This Training and Education Agreement together with the Quote it is referenced in (collectively “Agreement”) is entered into by and between Hyper Labs, Inc. d/b/a Hyperscience, a Delaware corporation (“Hyperscience”), and the customer set forth on the Quote (“Customer”). Hyperscience and Customer may each be referred to herein as a “Party” and collectively as the “Parties.”
1. SCOPE. This Agreement governs Customer’s purchase and Hyperscience’s provision of training and education services (“Services”) as set forth in a quote (“Quote”) in which this Agreement is referenced. The Services may contain (i) instructor led training; and/or (ii) access to Hyperscience’s learning management system (“Hyperscience Academy”). Training and education content (“Education Materials”) may be provided to Customer either through the Hyperscience Academy or otherwise. Customer agrees that any portion of Services not consumed within twelve (12) months from the purchase shall be forfeited, and no refund shall be owed by Hyperscience for such Services.
2. FEES. Customer will pay all fees specified in the Quote within thirty (30) days from receipt of an invoice. Customer is solely responsible for, and will pay, or reimburse Hyperscience for all applicable taxes in connection with this Agreement, including any sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties (but excluding taxes based on Hyperscience’s net income). Hyperscience reserves the right to apply a finance charge of the lower of one point five percent (1.5%) per month, or the maximum permitted by law, on any outstanding balance.
3. USE RIGHTS. Subject to the terms and conditions of this Agreement, Hyperscience grants Customer, solely for the internal business operations of Customer:
(a) for a term not to exceed twelve (12) months, a non-exclusive, non-transferrable and non-sublicensable right for Customer’s Authorized Users to access and use the Hyperscience Academy; and
(b) a non-exclusive, non-transferable, non-sublicensable license during the term the Customer is an authorized licensee of Hyperscience’s software, to use any Education Materials delivered to Customer as a result of the Services provided under the Agreement.
4. CUSTOMER RESPONSIBILITIES. (a) Customer is responsible for use of the Services in compliance with this Agreement, and will use reasonable efforts to prevent unauthorized access to, or use of, the Services. (b) Customer agrees to provide Hyperscience with correct, truthful and complete contact information for all users requiring access to Hyperscience Academy (“Authorized Users”). Hyperscience may share Customer and user information with Hyperscience’s service provider of Hyperscience Academy. If Customer or its Authorized Users provide false contact information, or otherwise breach any part of this Agreement or the applicable Quote, Hyperscience may suspend or terminate Customer’s and its Authorized Users’ access to the Services and/or Hyperscience Academy immediately, without prior written notice, and without refund.
5. RESTRICTIONS. Except for the specific rights granted to Customer under the terms of this Agreement, Customer may not (i) modify, copy or create derivative works based on the Services; (ii) disassemble, reverse engineer, or decompile Services or parts thereof, or access them in order to copy any ideas, features, content, or functions; or (iii) provide access to the Services to any third party.
6. CONFIDENTIALITY. “Confidential Information” means all confidential 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 the circumstances of disclosure, including all copies thereof. Confidential Information of each Party includes the terms of this Agreement. Confidential Information of Hyperscience includes the Hyperscience Academy and the Education Materials. However, Confidential Information will not include any information that: (i) is or becomes generally available 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 use of or reliance on the Confidential Information of the Disclosing Party. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. The Receiving Party will provide prompt written notice to the Disclosing Party of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Upon request of the Disclosing Party during the Term, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.
7. OWNERSHIP. Hyperscience is the exclusive owner of all right, title and interest, including all intellectual property rights, in and to the Hyperscience software, the Services and all modifications and derivative works thereof.
8. LIMITED WARRANTY. Hyperscience warrants that it will perform the Services in a professional manner, in accordance with generally accepted practices within the software services industry, and in accordance with the Quote. Customer must notify Hyperscience within thirty (30) days after completion of the Services under the applicable Quote of any breach of this warranty. Customer’s exclusive remedy and Hyperscience’s entire liability under this warranty shall be for Hyperscience to re-perform any non-conforming portion of the Services within a reasonable period of time. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS SECTION, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND HYPERSCIENCE EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
9. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO LIABILITY FOR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, A VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR FOR ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY (A) WILL HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY RELATING TO THIS AGREEMENT WITH RESPECT TO ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR OF DATA, INTERRUPTION OF BUSINESS, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND WHETHER UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED, KNOWS OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES BY END USER AND (B) WILL HAVE AN AGGREGATE LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY RELATING TO THIS AGREEMENT EXCEEDING THE AMOUNT OF FEES RECEIVED BY HYPERSCIENCE FROM CUSTOMER UNDER THIS AGREEMENT.
10. INDEMNIFICATION. Hyperscience will defend and/or settle at its own expense any action brought against Customer by a third party to the extent that such action is based upon a claim that the Services infringe a third-party patent, trade secret or copyright. Hyperscience will pay those costs and damages finally awarded against Customer in such action that are specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such claim. The foregoing obligations are conditioned on Customer: (i) promptly notifying Hyperscience in writing of such action; (ii) giving Hyperscience sole control of the defense thereof and any related settlement negotiations; and (iii) cooperating and, at Hyperscience’s request and expense, assisting in such defense. Hyperscience shall have no obligation or liability for any expenses of settlements incurred by Customer to the extent an infringement claim is based upon Customer’s use of Services in violation of this Agreement. THIS SECTION STATES THE ENTIRE LIABILITY AND REMEDY OF HYPERCSCIENCE WITH RESPECT TO CLAIMS SET FORTH IN THIS SECTION.
11. GENERAL.
(a) Compliance with Laws. Each Party agrees to not (i) engage in deceptive, misleading or unethical practices that may be detrimental to the other Party or its reputation, and (ii) make any representations, warranties or guaranties to third parties concerning Services that are inconsistent with or in addition to those made or expressly authorized. The Parties agree to comply with all laws and regulations applicable to each respectively in performance of this Agreement.
(b) Export Laws. Each Party represents and warranty to comply with all applicable export control laws and regulations of the United States and foreign jurisdictions in which the Services are used, including but not limited to U.S. Export Administration Regulations and Office of Foreign Assets Control (“OFAC”) embargoes and sanctions lists.
(c) Protection of Customer Data. Hyperscience will maintain commercially reasonable administrative, physical, and technical safeguards designed to prevent unauthorized access to or use of Customer provided personal data, in accordance with the data processing addendum available at: hyperscience.com/dpa.
(d) Governing Law; Venue. This Agreement, including its formation, will be governed by and interpreted in accordance with the laws of the State of New York without giving effect to any conflicts of laws principles that would require a different result. Each Party irrevocably consents to the jurisdiction of the state and federal courts located in New York County, New York for any action or proceeding arising out of or relating to this Agreement, and expressly waives any objection it may have to such jurisdiction or venue.
(e) Relationship of the Parties. The Parties are independent contractors, and this Agreement does not constitute a partnership, joint venture or agency between the parties.
(f) Waiver. No change, waiver, discharge, or modification of any of the terms of this Agreement shall be valid unless in writing signed by both Parties.
(g) Severability. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
(h) Assignment. Customer shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of Hyperscience. Any attempted assignment or transfer by Customer in violation of the foregoing will be void.
(i) Entire Agreement. This Agreement contains the entire agreement between the Parties hereto with respect to the subject matter hereof, and no modification, amendment, change or supplement shall be effective unless in writing and signed by the Party against which it is sought to be enforced. This Agreement supersedes all prior proposals, understandings, negotiations, and agreements relating to the subject matter hereof. As used herein, the word “including” shall be deemed to be followed by the words “without limitation.” Hyperscience objects to any additional or different terms in any purchase order remitted by Customer.
Last Updated: October 25, 2024