INTRODUCTION AND INCORPORATION

These Reference Terms of Service (these “Terms”) govern the relationship between HyperYou, Inc. (DBA Hyper), a Delaware corporation with its primary place of business located at 749 Guerrero St, San Francisco, California, 94110 (“Hyper”), and the entity identified as the customer in any purchase order, ordering document, statement of work, or other written agreement that references these Terms (each, an “Ordering Document”, and such entity, the “Customer”; Hyper and Customer, each a “Party” and together, the “Parties”).

These Terms are incorporated by reference into each Ordering Document executed between Hyper and Customer. Together, these Terms and the applicable Ordering Document constitute the complete agreement between the Parties with respect to the subject matter thereof (the “Agreement”). In the event of a conflict between the provisions of an Ordering Document and these Terms, the terms of the Ordering Document shall prevail. Each Party will notify the other in writing of any changes to its contact information.

1.  TERM AND TERMINATION

1.1  Term. The Agreement commences as of the effective date set forth in the applicable Ordering Document (the “Effective Date”) and shall continue in effect for the term indicated in such Ordering Document (the “Initial Term”). Thereafter, the Agreement shall be automatically renewed on an annual basis on the anniversary of the Effective Date as a “Renewal Term”, unless either Party gives written notice of non-renewal to the other Party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term (the Initial Term and any Renewal Term, collectively, the “Term”).

1.2  Termination for Cause. A Party may terminate the Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other Party if such breach remains uncured at the expiration of such period; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

2.  LIMITED LICENSE

Subject to the terms of the Agreement, including payment of the applicable fees for the Service set out in the Ordering Document (“Fees”), Hyper hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable (except to Customer Personnel), limited internal license to access and use during the Term the Hyper Platform, the Website, their features, and functionality (the “Service”), and Documentation (if any) for the duration of the Term. Customer and any authorized director, officer, employee, or contractor under the employ or other engagement of the Customer (“Customer Personnel”) shall access and use the Service solely for internal business purposes. Hyper will grant one general administrator account (“Administrator Account”) to an individual of Customer’s Personnel authorized by Customer to act as its administrator (“Administrator”). The Administrator will be able to create user logins for Customer’s Personnel authorized to use the Service.

3.  RESTRICTIONS

Customer shall not, and shall not permit anyone to, directly or indirectly: (i) modify, translate, adapt, disassemble, reverse assemble or engineer, reverse compile or decompile, or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service and/or any User Guide or Documentation (except to the extent expressly permitted by Hyper or authorized within the Service); (ii) copy, sublicense, distribute, assign, re-license, sell, lease, transfer, or otherwise use the Service for time-sharing or otherwise for the benefit of a third party; (iii) circumvent any user limits or other timing or use restrictions that are built into the Service; (iv) frame or mirror any content forming part of the Service; (v) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (vi) use the Service to send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs (“Malicious Code”); (vii) access the Service to interfere with or disrupt the integrity or performance of the Service or the data contained therein; (viii) (a) build a competitive offering or product, and/or (b) copy any ideas, features, functions or graphics of the Service; and/or (ix) remove any identifying marks, logos, labels, or other proprietary notice from the Service.

4.  DATA LICENSE

Customer grants to Hyper a non-exclusive, worldwide, royalty-free, fully paid-up license to access, collect, use, analyze, store and process any information, materials, and any content transmitted to the Service by Customer, Customer’s Personnel, and Customer’s end users (“Customer Data”) solely to: (i) provide the Service to Customer; (ii) evaluate and improve the functions, features and operation of the Service; and (iii) create anonymized and aggregated data sets (“Service Usage Data”). To the extent that any Customer Data or information transmitted to and collected by the Service includes personal information, Hyper will treat such information as confidential in accordance with the requirements of Section 9 below.

For the avoidance of doubt: (x) the license contemplated herein shall not permit Hyper to create aggregated data sets (whether anonymized, de-identifying, statistical or otherwise) for purposes of training the Platform or any third-party large language models (LLMs) used by the Platform; (y) Customer Data will not be used to train the AI models of the Platform or any third-party LLMs; and (z) Hyper has opted out, and shall continue to opt out, of all available options to do so, as applicable, for any such third-party LLM.

5.  FEEDBACK

Customer may from time to time provide to Hyper reasonable feedback with respect to the Service, including without limitation information on usability and evaluation of the Service and Documentation (“Feedback”). Customer agrees that any such Feedback, as well as any other know-how, developments, improvements, or data concerning the Service that Customer may suggest or provide to Hyper (collectively, “Improvements”) will be the sole property of Hyper and may be used by Hyper for any purposes Hyper sees fit.

6.  PROPRIETARY RIGHTS

As between Hyper and Customer, Customer owns all right, title and interest in and to Customer Data. All Intellectual Property Rights in and to the Service, Service Usage Data and Documentation shall, at all times, remain exclusively with Hyper and its licensors. Customer shall acquire no right whatsoever to all or any part of the Service except the right to use the Service in accordance with the terms of the Agreement, and Hyper and its licensors reserve all rights not expressly granted to Customer.

As used herein: (i) “Documentation” means any written or electronic technical documentation, including user manuals, reference materials and/or release notes (if any) that is made available with the Service, and which may be updated and amended from time to time; and (ii) “Intellectual Property Rights” means all proprietary rights in and to Documentation, patents, trademarks, trade names, trade dress, trade secrets, authorship (including the Documentation, expressions, designs, copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation), all industrial and other intellectual property rights, and all modifications, translations or adaptations, improvements or developments in and of the foregoing, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered, all registrations, rights to register or apply for registration, renewals, reversions, all waivers and assignments of moral rights, all assignments of model and property releases, and all rights to enforce such rights or interest, in any work, including without limitation the structure, sequence and organization of the same, worldwide and in perpetuity.

7.  CUSTOMER OBLIGATIONS

Customer agrees to: (i) comply and cause Customer Personnel to comply with its confidentiality obligations, and all other obligations set out in the Agreement; (ii) be solely responsible and liable at all times for all activities that occur in and on its Administrator Account and any user accounts derived from its Administrator Account; (iii) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (iv) use commercially reasonable efforts to prevent unauthorized access to, or use of the Service, and notify Hyper promptly of any such unauthorized access or use; and (v) use the Service as it is intended to be used solely for Customer’s internal purposes, and will comply with all applicable laws, statutes, constitutions, principles of common law, rules, regulations, codes, acts, ordinances, orders, decrees, injunctions, by-laws, authorizations, directions, requirements, rulings, agreements, and consents enacted, adopted, and/or in force by a court or governmental authority, body or department (“Applicable Law”).

8.  FEES AND PAYMENT

8.1  Fees. Customer shall pay Hyper the Fees as specified in the applicable Ordering Document.

8.2  Invoicing and Payment. Unless otherwise stated in the Ordering Document, all Fees will be invoiced in advance and payment is due net thirty (30) days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with Hyper.

8.3  Overdue Payments. Any payment not received from Customer by the due date may accrue, at Hyper’s discretion, late charges at the rate of 1.5% of the outstanding balance per month (19.57% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

8.4  Taxes. Unless otherwise stated, the Fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use, or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases pursuant to the Agreement, excluding taxes based on Hyper’s net income or property. If Hyper has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Hyper with a valid tax exemption certificate authorized by the appropriate taxing authority.

8.5  Audit Rights. Hyper shall have the right to use the capabilities of the Service to confirm Service usage and Customer’s compliance with these Terms.

8.6  Suspension of Service. If Customer’s account is thirty (30) days or more overdue, then in addition to any of its other rights or remedies, Hyper shall have the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full.

8.7  Fee Changes. At the end of the Initial Term or any Renewal Term, Hyper may change, in its sole discretion, any fees (including Fees), upon thirty (30) days prior written notice to Customer, and such revised prices shall become applicable to Customer at the start of the next Renewal Term.

9.  CONFIDENTIALITY

9.1  Definitions. As used in this Section 9, “Confidential Information” shall mean and include information disclosed by Hyper or Customer (the “Disclosing Party”) to the other (the “Recipient”) during the Term that is either (i) marked as confidential or (ii) disclosed orally and described as confidential at the time of disclosure and subsequently set forth in writing, marked confidential, and sent to the Recipient not more than thirty (30) days after the initial disclosure. Notwithstanding the foregoing, in no event shall the absence of such a mark or legend preclude disclosed information which would be considered confidential by someone exercising reasonable business judgment from being treated as Confidential Information. Confidential Information includes the Service (and the results of any testing or evaluation of the Service), Documentation, and any other related information furnished by Hyper to Customer, including, without limitation, all Intellectual Property Rights, information, pricing plans, know-how, product plans, technical information and specifications.

9.2  Compliance and Obligations. The Recipient agrees to keep confidential any and all Confidential Information of the Disclosing Party and shall take reasonable steps it takes to protect its own Confidential Information. Recipient shall only disclose such Confidential Information (i) to its personnel, agents, or representatives who have a need to know such information, for the purpose of performing their obligations under the Agreement, and who have entered into confidentiality agreements and are bound by confidentiality obligations no less protective than the Agreement, or (ii) to the extent required by Applicable Law or during the course of or in connection with any litigation, arbitration or other proceeding based upon or in connection with the subject matter of the Agreement, provided that the Disclosing Party shall give the Recipient reasonable notice prior to such disclosure and shall comply with any applicable protective order or equivalent. For greater certainty, this clause does not preclude the Customer’s ability to fulfill its reporting obligations as a public body, by disclosing how it spends its money to its board and/or the public.

9.3  Exceptions. Confidential Information shall not include information which: (i) is or later becomes publicly available without breach of the Agreement, or is disclosed by the Disclosing Party without any obligation of confidentiality; (ii) is known to the Recipient at the time of disclosure by the Disclosing Party; (iii) is independently developed by the Recipient without use of Confidential Information; (iv) becomes known or available to the Recipient without restriction from a source having the lawful right to disclose such information; (v) is generally known or readily ascertainable by parties of ordinary skill in the business of the Recipient; or (vi) is software code in either object code or source code form that is licensed under an open source license.

10.  MUTUAL INDEMNIFICATION

10.1  Indemnification by Hyper. Subject to the terms and conditions of the Agreement, Hyper shall, at its own expense, defend Customer in any action, suit, or proceeding brought by a third party alleging that the Service infringes or misappropriates any patent, trademark, trade secret, copyright or any other intellectual property rights of such third party (an “IP Claim”) and shall indemnify and hold Customer harmless from and against any settlement amounts agreed in writing by Hyper and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys’ fees) awarded to such third party against Customer by a court or tribunal of competent jurisdiction in such IP Claim. As conditions for such defense and indemnification by Hyper: (i) Customer shall notify Hyper promptly in writing upon becoming aware of all pending IP Claims; (ii) Customer shall give Hyper sole control of the defense and settlement of such IP Claims; (iii) Customer shall cooperate fully with Hyper in the defense or settlement of such IP Claims; and (iv) Customer shall not settle any IP Claims without Hyper’s written consent, or compromise the defense of any such IP Claims or make any admissions in respect thereto.

10.2  Mitigation. If (a) Hyper becomes aware of an actual or potential IP Claim, or (b) Customer provides Hyper with notice of an actual or potential IP Claim, Hyper may (or in the case of an injunction against Customer, shall), at Hyper’s sole option and determination: (I) procure for Customer the right to continue to use the Service; or (II) replace or modify the Service with equivalent or better functionality so that Customer’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate the provision of the Service and refund to Customer any pre-paid Fees for any periods after the termination of the Service, less any outstanding monies owed by Customer to Hyper.

10.3  Exclusions. The obligations in Sections 10.1 and 10.2 do not extend to: (1) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright, or other intellectual property right by the combination of the Service furnished by Hyper with other products, software or services not provided by Hyper; (2) any IP Claim related to any Customer Data; or (3) any IP Claim related to any use or exercise of any other right in respect of the Service outside the scope of the rights granted in the Agreement.

10.4  Indemnification by Customer. Subject to the terms and conditions of the Agreement, Customer shall, at its own expense, defend Hyper, and its directors, officers, employees, and agents (the “Hyper Indemnitees”) in any action, suit, or proceeding brought by a third party against any of the Hyper Indemnitees alleging that the Customer Data, or Customer’s use of the Service in violation of the Agreement, infringes or misappropriates the Intellectual Property Rights or other rights of, or has otherwise harmed, a third party (“Customer Claims”) and shall indemnify and hold the Hyper Indemnitees harmless from and against any settlement amounts agreed in writing by Customer and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys’ fees) awarded to such third party against any of the Hyper Indemnitees by a court or tribunal of competent jurisdiction in any such Customer Claim. As conditions for such defense and indemnification by Customer: (i) Hyper shall notify Customer promptly in writing upon becoming aware of all pending Customer Claims; (ii) Hyper shall give Customer sole control of the defense and settlement of such Customer Claims; (iii) Hyper shall cooperate fully with Customer in the defense or settlement of such Customer Claims; and (iv) Hyper shall not settle any Customer Claims without Customer’s written consent, compromise the defense of any such Customer Claims, or make any admissions in respect thereto.

11.  WARRANTIES AND DISCLAIMERS

11.1  Warranties. Each Party represents and warrants to the other Party that: (a) it is a corporation, duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (b) it has all requisite power and authority and approvals to execute, deliver and perform its obligations under the Agreement; (c) the execution and delivery of the Agreement and the performance of its obligations hereunder have been duly authorized by it and any necessary third parties; and (d) it will perform its duties and obligations hereunder in a careful, diligent, professional, proper, efficient and businesslike manner.

11.2 EXCEPT FOR THE EXPRESS WARRANTIES SET OUT ABOVE, THE SERVICE AND DOCUMENTATION (IF ANY) UNDER THE AGREEMENT ARE PROVIDED “AS IS” AND “WHERE IS” AND HYPER EXPRESSLY EXCLUDES AND DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.

12.  LIMITATION OF LIABILITY

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF PROFIT OR REVENUE BY THE OTHER, OR FOR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT OR ECONOMIC DAMAGES INCURRED OR SUFFERED BY THE OTHER PARTY ARISING AS A RESULT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. THE TOTAL LIABILITY OF HYPER FOR ALL CLAIMS OF ANY KIND ARISING OUT OF OR RELATED TO THE AGREEMENT, OR TO ANY ACT OR OMISSION OF HYPER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE LIMITED TO DIRECT DAMAGES ACTUALLY INCURRED BY CUSTOMER AND SHALL NOT EXCEED THE EQUIVALENT OF THE FEES PAID BY CUSTOMER TO HYPER IN THE PREVIOUS SIX (6) MONTHS PRECEDING THE CLAIM. NOTWITHSTANDING THE GENERALITY OF THE FOREGOING, THE LIMITATIONS OF LIABILITY ABOVE DO NOT APPLY TO FRAUD, WILLFUL MISCONDUCT OR INDEMNIFICATION OBLIGATIONS UNDER SECTION 10.

13.  PUBLICITY

By entering into an Ordering Document that incorporates these Terms, Customer hereby agrees and consents to Hyper using the Customer’s name and serving as a reference (upon request) thirty (30) days following Hyper’s onboarding of Customer as a customer and user of the Service.

14.  GENERAL PROVISIONS

14.1  Entire Agreement. The Agreement, consisting of these Terms and the applicable Ordering Document (and all applicable schedules, exhibits, and addenda thereto), constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of the Agreement shall be effective unless in writing and signed by the Party against whom the modification, amendment, or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions of these Terms and the Ordering Document (or any schedule, exhibit, or addendum thereto), the terms of the Ordering Document shall prevail.

14.2  Relationship. The Parties are independent contractors and nothing in the Agreement shall create, or be construed to create, an employment or agency relationship between Hyper and Customer.

14.3  Governing Law and Venue. The Agreement shall be governed by and construed in accordance with the laws of the State of Delaware and the federal law applicable therein, without giving effect to the conflicts of laws provisions of the State of Delaware or any other jurisdiction. To the extent negotiations are not successful, any suit hereunder will be brought solely in the courts of competent jurisdiction sitting in the State of Delaware, and Customer hereby submits to the exclusive jurisdiction of such courts and waives all objections to such venue.

14.4  Waiver. The delay or failure of either Party to exercise any rights under the Agreement will not constitute, or be deemed to constitute, a waiver or forfeiture of such rights. No waiver shall be valid unless it is in writing and signed by the Party against whom such waiver is sought.

14.5  Assignment. The rights, duties, and privileges of a Party to the Agreement shall not be transferred or assigned by it, in whole or in part, without the prior written consent of the other Party. Notwithstanding the foregoing, Hyper will have the right to assign the Agreement in connection with the sale of substantially all of its assets to a third party or in the event of a change of control.

14.6  Severability. In case any one or more of the provisions of the Agreement should be held invalid, illegal, or unenforceable, each such provision shall be modified, if possible, to the minimum extent necessary to make it valid and enforceable, or if it cannot be so modified, then severed, and the remaining provisions contained in the Agreement shall not in any way be affected or impaired.

14.7  No Third-Party Beneficiaries. Nothing herein shall confer, or be deemed to confer, on any person or entity not a signatory hereto any rights or benefits hereunder.

14.8  Headings. All headings contained in the Agreement are included as a matter of convenience and shall not be deemed part of the Agreement for purposes of interpretation.

14.9  Notices. All notices, demands, or other communications required or permitted to be given under the Agreement by either Party to the other may be effected either by personal delivery in writing or by email: (a) if to Hyper, addressed to Hyper at 749 Guerrero St, San Francisco, California, 94110; or (b) if to Customer, addressed to the notice address set forth in the applicable Ordering Document. Each Party may change its notice address by written notice to the other Party. Notices delivered personally will be deemed communicated as of actual receipt. Mailed notices will be deemed communicated as of three (3) days after mailing.

14.10  Language. The Parties have required that the Agreement and all documents and notices resulting from it be drawn up in English.

14.11  Force Majeure. Except with respect to the Customer’s payment obligations, neither Party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, epidemics or pandemics, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labor problems (other than those involving the employees of the affected Party), computer, telecommunications, Internet service or hosting facility failures or delays involving hardware, software or power systems not within a Party’s possession or reasonable control, provided that such Party gives the other Party prompt written notice of the failure to perform and the reason therefor and uses its reasonable efforts to limit the resulting delay in its performance.

14.12  Export. Customer acknowledges and agrees that the Service may be subject to export and import controls under the regulations of Canada, the United States, and other countries, and Customer shall comply with all export and import control regulations of such countries. Customer shall not use the Service for any purposes prohibited by export laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. Customer shall be responsible for procuring all required permissions for any subsequent export, import, or use of the Service.

14.13  Surviving Provisions. The following provisions shall survive any termination or expiration of the Agreement: Sections 4 through 12 and this Section 14.

14.14  Incorporation by Reference. These Terms may be incorporated into any Ordering Document by reference to the URL at which they are published or by physical attachment. In either case, the version of these Terms in effect as of the Effective Date of the applicable Ordering Document shall govern that Ordering Document for the duration of its Term, unless the Parties agree otherwise in writing.

[END OF REFERENCE TERMS OF SERVICE]

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