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Privacy Policy
HygenX Ai recognizes the importance of protecting the privacy of their web users and email newsletter subscribers.
Business Information
HygenX Ai manages the collection of all information in strict accordance with Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA), and collects only regular business card information such as name, title, business address, business email and business phone number.
Personal Information
We will provide specific notice before collecting any of your personal information. We will explain what information is being collected, and how the information collected will be used. You have the right to decline the collection of this information, and its subsequent use by HygenX Ai for marketing purposes at any time.
Non-Personal Information
Our Website’s operating system – like all other Websites – automatically records some general, non-personal information about your Web visit, such as:
The domain of the Internet Service Provider (such as “company.com” or “service.ca”), and the IP address (such as “ppp-55”) of the computer used to access this site;d
The type of Web browser (such as “Internet Explorer version x” or “Chrome version x”), and the operating system (such as Macintosh, Unix, or Windows) used to access this site;
The date and time of the visit to this Website; and,
The URLs of the various web pages which are visited on this site.
This tracking system does NOT record personal information about individuals.
We use the above non-personal information for statistical analysis, and to help us make our website more useful to our visitors. We may also disclose an aggregated summary of the above information to third parties such as sponsors, advertisers and our auditors.
We may also use “cookies” that identify you as a return visitor. A cookie is a piece of data that a website can send to your browser, which may then be stored on your hard drive. We might do this so that when you come back to visit us again, we can tailor information to suit your individual preferences. The goal is to save you time, and provide you with a more meaningful visit. Cookies do NOT contain ANY personally identifying information. Browsers allow you to disable cookie collection if you wish, or inform you when a cookie is being stored on your hard drive.
Email Communications
If at any time you decide you do not want to receive HygenX Ai email newsletter, simply click the link at the bottom of the email newsletter to unsubscribe. We will remove your email address from our newsletter list, and will do the same with your name, title, business address and business phone number upon request.
Referral Links Noted On This Site
This policy discloses the privacy practices for our website. However, our website also contains links to other websites. Once you move to another site, you are subject to the privacy and security policies of the new site. We encourage you to read the privacy policies of all of the websites you visit, especially if you intend to share your personal information with that website.
The terms and conditions of sale contained herein (“Agreement”) constitute the entire agreement between HygenX Ai Inc. (“HygenX Ai”) and the individual or company purchasing HygenX Ai Offerings as defined below (“Customer”). The Agreement is deemed accepted by Customer when Customer places an Order for HygenX Ai Offerings.
Any terms that are inconsistent with this Agreement are hereby disclaimed by HygenX Ai and constitute no form of acceptance by HygenX Ai unless HygenX Ai has previously accepted them in writing.
These Terms of Sale amend the User License Agreement (“EULA”) between Customer and the applicable HygenX Ai entity and, together with the EULA, as applicable, and any other applicable Supplemental Terms, form the agreement between the parties (“Agreement”).
Capitalized terms have the meaning as defined elsewhere in the Agreement. The following additional definitions apply to these Terms of Sale:
“HygenX Ai Hardware” is standard Hardware marketed or branded under the name “HygenX Ai”.
“AUP” means HygenX Ai’s Acceptable Use Policy available at www.hygenx.ai/terms-and-conditions and incorporated into this Agreement by this reference.
“Authorized Agents” means individuals who are working on Customer’s premises and require access to Hardware in support of Customer’s internal business as Customer’s consultants, agents, or contractors.
“Authorized Hardware Users” means Customer’s employees and Authorized Agents.
“Cloud Services” means the Hygenx Stream online services platform and associated cloud-based APIs (application programming interfaces) made available by HygenX Ai under this Agreement, including but not limited to software-as-a-service, platform-as-a-service, cloud hosting services, and online training services, offered alone or in combination with Software. Cloud Services exclude Software, Customer Content, and Third-Party Content.
“Content” means data, text, audio, video, images, models, or software.
“Customer Content” means Content entered by Customer or any user into Cloud Services and any output generated by Customer or any user through use of such Cloud Services based on such Content, excluding any Third-Party Content or other Content owned or controlled by HygenX Ai or its affiliates or their respective licensors and made available by HygenX Ai or its affiliates through or within Cloud Services.
“Documentation” means the instructions for use, learning materials, technical and functional documentation, and API information made available by HygenX Ai with the applicable Offering, in print, online, or embedded as part of a help function, which may be updated by HygenX Ai from time to time.
“Delivery” will have the meaning defined in Section 3 of these Hardware Terms.
“Entitlements” means, with respect to any Offering, the license and use types, limits, volume, or other measurement or conditions of permitted use for such Offering as set forth in the applicable Order or Supplemental Terms, including but not limited to any limits or restrictions on the number and categories of users authorized to use such Offering, permitted geographic areas, available storage space, computing power, or other attributes and metrics.
“Firmware” means system software (as opposed to application software) included and incorporated into Hardware which provides low-level control of, or a standardized operating environment for, the Hardware in which it is incorporated.
“Hardware” means hardware equipment, devices, accessories, and parts delivered by HygenX Ai under this Agreement, including firmware incorporated therein.
“Lease” or “Rental” means a grant by HygenX Ai of non-transferable, temporary and limited rights to use specific Hardware products within the Territory, including Trial and Loan licenses for Hardware as defined in the Trial and Loan Supplemental Terms.
“M&S Services” means the maintenance, and technical support services provided by HygenX Ai.
“Order” means an order form (Order Form), statement of work (SOW)), or similar ordering document that (i) incorporates the terms of this Agreement and sets forth the Offering(s) ordered by Customer and any associated fees, (ii) has been agreed by Customer by manual or electronic signatures or through an electronic system specified by HygenX Ai, and (iii) is accepted by HygenX Ai.
“Offering” means an individual offering, made available by HygenX Ai and identified in an Order, which consists of Cloud Services, Software, Hardware, or Professional Services, or a combination of any of the foregoing, and any associated maintenance and support services and Documentation.
“Software” means software licensed by HygenX Ai under this Agreement and made available for download or otherwise delivered to Customer for installation, including updates, modifications, design data, and all copies thereof, associated software-based APIs, scripts, toolkits, libraries, reference or sample code, and similar materials.
“Subscription Term” means the time period specified in the Order for which a term-based Offering is made available to Customer. Any renewal constitutes a new Subscription Term.
“Supplemental Terms” means additional terms and conditions that apply to a particular Offering as attached hereto or set forth or referenced in an Order.
“System” means a combination of Hardware and Software where one cannot operate without the other.
“Territory” means the country in which Customer initially acquires the Hardware, whether through purchase or Lease, as indicated by Customer’s address specified in the Order, unless expressly designated otherwise in the Order.
2.1. Orders
Offerings shall be purchased by the Customer issuing a written purchase Order signed by an authorized representative of the Customer, indicating the relevant HygenX Ai’s proposal or quotation number, specific Offerings desired, quantity, total purchase price, shipping instructions (including Customer’s tax and importation registrations and account numbers for shipments outside of Canada), and any applicable tax-exempt certifications and any other special instructions. All Orders are subject to prior written acceptance by HygenX Ai.
2.2. Renewals
If indicated on the Order or otherwise agreed by the parties in writing or in HygenX Ai’s electronic or online ordering system, Subscription or M&S Services for an applicable paid Product will automatically renew unless either party notifies the other at least 60 days before the end of the then-current term that it has elected not to renew. Any renewal term will be the same length as the preceding term or 12 months, whichever is greater. Any renewed Subscription or M&S Services will be governed by HygenX Ai’s then current standard terms and conditions applicable to the Product(s) as specified in an Order and available at www.hygenx.ai/terms-and-conditions. The fees during any renewal will be the same as those charged during the preceding term, unless (i) HygenX Ai notifies Customer about different future fees at least 90 days before the end of the then-current term or (ii) fees for the renewal are specified on the Order.
2.3. Payment
Customer will pay the fees set forth in the applicable Order under the conditions specified in the Order or the HygenX Ai invoice unless otherwise agreed by the parties. HygenX Ai will invoice Customer for Professional Services on a monthly basis as charges are incurred. Unless specified otherwise in the applicable Order, HygenX Ai will invoice Customer for fees related to any other Offerings in advance. Without limiting any other remedies available to HygenX Ai, Customer will pay applicable fees for any excess use of an Offering at the then-current price for such Offering within 30 days after the invoice date. Except as expressly set forth in this Agreement, all payment obligations are noncancelable, and all fees are non-refundable. If Customer has procured an Offering through an HygenX Ai authorized solution partner, different terms regarding invoicing and payment may apply as specified between Customer and the solution partner. HygenX Ai may share information with the solution partner related to Customer’s use and consumption of Offerings for account management and billing purposes. Payments for M&S Services shall be made upfront for the first 12 months of service, and for each subsequent 12 months on the delivery anniversary date thereafter. Offerings offered on a multi-year subscription agreement are billed on the first of every month for the period of that month. HygenX Ai reserves the right to obtain prior credit approval and request alternative payment terms, at its sole and absolute discretion. If at any time Customer is delinquent in the payment of any invoice or is otherwise in breach of this Agreement, HygenX Ai may, at its discretion withhold shipment or stop performance of services in respect of any order and may, at its option, require Customer to pre-pay for further shipments or performance. All payments not received when due shall be subject to an additional interest charge of one and a half percent (1.5%) per month (annual rate 18%) of the unpaid amount or the maximum rate permitted by law until the date of payment. Customer grants to HygenX Ai a security interest in Products (excluding services) purchased under this Agreement to secure payment for those Products purchased. If requested by HygenX Ai, customer agrees to execute financing statements to perfect such security interest. There is no set-off right for the Customer. HygenX Ai shall be permitted to apply payments made by Customer on other accounts, including deposits for other Products or services, to delinquent accounts.
2.4. Taxes
All amounts to be paid to HygenX Ai are exclusive of any taxes and any other charges. Customer agrees to pay or reimburse HygenX Ai or its authorized solution partner for the payment of any applicable taxes or duties including, but not limited to, sales taxes, value added taxes, goods and services taxes, consumption taxes, or any other charge that is imposed by any government authority on Customer’s use or receipt of, or license to, any Offering. If Customer is exempt from value-added or sales tax, then it must provide a valid, timely, and executed exemption certificate, direct pay permit, or other such government-approved documentation to HygenX Ai or its authorized solution partner. If Customer is required by law to make any income tax deduction or to withhold income tax, after the application of reductions available under international treaties, from any sum payable directly to HygenX Ai under this Agreement, Customer will promptly effect payment thereof to the applicable tax authorities, and will also promptly provide HygenX Ai with official tax receipts or other evidence issued by the applicable tax authorities to support a claim for tax credit relief. Notwithstanding the foregoing, Customer is responsible for, and will indemnify HygenX Ai for, any taxes, including withholding taxes, resulting from making an Offering available to users in geographic locations outside the country in which Customer is located as per the Order.
Unless agreed otherwise in the applicable Order, HygenX Ai will make the Hardware available to Customer FCA at HygenX Ai’ designated warehouse or factory for the relevant product (Incoterms 2020).
Making the Hardware available to Customer in accordance with the Incoterms specified in this Section will constitute “Delivery” hereunder, regardless of HygenX Ai’ further involvement in any transport arrangements for any Hardware after such Delivery.
Notwithstanding any ‘Incoterms’ specified in this Section, unless expressly agreed otherwise with Customer in writing, HygenX Ai will (i) choose and appoint the carrier, freight forwarder or shipping service provider for delivery of the Hardware to Customer’s designated place of final delivery, (ii) make the necessary arrangements for transportation with the selected carrier or shipping service provider in accordance with the specified Incoterms, and (iii) charge the costs for shipment or carriage to Customer as specified in the Order.
Risk of loss and damage passes to Customer upon Delivery. Title to purchased Hardware transfers to Customer after payment in full has been received by HygenX Ai. If applicable law does not allow or recognize retention of title by HygenX Ai after delivery, title to purchased Hardware and risk of loss will pass to Customer upon Delivery, but HygenX Ai retains a security interest in the Hardware to secure payment of the purchase price of such Hardware. In such case, Customer agrees to sign any documents that HygenX Ai reasonably determines to be necessary or convenient for use in filing or perfecting such security interest.
5.1. Hardware Warranty Period
For purchased HygenX Ai Hardware, HygenX Ai provides a limited product warranty for a period commencing on the date of Delivery and ending 12 months after the first day of the month following the date of Delivery (“Warranty Period”). The Warranty Period is not extended by the time required to correct or repair defects and malfunctions under warranty.
5.2. Hardware Warranty Scope
During the Warranty Period, HygenX Ai warrants that the HygenX Ai Hardware (i) is free from defects in workmanship and materials under normal use; and (ii) materially conforms to the specifications described in the Documentation. As Customer’s exclusive remedy in case of a breach of warranty, and only if Customer returns HygenX Ai Hardware to HygenX Ai under the RMA procedure (as defined in subsection 5.5 below), HygenX Ai will at its sole discretion repair or replace the HygenX Ai Hardware at no additional charge to Customer. If HygenX Ai, in its sole discretion, determines it cannot repair the HygenX Ai Hardware or replace it with another unit of HygenX Ai Hardware that would perform in accordance with HygenX Ai obligations hereunder, HygenX Ai will refund the fees received for the defective HygenX Ai Hardware based on a straight-line amortization over 60 months from initial Delivery, and accept the return of the Hardware. If such refunded HygenX Ai Hardware was furnished as part of a System, HygenX Ai will also accept the return of the Software elements of the System and refund the fees for those Software licenses under the same conditions.
5.3. Warranty Exclusions
The warranty will not cover defects or malfunctions resulting from: (i) improper use or installation, misuse, improper site preparation, or site or environmental conditions that do not conform to HygenX Ai’ site specifications or to standards of care generally applicable to the type of Hardware, (ii) software, interfaces or hardware supplied by Customer or a third party, (iii) non-compliance with HygenX Ai`s specifications and instructions regarding the operation, care, or storage of the Hardware, (iv) normal wear and tear which does not affect the functionality of the system (such as, but not limited to, cosmetic damage, scratches, and dents), (v) neglect, accident, or improper or inadequate maintenance or calibration, (vi) modifications, enhancements, repairs, or unauthorized alterations made by anyone other than HygenX Ai or its authorized representatives, and (vii) exposure to water, fire, or other hazards.
5.4. Refurbished Parts
HygenX Ai does not warrant that all Hardware or any part thereof furnished hereunder is new. Hardware may contain parts refurbished to an “as new” condition that meet all HygenX Ai quality specifications and are eligible for warranty and services.
5.5. Return Material Authorization (RMA)
HygenX Ai will only accept Products returned under the HygenX Ai Return Material Authorization (“RMA”) process. Customer shall obtain an RMA number from HygenX Ai prior to returning any Product. Upon the issuance of an RMA, Customer shall diligently return the Product with prepaid shipping arrangements and sufficient insurance against the loss or further damage to the Product, to HygenX Ai’s facility. Any Product which has been returned to HygenX Ai, but which is found to meet the applicable specification for the Product and not defective in workmanship and material, may be subject to HygenX Ai’s standard examination charge in effect at the time and may be charged to the Customer, at HygenX Ai’s sole discretion.
5.6. Cloud Services Warranty
HygenX Ai warrants that Cloud Services will perform substantially in accordance with the features and functionalities described in the Documentation. To the extent permissible under applicable law, as HygenX Ai’s entire liability and Customer’s sole and exclusive remedy for a breach of this warranty, at HygenX Ai’s option (i) HygenX Ai will use commercially reasonable efforts to restore the non-conforming Cloud Services so that they comply with this warranty, or (ii) if such restoration would not be commercially reasonable, HygenX Ai may terminate the Order for the non-conforming Offering and refund any prepaid fees for such Offering on a pro-rata basis for the remainder of the Subscription Term for that Offering. The warranty for Cloud Services excludes (a) No-Charge Offerings and Previews, and (b) issues, problems, or defects arising from Customer Content, Third Party Content, or use of Cloud Services not in accordance with the terms of this Agreement.
5.7. Disclaimers
HygenX Ai makes only the limited warranties expressly stated in this Agreement, and disclaims all other warranties including, without limitation, the implied warranties of merchantability and fitness for a particular purpose. HygenX Ai does not warrant or otherwise guarantee that (i) reported errors will be corrected or support requests will be resolved to meet Customer’s needs, (ii) Offerings or any Third Party Content will be uninterrupted, error free, fail-safe, fault-tolerant, or free of harmful components, or (iii) any Content, including Customer Content and Third Party Content, will be secure or not otherwise lost or damaged. Representations about Offerings or features or functionality in any communication with Customer constitute technical information, not a warranty or guarantee. Customer is responsible for assessing the suitability of each Offering for Customer’s intended use, selecting the Offering necessary to achieve Customer’s intended results, and for the use of Offerings. By using an Offering, Customer agrees that such Offering meets Customer’s requirements to enable compliance with applicable laws. Customer will obtain, at its own expense, any rights, consents, and permits from vendors of software and services used by Customer in connection with any Offering which are required for such use. Customer agrees that Orders are not contingent on any future features or functionality of Offerings.
6.1. Firmware License
Under these Hardware Terms, HygenX Ai grants Customer a non-exclusive, non-transferable (except if transferred with the Hardware the Firmware is incorporated in) license to use the Firmware incorporated in the Hardware for the operation of the Hardware. The Firmware may only be used in connection with the Hardware in which it is incorporated. Any other use of the Firmware will be a material breach of the Agreement. Customer is prohibited from (a) decompiling, changing or modifying the Firmware, or deriving other programs from the Firmware, and from (b) modifying or deleting property rights, copyrights, or marks on the Firmware. The Software license and Software Maintenance Services terms set forth in the Agreement will not apply to Firmware.
6.2. Third Party Technology
Hardware may contain third-party software, technology, and other materials, including open-source software, licensed by third parties (“Third-Party Technology”) under separate terms (“Third-Party Terms”). Third-Party Terms are specified in the Documentation, Supplemental Terms, “read me” files, header files, notice files or similar files. In the event of a conflict with the terms of this Agreement, the Third-Party Terms control with respect to Third-party Technology. If Third-Party Terms require HygenX Ai to furnish Third-Party Technology in source code form, HygenX Ai will provide it upon written request and payment of any shipping charges.
6.3. Trade Secrets
HygenX Ai Offerings are trade secrets of HygenX Ai. Customer (i) will not, except as otherwise permitted by applicable law, reverse engineer, disassemble, or otherwise attempt to discover the technology used in the Hardware, or allow access to or use of Hardware by anyone except Authorized Users whose job performance requires access, (ii) will take appropriate action to protect the confidentiality of Hardware, and (iii) will not remove or obscure any notice or legend affixed to Hardware.
6.4. No Further Rights
The Firmware license in these Hardware Terms will not apply to any software other than Firmware installed on the Hardware or delivered in conjunction with or related to the Hardware furnished hereunder. No copyrights, patents, trademarks, trade secrets, or other intellectual property rights or rights to use HygenX Ai’ confidential or proprietary information are granted to Customer under these Hardware Terms, unless explicitly stated otherwise herein or otherwise agreed in writing.
6.5. Survival
The provisions of this Section 6 survive termination or expiration of the Agreement.
If a defect or malfunction of HygenX Ai Hardware occurs after the Warranty Period has expired or if such defect is for any reason not covered by the applicable warranty specified under Section 4 of these Hardware Terms or by a Maintenance Service or Support Service package purchased for the HygenX Ai Hardware, Customer may request HygenX Ai to attempt to repair such defect or malfunction. However, repair services are not offered for all HygenX Ai Hardware and, even if they are offered, HygenX Ai does not represent or warrant that all such defects can or will be repaired or that HygenX Ai will agree to perform such repair. For such repairs and repair attempts, Customer agrees to pay for HygenX Ai’ services at HygenX Ai’ then-current rates plus any reasonable out-of-pocket expenses.
8.1. General Maintenance
Maintenance, enhancement, and technical support services for Hardware (“Maintenance Services”) are governed by the General Maintenance Services Terms found at www.hygenx.ai/terms-and-conditions and incorporated by this reference. The General Maintenance Services Terms are amended by the Specific Maintenance Terms below.
8.2. Specific Maintenance Terms
8.2.1. Maintenance Types.
The following Maintenance Services related to HygenX Ai Hardware are available for separate purchase by Customer (each a “Maintenance Type”), unless the Order expressly states that the respective Maintenance Type is already included. Not all Maintenance Types are available for each HygenX Ai Hardware product. Some Maintenance Types may be offered only in combination with Maintenance Services for Software which form a “System” together with the HygenX Ai Hardware.
8.2.2. Special Conditions for Hardware Maintenance Services.
8.2.3. Other terms.
The terms and conditions of this Section 9 apply to any Lease.
9.1. Lease
All Leases are subject to availability of the Hardware at the time of the Order. No title to or ownership of Hardware is transferred to Customer. Title to the Hardware will remain with HygenX Ai or third parties from whom HygenX Ai has obtained the right to rent out the Hardware.
9.2. Lease term and fees
The right to use the Hardware is limited to a period of time mutually agreed by HygenX Ai and Customer in the Order. Unless explicitly specified otherwise in the Order, the Lease term begins on the day of delivery of the Hardware to Customer. The parties may agree in a separate Order to renew the Lease term for an additional limited term or terms following expiration of the initial Lease term. Upon expiration of the initial or renewal term, if applicable, or upon termination pursuant to these Hardware Terms or the Agreement or any specific Lease, Customer’s right to use the Hardware will terminate and Customer must cease any further use and immediately return the Hardware to the originating HygenX Ai facility. Lease fees are payable in advance, are non-refundable, and will be invoiced as specified by the parties in the Order.
9.3. Condition of Hardware
Upon arrival of the Hardware at Customer’s premises, Customer will examine the Hardware to confirm it is secure and in good working condition. Failure to object in writing to the condition of the Hardware within 3 business days after receipt will be deemed conclusive that all Hardware was in working condition when delivered.
9.4. Customer Responsibilities.
9.5. Return of Hardware
Upon expiration or termination of the Lease, Customer will return all Hardware in the same condition as it was upon arrival at Customer’s premises and in working condition. Except for normal wear and tear, Customer agrees to pay for any damage to or loss of the Hardware, regardless of cause. Hardware returned from Customer that is inoperable, damaged, or with missing components will be repaired to original working order by HygenX Ai at Customer’s expense. Any Hardware which (i) is returned damaged or inoperable and cannot be repaired, or (ii) cannot be returned to HygenX Ai for whatever reason, will be invoiced to Customer at its then-current commercial list price.
9.6. Limited Warranty and Disclaimers
Unless expressly stated otherwise in the Order, the Hardware will be covered by Maintenance Services, so the provisions of Section 9 apply to the Hardware for the entire term of the Lease.
9.7. Shipping and Freight Charges and Risk
Unless agreed otherwise in the Order, each party will bear the costs and risks related to shipping the Hardware to the other party’s specified delivery address, DAP (Incoterms 2020).
9.8. Liability and Indemnity
Customer is liable for all damage to the Hardware not covered by the express warranties made in these Hardware Terms. Customer will indemnify HygenX Ai against any third party claims, damages, fines, and cost (including increased taxes, attorney’s fees, and expenses) relating in any way to the use of or negligence with regard to the Hardware. The provisions of this Section will survive the expiration or termination of the Agreement for any reason.
9.9. Termination and Recovery
If either party materially breaches these Hardware Terms or the Agreement and fails within 5 business days after written notice of the breach to commence curing the default and continue with reasonable diligence to substantially cure the default, the other party may, by giving written notice, terminate any Lease with immediate effect and without prejudice to any right for indemnification or other remedies which such party may have. Except as may be prohibited by applicable bankruptcy and insolvency law, in the event of a party's insolvency or inability to pay debts as they become due, voluntary or involuntary bankruptcy proceedings by or against that party, or appointment of a receiver or assignee for the benefit of creditors, the other party may terminate any Lease by written notice. If Customer is in default of any Hardware return obligations under these Hardware Terms, HygenX Ai’ personnel, agents and representatives may at any time, at Customer’s risk, cost and expense, enter Customer’s premises where the Hardware is stored or used in order to recover the Hardware.
The following additional terms apply to any Cloud Services contained within an Offering:
10.1. Service Level Agreements
During the Subscription Term, HygenX Ai will comply with the applicable service level agreements for Cloud Services as set forth in any applicable Supplemental Terms.
10.2. Changes to Cloud Services
Cloud Services may be modified, discontinued, or substituted by HygenX Ai from time to time. During a Subscription Term, HygenX Ai will not materially degrade core features or functionalities of Cloud Services or discontinue Cloud Services without making available substitute Cloud Services, except as necessary to address (i) new legal requirements, (ii) changes imposed by HygenX Ai’s vendors or subcontractors (e.g. the termination of HygenX Ai’s relationship with a provider of software or services which are required for the provision of such Cloud Services), or (iii) security risks that cannot be resolved in a commercially reasonable manner. HygenX Ai will notify Customer of any such material degradation or discontinuation of Cloud Services as soon as reasonably practicable, and Customer may terminate the Order for the applicable Offering by providing HygenX Ai with written notice within 30 days after Customer’s receipt of notice of degradation or discontinuation. In the event of such termination or discontinuation of Cloud Services, HygenX Ai will refund any prepaid fees for the applicable Offering on a pro-rata basis for the remainder of the Subscription Term for that Offering.
10.3. Out of Scope
Any contractual relationship regarding Third Party Content is solely between Customer and the relevant third-party vendor and may be governed by separate terms made available by HygenX Ai with or as part of Third Party Content. HygenX Ai will have no responsibility for Third Party Content or Customer’s use of such Third-Party Content. Cloud Services specifically exclude (i) access to the internet or any other network, (ii) suitable connectivity or any other resources necessary for accessing or using Cloud Services, and (iii) the transmission of Content to and from the exit of the wide area network of the data centers used by HygenX Ai to provide Cloud Services.
10.4. Acceptable Use Policy; Indemnity
Customer will comply, and ensure that all users of any Offering comply, with the AUP. Customer will indemnify HygenX Ai, its affiliates, its subcontractors, and their representatives against any claims, damages, fines, and cost (including attorney’s fees and expenses) relating in any way to (i) any violation of the AUP by Customer or any user, (ii) any violation of laws, regulations, or rights of others by Customer’s or any user’s use of any Offering, or (iii) Customer Content.
10.5. Ownership and Use of Customer Content
HygenX Ai will not acquire any title to or ownership of Customer Content by virtue of this Agreement. HygenX Ai and its subcontractors will use Customer Content only for the purpose of providing Offerings, or as otherwise permitted by this Agreement or agreed by the parties. Customer is responsible for the content, management, transfer, use, accuracy, and quality of Customer Content and the means by which Customer acquires such Customer Content. HygenX Ai recommends that Customer confirms the geographic area in which Customer Content will be stored, which may be outside the country in which Customer is located. Customer will ensure that Customer Content can be processed and used as contemplated by this Agreement without violating any rights of others or any laws or regulations.
10.6. Protection of Customer Content
Cloud Services will be provided using processes and safeguards designed to protect the integrity and confidentiality of Customer Content. Customer remains responsible for taking appropriate steps regarding protection, deletion, and retrieval of Customer Content, including by maintaining backup copies. Some Cloud Services may provide features that allow Customer to share Customer Content with third parties or make Customer Content public through use of certain Cloud Services. If Customer elects to use such features, Customer Content may be accessed, used, and shared by third parties to whom Customer provides such access or shares such Customer Content, and Customer’s election to use such features is at its sole discretion and risk.
In addition to the limitation of liability provisions contained in the Agreement, the following applies to Hardware and any related services:
11.1. HygenX Ai will not be liable for (i) any loss or damage partially or entirely caused by the failure to observe any and all instructions related to the Hardware or Service Pack provided by HygenX Ai, (ii) any loss or damage caused by Hardware which has been modified or maintained by parties other than HygenX Ai, or (iii) any loss or damage caused by data generated by the Hardware or the use thereof.
11.2. Customer will indemnify and hold HygenX Ai harmless from any and all claims, losses (financial or otherwise), damages, liabilities, costs, increased taxes or expenses (including without limitation, court costs and reasonable attorneys’ fees), which may be incurred or which may be claimed by any person arising out of or related to the manner in which the Hardware-related services were performed if such manner results from instructions of Customer or its authorized representative.
The provisions of this Section 11 will survive the expiration or termination of the Agreement.
12.1. General
Customer shall comply with all applicable sanctions, embargoes and (re-)export control, laws, and regulations, and, in any event, with those of Canada, the United States of America, the European Union, and any locally applicable jurisdiction (collectively “Export Regulations”).
12.2. Checks for Goods and Services
Prior to any transaction by Customer concerning goods (including Hardware, Documentation and technology) delivered by HygenX Ai, or services (including Professional Services, maintenance and technical support) performed by HygenX Ai to a third party, Customer shall check and certify by appropriate measures that (i) the Customer’s use, transfer, or distribution of such goods and services, the brokering of contracts or the provision of other economic resources in connection with goods and SISW UCA version 1.1 (April 1, 2023) Unrestricted 6/8 services will not be in violation of any Export Regulations, also taking into account any prohibitions to circumvent these (e.g., by undue diversion); (ii) the goods and services are not intended or provided for prohibited or unauthorized non-civilian purposes (e.g. armaments, nuclear technology, weapons, or any other usage in the field of defense and military); (iii) Customer has screened all direct and indirect parties involved in the receipt, use, transfer, or distribution of the goods and services against all applicable restricted party lists of the Export Regulations concerning trading with entities, persons and organizations listed therein; and (iv) goods and services within the scope of items-related restrictions, as specified in the respective annexes to the Export Regulations, will not, unless permitted by the Export Regulations, be (a) exported, directly or indirectly (e.g., via Eurasian Economic Union (EAEU) countries), to Russia or Belarus, or (b) resold to any third party business partner that does not take a prior commitment not to export such goods and services to Russia or Belarus.
12.3. Non-Acceptable Use of Software and Cloud Services
Customer shall not, unless permitted by the Export Regulations or respective governmental licenses or approvals, (i) download, install, access or use the Software or Cloud Services from or in any location prohibited by or subject to comprehensive sanctions or subject to license requirements according to the Export Regulations; (ii) grant access to, transfer, (re-)export (including any ‘deemed (re-) exports’), or otherwise make available the Software or Cloud Services to any entity, person, or organization identified on a restricted party list of the Export Regulations, or owned or controlled by a listed party; (iii) use the Software or Cloud Services for any purpose prohibited by the Export Regulations (e.g. use in connection with armaments, nuclear technology or weapons); (iv) upload to the Cloud Services platform any Customer Content unless it is non-controlled (e.g. in the EU: AL = N; in the U.S.: ECCN = N or EAR99); or (v) facilitate any of the aforementioned activities by any user. Customer shall provide all users with all information necessary to ensure compliance with the Export Regulations.
12.4. Information
Upon request by HygenX Ai, Customer shall promptly provide HygenX Ai with all information pertaining to users, the intended use, and the location of use, or the final destination (in the case of Hardware, Documentation and technology) of the Offerings. Customer will notify HygenX Ai prior to Customer disclosing any information to HygenX Ai that is defense-related or requires controlled or special handling pursuant to applicable government regulations and will use the disclosure tools and methods specified by HygenX Ai.
12.5. Indemnification
Customer will indemnify and hold harmless HygenX Ai, its affiliates, subcontractors, and their representatives against any claims, damages, fines, and costs (including attorney’s fees and expenses) relating in any way to Customer’s noncompliance with this Section 12, including Customer’s and its users’ and third party business partners’ violation or alleged violation of any Export Regulations and Customer will compensate HygenX Ai for all losses and expenses resulting thereof.
12.6. Reservation
HygenX Ai shall not be obligated to fulfill this Agreement if such fulfillment is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other sanctions. Customer acknowledges that HygenX Ai may be obliged under the Export Regulations to limit or suspend access by Customer and/or users to the Offerings.
13.2. Exclusions
The obligations in Section 13.1 will not apply to any Confidential Information that (i) is or becomes generally available to the public other than as a result of disclosure by the receiving party in violation of this Agreement, (ii) becomes available to the receiving party from a source other than the disclosing party, provided that the receiving party has no reason to believe that such source is itself bound by a legal, contractual, or fiduciary obligation of confidentiality, (iii) was in the receiving party’s possession without an obligation of confidentiality prior to receipt from the disclosing party, (iv) is independently developed by the receiving party without the use of, or reference to, the disclosing party’s Confidential Information, or (v) is required to be disclosed by a government authority or law, so long as the receiving party promptly provides the disclosing party with written notice of the required disclosure, to the extent such notice is permitted by law, and cooperates with the disclosing party to limit the scope of such disclosure.
13.1. Confidential Information
“Confidential Information” means all information disclosed by one party or any of its affiliates or subcontractors to the other party under this Agreement that is marked as confidential or the confidential nature of which is evident to a reasonable person. HygenX Ai Confidential Information includes the terms of this Agreement and any Order, Offerings, Systems Information, HygenX Ai IP, and any information Customer derives from benchmarking any Offering. The receiving party will (i) not disclose Confidential Information, except (a) on a need-to-know basis to its and its affiliates’ employees, consultants, contractors, and financial, tax, and legal advisors that are bound by confidentiality obligations and use restrictions at least as restrictive as those in this Agreement, or (b) as otherwise authorized by the disclosing party or this Agreement, (ii) use Confidential Information only as required to exercise or enforce rights or perform obligations under this Agreement, and (iii) use reasonable care to protect against unauthorized use and disclosure of the disclosing party’s Confidential Information. The receiving party will be liable for compliance with Section 13 by each of its recipients. HygenX Ai and its affiliates may name Customer as a customer on their websites and in customer lists and other marketing materials.
13.2. Exclusions
The obligations in Section 13.1 will not apply to any Confidential Information that (i) is or becomes generally available to the public other than as a result of disclosure by the receiving party in violation of this Agreement, (ii) becomes available to the receiving party from a source other than the disclosing party, provided that the receiving party has no reason to believe that such source is itself bound by a legal, contractual, or fiduciary obligation of confidentiality, (iii) was in the receiving party’s possession without an obligation of confidentiality prior to receipt from the disclosing party, (iv) is independently developed by the receiving party without the use of, or reference to, the disclosing party’s Confidential Information, or (v) is required to be disclosed by a government authority or law, so long as the receiving party promptly provides the disclosing party with written notice of the required disclosure, to the extent such notice is permitted by law, and cooperates with the disclosing party to limit the scope of such disclosure.
14.1. HygenX Ai Affiliates and Subcontractors
HygenX Ai’s ultimate parent company or companies directly or indirectly owned or controlled by HygenX Ai’s ultimate parent company may exercise HygenX Ai’s rights and fulfill HygenX Ai’s obligations under this Agreement. HygenX Ai’s may use resources in various countries to provide Offerings, including unaffiliated subcontractors. HygenX Ai remains responsible for its obligations under this Agreement.
14.2. Assignment
This Agreement will extend to and be binding upon the successors, legal representatives, and permitted assignees of the parties. However, this Agreement and the rights granted under this Agreement may not be assigned, sublicensed, or otherwise transferred (by operation of law or otherwise) by Customer without the prior written consent of HygenX Ai. Any attempted assignment in violation of this Section will be void. SISW UCA version 1.1 (April 1, 2023) Unrestricted 7/8
14.3. License Rights Applicable to the U.S. Government
Offerings are commercial products that were developed exclusively at private expense. If Offerings are acquired directly or indirectly for use by the U.S. Government, then the parties agree that such are considered ‘Commercial Items’ and ‘Commercial Computer Software’ or ‘Computer Software Documentation’, as defined in 48 C.F.R. §2.101 and 48 C.F.R. §252.227-7014(a)(1) and (a)(5), as applicable. Offerings may only be used under the terms of this Agreement as required by 48 C.F.R. §12.212 and 48 C.F.R. §227.7202. The U.S. Government will only have the rights set forth in this Agreement, which supersedes any conflicting terms or conditions in any government order document, except for provisions which are contrary to applicable mandatory federal laws. HygenX Ai will not be required to obtain a security clearance or otherwise be involved in accessing U.S. Government classified information.
14.4. Feedback
If Customer provides any ideas or feedback regarding any Offering, including suggestions for changes or enhancements, support requests (including any related information), and error corrections (collectively “Feedback”), Feedback may be used by HygenX Ai without condition or restriction.
14.5. Force Majeure
Neither party will be liable for delay or failure to perform any obligations under this Agreement (except with respect to any payment obligations) due to any cause beyond its reasonable control. The delayed party will promptly notify the other party of any such event.
14.6. Information Obligations; Audit
Customer will provide information or other materials that HygenX Ai reasonably requests to verify Customer’s compliance with this Agreement. Upon reasonable advance notice, HygenX Ai may conduct an audit of Customer’s compliance with this Agreement. To minimize Customer disruption, HygenX Ai may conduct remote audits using scanning tools operated by Customer to collect audit information. At HygenX Ai’s discretion, Customer will permit HygenX Ai or its authorized agents to access facilities, workstations, and servers and take all commercially reasonable actions to assist HygenX Ai in the audit. HygenX Ai and its agents will comply with reasonable security procedures communicated to HygenX Ai while on Customer’s premises.
14.7. Notices
HygenX Ai may notify Customer under this Agreement by (i) posting a notification on Cloud Services or on the administrative user account that Customer maintains with HygenX Ai to manage subscriptions to Offerings (“Subscription Console”), (ii) sending an email or other text message to the address or contact number provided by Customer for business contact or then-associated with the Subscription Console, or (iii) sending an email to relevant users. It is Customer’s responsibility to regularly visit Cloud Services and the Subscription Console and to always provide HygenX Ai with current email addresses of Customer representatives. If Customer does not comply with such obligation or if Customer’s receipt of a notice fails because of technical issues related to equipment or services which are under Customer’s or Customer subcontractors’ control, notices will be deemed to have been provided to Customer three days following the date of such notice. Notwithstanding the foregoing, notices regarding claims or disputes will always be sent to the party’s address as specified in the applicable Order. A party may change its address for receipt of notice by delivery of written notice to the other party.
14.8. Language
If HygenX Ai provides a translation of the English language version of this Agreement, the English language version of this Agreement will control in the event of any conflict.
14.9. Governing Law and Jurisdiction
This Agreement will be subject to the applicable laws set forth in the table below, as set forth therein, without reference to any conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any dispute arising out of or in connection with this Agreement will be resolved as set forth in the table below:
The applicable law will be:
Any dispute arising out of or in connection with these terms of sale will be:
The United States
The laws of the State of New York
subject to the jurisdiction of the courts of the State of New York, USA. Each party hereby irrevocably submits itself to the personal jurisdiction of the relevant court of the State of New York for any such disputes.
Any other country
The laws of Ontario, Canada
subject to the jurisdiction of the courts of the State of New York, USA. Each party hereby irrevocably submits itself to the personal jurisdiction of the relevant court of the State of New York for any such disputes.
If Customer is purchasing Offerings
with destination in:
14.10. No Waiver; Validity and Enforceability
The failure to enforce any provision of this Agreement will not be construed as a waiver of such provision. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions will not be affected, and such provision will be deemed to be restated to reflect the original intentions of the parties as nearly as possible in accordance with applicable law. The parties agree that electronic signatures or acceptance of this Agreement via an electronic system specified by HygenX Ai will have the same force and effect as manual signatures.
14.11. Entire Agreement
This Agreement constitutes the full and complete agreement between the parties with respect to the subject matter thereof and supersedes any previous or contemporaneous agreements or communications, whether written or verbal, relating to such subject matter. The reference to a document that refers to another document will be deemed to also include such other document, unless otherwise stated therein. This Agreement may not be varied except as set out in any Supplemental Terms or otherwise in writing executed by manual signatures or electronic signatures of authorized representatives of both parties or via an online mechanism, if so provided explicitly for such purpose by HygenX Ai. No other terms and conditions will apply. The terms of any purchase order or similar Customer document are excluded and such terms will not apply to any Order and will not supplement or modify this Agreement irrespective of any language to the contrary in such document.
This End User License Agreement (“EULA”) and the applicable Supplemental Terms and Terms of Sale (together, this “Agreement”) are entered into between HygenX Ai and the customer that accepted this Agreement (“Customer”). This Agreement may be accepted by manual signature or electronic signature, or through an electronic system specified by HygenX Ai. In the electronic system, Customer will be prompted to accept these terms by clicking a button. Clicking the button or using the Products or Services indicates that Customer has read, understood and accepted these terms. If Customer does not accept this Agreement, Customer must return the Product(s) to HygenX Ai or its authorized solution partner prior to installation or use for a refund.
“API” means application programming interface.
“Documentation” means user documentation provided by HygenX Ai for Software, Hardware, or Services, in print, online, embedded as part of a help function, or in license files, “read me” files, header files, or similar files. Documentation includes license specifications, technical specifications, API information, and instructions for use.
“Hardware” means hardware equipment, devices, accessories, and parts delivered by HygenX Ai hereunder, including firmware incorporated therein.
“Maintenance Services” means Product maintenance, enhancement, and technical support services provided by HygenX Ai.
“Order” means an order form (Order Form), statement of work (SOW), or similar ordering document that (i) incorporates the terms of this Agreement and sets forth the Products and Services ordered by Customer and any associated fees and (ii) has been agreed by manual or electronic signatures of both parties or agreed through an electronic system specified by HygenX Ai. In the electronic system, Customer will be prompted to accept by clicking a button.
“Products” means Hardware, Software and Documentation.
“Professional Services” means training, consulting, engineering or other professional services provided hereunder by or on behalf of HygenX Ai, typically pursuant to a statement of work (SOW).
“Services” means Maintenance Services and Professional Services.
“Software” means software licensed by HygenX Ai to Customer hereunder, including updates, modifications, design data, and all copies thereof. Software includes HygenX Ai applications, associated APIs, as well as scripts, toolkits, libraries, reference or sample code, and similar materials.
“HygenX Ai IP” means all patents, copyrights, trade secrets, and other intellectual property rights in or related to Products or Services.
“Supplemental Terms” means those separate terms and conditions that apply to Products or Services as attached hereto, set forth or referenced in an Order, or otherwise agreed by the parties.
2.1. Orders
Offerings shall be purchased by the Customer issuing a written purchase Order signed by an authorized representative of the Customer, indicating the relevant HygenX Ai’s proposal or quotation number, specific Offerings desired, quantity, total purchase price, shipping instructions (including Customer’s tax and importation registrations and account numbers for shipments outside of Canada), and any applicable tax-exempt certifications and any other special instructions. All Orders are subject to prior written acceptance by HygenX Ai.
2.2. Renewals
If indicated on the Order or otherwise agreed by the parties in writing or in HygenX Ai’s electronic or online ordering system, Subscription or M&S Services for an applicable paid Product will automatically renew unless either party notifies the other at least 60 days before the end of the then-current term that it has elected not to renew. Any renewal term will be the same length as the preceding term or 12 months, whichever is greater. Any renewed Subscription or M&S Services will be governed by HygenX Ai’s then current standard terms and conditions applicable to the Product(s) as specified in an Order and available at www.hygenx.ai/terms-and-conditions. The fees during any renewal will be the same as those charged during the preceding term, unless (i) HygenX Ai notifies Customer about different future fees at least 90 days before the end of the then-current term or (ii) fees for the renewal are specified on the Order.
2.3. Payment
Customer will pay the fees set forth in the applicable Order under the conditions specified in the Order or the HygenX Ai invoice unless otherwise agreed by the parties. HygenX Ai will invoice Customer for Professional Services on a monthly basis as charges are incurred. Unless specified otherwise in the applicable Order, HygenX Ai will invoice Customer for fees related to any other Offerings in advance. Without limiting any other remedies available to HygenX Ai, Customer will pay applicable fees for any excess use of an Offering at the then-current price for such Offering within 30 days after the invoice date. Except as expressly set forth in this Agreement, all payment obligations are noncancelable, and all fees are non-refundable. If Customer has procured an Offering through an HygenX Ai authorized solution partner, different terms regarding invoicing and payment may apply as specified between Customer and the solution partner. HygenX Ai may share information with the solution partner related to Customer’s use and consumption of Offerings for account management and billing purposes. Payments for M&S Services shall be made upfront for the first 12 months of service, and for each subsequent 12 months on the delivery anniversary date thereafter. Offerings offered on a multi-year subscription agreement are billed on the first of every month for the period of that month. HygenX Ai reserves the right to obtain prior credit approval and request alternative payment terms, at its sole and absolute discretion. If at any time Customer is delinquent in the payment of any invoice or is otherwise in breach of this Agreement, HygenX Ai may, at its discretion withhold shipment or stop performance of services in respect of any order and may, at its option, require Customer to pre-pay for further shipments or performance. All payments not received when due shall be subject to an additional interest charge of one and a half percent (1.5%) per month (annual rate 18%) of the unpaid amount or the maximum rate permitted by law until the date of payment. Customer grants to HygenX Ai a security interest in Products (excluding services) purchased under this Agreement to secure payment for those Products purchased. If requested by HygenX Ai, customer agrees to execute financing statements to perfect such security interest. There is no set-off right for the Customer. HygenX Ai shall be permitted to apply payments made by Customer on other accounts, including deposits for other Products or services, to delinquent accounts.
2.4. Taxes
All amounts to be paid to HygenX Ai are exclusive of any taxes and any other charges. Customer agrees to pay or reimburse HygenX Ai or its authorized solution partner for the payment of any applicable taxes or duties including, but not limited to, sales taxes, value added taxes, goods and services taxes, consumption taxes, or any other charge that is imposed by any government authority on Customer’s use or receipt of, or license to, any Offering. If Customer is exempt from value-added or sales tax, then it must provide a valid, timely, and executed exemption certificate, direct pay permit, or other such government-approved documentation to HygenX Ai or its authorized solution partner. If Customer is required by law to make any income tax deduction or to withhold income tax, after the application of reductions available under international treaties, from any sum payable directly to HygenX Ai under this Agreement, Customer will promptly effect payment thereof to the applicable tax authorities, and will also promptly provide HygenX Ai with official tax receipts or other evidence issued by the applicable tax authorities to support a claim for tax credit relief. Notwithstanding the foregoing, Customer is responsible for, and will indemnify HygenX Ai for, any taxes, including withholding taxes, resulting from making an Offering available to users in geographic locations outside the country in which Customer is located as per the Order.
3.1 License Grant and Conditions.
3.2 Maintenance Services Terms. Maintenance Services are governed by the terms found at www.hygenx.ai/terms-and-conditions and are incorporated herein by reference.
3.3 Customer Responsibilities.
4.1 Defects.
HygenX Ai warrants that, for a period of 90 days following the date Software is initially made available to Customer under an Order, it will provide the material features and functions described in the Documentation. The foregoing warranty excludes (i) Software provided at no charge, (ii) Software provided upon re-mix, (iii) Software that is designated as retired or not generally supported as of the date of the Order, and (iv) deliveries governed by the Maintenance Services terms. HygenX Ai’s entire liability and Customer’s exclusive remedy for a breach of this warranty will be, at HygenX Ai’s option, to correct or work around errors, or replace defective Software or refund license fees paid for defective Software returned by Customer.
4.2 Disclaimer.
HygenX Ai MAKES NO WARRANTIES EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN THIS AGREEMENT. REPRESENTATIONS ABOUT PRODUCTS, FUNCTIONALITY, OR SERVICES IN ANY COMMUNICATION WITH CUSTOMER CONSTITUTE TECHNICAL INFORMATION, NOT A WARRANTY OR GUARANTEE. HygenX Ai DISCLAIMS ALL OTHER WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. HygenX Ai DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
5.1 Limitation of Liability.
THE ENTIRE, COLLECTIVE LIABILITY OF HygenX Ai, HygenX Ai’S AFFILIATES, HygenX Ai’S LICENSORS, AND THEIR REPRESENTATIVES, FOR ALL CLAIMS AND DAMAGES RELATED IN ANY WAY TO THIS AGREEMENT, IN THE AGGREGATE AND REGARDLESS OF THE FORM OF ACTION, WILL BE LIMITED TO THE AMOUNT PAID TO HygenX Ai FOR THE SOFTWARE LICENSE, HARDWARE, OR SERVICE THAT GAVE RISE TO THE CLAIM. THE FOREGOING LIMITATION DOES NOT APPLY TO HygenX Ai’S INDEMNITY OBLIGATION IN SECTION 5.2. IN NO EVENT WILL HygenX Ai, HygenX Ai’S AFFILIATES, HygenX Ai’S LICENSORS, OR THEIR REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, LOSS OF PRODUCTION, INTERRUPTION OF OPERATIONS, OR LOST DATA OR PROFITS, EVEN IF SUCH DAMAGES WERE FORESEEABLE. FOR PRODUCTS AND SERVICES PROVIDED AT NO CHARGE, HygenX Ai, HygenX Ai’S AFFILIATES, HygenX Ai’S LICENSORS, AND THEIR REPRESENTATIVES, SHALL HAVE NO LIABILITY WHATSOEVER. CUSTOMER MAY NOT MAKE A CLAIM UNDER THIS AGREEMENT MORE THAN TWO YEARS AFTER THE EVENT GIVING RISE TO THE CLAIM IS OR SHOULD HAVE BEEN DISCOVERED BY CUSTOMER.
5.2 Intellectual Property Infringement Indemnity.
6.1 Termination.
Licenses for a limited term terminate upon expiration of the term. HygenX Ai may immediately terminate this Agreement or any Product license granted or Services provided hereunder upon notice to Customer (i) for reasonable cause, including, without limitation, Customer’s unauthorized installation or use of HygenX Ai software, Customer filing or being filed in bankruptcy, Customer ceasing to do business, or any breach of Sections 2.3, 3, 7, or 8 of this EULA, (ii) in order to comply with the law or requests of governmental entities, or (iii) for any other breach that remains uncured after 30 days’ notice therof.
6.2 Effect of Termination.
Upon termination of this Agreement, the licenses granted and Services provided hereunder automatically terminate. Upon termination of any license, Customer will immediately remove and destroy all copies of Software, Documentation, and other HygenX Ai Confidential Information, and certify such removal and destruction in writing to HygenX Ai. No refund or credit will be given as a result of termination under Section 6. Termination of this Agreement or any Services or license granted hereunder will not relieve Customer of its obligation to pay the total fees set forth in any Order, which fees will become due and payable immediately upon termination. Sections 2.3, 2.4, 4.2, 5.1, 6.2, 7, 8 and 9.8 survive termination of this Agreement.
7.1 Export.
HygenX Ai’s obligations under this Agreement are conditioned upon Customer’s compliance with, and Customer agrees to comply with, all applicable export and re-export controls, embargoes, and economic and trade sanctions laws and regulations, including in any event, those of the United States and the European Union (“Export Laws”). Customer represents that any Products and Services provided hereunder and any derivatives thereof will not be (i) downloaded or accessed by a Sanctioned Person, (ii) exported, re-exported (including any ‘deemed exports’), shipped, distributed, delivered, sold, resold, supplied, or otherwise transferred, directly or indirectly, to any Sanctioned Person or otherwise in a manner contrary to the Export Laws, (iii) used for any purpose prohibited by the Export Laws, or unless expressly authorized by HygenX Ai in writing, (iv) used for non-civilian purposes (e.g. armaments, nuclear technology, weapons, any other usage in the field of defense and military). Without limiting the foregoing, Customer represents and warrants that (i) it is not a Sanctioned Person, and (ii) it will not download or otherwise access, or facilitate a third party’s download or access of, any Product or Services from a Sanctioned Country. Customer will, at least once per year, review and update its list of users who have access to a Product or Services and confirm that no such user is a Sanctioned Person and that all such users may continue to access Products and Services in compliance with Export Laws. HygenX Ai may conduct the necessary Export Laws checks and, upon request, Customer will promptly provide HygenX Ai with any necessary information. “Sanctioned Country” means a country or territory that is itself the subject or target of any comprehensive trade or economic sanctions (currently Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine). “Sanctioned Person” means any person (i) listed in the Specially Designated Nationals and Blocked Persons List maintained by the U.S. Department of Treasury’s Office of Foreign Assets Control or in any Export-Control-Related list of designated persons maintained by the U.S. Department of Commerce, the U.S. Department of State, the United Nations Security Council, the European Union, any Member State of the European Union, or the United Kingdom; (ii) operating, organized, or resident in a Sanctioned Country; (iii) the government of, or acting for or on behalf of the government of, Venezuela or a Sanctioned Country; or (iv) owned or controlled by one or more such persons.
7.2 Information Disclosure.
If Customer discloses to HygenX Ai any information that is (i) Covered Defense Information or Controlled Unclassified Information as defined in U.S. Government regulations or (ii) subject to Export Laws that require controlled data handling, Customer will notify HygenX Ai personnel in advance of each instance of disclosure and will use the notification tools and methods specified by HygenX Ai.
7.3 Remedies, Indemnification.
In the event that Customer fails to comply with any provision of Section 7 or violates any Export Laws in connection with Products or Services, HygenX Ai will have the right to take action in accordance with the terms of this Agreement and as required by U.S. law or the applicable law. Further, Customer will indemnify and hold harmless HygenX Ai, its affiliates and their representatives against any claims, damages, fines, and costs (including attorney’s fees and expenses) relating in any way to Customer’s noncompliance with Section 7, including Customer’s violation or alleged violation of any Export Laws.
7.4 Impediments.
HygenX Ai will not be obligated to perform under this Agreement if such performance is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other sanctions including, but not limited to, embargoes or other sanctions imposed by the United Nations, the European Union, or the United States.
8.1 Confidential Information.
“Confidential Information” means all information disclosed by one party or any of its affiliates to the other party under this Agreement that is marked as confidential or the confidential nature of which is evident to a reasonable person. HygenX Ai Confidential Information includes the terms of this Agreement, Products, Services, HygenX Ai IP, and any information Customer derives from benchmarking the Products or Services. The receiving party will (i) not disclose Confidential Information, except on a need-to-know basis to its employees, affiliates’ employees, consultants, contractors, and financial, tax and legal advisors; and with respect to the use of Products solely as authorized by the agreed license terms, (ii) use and copy Confidential Information only as required to exercise rights or perform obligations under this Agreement, and (iii) protect Confidential Information from unauthorized use or disclosure. The receiving party (i) will ensure that all its recipients of Confidential Information are bound by confidentiality obligations and use restrictions at least as restrictive as those herein, and (ii) will be liable for compliance with this Section by each of its recipients. HygenX Ai and its affiliates may name Customer as a customer on their websites and in customer lists and other marketing materials.
8.2 Exclusions.
The foregoing confidentiality obligations will not apply to any Confidential Information that (i) is or becomes generally available to the public other than as a result of disclosure by the receiving party in violation of this Agreement; (ii) becomes available to the receiving party from a source other than the disclosing party, provided that the receiving party has no reason to believe that such source is itself bound by a legal, contractual, or fiduciary obligation of confidentiality; (iii) was in the receiving party’s possession without an obligation of confidentiality prior to receipt from the disclosing party; (iv) is independently developed by the receiving party without the use of, or reference to, the disclosing party’s Confidential Information; or (v) is required to be disclosed by a governmental agency or law, so long as the receiving party promptly provides the disclosing party with written notice of the required disclosure, to the extent such notice is permitted by law, and cooperates with the disclosing party to limit the scope of such disclosure.
8.3 Data Protection.
When HygenX Ai processes personal data on Customer’s behalf in connection with Products or Services, the terms set out at www.HygenX Ai.com/dpt/sw are incorporated herein by reference and shall apply to the use of such Product and Services. Customer will indemnify and hold harmless HygenX Ai, its affiliates and their representatives from any claims, damages, fines, and costs (including attorney’s fees and expenses) relating in any way to Customer’s noncompliance with applicable data protection laws.
9.1 HygenX Ai Affiliates.
Companies directly or indirectly owned or controlled by HygenX Ai’s ultimate parent company may exercise HygenX Ai’s rights and fulfill HygenX Ai’s obligations under this Agreement. HygenX Ai remains responsible for its obligations hereunder.
9.2 Assignment.
This Agreement will extend to and be binding upon the successors and permitted assigns of the parties. However, this Agreement and the licenses granted hereunder may not be assigned, sublicensed, or otherwise transferred (by operation of law or otherwise) by Customer without the prior written consent of HygenX Ai.
9.3 License Rights Applicable to the U.S. Government.
Products and Services are commercial products that were developed exclusively at private expense. If Products or Services are acquired directly or indirectly for use by the U.S. Government, then the parties agree that the Products and Services are considered ‘Commercial Items’ and ‘Commercial Computer Software’ or ‘Computer Software Documentation’, as defined in 48 C.F.R. §2.101 and 48 C.F.R. §252.227-7014(a)(1) and (a)(5), as applicable. Software and Documentation may only be used under the terms and conditions of this Agreement as required by 48 C.F.R. §12.212 and 48 C.F.R. §227.7202. The U.S. Government will only have the rights set forth in this Agreement, which supersedes any conflicting terms or conditions in any government order document, except for provisions which are contrary to applicable mandatory federal laws. HygenX Ai will not be required to obtain a security clearance or otherwise be involved in accessing U.S. Government classified information.
9.4 Feedback.
If Customer provides any ideas regarding the Products or Services, including suggestions for changes or enhancements, (collectively “Feedback”) in the course of using or evaluating the Products or Services, Customer agrees that such Feedback may be used by HygenX Ai without condition or restriction.
9.5 Force Majeure.
Neither party will be liable for delay or failure to perform due to any cause beyond its reasonable control, which could not have been prevented by good industry practice, provided the delayed party promptly notifies the other party.9.6 Notices. Notices relating to this Agreement will be in writing and sent to the party’s address as specified in the applicable Order. A party may change its address for receipt of notice by delivery of written notice to the other party.
9.7 Language.
If HygenX Ai provides a translation of the English language version of this Agreement, the English language version of this Agreement will control in the event of any conflict.
9.8 Governing Law and Jurisdiction.
This agreement will be governed by the laws of the State of New York, USA. As such laws apply to contracts between New York residents performed entirely within the State of New York. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in the state or federal courts of the State of New York, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
9.9 No Waiver; Validity and Enforceability.
The failure to enforce any provision of this Agreement will not be construed as a waiver of such provision. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected, and such provision will be deemed restated to reflect the original intentions of the parties as nearly as possible in accordance with applicable law.
9.10 Entire Agreement and Order of Precedence.
This Agreement constitutes the full and complete agreement between the parties with respect to the subject matter hereof and supersedes any previous or contemporaneous agreements or communications, whether written or verbal, relating to such subject matter. This Agreement may not be varied other than in writing by manual signatures or electronic signatures of authorized representatives of both parties. In the event of a conflict between this EULA and any Supplemental Terms, the Supplemental Terms prevail. In the event of a conflict between this Agreement and an Order, the Order prevails with respect to the Products or Services ordered thereunder. The terms of any purchase order or similar Customer document are excluded and such terms will not apply to any Order for Products or Services, and will not supplement or modify this Agreement.
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