THIS TRIAL TERMS OF SERVICE AGREEMENT (“Agreement”), effective at the trial registration date (the “Effective Date”), is entered into between the user whose name is provided on the trial registration form (“User”) and Hypertec Cloud Inc. (“Hypertec”) (each a “Party” and, collectively, the “Parties”).
For the purposes of this Agreement:
“Services” means any and all cloud-based services made available on cloud.hypertec.com and any related sub-domains (the “Website”).
If the User is a legal entity, “User” includes all identified and authorized employees of the User, and the signatory for the User hereby represents that he/she has obtained all necessary authorizations or consents to accept this Agreement on behalf of the User; as such, the User is bound by the terms and conditions of this Agreement.
The trial period shall begin on the Effective Date and end 14 days later (the “Trial Period”).
BY SELECTING “REGISTER” ON THE TRIAL REGISTRATION PAGE, USER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
THE PARTIES AGREE AS FOLLOWS:
- Provision of Services. During the Trial Period, Hypertec shall grant the User access to the Website and make a trial version of the Services available to User, solely for the purposes of reviewing, demonstrating, and evaluating the Services. The trial version of the Services may have limited features and functionalities. Full access and use of all features and functionalities will be granted upon User’s definitive purchase of the Services following the Trial Period.. Hypertec may, at its sole discretion, provide User with the technical assistance as it deems necessary to properly install and operate the trial version of the Services.
- No other Obligations. Hypertec is not obligated under this Agreement to provide any documentation, maintenance/technical support, or updates/upgrades in relation to the trial version of Services. In addition, the Parties agree that upon expiry or termination of the Trial Period, User is under no obligation to purchase or enter into an agreement relating to the Services.
- Ownership and Restrictions. Hypertec is and shall remain the owner of all right, title and interest arising from, or related to the Services (including any trial versions thereof) and the intellectual property rights therein (including without limitation, all patent rights, design rights, copyrights and trade secret rights). Except as provided hereunder, User will have no right to loan, license, sublicense, rent, transfer, assign, sell, distribute, change, alter, copy, amend, modify, make derivative works based upon the trial version of Services, or use such Services to develop any products, combine the trial version Services with other software or code, reverse engineer, decompile, disassemble, publish, disclose, display or make available, in whole or in part, or otherwise use the trial version of the Services in any manner whatsoever. User will not remove any proprietary, copyright, patent, trademark, design right, trade secret or any other proprietary rights legends from the Services. Any right not expressly granted herein is reserved by Hypertec. User shall not use or permit others to use the trial version Services for the purpose of creating, improving or otherwise assisting in the development of a system which performs or may perform functions similar to, or competitive with, the Services.
- Feedback. Hypertec shall own all right, title and interest in and to any suggestions, requests or recommendations for improvements or enhancement to the Services or other feedback that User (including any of its employees, if applicable) may propose or make during the Trial Period or which User (or any of its employees, if applicable) and hci.ca may jointly make during the Trial Period (collectively, “Feedback”). User hereby irrevocably:
- assigns, and agrees to assign all of User’s right, title and interest in and to the Feedback to Hypertec; and
- waives in favour of Hypertec, its successors and assigns any and all moral rights that User has or may have in the Feedback. User further agrees to provide Hypertec with the assistance required to document, perfect, or maintain the assigned rights in and to the Feedback.
- Term; Termination. Unless terminated earlier in accordance with this Agreement, this Agreement will begin on the Effective Date and will automatically terminate on the earlier of:
- the end of Trial Period; or
- the date on which a User purchases a subscription to the full version of the Services and the trial account is converted to a standard billable account.
This Agreement shall not be extended unless otherwise agreed by Hypertec in writing; it being understood that Hypertec’s consent may be withheld at its discretion. Each Party may terminate this Agreement at any time for any reason. Upon expiry or termination of this Agreement:
- User (including its employees, if applicable) will immediately cease using the Services,
- if Hypertec converts the trial account to a billable account, User’s use of such generally commercially available version or release will be subject to separate terms and conditions.
- Disclaimer. USER HEREBY EXPRESSLY AGREES AND ACKNOWLEDGES THAT THE SERVICES (INCLUDING ANY MODIFICATIONS OR IMPROVEMENTS THERETO) MAY CONTAIN BUGS, ERRORS OR DEFECTS. ACCORDINGLY, HYPERTEC IS PROVIDING THE SERVICES TO USER “AS IS”. HYPERTEC AND ITS SUPPLIERS/LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OR COVENANTS, EXPRESS OR IMPLIED, IN RESPECT OF THE SERVICES, INCLUDING WITHOUT LIMITATION, STATUTORY OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, ACCURACY, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND EXCLUDED.
- Limitation of Liability. IN NO EVENT WILLHYPERTEC, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS SHALL BE LIABLE FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, ORDINARY, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF REVENUE OR PROFITS, LOST OR DAMAGED DATA, LOSS OF USE, BUSINESS INTERRUPTION OR ANY OTHER PECUNIARY LOSS), ARISING OUT OF RELATING TO THIS AGREEMENT OR CAUSED BY THE USE, MISUSE OR INABILITY TO USE THE TRIAL VERSION OF THE SERVICES, EVEN IF HYPERTEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR UNDER ANY OTHER LEGAL THEORY. IN ANY EVENT, HYPERTEC’S AGGREGATE LIABILITY AND THAT OF ITS SUPPLIERS AND LICENSORS UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT PAID FOR THE SERVICES, IF ANY. USER EXPRESSLY AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY SET OUT IN THIS SECTION 7 ARE FAIR AND REASONABLE IN THE COMMERCIAL CIRCUMSTANCES OF THIS AGREEMENT AND THAT HYPERTEC WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE INCLUSION OF SUCH LIMITATIONS AND EXCLUSIONS.
- Customizations and Data. ANY DATA YOU ENTERED WHILE USING THE TRIAL VERSION OF THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES FOR THE USER, DURING THE TRIAL PERIOD WILL BE PERMANENTLY LOST UNLESS THE USER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE PRESENT TRIAL. THE TRANSFER OF DATA ENTERED, OR CUSTOMIZATIONS MADE DURING THE TRIAL PERIOD TO THE TRIAL VERSION OF A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL IS NOT PERMITTED; THEREFORE, IF THE USE SUBSEQUENTLY PURCHASES A SERVICE THAT IS A DOWNGRADE FROM THAT COVERED BY THIS AGREEMENT, USER IS RESPONSIBLE FOR THE EXPORT OF ITS DATA BEFORE THE END OF THE TRIAL PERIOD, FAILING WHICH ALL SUCH DATA WILL BE PERMANENTLY LOST.
- Confidential Information. “Confidential Information” means all non-public, confidential or proprietary information of Hypertec or its suppliers/licensors relating to the Services (including without limitation all software, technology, intellectual property, trade secret and other information and data relating to the Services), all Feedback and all testing information provided by User (including its employees, if applicable) to Hypertec. User shall not use the Confidential Information in any manner except as reasonably required to evaluate the Services during the Trial Period and shall keep confidential of Confidential Information and shall protect the Confidential Information with the same degree of care as User employs in the protection of its own confidential and proprietary information, but at least with a reasonable degree of care. User shall not disclose any Confidential Information to any person, except, if applicable, to those of its employees who require access for User’s authorized use of the trial version of the Services under this Agreement. User acknowledges that the restrictions contained in this Section 9 are reasonable and necessary to protect Hypertec’s legitimate interests. User understands and agrees:
- that the remedies at law for the violation of this Section 9 will be inadequate,
- that such violation will cause irreparable injury within a short period of time, and
- that in addition to any and all other remedies Hypertec may have at law and in equity Hypertec shall be entitled to preliminary injunctive relief and other injunctive relief against such violation without the necessity of proving actual damages.
- Governing Law. This Agreement will be governed by, interpreted and construed in accordance with the laws of the Province of Québec, Canada and the laws of Canada applicable therein, other than rules governing conflicts of laws. Each of the parties agrees that any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be submitted to the exclusive jurisdiction of the courts of the Province of Quebec, Canada (district of Montréal). The foregoing choice of jurisdiction and venue shall not prevent Hypertec from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction. The Parties expressly disclaim applicability of the terms of the United Nations Convention of Contracts for the International Sale of Goods and any legislation implementing such Convention will not apply to this Agreement nor to any dispute arising therefrom.
- General. User is an independent contractor and the Agreement and User is not the agent or employee of Hypertec. User may not assign, delegate or otherwise transfer this Agreement or any of his/her/its rights or obligations hereunder without Hypertec’s prior written consent. If any of the provision contained in this Agreement are found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein shall not be in any way affected or impaired hereby. The provision in Sections 6 to 11 will survive termination or expiration of this Agreement. The Parties have requested that this Agreement be drafted in English. Les parties aux présentes ont exigé que le présent contrat soit rédigé en langue anglaise.