These terms and conditions apply to the provision of the service registered through the website at URL https://studio.thehyperstack.com, and mobile apps, third party sites, or anywhere else the services may be offered (collectively, “Services”). If the Services were ordered through an order form theses terms are incorporated in the order form and to the extent there are any conflicts between these terms and the order form, these terms will apply. These terms are incorporated into the Order Form and together, along with any addendums identified on the Order Form, form the “Agreement.”.
Subject to the terms of this Agreement, the Provider grants to the Customer a non-exclusive right to use the Services according to the website or other order form used to purchase the Services. The Provider offers a variety of paid and free accounts on its website. These accounts will be referred to as Paid and Free accounts, respectively. In a hosted environment, together with any other products and services defined in the Order Form, the Provider shall create an Account for Customers and clients who use the service through the Customer, the Services purchased may include a platform that allows online learning providers, schools, and universities to sign-up and issue credentials (“Credential Cloud”) and software that allows the customer to design smart digital certificates, badges, diplomas, and credentials, as well as customer login information for that Account.
2. Customer Responsibility
The customer agrees to:
- Remain responsible for all activity under all accounts it creates for other people;
- Maintain the confidentiality and security of passwords and abide by any access protocols or credential requirements set by Provider;
- Use commercially reasonable efforts to prevent unauthorized access to or use of the Service;
- Promptly notify Provider of any such unauthorized access or use of which it learns;
- Reasonably cooperate with respect to implementation, access, and support; and
- Ensure that a current email address is associated with each User's account
3. Customer Restrictions
The rights granted by the Provider to the Customer under Section 1 is subject to the following limitations regarding the Services.
- The Services may only be used by the named users that have been granted access credentials to the Customer Account;
- The credentials stored in the cloud can only be altered by the Customer and the Provider;
- The Customer must not sub-license its rights granted under this Agreement;
- The Customer must not permit any unauthorized person to access or use the Services;
- The Customer must not make any alterations to the Services;
- The Customer must not use the Services provided by the Provider in any way that causes, or may cause, damages to the Services or Platform or impairment of the availability or accessibility of the Services, and
- The Customer must not use the Services in any way or in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity.
4. Customer Data
The Parties acknowledge that the terms of this Agreement and any oral or written information exchanged between the Parties in connection with the preparation and performance of this Agreement are confidential. Accordingly, each party shall maintain the confidentiality of all such information. Without obtaining the written consent of the other party, Customer and Provider shall not disclose any relevant confidential information to any third parties, except for the information that: (1) is or will be in the public domain; (2) is required to be disclosed pursuant to the applicable laws or regulations. This Section shall survive the termination of this Agreement for any reason.
6. Representations and Warranties
6.1 Each party represents that (1) it has the power and authority to validly enter into this Agreement, (2) this Agreement has been duly and validly authorized, executed, and delivered, (3) the execution and delivery of this Agreement does not violate or conflict with any other agreement, license, or obligation of both parties, (4) no illegal or improper bribes, kickbacks, payments, gifts, or things of value have been offered or received from or on behalf of any employees or agents of the other party in connection with this Agreement, and (5) it is financially solvent and has the ability to perform its obligations hereunder.
6.2 THE PROVIDER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, OTHER THAN THE WARRANTY STATED IN SECTION 12.1, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS WITH RESPECT TO ANY SERVICE PROVIDED BY PROVIDER. NOTHING IN THIS SECTION SHALL MODIFY THE PROVIDER'S OBLIGATION TO INDEMNIFY CUSTOMERS AS REQUIRED BY SECTION 14.2.1 OF THIS AGREEMENT (“INDEMNIFICATION”).
7. Support and Maintenance
7.1The Provider will use commercially reasonable efforts to ensure the Customer availability of the Services in accordance with industry standards and provide reasonable assistance during the Term (“Support Services”). These Support Services do not apply to any scheduled outages, standard maintenance windows, force majeure, and outages that result from any technology issue not originating from the Provider.
7.2The Provider reserves the right to temporarily suspend access to the Services for operational purposes, including, but not limited to, maintenance, repairs, or installation of upgrades, and will strive to provide no less than two business days’ notice prior to any such suspension. Such notice shall be provided to the Customer in advance by email. Further, the Provider shall strive to confine planned operational suspensions to minimize disruption to the Customer.
7.3The Support Services will be tailored to reflect the product the Customer purchased. The Support Services will be provided following the standard of skill and care reasonably expected from a leading service provider in Provider’s industry. The Support Services will be made available to the Customer as outlined in their product. The Provider may suspend Support Services at the end of the Term.
8. Blockchain Security
8.1The Provider uses its own blockchain security system to protect the data disclosed by the Customer regarding to the Credential Cloud. However, the Customer may opt to use a third party security system or elect to not use a security system at all.
8.2If the Customer decides to use a third party blockchain system, Provider may charge Customer additional charges, and the Customer is entirely responsible for integrating the third party system, assumes all risk of loss, damage, corruption, or disclosure of data, despite any other warranties or obligations of Provider, and Customer agrees to indemnify, defend and hold harmless Provider from and against any and all claims, liabilities, or losses arising from the Customer's use or integration with the third party system.
9. Fees and Payments
10. Limitation of Liability
10.1Except in the case of a violation by the Provider of its obligations under Section 5 above (“Confidentiality”), Section 4 (“Customer Data”), and Section 12 (“Warranties”). The Provider shall not be liable for, and Customer waives the right to claim any loss, injury, claim, liability, or damage of any kind resulting in any way from the Services provided to Customer by Provider.
10.2CUSTOMER AGREES THAT THE LIABILITY OF PROVIDER ARISING OUT OF ANY CLAIM IN ANY WAY CONNECTED WITH THE SERVICE WILL NOT EXCEED THE TOTAL AMOUNT YOU HAD PAID FOR THE SERVICE PURSUANT TO THE AGREEMENT WITHIN THE YEAR PERIOD BEFORE THE DATE OF THE CLAIM AROSE. THE CUSTOMER FURTHER AGREES THAT PROVIDER IS NOT AND WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES) RELATING TO THIS AGREEMENT. THESE DISCLAIMERS APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES) RELATING TO WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WHETHER THOSE DAMAGES ARE FORESEEABLE, AND WHETHER THE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
11.1Customer hereby agrees to indemnify and hold harmless Provider from and against any claim, action, proceeding, loss, liability, judgment, obligation, penalty, cost or expense, including attorney's fees, which arise from or related to the following: (1) Customer's breach of any obligation stated in this Agreement, and (2) Customer's negligent acts or omissions. The Provider will provide prompt notice to the Customer of any indemnifiable event or loss. Customer will undertake, at Customer's own cost, the defense of any claim, suit, or proceeding with counsel reasonably acceptable to Provider. Provider reserves the right to participate in defense of the claim, suit, or proceeding, at Provider's expense, with counsel of Provider's choosing.
11.2Provider shall defend, indemnify and hold Customer harmless against any loss, damage, or costs (including reasonable attorney's fees) in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party alleging that the Service, or use of the Service as contemplated hereunder, infringes a copyright, a U.S. patent issued as of the date of final execution of this Agreement, or a trademark of a third party or involves the misappropriation of any trade secret of a third party; provided, however, that Customer (1) promptly gives written notice of the claim to Provider, (2) gives Provider sole control of the defense and settlement of the claim, and (3) provides to Provider, at Provider's cost, all reasonable assistance. Notwithstanding this section, Provider shall not be liable to extent any infringement is caused by Provider's combination of Services with third party hardware or software, or a modification to Services.
12. Term and Termination
This agreement shall come into force after Customer payment is processed by the Provider. Either party may terminate this Agreement by providing the other party with at least 30 days written notice of termination. The agreement will automatically be terminated if the Customer does not renew the product or if payment cannot be processed. Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, except the following provisions of this Agreement that will survive termination in accordance with their express terms or otherwise indefinitely: Section 4 (Customer Data), Sections 5 (Confidentiality), 10 (Limitation of liability), and 11 (Indemnification).
13. Intellectual Property Rights
As between Customer and Provider, the Provider Intellectual Property is, and shall at all times remain the sole and exclusive property of Provider. Provider shall have the right, in its sole discretion, to modify the Provider Intellectual Property. “Provider Intellectual Property” means (1) the Service; (2) all improvements, changes, enhancements, and components thereof; (3) all other proprietary materials of Provider and/or its licensors, and; (4) all other intellectual property owned by Provider including, but not limited to, all copyrights, patents, trademarks and trade names, trade secrets, specifications, methodologies, documentation, algorithms, criteria, designs, report formats, and know how as well as any underlying source code and object code related thereto.
14.1If a dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration, litigation, or some other dispute resolution procedure. All disputes arising from or concerning the Services or these terms, or their interpretation, violation, invalidity, non-performance, or termination, will be submitted to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying California law. The exclusive venue for any arbitration or court proceeding based on or arising out of this Agreement shall be Santa Clara County, California.
14.2This Agreement and all claims or causes of action arising hereunder shall be governed by and construed in accordance with the laws of the State of California, excluding its conflict of laws provisions and the Parties (Provider and Customer) hereby submit to exclusive jurisdiction in the federal or state courts located in Santa Clara County, California, USA, and agree that venue is proper and convenient in such forums.
14.3Any part, provision, representation, or warranty of this Agreement which is prohibited or which is held to be void or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof..
14.4This Agreement may be supplemented, amended, or modified only by the mutual agreement of the parties. No supplement, amendment, or modification of this Agreement shall be binding unless it is in writing and signed by both the Customer and the Provider.
14.5Neither this Agreement nor any of the rights, interests, or obligation hereunder shall be assigned by the Customer without the Provider’s written consent. The Provider is entitled in this Agreement to assign any of the rights, interests, or obligations hereunder without the Customer's prior consent
15. Contact Us
Hyperstack Credential Cloud™, Customer can contact Provider at URL https://thehyperstack.com/contact-us/ or by email firstname.lastname@example.org.