This SaaS Subscription Agreement ("Agreement") is entered into between Hymdl, Inc, a Delaware corporation with its principal place of business at 2550 Meridian Blvd, Franklin, TN 37067, USA ("Provider"), and the entity or individual accepting this Agreement ("Customer").
By clicking "I Agree," "Accept," or similar buttons, registering for an account, accessing or using the Services, or otherwise indicating acceptance of this Agreement, the individual doing so (a) agrees to the terms of this Agreement, (b) represents and warrants that they are of legal age and capacity to form a binding contract, and (c) represents and warrants that they have the full legal authority to bind their employer or another entity on whose behalf they are acting.
If the individual accessing or using the Services uses an email address provided by a company, organization, or other legal entity (such as a work email address), that entity will be deemed the Customer, and the individual represents and warrants that they have the full legal authority to bind that entity to this Agreement. If no such authority exists, or if the individual does not agree to the terms, neither the individual nor the entity may use the Services, and the individual must not click "I Agree," "Accept," or similar buttons, register for an account, download any Provider software or products, or otherwise access or use the Services.
This Agreement governs Customer's access to and use of the Services and applies to all subscriptions for Provider's Services identified in any applicable Order Form, including any trial access, beta services, paid Services, Support Services, and any professional or consulting services provided by Provider. Any additional or conflicting terms proposed by Customer (such as terms included in purchase orders or other documents) shall be deemed void and of no effect on this Agreement or the Provider. In the event of any conflict or inconsistency between this Agreement and any Order Form, this Agreement shall prevail and govern.
This Agreement also applies to any Affiliates of Customer that use the Services, provided that such Affiliates shall be bound by the terms of this Agreement, and Customer shall be responsible for such use.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.
"Authorized User" means an employee, contractor, or agent of the Customer who is authorized to access and use the Services under the rights granted to the Customer.
"Confidential Information" means all non-public information disclosed by one party to the other that is designated as confidential or reasonably should be understood to be confidential. Provider's Confidential Information includes any source code and technical or performance information about the Products.
"Customer Data" means all data, content, and information submitted by Customer or on its behalf into the Services.
"Documentation" means user manuals, technical manuals, and any other materials provided by Provider describing the use and operation of the Services.
"Intellectual Property Rights" means all intellectual property rights including patents, trademarks, copyrights, and trade secrets.
"Order Form" means an ordering document executed by the parties that specifies the Services, fees, and other terms.
"Personal Data" means any information relating to an identified or identifiable individual as defined under applicable data protection law.
"Services" means the software-as-a-service offerings, Support Services, and any professional or consulting services provided by Provider, as described in the applicable Order Form or otherwise made available by Provider.
"Subscription Term" means the period during which Customer is authorized to use the Services as set forth in the Order Form.
"Support Services" means the technical support and maintenance services provided by Provider.
"Third-Party Services" means any services, applications, or software not developed by Provider that may interoperate with the Services.
Provider grants Customer a worldwide, limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Services for its internal business purposes during the Subscription Term, and solely in accordance with the terms and conditions of this Agreement.
Customer shall not: (a) copy, modify, or create derivative works of the Services; (b) reverse engineer, decompile, or disassemble the Services; (c) rent, lease, or sublicense the Services, except that use by Customer's Affiliates is permitted under Section 2.1 of this Agreement; (d) access the Services to build a competitive product; (e) attempt to gain unauthorized access to any other systems, networks, or data of Provider or its other customers; (f) access or use any non-public APIs of the Services without Provider's prior written consent; (g) attempt to bypass, interfere with, or otherwise circumvent any technical limitations, usage thresholds, or Scope of Use restrictions applicable to the Services; (h) remove, obscure, alter, or deface any proprietary markings, legal notices, or attributions embedded in or associated with the Services; (i) engage in any activity that contravenes Provider's then-current Acceptable Use Policy; (j) use any robot, spider, scraper, or other automated means to access the Services for any purpose without Provider's express written permission; (k) perform any penetration testing, vulnerability scanning, or similar evaluations without prior written consent from Provider; or (l) introduce any viruses, worms, malware, or other harmful code into the Services or systems connected to them.
Customer is responsible for compliance with this Agreement by its Authorized Users and for all activities that occur under its accounts.
Customer must ensure it has made all necessary disclosures and obtained all rights and consents required for Provider to lawfully use Customer Data and Customer Materials in connection with the Services.
Customer is solely responsible for determining whether the Products are suitable for its business needs and comply with any applicable regulatory requirements.
Customer must not upload or permit the upload of any patient, medical, or protected health information governed by the Health Insurance Portability and Accountability Act to the Services, nor use the Services to process such information.
The Services may include open source and commercial third-party code. Such Service is subject to the terms of this Agreement and the Third-Party Policy, which governs its use and integration.
Customer may elect to use the Services in conjunction with third-party platforms, applications, add-ons, services, or products ("Third-Party Products"). Enabling any such Third-Party Product may require the third-party provider to access Customer Data or other information. By enabling a Third-Party Product, Customer authorizes Provider to permit such access on its behalf. Use of any Third-Party Product is governed solely by the terms and conditions of the applicable third-party provider, not this Agreement. Provider does not control, endorse, or assume any responsibility for Third-Party Products and disclaims all liability arising from their use.
No Order will be binding on Provider unless and until Provider accepts it—such acceptance may be communicated via confirmation email, provision of access credentials, or delivery of license or access keys. Any terms included in Customer's purchase orders or other Customer's business documents will be disregarded and will not modify, supersede or supplement this Agreement. Upon receipt of payment, Provider will deliver login credentials or license keys electronically to Customer's designated account or via other reasonable means. Delivery of such credentials or keys constitutes full delivery of the Services. Customer is solely responsible for accessing and using the Services thereafter, and Provider will have no further delivery obligations.
Customer shall pay all fees specified in each Order Form in accordance with the payment terms therein. All fees are non-refundable, except as expressly provided in this Agreement.
Unless otherwise set forth in an Order Form, subscriptions will automatically renew for successive terms not exceeding one (1) year each, even if the initial Subscription Term was longer, unless either party provides notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
Customer authorizes Provider to charge all fees, including those related to renewals, additional Orders, overages to scopes of use, reimbursable expenses, and any unpaid fees, using the payment method provided by Customer, including credit card or other electronic payment method. Customer is responsible for keeping payment information accurate and up to date.
If Customer purchases Services through a Reseller, all payment-related terms will be governed by the agreement between Customer and the Reseller, and Customer shall address all such payment matters directly with the Reseller.
Provider may suspend Customer's access to the Services if Customer fails to pay any amounts due under this Agreement and does not cure such failure within ten (10) days of notice. Suspension of Services shall not limit Provider's other rights or remedies.
All fees are exclusive of taxes. Customer is responsible for all taxes, levies, duties, or similar governmental assessments of any nature, excluding taxes based on Provider's net income, property, or employees.
Customer may withhold taxes from payments to Provider if such withholding is required by applicable law. However, as a condition to such withholding, Customer must provide Provider with adequate documentation evidencing the remittance to the tax authorities. Documentation must be provided at the time of payment of invoices. If an exemption from any tax or deduction is claimed, Customer shall provide Provider with the necessary exemption certificates or other required documentation.
Each party agrees to protect the other party's Confidential Information with the same degree of care that it uses to protect its own confidential information, but in no event less than reasonable care. Confidential Information may only be used to perform obligations or exercise rights under this Agreement and may not be disclosed except as expressly permitted under this Agreement. The receiving party may disclose Confidential Information to its employees, contractors, and agents who have a need to know such information for the purposes of this Agreement, provided that they are bound by confidentiality obligations at least as protective as those in this Agreement and the receiving party remains responsible for their compliance. Disclosure to any other third party is prohibited unless expressly authorized in writing by the disclosing party or otherwise permitted by the terms of this Agreement.
The foregoing obligations do not apply to information that: (a) is or becomes publicly available without breach of this Agreement; (b) was known by the receiving party prior to disclosure; (c) is disclosed to the receiving party by a third party not in violation of any confidentiality obligation; or (d) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information. If the receiving party is required by law, regulation, or legal process to disclose any Confidential Information, it shall (to the extent legally permissible) provide the disclosing party with prompt written notice and cooperate with the disclosing party, at the disclosing party's expense, in seeking a protective order or other appropriate remedy.
Provider will maintain administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of Customer Data. Provider's privacy practices are governed by its Privacy Policy.
As between the parties, Provider retains all rights, title, and interest in and to the Services, including all related intellectual property rights. Customer retains all rights, title, and interest in and to Customer Data and Customer materials. Except as expressly set out in this Agreement, neither party grants the other any rights or licenses to its intellectual property under this Agreement. No rights are granted to Customer other than those expressly set forth in this Agreement.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
Provider warrants that the Services will (a) perform substantially in accordance with the applicable Documentation during the Subscription Term; (b) not materially decrease in performance during the Subscription Term; and (c) that Provider will use reasonable efforts designed to ensure that the Services, when and as provided, are free from viruses, malware, worms, or other malicious code. The warranties set forth herein do not apply to (i) any issues caused by misuse, unauthorized modifications, or third-party products or services not controlled by Provider, (ii) any unsupported or out-of-scope configurations, or (iii) Services provided for free or under a trial or beta access.
Provider's sole obligation and Customer's exclusive remedy for any breach of the warranties in this Section 10.2 shall be, at Provider's option, to: (a) use commercially reasonable efforts to correct the non-conformity; or (b) if the non-conformity is not corrected within thirty (30) days after Provider's receipt of written notice from Customer detailing the issue, terminate the affected Services and refund the unused portion of prepaid fees for the terminated Services. These remedies are exclusive and constitute the entire liability of Provider and the sole and exclusive remedy of Customer with respect to any breach of the performance warranties set forth in this Section 10.2.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 10 (WARRANTIES AND DISCLAIMERS), THE SERVICES ARE PROVIDED "AS IS," AND PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
Provider shall defend Customer from and against any third-party claim, suit, or proceeding ("Infringement Claim") alleging that the Services, when used in accordance with this Agreement, infringe or misappropriate any third-party intellectual property rights, and shall indemnify and hold harmless Customer from any damages, attorney fees, and costs finally awarded by a court of competent jurisdiction against Customer as a result of such Infringement Claim or for amounts paid by Customer under a settlement approved by Provider in writing.
The obligations in this Section are conditioned on Customer (a) promptly notifying Provider in writing of the Infringement Claim to avoid prejudicing Provider's defence, (b) granting Provider the right to sole control of the defence and settlement of the Infringement Claim (provided that Provider may not settle any Infringement Claim without Customer's prior written consent if such settlement would require Customer to admit fault or take or refrain from taking any action other than ceasing use of the Services), and (c) providing all reasonable assistance, at Provider's expense. Customer may participate in the defence with counsel of its own choosing, at its own expense. Customer may not settle any Infringement Claim without Provider's prior written consent.
The above obligations do not apply to the extent the alleged Infringement Claim arises from: (a) use of the Services in combination with any software, hardware, or other materials not provided by Provider; (b) Customer modification or unauthorized use of the Services; (c) Customer Data, Customer materials, or third-party Services; or (d) any unsupported release of Services.
If the Services become, or in Provider's opinion are likely to become, the subject of an Infringement Claim, Provider may, at its option and expense: (i) procure the rights necessary for Customer to continue using the Services; (ii) replace or modify the Services to make them non-infringing while preserving substantially equivalent functionality; or (iii) if the foregoing options are not reasonably available, terminate the affected Services and refund the unused portion of any prepaid fees.
THIS SECTION STATES PROVIDER'S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY REGARDING INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE, DATA, OR USE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY'S AGGREGATE LIABILITY SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT OUT OF WHICH THE LIABILITY AROSE. NOTWITHSTANDING THE FOREGOING, CUSTOMER'S OBLIGATIONS TO PAY FEES AND TAXES UNDER THIS AGREEMENT SHALL NOT BE SUBJECT TO THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION. LIMITATION OF LIABILITY APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
Provider may offer certain Services to Customer at no charge, including trial use, evaluation versions, or beta features ("Free or Beta Services"). Use of Free or Beta Services is permitted only for Customer's internal evaluation during the period designated by Provider. Provider reserves the right to modify or discontinue Free or Beta Services at any time without notice and without liability. Notwithstanding anything to the contrary in this Agreement, Free or Beta Services are provided "AS IS" without warranties or indemnification of any kind, and Provider shall have no liability arising from or related to Customer's use of Free or Beta Services.
Notwithstanding anything else in this Agreement, and to the maximum extent permitted by law, Provider makes no warranties, representations, indemnities, service level commitments, or support obligations with respect to any Free or Beta Services and Provider's total aggregate liability arising out of or related to Free or Beta Services will not exceed one hundred U.S. dollars (US$100).
This Agreement will remain in effect for the Subscription Term unless earlier terminated as permitted herein. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days of notice. In addition, either party may terminate this Agreement for convenience upon thirty (30) days' prior written notice to the other party. Any such termination shall be subject to the refund obligations set forth in this Agreement.
Upon termination or expiration of this Agreement, all rights and licenses granted to Customer shall immediately terminate, and Customer shall cease all use of the Services. Customer shall promptly destroy (or, on request, return) all license keys, access keys and any Provider Confidential Information. Provider will delete Customer Data in accordance with the Documentation.
Termination shall not relieve either party of obligations that by their nature are intended to survive termination, including but not limited to ownership, payment obligations, confidentiality obligations, and limitations of liability.
Provider may, in its promotional and marketing materials, identify Customer as a customer of Provider. However, upon Customer's written request, Provider will promptly cease any such use.
Each party must comply with all Laws applicable to its business in its performance of obligations or exercise of rights under this Agreement.
This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous communications and proposals, whether oral or written.
This Agreement will be governed by and construed in accordance with the laws of Delaware, USA, without regard to its conflict of law provisions.
The relationship of the parties under this Agreement is that of independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, employment, or agency relationship between the parties. Neither party is authorized to make any representation or commitment on behalf of the other without prior written consent.
Customer may not assign this Agreement without Provider's prior written consent. However, Customer may assign this Agreement in its entirety, including all Orders, to a successor in interest in connection with a merger, acquisition, or a sale of all or substantially all of Customer's assets or voting securities, provided that: (a) Customer provides prompt written notice of such assignment to Provider; (b) the assignee agrees in writing to assume all of Customer's obligations under this Agreement; and (c) the assignee complies with Provider's reasonable procedural and documentation requirements necessary to effectuate the assignment.
Headings in this Agreement are included solely for convenience and shall not affect the meaning or interpretation of any provision. Any waiver or failure to enforce any provision of this Agreement on one occasion shall not be deemed a waiver of any other provision or of the same provision on any other occasion. Waivers must be granted in writing and signed by the waiving party to be effective.
If any provision of this Agreement is held to be unenforceable or invalid by a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the remaining provisions will remain in full force and effect.
Provider may update or modify the terms of this Agreement from time to time by posting a revised version on its website or through the Services. For paid subscriptions, Provider will use commercially reasonable efforts to provide at least thirty (30) days' advance notice of any material changes that affect Customer's rights or obligations under this Agreement, which may include notice by email or in-Service notifications. Continued use of the Services after the effective date of any such changes constitutes Customer's acceptance of the revised terms. If Customer does not agree to such changes, it may terminate the Agreement pursuant to the applicable termination provisions herein.
For Free or Beta Services, changes to this Agreement will become effective immediately upon posting. Continued use of the Free or Beta Services after any changes constitutes acceptance of the revised terms.
Neither party shall be liable for failure or delay in performance due to causes beyond its reasonable control.
All notices under this Agreement must be in writing and will be deemed given: (i) when delivered personally; (ii) on the third business day after being sent by certified mail (return receipt requested); (iii) when received by the recipient if sent by a recognized overnight courier with tracking and delivery confirmation; or (iv) on the first business day after being sent by email with confirmation of receipt. However, email will not be sufficient for notices regarding Infringement Claims, alleged breaches of this Agreement by Provider, or Customer's termination of this Agreement.