HyperLabel Terms of Service
HYPERLABEL SOFTWARE LICENSE AGREEMENT
This HyperLabel Licensed Application License Agreement (this “Agreement”) governs your use of the Sixgill HyperLabel software (the “Licensed Application”) from Sixgill, LLC (“Sixgill”) BY DOWNLOADING THE LICENSED APPLICATION, YOU AGREE ON BEHALF OF YOU AND YOUR ORGANIZATION (TOGETHER, “LICENSEE”) TO BE BOUND BY AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT INSTALL OR USE THE LICENSED APPLICATION.
1. LICENSE; SUPPORT
1.1. Scope of Use. Subject to the terms and conditions of this Agreement, Sixgill hereby grants to Licensee, during the License Period, a limited, royalty-free, non-exclusive, non-transferable license (the “License”) for a single user to download, install and use the Licensed Application in object code format for its intended purposes on a single personal computer. “License Period” means the period beginning on the date Licensee downloads the Licensed Application and ending on the date that either party gives the other party written notice of termination (the “License Period”).
Certain aspects of your license are governed by the subscription plan you have chosen (your “Subscription Plan”). You can review a summary of the different Subscription Plan levels at http://hyperlabel.com/pricing If you are under an Enterprise Subscription Plan, then your use may be subject to additional or different terms (an “Enterprise Agreement”).
1.2. Restrictions. Licensee will not: (a) copy the Licensed Application or related documentation; (b) translate or decompile, or create or attempt to create, by reverse engineering or otherwise, the source code form of the Licensed Application; (c) modify, adapt, translate or create a derivative work from the Licensed Application; (d) remove any proprietary notices, labels, or marks on the Licensed Application; (e) assign, sublicense, rent or transfer all or any part of the Licensed Application or access to the Licensed Application, to any person or entity without the prior written consent of Sixgill; or (f) use the Licensed Application on behalf of any third party or otherwise to provide outsourcing, service bureau, time sharing, rental or any other services to any third party.
1.3. Limited Customer Support. Sixgill will, in its sole discretion, provide new features, corrections, changes and updates as they become available. Sixgill agrees to provide Licensee with limited customer service to answer technical questions during the License Period. Licensee understands that Sixgill makes no representations regarding response time to technical questions. All technical questions should be directed to Sixgill via email to support@Sixgill.com during its normal business hours of 9:00 AM to 5:00 PM, Monday through Friday, Pacific Standard Time.
2.1. Termination. Licensee may terminate this Agreement at any time upon notice to Sixgill. Sixgill may, in its sole discretion, revoke the License and terminate this Agreement at any time, including upon any breach by Licensee of any term or condition of this Agreement.
2.2. Effect of Termination. In the event of termination, Sixgill will have no further obligations to Licensee. Section 1.2, Section 3.4, Sections 4 through 11, and this Section 2.2 of this Agreement will survive termination for any reason. Upon any termination of this Agreement, Licensee will promptly and completely remove and destroy any and all Licensed Application and related documentation and all copies thereof along with any other materials provided by Sixgill under this Agreement.
3. PAYMENT AND CANCELLATION
3.1. Subscription Fees. Licensee shall pay fees in accordance with the applicable Subscription Plan. For paid Subscription Plans acquired directly from Sixgill or through a third party (e.g., Apple or Microsoft, a “Third-Party Distributor”), you will have a choice to pay in advance on either a monthly or annual basis or some other recurring interval disclosed to you prior to your purchase. Sixgill may modify the fees or the payment periods from time-to-time by providing at least 30 days’ prior notice (which may be to the email account provided by Licensee at registration). Licensee’s continued use of the Licensed Application following notice of a change to the fees will constitute Licensee’s acceptance of such modifications.
3.2. Payment. Unless otherwise agreed by Sixgill in writing, Licensee shall be charged the applicable fees monthly in advance via the Third-Party Distributor from whom you purchased the Licensed Application or by Sixgill using the credit card information provided at registration. Licensee is responsible for keeping its credit card information and payment information up to date. All payments shall be in U.S. Dollars. Except where prohibited by applicable law, payments are non-refundable (including in the event that this Agreement terminates in the middle of the month or if Licensee’s downgrades its Subscription Plan). If Licensee is an individual residing in a region with a mandatory refund policy (e.g., within the European Union), Licensee may be eligible for a refund. If you reside in such a region and purchased your paid Subscription Plan through Sixgill, you must, within the legally-required time period, cancel your Subscription Plan as provided below and notify us where you reside by emailing us at firstname.lastname@example.org
3.3. Cancellation. Each paid Subscription Plan will automatically renew at the end of the applicable subscription period (e.g., monthly or annually) unless you cancel your subscription prior to the end of your current Subscription Plan. If you purchased your paid Subscription Plan from a Third-Party Distributor, you must cancel through such Third-Party Distributor. If you purchased your paid Subscription Plan through Sixgill.
3.4. Taxes. Customer is solely responsible for all taxes, fees, duties and governmental assessments (except for taxes based on Sixgill’s net income) that are imposed or become due in connection with the subject matter of this Agreement.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. Ownership. Licensee acknowledges and agrees that, as between Sixgill and Licensee, Sixgill owns and retains all rights, title, and interest in and to the Licensed Application and all Sixgill Intellectual Property. This Agreement will not constitute a sale of the Licensed Application and no title or proprietary rights to the Licensed Application are transferred to Licensee. “Sixgill Intellectual Property” means all of Sixgill’s technology, inventions, discoveries, innovations, know-how, methods, processes, information, trademarks, software, documentation, and interfaces, including all improvements, modifications, works in process, derivatives, or changes, whether tangible or intangible, embodied in any form, and all Intellectual Property Rights in the foregoing. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or later in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
4.2. Rights to Feedback. Licensee acknowledges that Sixgill has the right to incorporate into any technology, products, and/or other services of Sixgill any and all observations concluded by Sixgill in connection with Licensee’s use of the Licensed Application, and any and all results, ideas, feedback, and suggestions provided and offered by Licensee in connection with this Agreement. Licensee disclaims, and assigns and conveys to Sixgill, any and all proprietary interest in and to any and all such results, ideas, feedback, and suggestions.
4.3. Injunctive Relief. Licensee acknowledges that the Licensed Application is a unique, confidential and valuable asset and trade secret of Sixgill, and Sixgill will have the right to obtain (in addition to any other legal and equitable remedies which may be available to Sixgill) all equitable and legal redress which may be available to it for the breach or threatened breach of this Agreement, including injunctive relief, in any court of competent jurisdiction, without the necessity of proving actual damages or posting any bond.
5. DATA AND VISUAL CONTENT
5.2. Access to Visual Content. As part of the provision of support to Licensee, Licensee acknowledges and agrees that Sixgill may be exposed or otherwise have access to video or visual images that Licensee intends to process or has processed using the Licensed Application (“Visual Content”). Licensee represents and warrants that it has all rights, licenses, and consents necessary to process Visual Content through the Licensed Application in accordance with this Agreement.
LICENSEE ACKNOWLEDGES THAT ITS USE OF THE LICENSED APPLICATION IS AT ITS OWN RISK. THE LICENSED APPLICATION IS PROVIDED SOLELY ON AN “AS-IS” BASIS. SIXGILL MAKES, AND LICENSEE RECEIVES, NO WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE. SIXGILL EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT. SIXGILL DOES NOT WARRANT THAT THE LICENSED APPLICATION WILL BE OPERABLE OR THAT LICENSEE’S USE OF THE LICENSED APPLICATION WILL BE UNINTERRUPTED OR ERROR FREE OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT, DEVICE, SOFTWARE, OR OTHER MATERIALS.
7. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SIXGILL BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES OR LOST PROFITS (EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, INCLUDING DAMAGES ARISING FROM LOSS OF DATA, FROM THE DISABLING OF THE LICENSED APPLICATION, OR ANY OTHER DAMAGES, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY. WITHOUT LIMITATION OF THE FOREGOING, UNDER NO CIRCUMSTANCES WILL SIXGILL’S TOTAL AGGREGATE LIABILITY TO LICENSEE OR ANY THIRD PARTY FOR ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ARISING OUT OF LICENSEE’S USE OF THE LICENSED APPLICATION, EXCEED $50.00.
Licensee agrees to indemnify, defend and/or settle, and pay damages awarded pursuant to any third-party claim brought against Sixgill arising from or relating to (a) Licensee’s use of the Licensed Application; (b) any Visual Content; or (c) Licensee’s breach of this Agreement. In the event any claim is made against Sixgill, Sixgill will promptly notify Licensee in writing of such claim, and promptly tender the control of the defense and settlement to Licensee (at Licensee’s expense) and cooperate fully with Licensee (at Licensee’s request and expense) in defending or settling such claim. Licensee will not enter into any settlement or compromise of any such claim without Sixgill’s prior written consent.
9.1. Confidential Information. Licensee will (and will ensure that its employees will) maintain the strict confidentiality of the Licensed Application and all information and materials contained in the Licensed Application and all information and materials conveyed by Sixgill to Licensee under this Agreement, including but not limited to, financial information, pricing information, marketing information and the Licensed Application’s features and modes of operation, inventions (whether or not patentable), techniques, processes, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, analysis and performance information, user documentation and other technical information, plans and data (collectively, the “Sixgill Proprietary Information”). This undertaking will not apply to information that becomes part of the public domain through no act or omission of Licensee or is in Licensee’s lawful possession (as demonstrated by written documentation) prior to the date of this Agreement. Licensee shall not use the Sixgill Proprietary Information for any purpose other than exercise its rights under this Agreement.
9.2. Non-Disclosure. Licensee will not permit anyone other than its own most trusted employees with a need to know to access or use the Sixgill Proprietary Information. Licensee will not disclose the Sixgill Proprietary Information to any third party and will not use the Sixgill Proprietary Information other than as expressly authorized hereunder.
10. CHOICE OF LAW; ARBITRATION
10.1. Choice of Law. Subject to Section 4.3 above, this Agreement are to be governed by and interpreted in accordance with the laws of the State of California, without giving effect to its principles of conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Transactions Act shall not apply to these Terms.
10.2. Arbitration. Any action or proceeding arising out of or relating to the Agreement shall be resolved by arbitration in Los Angeles, California in accordance with the Commercial Dispute Resolution Procedures of the American Arbitration Association and, in the event either party seeks injunctive or provisional relief, the Optional Rules for Emergency Measures of Protection. The arbitration will be heard and determined by a single arbitrator experienced in the software industry. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, but not limited to, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration panel, except as may lawfully be required in judicial proceedings relating to the arbitration or by disclosure rules and regulations of securities regulatory authorities or other governmental agencies. No disputes may be arbitrated on a class or representative basis. Arbitration can decide only the individual Dispute and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated. BY ENTERING INTO THESE TERMS, YOU HEREBY IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE TO JOIN CLAIMS WITH THOSE OF OTHERS IN THE FORM OF A CLASS ACTION OR SIMILAR PROCEDURAL DEVICE. ANY CLAIMS ARISING OUT OF, RELATING TO, OR CONNECTED WITH THESE TERMS MUST BE ASSERTED INDIVIDUALLY.
11.1. No Assignment. Licensee will not sublicense, assign, delegate, or otherwise transfer this Agreement or any of the related rights or obligations for any reason and any attempt by Licensee to do so will be void.
11.2. Notices. Legal notices under this Agreement shall be in writing as follows: (a) if to Licensee, to the email address provided upon registration; and (b) if to Sixgill, to 312 Arizona Avenue, Santa Monica CA, Attn: Legal, email: email@example.com. Any notice shall be deemed given: (i) when sent, if by email; (ii) upon receipt if sent by personal delivery or by certified or registered U.S. Mail (return receipt requested); or (iii) one day after it is sent if by next day delivery by a major commercial delivery service.
11.3. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the terms and agreement between Sixgill and Licensee and supersedes all prior representations, understandings and communications, oral or written, between the parties with respect to the subject matter of this Agreement.
11.4. No Waiver. The failure of Sixgill to insist, in any one or more instances, upon the performance of any term of this Agreement will not be construed as a waiver or relinquishment of its rights to such performance or future performance of such term, and the obligation of Licensee with respect to such term will continue in full force and effect.
11.5. Severability. In the event that any provision of this Agreement is invalid, unlawful, or unenforceable to any extent, the parties agree that such provision will be deemed modified to the minimal extent necessary to make it enforceable while still retaining the intent of the parties. In such event, the remainder of this Agreement will not be affected, and the remaining provisions of this Agreement will continue to be valid and may be enforced to the fullest extent permitted by law.
11.6. Amendment. This Agreement will be subject to modification or amendment only by a writing executed by authorized representatives of both parties.
11.7. Export Compliance. Licensee will comply, and will not cause Sixgill to fail to comply, with all applicable export control laws of the United States and any other applicable governmental authority, including without limitation, the U.S. Export Administration Regulations.