Hyperscale - Terms and Conditions

Effective As Of 14 November 2020

‍Introduction
This Service Agreement contains the terms and conditions (the “Terms”) that govern the Services. The Client shall only provide access to the Services (as defined below) to authorized representatives who will be deemed to be acting on behalf of the Client. In the Terms, “the Client”, "you" and "your" will collectively refer to the Client and its authorized representatives. Hyperscale Media reserves the right to make non-material updates to this Agreement.

‍General description of the Services
Design Subscription Plans: Hyperscale Media provides premium on-demand and fully managed Design services. Depending on the number of subscriptions you have with us that will determine the number of Design Managers and Designers assigned to you.

‍Change of Plan, Upgrades and Downgrades
The Client is entitled to upgrade the Plan during the Agreement Term. Downgrades and changes from one Plan to another Plan are only permitted from the next Agreement Term with a minimum thirty (30) days prior notice in writing.Such notices should be issued in writing to the Design Manager assigned to you. You are not allowed to pause a Plan. Notice to pause the Plan may be treated as notice of termination of such Plan. Changes that come into effect will continue to remain in effect for the following Agreement Term unless the notice explicitly states otherwise.

‍Term and Termination
A. This Agreement shall begin on the Start Date and, unless terminated earlier in accordance with these Terms, remain in effect for the duration of the Agreement Term.
B. Either party may terminate the Agreement in writing with immediate effect where:
i. One party is in material breach of the Agreement (where the breach remains even after the party in breach has been given thirty (30) calendar days to cure after first receiving confirmed written notice of the breach);
ii. The party not seeking termination is insolvent or undergoing liquidation proceedings; or
iii. In accordance with section 34 Force Majeure (each of (i), (ii) and (iii) a “Termination for Cause”).
C. This Agreement automatically renews for a new Agreement Term unless terminated in accordance with this Agreement.
D. Where notice of termination is given in writing at least thirty (30) days prior to the commencement of the next Agreement Term, the Plan will remain effective for the remainder of the current Agreement Term and subsequently be terminated at the end of the current Agreement Term. Where notice of termination is given less than thirty (30) days from the commencement of the next Agreement Term, the Plan will automatically renew and remain effective until the end of the next subsequent Agreement Term.

‍Project Quality
It is your responsibility to terminate a project if progress is not deemed satisfactory. The Client is liable in full for all hours worked regardless of satisfaction with the end product. It is the Client’s responsibility to inquire for progress reports sufficiently frequently to evaluate progress. In the event that the work is deemed unsatisfactory, it is your responsibility to report to Hyperscale Media as soon as possible.

‍Pricing and Price Change
Hyperscale Media reserves the right to change the Services specifications, fees and the List Prices with thirty (30) calendar days written notice of such changes. Changes to the Services specifications and fee structure shall take effect from the commencement of the next Agreement Term which begins on or after the effective date of change. A change in List Price shall apply to all Projects started on or after the thirty (30) calendar day written notice and will take effect during your current Agreement Term.

‍Refunds
A. Except for Terminations for Cause by the Client, as specified in Section 5, or where the Client exercises the right to opt out when applicable, the Client is not entitled to a refund for remaining months nor unused credit or hours on termination
B. Any refund in connection with a Termination for Cause by the Client shall be prorated based on the remaining portion of the then-current Agreement Term Amount, less any Overage. In no event shall any refund for any reason whatsoever include past amounts paid.

‍Payment
The Agreement Term Amount will be automatically charged on the renewal date with the payment method on file, in accordance with the Billing Frequency, while this Agreement remains in effect.

Payment can be made with credit or debit card. The payment currency is USD. If any outstanding amount is more than thirty (30) days overdue from Payment Terms, Hyperscale Media reserves the right to charge 1.5% interest per month on the outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Such outstanding amounts may be sent to a Debt Collection agency. You shall be responsible for all taxes associated with Services other than U.S. taxes based on Hyperscale Medias net income.

Hyperscale Media reserves the right to put Services on hold or terminate the Agreement with immediate effect should any outstanding amount be more than thirty (5) days overdue. Where Services are put on hold due to overdue outstanding amounts, Hyperscale Media shall be considered to be fulfilling the Service obligations in accordance with this Agreement and the Client will not be entitled to any relief for such action. Where the Agreement is terminated in accordance with this paragraph, the Client shall remain liable for all fees up until date of termination, plus any Overage fees incurred. The fees for the then-current Agreement Term Amount shall be prorated for the period up until date of such termination.

‍Credit Card Payment Method
The following applies to Clients who choose to use a Credit card as their payment method. Hyperscale Media has integrated with Stripe, a validated Level 1 PCI DSS Compliant Service Provider, for PCI Compliant storing of credit card information and processing of payments. Stripe may make a temporary $1 charge to credit cards added to your Hyperscale Media account. Any such charges are refunded after your credit card has been verified. The refund may take up to several business days depending on your bank or credit card service. Should you wish to use a Credit Card as a payment method, you hereby authorize Hyperscale Media to run, or have run, credit card authorizations on all credit cards provided by you, to store credit card details as your method of payment for Services, and to charge your credit card (or any other form of payment authorized by Hyperscale Media or mutually agreed to between you and Hyperscale Media).

‍Restrictions of Use
You will not, directly or indirectly: reverse designer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Hyperscale Media or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.Confidentiality
A. You and Hyperscale Media (each a “Receiving Party”) understand that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Hyperscale Media includes non-public information regarding features, functionality and performance of the Service. Your Proprietary Information includes non-public data provided by you to Hyperscale Media to enable the provision of the Services (“Client Data”).
B. The Receiving Party agrees:
i. To take reasonable precautions to protect such Proprietary Information, and
ii. Not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third-party any such Proprietary Information.
C. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document:
i. Is or becomes generally available to the public, or
ii. Was in its possession or known by it prior to receipt from the Disclosing Party, or
iii. Was rightfully disclosed to it without restriction by a third-party, or
iv. Was independently developed without use of any Proprietary Information of the Disclosing Party.
D. The Receiving Party may make disclosures required by law, court order by a court of competent jurisdiction, or by any regulatory authority to which the Receiving Party is subject, provided the Receiving Party (to the extent permitted by law and reasonably practicable):
i. Provides the Disclosing Party with reasonably prompt notice of such required disclosure prior to the Proprietary Information being disclosed;
ii. Uses reasonable best efforts to limit the disclosure of the Proprietary Information as much as practicably possible;
iii. Requests confidential treatment or a protective order related to the disclosure of the Proprietary Information; and
iv. Allows the Disclosing Party, subject to instructions from the Receiving Party, to participate in any proceeding related to any such involuntary disclosure.
E. Notwithstanding anything to the contrary, Hyperscale Media shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and Hyperscale Media will be free (during and after the term hereof) to:
i. Use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Hyperscale Media offerings, and
ii. disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

‍Proprietary Rights
A. You shall own all right, title and interest in and to the Client Data, as well as any data, product, output and deliverable that is based on or derived from the Client Data and provided to you as part of the Services (collectively, "Work Product"), including:
i. All rights of paternity, integrity, disclosure, and withdrawal and any other rights that may be known as “moral rights” (collectively, “Moral Rights”), and any and all intellectual property rights arising therefrom;
ii. All Work Product shall constitute a “work made for hire” as such term is defined in 17 U.S.C. § 101, made solely for your benefit. Hyperscale Media agrees that you shall not be subject to any restrictions relating to Work Product under these Terms. Hyperscale Media hereby represents and warrants that as of the date the applicable Work Product is delivered to the Client, to its Knowledge (as defined below), such Work Product does not infringe or misappropriate the intellectual property rights of any third-party (the “IP Infringement Warranty”). As used herein, “Knowledge” means that Hyperscale Media actually knew or should have known of such infringement or misappropriation;
iii. Where Work Product (or any aspect thereof) does not fall within the specifically enumerated works that constitute works made for hire under applicable copyright laws, Hyperscale Media hereby irrevocably assigns, transfers, and conveys, free and clear of all liens and encumbrances, the entire right, title, and interest in and to all such proprietary rights it may hold in the Work Product therein to You, your successors, and assigns.
B. You agree to comply with all applicable import and export control laws and third-party Proprietary Rights.
C. Hyperscale Media has the right to a, limited, fully paid-up, royalty-free, non-transferable, non-assignable and non-sub-licensable, world-wide and non-exclusive license to use any of the Work Product solely in furtherance of its online and social media marketing efforts (the “License Back”). The License Back shall be limited to Work Product which you, your affiliates, directors, officers, employees, representatives, or agents have already published or made public and shall endure for a period equal to your rights, ownership, or license held in the underlying intellectual property in the Work Product.

‍Use of Third-Party Materials
Hyperscale Media may incorporate various open source technology (“Third-Party Materials”) into any Work Product. The Client is responsible for requesting and monitoring the exclusion of Third-Party Materials. Depending on what license(s) and/or usage(s) you may require, there may be an additional cost which will require your prior approval and payment. It is your responsibility to inform your Design Manager at the outset of any Project on what license(s) and or usage(s) you will require. Hyperscale Media shall bear no responsibility whatsoever should your initial intended use for any Work Product change and should the license(s) and/or usage(s) secured for you by Hyperscale Media be inadequate for your altered intended use of any Work Product. You warrant and represent that you own the intellectual property right(s), or possess the appropriate license(s) and/or usage(s), for any and all Third-Party Materials provided by you to Hyperscale Media and which are incorporated in any Work Product.

‍Indemnification
A. Each party agrees to indemnify, defend, and hold harmless the other party’s affiliates, directors, officers, employees, representatives, agents, or contractors from any direct losses, damages, or expenses (including reasonable attorneys’ fees) (“collectively, “Losses”) arising from or relating to any successful claim, suit, proceeding, demand, or action brought by a third-party (a “Third-Party Claim”) against either party for actions by it or its agents relating to:
i. Failure to comply with any applicable law;
ii. Gross negligence;
iii. Wilful misconduct;
iv. Fraud or fraudulent misrepresentation; or
v. Defamation.
B. You will further indemnify, defend, and hold harmless Hyperscale Media, its affiliates, directors, officers, employees, representatives, agents, and contractors (each a “Hyperscale Media Indemnified Party”) from any Losses arising from or relating to any Third-Party Claim against a Hyperscale Media Indemnified Party relating to actions by you or your affiliates, directors, officers, employees, representatives, agents, or contractors relating to:
i. Use of the Services in violation of this Agreement;
ii. Any Client Data, any third-party materials as laid out in Section 23, or any other materials provided by Client; and
iii. Your violation of privacy rights, unfair competition, or infringement or allegations thereof of a registered patent, registered trademark, or copyright of a third-party.
C. Hyperscale Media will further indemnify, defend, and hold harmless the Client, its affiliates, directors, officers, employees, representatives, agents, and contractors (each a “Client Indemnified Party”) from any Losses arising from or relating to any Third-Party Claim against a Client Indemnified Party relating to actions by Hyperscale Media or its affiliates, directors, officers, employees, representatives, agents, or contractors relating to:
i. Any breach of the IP Infringement Warranty (an “Infringement Claim”); and
ii. Any Infringement Claim related to your use of the Software.
iii. Notwithstanding the foregoing, Hyperscale Media will have no obligation under this Section, or otherwise, with respect to any Infringement Claim to the extent it is based on:
a. Any use of the Work Product not in accordance with this Agreement,
b. Any use of the Work Product in combination with other materials, content or images not supplied by Hyperscale Media, unless the Infringement Claim would have arisen irrespective of such combination,
c. Any modification to the Work Product made by a party other than Hyperscale Media,
d. Any Client Data or other materials or content provided by Client to Hyperscale Media, or
e. Any part of the Work Product that was designed in accordance with, or in response to, instructions, feedback or input from Client.
D. THIS SECTION 24 STATES HYPERSCALE MEDIA’S ENTIRE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS.
E. The party seeking indemnification under this Section 24 (the “Indemnified Party”)
i. Will notify the other party (the “Indemnifying Party”) promptly in writing of any Claim for which it is seeking indemnification hereunder,
ii. Will give the Indemnifying Party sole control of the defense thereof and any related settlement negotiations, and
iii. Will cooperate with the Indemnifying Party, at the Indemnifying Party’s request and expense, in assisting with such defense.
iv. May not settle any Claim without the Indemnified Party’s consent (which will not be unreasonably withheld, conditioned, or delayed) if such settlement requires the Indemnified Party to admit any liability.
F. Law permitting, these indemnifications are subject to the limitation of liability contained in the Terms.

‍Limitation of Liability
A. SUBJECT ONLY TO THE EXCEPTIONS CONTAINED IN SUBSECTION (D) OF THIS SECTION, NO PARTY OR ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, OR CONTRACTORS, WILL BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR:
i. ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES -- INCLUDING BUT NOT LIMITED TO ANY LOST BUSINESS OPPORTUNITY, REPUTATION, ORPROFITS -- ARISING OUT OF THIS AGREEMENT (WHETHER BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY) OR ITS TERMINATION, AND IRRESPECTIVE OF WHETHER OR NOT THAT PARTY HAS BEEN ADVISED; OR
ii. ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS.
B. THE LIABILITY OF EITHER PARTY FOR DAMAGES, OR ALLEGED DAMAGES, HEREUNDER FOR ANY AND ALL CLAIMS BY EITHER PARTY, WHETHER IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, THE AGGREGATE AMOUNTS PAID BY YOU TO HYPERSCALE MEDIA PURSUANT TO THIS SOW IN THE 12 MONTHS PRECEDING THE INITIAL CLAIM GIVING RISE TO LIABILITY, GENERALLY, AND THREE TIMES (3X) THE AGGREGATE AMOUNTS PAID BY YOU TO HYPERSCALE MEDIA PURSUANT TO THIS SOW IN THE 12 MONTHS PRECEDING THE INITIAL CLAIM GIVING RISE TO LIABILITY CONTEMPLATED IN SECTION 24(C) OF THIS AGREEMENT, AS WELL AS ANY UNINTENTIONAL, VICARIOUS OR CONTRIBUTORY INFRINGEMENT CLAIMS.
C. The parties shall use commercially reasonable efforts to limit or mitigate damages they may suffer in connection with this Agreement.
D. There shall be no limitation of liability for either party where such liability stems from:
i. Bodily injury of a person,
ii. Fraud or fraudulent misrepresentation; or
iii. Where applicable law prevents limitation of such liability.
E. There shall be no limitation of liability for the Client specifically on its obligation to pay for the Services.
F. Each provision of this Agreement that provides for a limitation of liability or disclaimer of warranties, represents an agreed allocation of the risks of this Agreement between the Parties. This allocation is reflected in the pricing offered by Hyperscale Media to Client and is an essential element of the basis of the bargain between the Parties. Each of these provisions is severable and independent of all other provisions of the Agreement, and each of these provisions will apply even if the warranties in the Agreement have failed of their essential purpose.

‍Non-solicitation
During your use of the Services, and for a period of one (2) years immediately after your last use of a Service, you agree not to solicit or induce any employee, vendor or independent contractor associated with Hyperscale Media to terminate or breach an employment, contractual or other relationship with Hyperscale Media, either on your own behalf or on behalf of any other business or organization, unless you have received written approval to do so, signed by a duly authorized representative of Hyperscale Media, and paid an agreed release fee. Failure to obtain a written approval will be subject to a USD $500,000 solicitation fee.

The non-solicitation restrictions of this section shall only apply to the design personnel who have worked directly on the Client account and does not apply to an advertisement placed into the public domain for a position you are hiring for, unless you have solicited, directly or indirectly, the application from that employee, vendor, or independent contractor for that position.

‍Survival of Terms
All sections of these Terms which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

‍Enforcing Rights
Either party’s failure or delay to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect the parties right to later enforce or exercise it, unless the party issues an express written waiver, signed by a duly authorized representative of the party.

‍Assignment
Neither party may assign this Agreement, or any of the rights or obligations hereunder, without the other party’s prior written consent by a duly authorized representative. Consent shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement in connection with a bona fide merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempted assignment or transfer in violation of this section shall be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.

‍Enforceability of Agreement
This Agreement will inure to the benefit of the successors and permitted assigns of the parties. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.

‍Force Majeure
Except for your accrued payment obligations for Services already rendered under this Agreement, no party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including without limitation: strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third-party’s), trespassing, sabotage, theft or other criminal acts, cyber-attacks, failure of energy sources or transport network, acts of God, export bans, sanctions and other government actions, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, explosions, collapse of building structures, fires, floods, storms, earthquakes, or similar events, natural disasters or extreme adverse weather conditions and excluding any viral or bacterial epidemic or pandemic (including COVID-19) (each a “Force Majeure Event”). The party suffering a Force Majeure Event shall use reasonable efforts to mitigate against the effects of such Force Majeure Event, and the other party may terminate this Agreement with immediate effect if the Force Majeure Event continues for more than twenty (20) business days.

‍Governing Law, Jurisdiction and Venue
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware without regard to its rules of conflict of laws and without regard to the United Nations Convention on Contracts for the International Sale of Goods (“CISG”). The parties hereto hereby irrevocably and unconditionally consent to and submit to the exclusive jurisdiction in the state or federal courts located in New Castle County, Delaware for any controversy, dispute, claim, or litigation arising out of or relating to this Agreement and the transactions contemplated hereby (and agree not to commence any litigation relating thereto except in such courts), waive any objection to the laying of venue of any such litigation in the Delaware Courts and agree not to plead or claim in any Delaware Court that such litigation brought therein has been brought in any inconvenient forum. The parties each waive their right to a jury trial.

‍Notice for California Users
Under California Civil Code Section 1789.3, Users of Hyperscale Media from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. To the extent allowed by applicable law, nothing in this Section shall be construed as limiting or affecting, in any way, the provisions of Section 35.

‍Complete Agreement
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and each party does not have the authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

‍Representations and Warranties
Each Party represents and warrants that it (i) is a legal entity duly incorporated, validly existing and in good standing, with all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; (ii) is duly licensed, authorized or qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required; (iii) shall comply with all laws and regulations applicable to the performance of its obligations hereunder; (iv) is not a party to any agreement with a third party, the performance of which is reasonably likely to affect adversely its ability to perform fully its respective obligations hereunder. EXCEPT FOR THE EXPRESS WARRANTIES MADE OR REFERENCED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.

‍Relationship of the Parties
Hyperscale Media and Client are independent contractors and nothing contained in this Agreement shall be construed to place them in the relationship of partners, principal/agent, employer/employee, or joint venturers. Neither party, including their respective affiliates, directors, officers, employees, representatives, agents, or contractors, shall have the power or right to bind or obligate the other party, nor shall it hold itself out as having such authority.