END-USER LICENSE AGREEMENT
END-USER LICENSE AGREEMENT
This End-User License Agreement (the “Agreement”) is entered into between HIPPOC INC. (“we”, “us”, “our” or the “Corporation”) and the entity accepting this Agreement (“you“, “your“, “yours” or the “Customer“, and collectively with the Corporation, the “Parties“). By clicking on “I Accept”, you acknowledge that you have read and agree to be bound by the terms of this Agreement, which prevails over all prior agreements, understandings, negotiations and written or oral discussions between you and the Corporation, except for any Order Form (as defined below) entered into which shall form part of this Agreement.
You must agree to be bound by the terms and conditions of this Agreement in order to access and use our Services (as defined below). If you do not agree, please do not subscribe to the Corporation’s Services.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such company or other legal entity.
If you have any questions in connection with this Agreement, we invite you to contact us at:
2485, du Sault Road
Levis (Quebec) G6W 2J1
Telephone : +1(438)-410-1101
Email : firstname.lastname@example.org
For purposes of this Agreement and any document related thereto, the following terms will have the following meanings, unless expressly stated otherwise:
“Ancillary Services“: means (i) technical and maintenance support, as further outlined in this Agreement, and (ii) the administration, management, hosting, and system monitoring activities related to the Software Suite;
“Authorized Purpose”: means visual content analysis;
“Customer Data”: means all non-public data (information, images, videos, comments, observations, etc.) that the Customer (or its Users) provides to the Corporation in order to enable it to provide the Services or that is otherwise uploaded, collected, generated, stored, processed, transmitted, displayed or published on the Software Suite through a User Account as part of the Customer’s use of the Services;
“Documentation”: means our user guides, user policies, support materials, release notes, training materials and other technical documentation relating to the Services, as updated from time to time by the Corporation and made available on the Software Suite or otherwise;
“Equipment“: means all equipment and ancillary services not provided by the Corporation that are necessary to connect to, access or use the Software Suite, including, but not limited to, modems, electronic equipment, servers, operating systems, networks, web servers and the like;
“Feedback“: means suggestions, improvements, requests, recommendations or other forms of feedback made by the Customer with respect to the Services;
“Fees“: means all fees pertaining to the use of the Services as specified in an Order Form accepted by the Customer;
“Intellectual Property Rights”: means all present and future worldwide intellectual property rights, including, but not limited to, all rights under patent, copyright, trade secret or trademark laws, and all other similar rights, whether protectable or not;
“Order Form” : means an ordering document that is entered into between the Parties for the subscription or modification of the Services, specifying in each case the Services to be provided by the Corporation pursuant to this Agreement and including (i) the billing terms for the Services, (ii) the applicable Fees, (iii) the scope of the various features available in connection with the Services, (iv) the applicable payment method, (v) the initial term of your subscription, and (vi) any other terms and conditions relating to the Services. This Agreement shall be deemed to incorporate the terms and conditions of any Order Form executed between you and us;
“Services”: refers collectively to the Subscription Services and the Ancillary Services;
“Software“: means the source code, object code and underlying structure, ideas, data, know-how and algorithms relating to the Software Suite or the Services, including any updates, improvements or modifications thereto;
“Software Suite“: means the software suite made available online by the Corporation as a Software as a Service (SaaS) allowing the Customer, among other things, to conduct neuromarketing analyses, which software suite is currently known as Hippoc Analytics Software;
“Subscription Services”: means the Software Suite made available to the Customer in accordance with the terms and conditions of this Agreement, as well as any updates, improvements or modifications thereto to the extent made generally available by us to the public;
“Term“: means the period beginning upon the execution of this Agreement by the Customer and ending on the date the Customer or the Corporation terminates the Services in accordance with the terms of this Agreement; and
“User”: means any user to whom the Customer allows access and/or use of the Software Suite, whether or not such person is part of the Customer’s organization, and “User Account” means any account created on the Software Suite by or for the benefit of a User.
SOFTWARE SERVICES AND SUPPORT
The Corporation undertakes to provide the Services to the Customer during the Term, subject to the terms and conditions of this Agreement.
The scope of the Services available to the Customer is specified in the Order Form. The Customer may at any time, on the Software Suite or by contacting the Corporation’s customer service department, modify the scope of the Services, such as to increase the number of Users or video or photo analyses. The Customer undertakes to pay any additional Fees resulting from this modification, if applicable, in accordance with the terms of this Agreement. The Corporation also reserves the right to modify the terms of the Agreement upon prior notice of thirty (30) days to the Customer. If the Customer refuses to comply with the modified terms of the Agreement, then the Customer may, at its discretion, terminate this Agreement by giving written notice to this effect to the Corporation before expiry of the aforementioned period.
The Corporation may occasionally make commercially reasonable changes to the Services and the Customer may benefit from such changes during the Term. The Corporation undertakes to inform the Customer of any significant changes made to principal features of the Software Suite by sending an e-mail to the Customer or by otherwise notifying the Customer through the Software Suite. The Corporation undertakes not to modify the Services in such a way as to reduce its performance, functionality, availability and security.
Updates to the Services including tools, utilities, enhancements, third party applications or general updates to improve the Services may be made available to the Customer or carried out periodically by the Corporation in its sole discretion. The Customer agrees to make or receive such updates, as the case may be. From time to time, the Corporation may also offer new applications, features or functionalities through the Services, the use of which may be subject to the Customer’s acceptance of additional terms and conditions.
As part of its Ancillary Services, the Corporation undertakes to provide the Customer with reasonable technical support services, in accordance with its usual practices. The Corporation will also provide the Customer with online access to its knowledge database, as applicable.
The Customer shall remain responsible at all times for all of its User Accounts. The Customer is responsible for (a) maintaining the confidentiality of the passwords to all of its User Accounts and (b) ensuring that all User (and activities pertaining to their respective User Accounts) comply with this Agreement, the whole as if such Users were parties to this Agreement. The Customer shall provide a copy of this Agreement to any User who is granted a User Account on the Software Suite.
The Customer agrees that the Corporation’s responsibilities do not extend to the management, supervision or internal administration of the use of the Software Suite by Users of the Customer.
Without prejudice to any other remedy of the Corporation under this Agreement and although the Corporation is under no obligation to monitor the Customer’s use of the Services, the Customer agrees that the Corporation reserves the right to suspend (i) any User Account whose use of the Services contravenes with the terms and conditions of this Agreement, as well as (ii) any User Account that is subject to an urgent security issue, such suspension remaining in effect until such breach or security issue having been remedied to the complete satisfaction of the Corporation.
RESTRICTIONS AND RESPONSIBILITIES
The Customer shall refrain (and shall cause each of its Users to refrain) from, directly or indirectly:
reverse engineering, decompiling, disassembling or otherwise attempting to discover any component of the Software;
modifying, translating, or creating derivative works based on the Software (except to the extent strictly permitted by the Corporation or authorized as part of the Services);
using the Services or the Software for the benefit of a third party otherwise than in accordance with this Agreement;
using or allowing the Services to be used improperly or in a manner that is inconsistent with the applicable laws;
removing any proprietary notices from the Software Suite or the Software;
using the Services or any Software for service bureau purposes or to support the activities of anyone besides the Customer and its Users;
granting access to a User Account to third parties (that are not part of the Customer’s organization);
reselling the Services, in whole or in part, as a standalone or independent product or service, it being understood that the Customer shall at all times be authorized, as part of its services, to use the Software Suite to conduct visual content analyses on behalf of its clients.
The Customer warrants (i) to use the Services only in accordance with the Documentation, this Agreement and all applicable laws and regulations then in effect, (ii) not to publish or download any Customer Data on the Software Suite for which the Customer does not hold sufficient rights, and (iii) use the Services for purposes than the Authorized Purpose.
The Customer and its Users shall be solely responsible for (i) obtaining and maintaining any Equipment needed to connect to, access or otherwise use the Services, and for (ii) maintaining the security of such Equipment.
CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose commercial, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information”). Proprietary Information of the Corporation includes notably non-public information regarding features, functionalities and delivery of the Services, as well as to the Software and the Software Suite. Proprietary Information of the Customer includes notably Customer Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by the Receiving Party prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to the Receiving Party without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
The Corporation shall own and retain all right, title and interest in and to (a) the Services, the Software and the Software Suite, as well as all improvements, enhancements or modifications thereto, (b) all Intellectual Property Rights related to any of the foregoing. The Customer acknowledges that the Corporation has no obligation to deliver and will not deliver any copies of its Software.
With respect to any Software that is distributed or provided to the Customer for use on Customer premises or devices, the Corporation hereby grants the Customer a non-exclusive, fully paid, royalty-free, worldwide, non-transferable, revocable and non-sublicensable license to use such Software during the Term only in connection with the Services.
Subject to section 5.5, between the Customer and the Corporation, the Customer shall own exclusively all right, title and interest in and to the Customer Data. The Customer represents and warrants that it has obtained all rights, authorizations and consents necessary for the use and transfer of the Customer Data to the Software Suite, including, without limitation, from Users to whom the Customer has granted User Accounts under this Agreement. Subject to the confidentiality provisions provided in this Agreement, the Customer grants an irrevocable, worldwide, non-exclusive, fully paid, royalty-free and perpetual license to use and perform any act required in connection to the Customer Data, the whole to the extent required to enable the Corporation to provide the Services in accordance with this Agreement or to design promotions and develop new products or Services.
Notwithstanding anything to the contrary herein, the Corporation shall exclusively own and retain all right, title and interest in and to the Feedback. The Customer hereby assigns to the Corporation all of its rights, title and interest in the Feedback, including all its Intellectual Property Rights.
In the event that the Corporation be reasonably satisfied that the Services infringe the Intellectual Property Rights of a third party, then the Corporation may, in its sole discretion and at its own costs, (i) obtain the right for the Customer to continue to use the Services, (ii) modify the Services to stop any infringement on such third party’s rights, but without substantially limiting the functionalities of the Services, or (iii) replace the Services with a functionally equivalent feature that does not infringe such rights. If none of these options are commercially reasonable, in the Corporation’s sole opinion, then the Corporation may suspend or terminate the Customer’s use of the Services, in which case a refund will be issued for paid, but unused, Fees (on a pro-rata basis).
The Customer undertakes to pay all Fees during the Term. Activation and maintenance of the Services is conditional on the payment of the Fees. The Fees must be paid according to the frequency set out in the Order Form. Notwithstanding anything to the contrary herein, (i) Fees are non-refundable, (ii) the scope of the purchased Services cannot be decreased during the relevant subscription Term, and (iii) the Fees are based on Services purchased and not actual usage (except in case of over usage, in which case you acknowledge that additional Fees might be invoiced to you in accordance with applicable pricing).
The Corporation, acting reasonably, reserves the right to change or to institute new Fees on renewal of the Services, upon thirty (30) days prior written notice to the Customer. The Corporation also reserves the right to change its billing or payment options upon renewal, for example by limiting or removing same, upon notifying the Customer in writing within the same delay.
If the Customer believes that the Corporation has billed the Customer incorrectly, the Customer must contact the Corporation no later than sixty (60) days after the date of the first billing statement in which an error or problem appeared, in order to receive an adjustment or credit, as applicable. Inquiries should be directed to the Corporation’s customer support department.
Fees indicated in an Order Form do not include any taxes.
In the event that you have chosen a pre-authorized payment method, you expressly authorize the Corporation to automatically debit the Fees according to the frequency set forth in the Order Form. An invoice will be made available to you.
If any invoiced amount is not received by the due date, in addition to any other remedy provided herein or by law, Fees may accrue late interest at the rate of 15% per year, calculable from the due date up until complete payment of the full amount due hereunder. The Customer shall bear all reasonable costs that the Corporation may incur in order to recover any unpaid amounts hereunder, except where such default is due to billing errors on the part of the Corporation.
The Customer shall have thirty (30) days to pay any unpaid Fees. If the Customer fails to pay the such amounts with said delay, the Corporation may, in addition to any other remedy provided herein or by law and in its entire discretion, suspend the Customer’s access to the Services until such unpaid Fees are paid in full, without limiting the Corporation’s right to terminate the Agreement in accordance with sections 7.3 and 7.4.
TERM AND TERMINATION
This Agreement shall come into force upon its acceptance by the Customer and shall remain in force until the expiry of the Term.
Unless indicated otherwise in the applicable Order Form, at the end of the initial term chosen in the Order Form, the Services shall be automatically renewed for additional periods of the same duration as that of the initial term, unless either Party requests termination in writing at least thirty (30) days prior to the end of the then-current period, meaning that this Agreement shall remain in effect until either party terminates the Customer’s subscription to the Services in accordance with the terms and conditions of this Agreement.
Either Party may also terminate this Agreement at any time, for any cause, upon thirty (30) days written notice to the other Party (which may be sent by e-mail).
in addition to any other remedy it might have, the Corporation may also terminate this Agreement without notice if the Customer materially or repeatedly breaches any of the terms and conditions of this Agreement, if the Customer ceases its professional activities or is subject to insolvency proceedings, or for any other “serious reason” within the meaning of the law.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE LAW, THE CORPORATION WILL NOT REFUND ANY PORTION OF THE FEES PAID BY THE CUSTOMER IN THE EVENT THAT THIS AGREEMENT BE TERMINATED IN ACCORDANCE WITH ANY OF THE PROVISIONS OF THIS SECTION 7 (EXCEPT IN THE EVENT OF TERMINATION BY THE CORPORATION WITHOUT CAUSE OR BY THE CUSTOMER FOLLOWING A CHANGE IN THE TERMS OF THIS AGREEMENT IN ACCORDANCE WITH SECTION 2.2, IN WHICH CASE A REFUND WILL BE ISSUED FOR PURCHASED BUT UNUSED SERVICES, ON A PRO-RATA BASIS).
Upon termination of the Services by the Customer, the Corporation will make all Customer Data (if any) available to the Customer for electronic retrieval for a period of thirty (30) days, it being understood that the Corporation may thereafter (but shall not required to) delete any stored Customer Data. The Corporation shall have no obligation to make the Customer Data available to the Customer prior to deletion in the event of termination of this Agreement by the Corporation pursuant to Section 7.4 above.
All dispositions of this Agreement which, by their nature, should survive termination of this Agreement, shall survive its termination, which includes, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability provided herein.
WARRANTY, INTERRUPTION AND LIMITATION OF LIABILITY
The Corporation deploys reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions and executes implementation Services in a professional and workmanlike manner.
The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Corporation or by third-party providers, or as a result of other reasons beyond the Corporation’s reasonable control, but the Corporation will deploy reasonable efforts to provide advance notice in writing or by e-mail of any scheduled Service disruption, the whole in a manner consistent with prevailing industry standards.
The Corporation warrants only that the Services will materially conform to what is described in this Agreement and in the Documentation.
SUBJECT TO THE PROVISIONS OF THIS AGREEMENT AND WITHIN THE LIMITS PERMITTED BY LAW, THE CORPORATION DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR THE INFORMATION ACCESSIBLE THROUGH THE SERVICES. THE CUSTOMER ACKNOWLEDGES HAVING HAD THE CHANCE TO OBSERVE THE SOFTWARE SUITE’S FEATURES AND DECLARES ITSELF SATISFIED THEREOF. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, THE CORPORATION DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE ONLY A DECISION SUPPORT TOOL THAT SHOULD IN NO WAY SUBSTITUTE FOR HUMAN DECISION MAKING. THE CUSTOMER ALSO ACKNOWLEDGES THAT THE ALGORITHMS FORMING PART OF THE SERVICES ARE FALLIBLE AND DO NOT INCORPORATE ALL THE CHARACTERISTICS OF HUMAN BEHAVIOUR.
The Services may require that the Customer access necessary or peripheral products or services offered by a third party. The Customer understands and agrees that the availability of the Services or of certain features and functions of the Services may depend on the corresponding availability of these third-party components. THE CORPORATION MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SUCH THIRD-PARTY COMPONENTS. IN ADDITION, THE CORPORATION ASSUMES NO RESPONSIBILITY WITH RESPECT TO SUCH THIRD-PARTY COMPONENTS, THEIR ACCESSIBILITY, THEIR SECURITY, TO INFORMATION OR MATERIAL CONTAINED THEREIN AND TO THE PRODUCTS OR SERVICES OFFERED THEREIN.
INDEMNITY AND LIMITATION OF LIABILITY
The Customer agrees to indemnify the Corporation against any damages, losses, liabilities, settlements and legal fees and costs (including legal and attorney’s fees) incurred as a result of any claim or proceeding brought against the Corporation arising out of (i) an alleged breach by the Customer (or any User) of this Agreement, (ii) any other faulty use of the Services by the Customer (or any User), or (iii) any Customer Data uploaded or published on the Software Suite infringing any third party’s Intellectual Property Rights.
The Corporation agrees to indemnify the Customer against any damages, losses, liabilities, settlements and legal fees and costs (including legal and attorney’s fees) incurred as a result of any claim or proceeding brought against the Customer alleging that the Customer’s use of the Services infringes a any third party Intellectual Property Rights, for a reason not attributable to the Customer.
The indemnification obligations set forth in sections 9.1 and 9.2 are subject to the following conditions : (i) the indemnified Party has given prompt notice to the indemnifying Party of the third party’s allegations in connection with the claim or proceeding and provided reasonable assistance to the indemnifying Party in the settlement of such a claim; and (ii) the indemnified Party has given the indemnifying Party sole control of the indemnification portion of such claim or proceeding, provided that (a) the indemnified Party may appoint an independent legal counsel of its choosing at its own expense, and (b) any judgment requiring the indemnified Party to admit liability, pay money or institute (or waive its right to institute) an action shall require the prior written consent of the indemnified Party, which shall not be unreasonably withheld, delayed or made conditional.
SUBJECT TO SECTION 9.5, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR, DIRECTLY OR INDIRECTLY: (i) LOSS OF INCOME, ECONOMIC LOSS OR LOSS OF BUSINESS OPPORTUNITIES SUFFERED BY THE OTHER PARTY; OR (ii) INDIRECT, SPECIAL OR CONSEQENTIAL DAMAGES (THOUGH THEY MAY HAVE BEEN FORESEEN OR CONTEMPLATED BY THE PARTIES AT THE TIME OF EXECUTION OF THIS AGREEMENT), OR FOR PUNITIVE OR EXEMPLARY DAMAGES AND INTERESTS. THE AGGREGATE LIABILITY OF EACH PARTY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, DIRECTLY OR INDIRECTLY, IS LIMITED TO THE FEES PAID BY THE CUSTOMER PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THIS LIABILITY.
Nothing in this Agreement shall exclude or limit the liability of either party in the following cases : (i) willful misconduct or gross negligence; (ii) bodily or moral injury; (iii) fraud or wilfully false representations; (iv) any obligation arising out of sections 9.1 or 9.2; (v) any infringement or violation of the Intellectual Property Rights of the other Party; (vi) any obligation to pay the Fees hereunder; (vii) any violation of sections 4.1 or 4.2; or (vii) any dispute for which liability cannot be excluded or limited under applicable law.
The Customer agrees that the Corporation may (i) publicly use the Customer’s name and logo alongside the names and/or logos of other customers on its website, in its customer lists, during field proposals, for investor presentations and for sales presentations, and (ii) use the Customer’s logo and name in press releases related to the Customer’s use of the Services, it being understood that the Customer shall first approve of any contemplated use of its name or logo and that the Corporation shall only use such logos provided and agreed upon by the Client. The Customer may at all times publicly declare that it is a customer and that it collaborates with the Corporation.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remains in full force and effect and enforceable.
In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (i) the Order Form, and (ii) the Agreement.
This Agreement is not assignable, transferable or sublicensable by the Customer except with the Corporation’s prior written consent.
All waivers and modifications to this Agreement must be made in a writing duly signed by both parties, except as otherwise provided herein.
No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Customer does not have any authority of any kind to bind the Corporation in any respect whatsoever.
All notices under this Agreement will be in writing and will be deemed to have been duly given (i) when received, if personally delivered; (ii) when receipt is electronically confirmed, if transmitted or e-mail (or failing that, the day after which the e-mail is sent); (iii) the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and (iv) upon receipt, if sent by certified or registered mail, return receipt requested. All notices given on the Software Suite under this Agreement will be deemed to have been duly given when sent.
This Agreement shall be governed by the laws of the province of Quebec without regard to its conflict of laws provisions. The courts in the province of Quebec, judicial district of Montreal, will have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement.