Last updated October 6, 2024
This Master Services Agreement sets forth the terms and conditions pursuant to which Hebb Technologies Inc. ("Hebb Technologies", "us," "we" or "our") will provide to you ("you," "your" or "Customer") with access to and use of Hebb Technologies's EpiAppStore solutions entitled as more particularly described at www.epiappstore.com (the "Solution") when you place your order for the Solution (the "Order"). This Agreement is effective on the date (the "Effective Date") on which you place your Order which will require you to agree to these terms and conditions.
"Confidential Information" means (i) for you, information provided to us with your Order as well as any content uploaded to the Solution; (ii) for us, pricing and other Solution terms, any user IDs, software license keys or passwords that we may provide you, marketing and sales information, know-how, audit and security reports, product development plans, data center designs, or other proprietary information or technology provided to you (including Software); and (iii) for both you and us, trade secrets or any information designated as Confidential. Information developed without reference to another party's Confidential Information, or that is a part of or enters the public domain or otherwise is made available to a party other than through a violation of confidentiality, will not be Confidential Information. For the avoidance of doubt, information transmitted to us or stored as part of the Solution will not be considered Confidential Information.
"Services" means any and all services performed by us as described in the applicable Order, including but not limited to any services performed in connection with a Solution.
"Software" means any software, library, utility, tool or other computer or program code, in object (binary) or source-code form, as well as the related documentation, provided by us in connection with the Solution. Software includes software locally installed on your systems and software accessed through the internet or by other remote means including websites, portals and cloud-based solutions to utilize a Solution in accordance with this Agreement.
"Third-Party Products" means any non-Hebb Technologies data, software or services provided, made available or otherwise used by us in connection with the Solution or any other Customer provided data, software or services.
You will pay all fees in accordance with each Order, by the due date and in the currency specified in the Order. If Hebb Technologies has the legal obligation to pay or collect taxes for which you are responsible, the appropriate amount shall be invoiced to and paid by you unless you provide Hebb Technologies with a valid tax exemption certificate authorized by the appropriate taxing authority. Other than as expressly set forth, all amounts are non-refundable, non-cancelable, and non-creditable. You agree that we may bill your credit card for renewals, bandwidth overages on set limits or scopes of use, additional options, and unpaid fees, as applicable. In the event you fail to make payment as per payment terms set forth in this Agreement or in any applicable Order, and legal enforcement by Hebb Technologies is deemed necessary, you agree to pay all reasonable legal fees and costs incurred by Hebb Technologies.
The "Term" for any Solution begins on the Effective Date and extends for the period indicated in your Order. Unless you decline auto-renewal in writing at least thirty (30) days prior to the expiration of the Term or unless auto-renewal is explicitly disclaimed in an Order, we may automatically renew this Agreement and the related Solution(s) for a successive Term at our then-current list price. By continuing to use the Solution(s) beyond the expiration of the applicable Term, we may renew this Agreement and the related Solution(s) in our discretion for a successive Term at our then-current list price. We will automatically invoice you or charge your credit card, as applicable, each auto-renewal.
Either party may terminate this Agreement if the other party commits a material breach and the breach is not cured within sixty (60) days of receipt of written notice describing the nature of the breach. Notwithstanding the foregoing, we may terminate this Agreement upon written notice to you if (i) you are delinquent on your payment obligations; (ii) you violate the AUP (as defined in Section 10); (iii) a change in our relationship with a third-party Software or technology provider has had a material adverse effect on our ability to provide the Solution; (iv) you declare bankruptcy, are adjudicated bankrupt or a receiver or trustee is appointed for you or substantially all of your assets; or (v) we decide, in our sole discretion, to discontinue the product or service offering you are using. In the event we terminate pursuant to this Section 5, we will not be liable to you. Upon termination of this Agreement, all rights and obligations under this Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations and any obligations that expressly or by implication are intended to survive termination. The following provisions shall expressly survive the termination or expiration of this Agreement for any reason: Section 1, 6, 8B, 8C, 13, 14 and 15.
You may not assign this Agreement or any rights or obligations under this Agreement to a third-party without our prior written consent. We may assign, sell or otherwise transfer our rights to a business, product line or substantially all of our assets, provided the transferee agrees to perform the obligations under this Agreement. We may subcontract or delegate in whole or in part this Agreement, provided that we remain responsible for the performance of the Solution. For purposes of this Agreement, any change of control will be deemed an assignment.
Except for information created or otherwise owned by you or licensed by you from third-parties, including all information provided by you to us through the Solution or for use in connection with the Solution, all right, title, and interest in the intellectual property embodied in the Solution, including the know-how and methods by which the Solution is provided and the processes that make up the Solution, will belong solely and exclusively to us or our licensors, and you will have no rights in any of the above, except as expressly granted in this Agreement. The Services and the Software used to provide the Solution embody valuable trade secrets and proprietary rights of Hebb Technologies and/or our licensors and are protected by laws. Any intellectual property developed by us during the performance of the Solution will belong solely and exclusively to us and our licensors.
If professional services (such as implementation, training, consulting, etc.,) are included in any Order ("Professional Services"), in addition to the provisions in any mutually agreed upon statement of work relating to such Professional Services, the following provisions shall apply. We retain all ownership rights to any and all deliverables or work product created in connection with the performance of the Professional Services, excluding, any pre-existing technology or materials supplied by you for incorporation into such deliverable or work product. We grant you a royalty-free, non-exclusive, non-transferable, non-assignable worldwide license to use any such deliverable or work product, to the extent necessary to permit you to use the deliverable or work product in connection with the Solution during the Term. You acknowledge that nothing in this Agreement shall restrict or limit us from performing similar services for any third party.
We may suspend all or part of the Solution or your access thereto: (i) if you are delinquent on payment obligations; (ii) upon receipt of a subpoena or law-enforcement request; or (iii) when we have a commercially reasonable belief that you have breached this Agreement or that your use of the Solution poses an imminent security risk or may subject Hebb Technologies to liability.
We may delete your data stored through the Solution (a) sixty (60) days following any termination by us pursuant to Section 4 of this Agreement, or (b) if you fail to renew an applicable Order within sixty (60) days of expiration.
We may modify the functionality or features of the Solution at any time, provided that the modification does not materially denigrate the functionality of the Solution (as described in the applicable Order) during the Term. We will not be liable to you or any third-party for any such modification. From time to time, we may change the location where the Solution is provided; provided, however, we will remain responsible for the delivery of the Solution.
For the applicable Term, and subject to the restrictions below, we grant you a non-exclusive, limited, revocable license under our intellectual property rights to access and use the applicable Software as permitted by this Agreement.
Unless otherwise expressly permitted in this Agreement, without our prior written consent, you will not: (i) permit any third-party to use or copy any of the Software; (ii) modify, translate, alter, adapt, publish, transmit, remove, reverse engineer, decompile, disassemble, reproduce, distribute, display, create derivative works, compilations or collective works based on or otherwise exploit any of the Software; (iii) merge the Software with any other software; (iv) sell, sublicense, rent, lease, grant a security interest in or otherwise transfer rights to the Software; (v) benchmark the performance of the Software or Solution without our prior written consent; or (vi) use the Software to operate in or as a time-sharing, outsourcing or service bureau environment or in any way allow third-party access to the Solution.
SOLUTIONS AND SOFTWARE ARE LICENSED, NOT SOLD. Except for the license expressly granted herein, Hebb Technologies retains all right, title and interest in and to the Software and in all related intellectual property and its derivative works, including registrations, applications, renewals and extensions of such rights (the "Works"). The rights in these Works are valid and protected in all forms, media and technologies existing now or hereinafter developed and any use other than as contemplated herein, including the reproduction, modification, distribution, transmission, adaptations, translation, display, republication or performance of the Works, except as specifically permitted herein, is strictly prohibited. Hebb Technologies retains all rights not expressly granted herein.
If we offer you a free trial, we will make the Solution available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the Solution or (b) the start date of any subscription plans ordered by you. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY DATA YOU ENTER INTO THE SOLUTION DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SOLUTION BEFORE THE END OF THE TRIAL PERIOD. DURING THE FREE TRIAL THE SERVICES ARE PROVIDED "AS-IS" WITH NO EXPRESS OR IMPLIED WARRANTY.
From time to time we may invite you to try, at no charge, functionality, products or services that are not generally available to the public ("Beta Services"). You may accept or decline any such trial in your sole discretion. Any Beta Services will be clearly designated as beta, pilot, limited release, developer preview, nonproduction or by a description of similar import. Beta Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. BETA SERVICES ARE NOT CONSIDERED "SERVICES" HEREUNDER AND ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Beta Services at any time in our sole discretion and may never make them generally available.
For information about our privacy practices, please read our privacy policy at https://epiappstore.com/legal/privacy. It explains how we treat your personal information and protect your privacy.
You must use reasonable security precautions in connection with your use of the Solution and comply with all laws and regulations applicable to your use of the Solution. Specifically, you must not share your password, let anyone else access your account, or do anything that might jeopardize the security of your account. You must cooperate with our reasonable investigation of Service outages, security issues and any suspected breach of this Agreement. Our Acceptable Use Policy follows (the "AUP"):
You are prohibited from (1) attempting to use or gain unauthorized access to our or to any third-party's networks or equipment and from accessing the Solution using automated means such as "bots" or other computer programs or scripts; (2) permitting other individuals or entities to copy the Solutions; (3) providing unauthorized access to or use of any user IDs, software license keys or passwords that we may provide you in respect of specific Solutions to enable you to activate or access the Solution; (4) attempting to probe, exploit, scan or test the security or vulnerability of the Solutions or of a system, account or network of Hebb Technologies or any of our customers or suppliers; (5) interfering or attempting to interfere with service to any user, host or network; (6) engaging in fraudulent, offensive or illegal activity of any nature; (7) uploading any content, or engaging in any activity, that is pornographic, obscene, harassing, abusive, slanderous or defamatory or that encourages, promotes or expresses racism, hatred, bigotry or violence; (8) engaging in any activity that infringes the intellectual property rights or privacy rights of any individual or third-party; (9) transmitting unsolicited bulk or commercial messages; (10) intentionally distributing worms, Trojan horses, viruses, corrupted files or any similar items; (11) restricting, inhibiting or otherwise interfering with the ability of any other person, regardless of intent, purpose or knowledge, to use or enjoy the Solutions (except for tools with safety and security functions); (12) restricting, inhibiting, interfering with or otherwise disrupting or causing a performance degradation to any Hebb Technologies (or Hebb Technologies supplier) facilities used to deliver the Solutions. Hebb Technologies may in its sole discretion determine whether your use of the Solutions is a violation of this AUP; or (13) uploading individual file.