 5.2 and Customer expressly acknowledges that it is responsible for obtaining all required consents from the individuals whose information is contained in the List in accordance with the Telephone Consumer Protection Act ("TCPA") and any other applicable laws.
5.3 Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (i) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of any part of the Services or Professional Services; and (ii) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by any part of the Services or Professional Services.
6. Fees and Payment Terms
6.1 Fees. Customer shall pay Hyro the fees set forth in any Order Form, (“Fees”) in accordance with this Section 6.
6.2 Reimbursable Expenses. Customer shall also reimburse Hyro for out-of-pocket expenses incurred by Hyro in connection with performing the Services and Professional Services, including without limitation expenses for travel, lodging, shipping, postage and courier services (“Reimbursable Expenses”).
6.3 Taxes and Additional Payments. In addition to the Fees and Reimbursable Expenses owed under this Agreement, Customer shall pay all taxes (other than taxes based on income), duties, import and export fees, and any other charges or assessments established by any government agency that are applicable to performance under this Agreement. If Customer is required by Law to withhold any tax with respect to a payment to Hyro, Customer will pay Hyro an amount such that the net amount after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement. Customer agrees to indemnify and hold Hyro harmless from any encumbrance, fine, penalty or other expense that Hyro may incur as a result of Customer’s failure to pay timely such taxes, duties and fees as required hereunder.
6.4 Payment. Customer shall pay all Fees and Reimbursable Expenses within 30 days after the date of the invoice therefor. Customer shall make all payments hereunder in US dollars by Automated Clearing House or wire transfer. Customer shall make payments to the address or account specified in any Order Form or such other address or account as Hyro may specify in writing from time to time.
6.5 Late Payment. If Customer fails to pay within 30 days of receipt of invoice, then, in addition to all other remedies that may be available, Customer agrees (i): to pay as a late payment charge the lesser 1.5% per month or the maximum late payment charge permitted by Law on all non-disputed amounts not paid within 30 days from date of invoice; and (ii): that Hyro shall be entitled to suspend the provision of any Services and Professional Services if the Customer fails to pay any undisputed amounts due hereunder and such failure continues for 30 days after receipt of written notice of such failure. Customer agrees to pay all expenses of collection, including reasonable attorney’s fees, incurred by Hyro in collecting accounts not paid when due as specified herein or in any Order Form.
6.6 No Deductions or Setoffs. All amounts payable to Hyro under this Agreement shall be paid by Customer to Hyro in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
7 Third Party Materials. The Platform, Services and Professional Services may contain Third Party Materials, and such Third Party Materials are provided “As Is” without any warranty of any kind, and subject to the license terms attached to such Third Party Materials, the provisions of this Agreement shall apply to all such Third Party Materials providers and Third Party Materials as if they were Hyro and the Platform, Services and Professional Services respectively.
8 Intellectual Property Rights
8.1 Services and Hyro Materials. Customer acknowledges and agrees that Hyro and its licensors are and shall remain the sole and exclusive owners of the Intellectual Property Rights and all other rights, title and interest of any nature in and to the following (collectively, “Proprietary Materials”): The Platform, Services, Professional Services, Confidential Information (as hereinafter defined) of Hyro, Hyro Materials and Third Party Materials including without limitation, all modifications, derivative works, updates, upgrades, customizations, and additions of and to the foregoing. Except for the limited rights granted to Customer in Section 3.1 and subject to the restrictions and limitations set forth in this Agreement, the applicable Order Formand applicable third-party terms, this Agreement does not confer upon Customer, any Authorized User or any third-party any right, title, interest, license or authorization in or to the Proprietary Materials, in any form or in copies thereof. All other rights in and to any Proprietary Materials (including Third-Party Materials) are expressly reserved by Hyro and the respective third-party licensors.
8.2 Suggestions. Hyro shall own all suggestions, enhancement requests, recommendations or other feedback provided by Customer or by any Authorized User, relating to the functioning of the Platform or (“Proposed Modifications”). Customer hereby assigns all right, title and interest it may have in and to any Proposed Modifications to Hyro.
8.3 Customer Data. As between Customer and Hyro, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in this Section 8.3. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (i) to Hyro, its Subcontractors and the Hyro Personnel as are necessary or useful to perform the Services and Professional Services; and (ii) to Hyro as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder. Without derogating from the foregoing, Customer agrees that Hyro may Process and otherwise use the Customer Data in an aggregated or de-identified form, for Hyro’s own business purpose, including for the purpose of creating improvements to Hyro’s products and/or services, including without limitation, the Platform, Services and Professional Services.
9.1 Confidential Information. For the purpose of this Agreement, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally, in visual form 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 (whether or not so marked or designated). For avoidance of doubt, Hyro’s Confidential Information shall include, without limitation, the Platform, Services, and Professional Services and Hyro Materials, and the Confidential Information of each Party shall include the terms and conditions of this Agreement and allOrder Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. Notwithstanding the foregoing, Confidential Information shall 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. Any Confidential Information provided by either Party prior to the Effective Date of this Agreement shall be considered in the same manner and subject to the same treatment as Confidential Information made available after the Effective Date of this Agreement.
9.2 Protection of Confidential Information. The Receiving Party agrees that it shall (i) hold the Disclosing Party’s Confidential Information in strict confidence and will use the same degree of care in protecting the confidentiality of the Disclosing Party’s Confidential Information that it uses to protect its own Confidential Information, but in no event less than reasonable care; (ii) not use the Confidential Information of the Disclosing Party for any purpose other than to fulfill the Receiving Party’s obligations and exercise its rights under this Agreement or any applicable Order Form; (iii) not copy any part of the Disclosing Party’s Confidential Information except as expressly permitted by this Agreement or as necessary for the performance of its obligation under this Agreement or any applicable Order Form, (iv) limit access to the Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need to know such Confidential Information for the purpose of performing their obligations and exercising their rights under this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein and in any event, the Receiving Party shall remain liable at all times for any acts and/or omissions of its employees, contractors and agents with respect to the Disclosing Party’s Confidential Information. Without limiting the foregoing, the Receiving Party shall keep the Disclosing Party’s trade secrets confidential for an indefinite period of time after the termination or expiration of this Agreement.
9.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by Law to do so, provided that the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, to the extent possible, if the Disclosing Party wishes to contest the disclosure.
10. Term and Termination
10.1 Term of Agreement. The term of this Agreement shall commence as of the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue for the period specified in the relevant Order Form or until terminated as provided herein (“Term”).
10.2 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
10.2.1 Either Party may terminate any Order Form as specified below and as may be permitted pursuant to such Order Form.
10.2.2 Hyro may terminate this Agreement, or any Order Form, in each case effective immediately upon written notice to Customer, if Customer fails to pay any amount when due under the Agreement or any Order Form and such failure continues more than 5 days after Hyro’s delivery of written notice thereof. Hyro may terminate this Agreement together with all Order Formss, effective on written notice to Customer, if Customer breaches any of its obligations under Section 3.2 or Section 9.
10.2.3 Either Party may terminate this Agreement, or any Order Form, in each case effective immediately upon written notice to the other Party, if the other Party materially breaches this Agreement, or the applicable Order Form, respectively, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach.
10.2.4 Either Party may terminate this Agreement, or any Order Form, in each case effective immediately upon written notice to the other Party, if the other Party: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (c) is dissolved or liquidated or takes any corporate action for such purpose; (d) makes or seeks to make a general assignment for the benefit of its creditors; or (e) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
10.3 Suspension or Termination of any Services. Hyro may, directly or indirectly, and by any lawful means, suspend, terminate or otherwise deny Customer’s, any Authorized User’s or any other third-party’s access to or use of all or any part of the Services, Professional Services and Hyro Materials, without incurring any resulting obligation or liability, if: (i) Hyro receives a judicial or other governmental demand or order, subpoena or Law enforcement request that expressly or by reasonable implication requires Hyro to do so; or (ii) Hyro believes, in its good faith and reasonable discretion, that: (a) Customer or any Authorized User has failed to comply with, any material term of this Agreement or any of the attached Schedules or documents, or accessed or used the Services or Professional Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in the attached Schedules or documents; (b) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services or Professional Services; or (c) this Agreement or Order Form expires or is terminated. This Section 10.3 does not limit any of Hyro’s other rights or remedies, whether at Law, in equity or under this Agreement.
10.4 Effect of Expiration or Termination of the Agreement. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
10.4.1 All Order Forms then in effect hereunder, as well as all rights, licenses, consents and authorizations granted by either Party to the other hereunder or in any Order Form, will immediately terminate.
10.4.2 Customer shall immediately cease all use of any Services, Professional Services and Hyro Materials and (a) promptly return to Hyro, or at Hyro’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any Hyro Materials or Hyro’s Confidential Information; and (b) permanently erase all Hyro Materials and Hyro’s Confidential Information from all systems Customer directly or indirectly controls.
10.4.3 Hyro may disable all Customer and Authorized User access to the Services, Professional Services and Hyro Materials.
10.4.4 If Hyro terminates this Agreement pursuant to Section 10.2, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Hyro’s invoice therefor.
10.4.5 The provisions of this Section 10.4, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 1, Section 3.2, Section 5, Section 8, Section 9, Section 10.5, Section 11.4, Section 13, Section 15 and Section 16.
10.5 Effect of Expiration or Termination of an Order Form. Upon any expiration or termination of an Order Form, except as expressly otherwise provided in this Agreement or the Order Form:
10.5.1 all rights, licenses, consents and authorizations granted by either Party to the other hereunder or in the Order Form, will immediately terminate;
10.5.2 Customer shall immediately cease all use of any Services, Professional Services and Hyro Materials in connection with this Order Formand (a) promptly return to Hyro, or at Hyro’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any Hyro Materials or Hyro’s Confidential Information related to this Order Form; and (b) permanently erase all Hyro Materials and Hyro’s Confidential Information related to this Order Formfrom all systems Customer directly or indirectly control;
10.5.3 Hyro may disable all Customer and Authorized User access to the Services, Professional Services and Hyro Materials provided pursuant to the Order Form;
10.5.4 if Hyro terminates the Order Form pursuant to Section 10.2, all Fees that would have become payable under the Order Form remained in effect until expiration of the term thereof will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Hyro’s invoice therefor.
11. Representations and Warranties
11.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing as a corporation or other entity under the applicable Laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; (iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; (iii) when executed and delivered by both Parties, (iv) this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (iv) the execution and performance of this Agreement will not violate any contractual rights or obligations to any third-party.
11.2 Additional Hyro Representations, Warranties and Covenants. Hyro represents, warrants and covenants to Customer that Hyro will perform the Services and Professional Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
11.3 Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Hyro that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Hyro and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third-party or violate any applicable Law. Customer further represents that it has obtained written consent where necessary and otherwise complied with all Laws related to collection of data from third parties and any other applicable Laws.
DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ALL SERVICES, PROFESSIONAL SERVICES, SUPPORT AND HYRO MATERIALS ARE PROVIDED “AS IS” AND HYRO HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND HYRO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, HYRO MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, PROFESSIONAL SERVICES, SUPPORT OR HYRO MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY PLATFORM, SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
12.1 Hyro Indemnification. Hyro shall indemnify, defend and hold harmless Customer and Customer’s officers, directors, employees, agents, permitted successors and permitted assigns (each, a “Customer Indemnitee”) from and against any and all Losses finally awarded against the Customer Indemnitee by a court of competent jurisdiction, or paid in settlement, as a result of any claim, suit, action or proceeding (each, an “Action”) by a third-party (other than an affiliate of a Customer Indemnitee) to the extent that such Losses arise from any allegation in such Action that Customer’s or an Authorized User’s use of the Services and Professional Services (excluding Customer Data and Third Party Materials) in compliance with this Agreement infringes any Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (i) access to or use of the Services, Professional Services or Hyro Materials in combination with any hardware, system, software, network or other materials or service not provided or otherwise authorized in writing by Hyro; (ii) modification of the Services, Professional Services or Hyro Materials made by anyone other than Hyro; (iii) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Hyro; (iv) continued allegedly infringing activity by Customer or on its behalf after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (v) use of the Services, Professional Services or Hyro Materials by Customer or on its behalf is not strictly in accordance with the terms of this Agreement or an applicable Order Form.
12.2 Customer Indemnification. Customer shall indemnify, defend and hold harmless Hyro and its officers, directors, employees, agents, permitted successors and permitted assign, affiliates and Subcontractors (each, a “Hyro Indemnitee”) from and against any and all Losses incurred by such Hyro Indemnitee in connection with any Action by a third-party (other than an affiliate of a Hyro Indemnitee) to the extent that such Losses arise out of or relate to: (i) Customer Data or any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including any Processing thereof by or on behalf of Hyro in accordance with this Agreement; or (ii) Hyro’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Hyro.
12.3 Indemnification Procedure. The aforementioned indemnification obligations shall be subject to the Party seeking indemnification (“Indemnitee”): (i) notifying the other Party (“Indemnitor”) in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 12.1 or Section 12.2, as the case may be; (ii) granting the indemnifying Party full control of the defense and investigation of such Action; and (iii) at the indemnifying Party’s expense, providing such information and assistance in the defense of such Action as reasonably requested by the indemnifying Party’s expense. The indemnified Party may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing, subject to coordination with the indemnifying Party and the indemnifying Party’s control of the defense of the Action.
12.4 REMEDIES. THIS SECTION 12 SETS FORTH CUSTOMER’S SOLE REMEDIES AND HYRO’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES, PROFESSIONAL SERVICES AND HYRO MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
13. Limitations of Liability
13.1 IN NO EVENT WILL HYRO OR ANY OF ITS LICENSORS, SUBCONTRACTORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER (INCLUDING ANY INDEMNIFICATION OBLIGATIONS HEREUNDER), OR OTHERWISE IN CONNECTION WITH THE SERVICES, PROFESSIONAL SERVICES AND/OR ANY HYRO MATERIALS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, SERVICES, REVENUE, GOODWILL, OR PROFIT OR DIMINUTION IN VALUE; (ii) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES AND PROFESSIONAL SERVICES, UNLESS OTHERWISE SET FORTH IN THE SERVICE LEVEL AGREEMENT (iii) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (iv) LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN (v) FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION (vi) FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION (vii) SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR (viii) FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13.2 IN NO EVENT WILL THE AGGREGATE LIABILITY OF HYRO AND ITS LICENSORS, SUBCONTRACTORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER (INCLUDING ANY INDEMNIFICATION OBLIGATIONS HEREUNDER), OR OTHERWISE IN CONNECTION WITH THE SERVICES, PROFESSIONAL SERVICES AND/OR ANY HYRO MATERIALS, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, AND EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO HYRO UNDER THIS AGREEMENT OR THE ORDER FORM(S) DUTING THE PERIOD OF TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ITS ESSENTIAL PURPOSE OF ANY AGREED OR OTHER REMEDY.
13.3 EXCEPT TO THE EXTENT EXPRESSLY PROVIDED IN THIS AGREEMENT, HYRO DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING ANY CONTENT, REPORTS, INFORMATION, OR RESULTS THAT CUSTOMER OBTAINS THROUGH USE OF THE SERVICES, PROFESSIONAL SERVICES AND HYRO MATERIALS (COLLECTIVELY, "REPORTS"), OR THAT THE REPORTS ARE COMPLETE OR ERROR-FREE. CUSTOMER’S USE OF AND RELIANCE UPON THE SERVICES, PROFESSIONAL SERVICES, HYRO MATERIALS AND ANY REPORTS IS ENTIRELY AT CUSTOMER’S SOLE DISCRETION AND RISK, AND HYRO SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER TO CUSTOMER IN CONNECTION WITH ANY OF THE FOREGOING, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED IN THIS AGREEMENT. HYRO WILL NOT BE LIABLE OR RESPONSIBLE FOR: (A) ANY TECHNICAL PROBLEMS OF THE INTERNET (INCLUDING WITHOUT LIMITATION SLOW INTERNET CONNECTIONS OR OUTAGES); AND/OR (B) ANY ISSUE THAT IS ATTRIBUTABLE TO CUSTOMER’S HARDWARE OR SOFTWARE OR CUSTOMER’S INTERNET OR DATA SERVICE PROVIDER.
14. Insurance. During the Term of this Agreement and for a period of three (3) years thereafter, Hyro shall procure and maintain, at its sole cost and expense, at least the following types and amounts of insurance coverage issued by insurance companies with a Best’s Guide Rating of A- and Class VII or better:
(a) Commercial General Liability insurance with limits no less than $1,000,000 per occurrence and $2,000,000 in the aggregate, but in no event less than the amount otherwise carried by Hyro, including bodily injury and property damage, products and completed operations, fire legal liability, personal injury, and advertising liability. Said insurance will include contractual liability coverage insuring Hyro’s activities under this Agreement. All insurance policies required pursuant to this subsection shall waive any right of subrogation of the insurers against Customer, name Customer as additional insured, provide for separation of insureds, and provide that such insurance be primary and non-contributing to any insurance carried by Customer. Hyro may evidence this insurance with a combination of underlying and excess policies;
(b) Worker’s Compensation meeting statutory requirements and Employer’s Liability with limits no less than the greater of (i) $500,000 each accident, $500,000 by disease policy limit, and $500,000 by disease each employee, or (ii) the minimum amount required by applicable law. All insurance policies required pursuant to this subsection shall waive any right of subrogation of the insurers against Customer and include an Alternate Employer Endorsement; and
(c) Professional Errors and Omissions Liability Insurance with limits not less than $1,000,000.
All insurance policies required pursuant to this Section shall not contain any exclusion for punitive damages, where allowable by law. Hyro shall notify Customer in writing at least thirty (30) days prior to any replacement of policies or annual renewals of any insurance policies or coverages at less than those coverages required above. Hyro is not allowed to self-insure without Customer’s prior written consent. Self-insured retentions or other financial responsibility for claims will be covered directly by Hyro in lieu of insurance. All Customer liabilities that would be covered by Hyro’s insurance under the provisions of this Agreement will be covered by Hyro to the same extent as if Hyro elected not to carry a deductible, self-insured retention, or other financial responsibility for claims.
15. Force Majeure
15.1 No Breach or Default. In no event will Hyro be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Hyro’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either Party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.
15.2 Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Hyro shall give prompt written notice to Customer stating the period of time the occurrence is expected to continue and use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
16.1 Further Assurances. Upon a Party’s reasonable request, the other Party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
16.2 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
Notices. All notices or reports permitted or required under this Agreement shall be in writing in English and shall be by personal delivery by express courier service (such as FedEx or UPS) that requires proof of delivery personal delivery by express courier service (such as FedEx or UPS) that requires proof of delivery or via electronic mail. Notices will become effective when actually received or if sent via electronic mail, upon transmission and electronic confirmation of receipt or (if transmitted and received on a non-business day) on the first business day following transmission and electronic confirmation of receipt. Notices will become effective when actually received. A refusal to accept delivery of a notice shall constitute actual delivery hereunder.
16.3 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
16.4 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, the Order Form; (ii) second the EULA ; and (iii) third, any other documents incorporated herein by reference.
16.5 Assignment. This Agreement may not be assigned by either Party, without the written consent of the other, which consent shall not be unreasonably withheld, conditioned or delayed, to another entity, except in connection with a merger transaction, change of control, sale of all or substantially all of assets, or any similar transaction of such Party, provided that in such cases the assignee accepts and agrees to comply with all the terms and conditions of this Agreement.
16.6 No Third-Party Beneficiaries. Except as provided in an Order Form, this Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
16.7 Amendment and Modification; Waiver. Hyro reserves the right, at Hyro’s discretion, to modify this EULA at any time. Such modification(s) will be effective 10 days following posting of the modified EULA on this page (the modified EULA will not be posted on or via the Software), and Customer’s use of any part of the Software and/or Material thereafter means that Customer accepts those modifications. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
16.8 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
16.9 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal Laws of the State of New York without giving effect to any choice or conflict of Law provisions. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the courts located in Monroe County, New York, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document as stipulated in Section 16.3 to such Party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
16.10 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party hereto against the other Party arising out of or related to this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party.
16.11 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
17.1 This Exhibit applies to and forms part of the Agreement by and between Hyro and Customer. It is acknowledged and agreed that, as part of the Services, and at Customer's election: (i) Hyro may reach out (e.g., via SMS, phone calls or emails) to Authorized Users in order to ask such Authorized Users their certain contact details (e.g., email address) or to send them reminder(s) about, inter alia, a scheduled appointment or (ii) Hyro may directly collect consent from Authorized Users on behalf of and for the benefit of Customer so Customer could send Authorized Users communication messages such as reminders about a scheduled appointment. For the avoidance of doubt, Authorized Users's contact information shall be considered as "Customer Data"; as defined in the Agreement and Customer shall comply with Section 5.2 of the Agreement in this regard.
17.2 Customer expressly acknowledges that it has instructed Hyro to act on Customer's behalf. To the extent applicable, the wording used by Hyro in order to obtain consent shall be in accordance with Customer's instructions that shall comply at all times with all applicable laws in relation thereto (including, without limitation, the Telephone Consumer Protection Act). Hyro will not be liable in the event of any claim brought by a third party, arising from any act or omission of Hyro, to the extent that such is a result of Customer’s instructions. Customer shall defend, indemnify and hold harmless Hyro from and against any damages, obligations, losses, liabilities, penalties, fines, costs and expenses (including but not limited to reasonable attorneys’ fees) incurred by Hyro in connection with any claims based upon or arising out of this Exhibit.
CUSTOMER EXPRESSLY ACKNOWLEDGES THAT CUSTOMER HAS READ THE TERMS OF THIS AGREEMENT AND UNDERSTANDS THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY SIGNING THIS AGREEMENT, OR CLICKING “I AGREE”, “ACCEPT” OR SIMILAR BUTTON, AND/OR CONTINUING TO DOWNLOAD, INSTALL, ACCESS OR USE THE PLATFORM (AS APPLICABLE), CUSTOMER EXPRESSLY CONSENTS TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
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