This Customer Agreement (SaaS) (this “Agreement”) is between Hyphenate, Inc., a Delaware corporation (“Hyphenate”), and the entity identified as “Customer”, and is effective as of the Effective Date set forth in the applicable Order Form.
Background. Hyphenate has developed and makes available a SaaS-based, AI-agent platform for finance and accounting automation (the “Hyphenate Platform”).
1. Definitions
1.1. The following terms, when used in this Agreement, will have the following meanings:
- “Affiliate” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists, wherein “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity or power to direct an entity’s management.
- “Confidential Information” means any information disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. Confidential Information will not include information that (a) is in the public domain through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure; (c) was properly disclosed to the receiving party, without restriction, by another person with legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
- “Customer Materials” means any data, content or materials that Customer (including its Users) submits to its Hyphenate Platform accounts.
- “Documentation” means Hyphenate’s then-current standard usage documentation for the Hyphenate Platform.
- “Order Form” means an order form, quote or other similar document that sets forth the specific Hyphenate Platform to which Customer is subscribing, the pricing therefor (including in relation to overages), and the subscription term, and that references this Agreement and is mutually executed by the parties.
- “Third Party Platform” means any product, service or platform not provided by Hyphenate that Customer elects to use with the Hyphenate Platform.
- “User” means anyone that Customer allows to use its accounts for the Hyphenate Platform, consisting of Customer’s employees and contractors (solely for purposes of providing services to Customer).
2. Hyphenate Platform
2.1 Provision of Hyphenate Platform
Subject to this Agreement, Hyphenate will make the Hyphenate Platform available to Customer pursuant to this Agreement, the SLA attached in Exhibit B and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the Hyphenate Platform for its internal business purposes during the applicable subscription term. Customer may permit Users to use the Hyphenate Platform on its behalf. Customer is responsible for provisioning and managing its User accounts, for its Users’ actions through the Hyphenate Platform and for their compliance with this Agreement.
2.2 Data Security
(a) Hyphenate will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer Materials; (ii) protect against threats or hazards to the security or integrity of Customer Materials; and (iii) prevent unauthorized access to Customer Materials. In furtherance of the foregoing, Hyphenate will maintain the administrative, physical and technical safeguards described in the Hyphenate security page located at https://www.hyphenate.ai/security (the “Security Page”) posted as of the Effective Date (and as the Security Page may be updated in a manner that does not materially decrease the applicable protections).
(b) To the extent that Hyphenate processes any Customer Personal Data (as defined in the DPA) contained in Customer Materials that is subject to Data Protection Laws, on Customer’s behalf, in the provision of the Hyphenate Platform, the Data Processing Addendum (“DPA”), made available as a separate document and incorporated herein by reference, shall form part of this Agreement.
2.3 Customer Responsibilities
(a) Customer acknowledges that Hyphenate’s provision of the Hyphenate Platform is dependent on Customer providing all reasonably required cooperation (including the prompt provision of access to Customer’s systems, personnel and materials as reasonably required and any other access specified in the applicable Order Form), and Customer will provide all such cooperation in a diligent and timely manner.
(b) Customer will (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Hyphenate Platform and notify Hyphenate promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the Hyphenate Platform and (ii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Hyphenate Platform. As between the parties, Customer is responsible for the content and accuracy of Customer Materials.
2.4 Affiliates
Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and Hyphenate, and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. Each Order Form is a separate obligation of the Customer entity that executes it, and no other Customer entity has any liability or obligation under such Order Form.
3. Fees
3.1 Fees
Customer will pay Hyphenate the fees set forth in the applicable Order Form. Customer will pay amounts due and not disputed in good faith within thirty (30) days of receipt of the applicable invoice (the “Payment Period”), unless a specific date for payment is set forth in such Order Form. Except as otherwise specified, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. If Customer disputes an invoice in good faith, it will notify Hyphenate within the Payment Period and the parties will seek to resolve the dispute as soon as reasonably practicable.
3.2 Late Payment
Hyphenate may suspend access to the Hyphenate Platform immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date.
3.3 Taxes
All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively, “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Hyphenate. Customer will not withhold any Taxes from any amounts due to Hyphenate.
4. Proprietary Rights
4.1 Proprietary Rights
As between the parties, Hyphenate exclusively owns all right, title and interest in and to the Hyphenate Platform, System Data and Hyphenate’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Materials, output produced specifically for Customer via the use of the Hyphenate Platform (which will constitute Customer Materials), and Customer’s Confidential Information. “System Data” means data collected by Hyphenate regarding the Hyphenate Platform that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Hyphenate Platform.
4.2 Feedback
Customer may from time to time provide Hyphenate suggestions or comments for enhancements, new features or functionality, or other feedback (“Feedback”) with respect to the Hyphenate Platform. Hyphenate will have full discretion to determine whether to proceed with any requested enhancements, and the full, unencumbered right, without any obligation to compensate Customer, to use, incorporate and otherwise exploit any such Feedback in connection with its products and services. All Feedback is provided “AS IS” and Hyphenate will not publicly identify Customer as the source of Feedback without Customer’s permission.
5. Confidentiality; Restrictions
5.1 Confidentiality
Each receiving party agrees that it will use the Confidential Information of the disclosing party solely in accordance with this Agreement and will not disclose it to any third party without the disclosing party’s prior written consent, except as otherwise permitted hereunder. However, the receiving party may disclose such Confidential Information (a) to its employees and representatives who have a need to know and are legally bound by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide prior written notice, an opportunity to contest such disclosure, and will use reasonable efforts to minimize such disclosure). Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers.
5.2 Technology Restrictions
Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, or create derivative works of, or attempt to derive, the source code underlying the Hyphenate Platform; (b) attempt to probe, scan or test the vulnerability of the Hyphenate Platform, breach its security or authentication measures without proper authorization, or wilfully render any part of it unusable; (c) use or access the Hyphenate Platform to develop a competitive product or service or engage in competitive analysis or benchmarking; (d) transfer, distribute, resell, lease, license or assign the Hyphenate Platform or otherwise offer it on a standalone basis; or (e) otherwise use the Hyphenate Platform in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.
5.3 Injunctive Relief
In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
6. Warranties and Disclaimers
6.1 Mutual
Each party warrants that (a) it has the legal power and authority to enter into this Agreement and (b) it will use industry-standard measures to avoid introducing viruses or other malicious code into the Hyphenate Platform.
6.2 Hyphenate
Hyphenate warrants that the Hyphenate Platform will perform materially as described in the Documentation and that Hyphenate will not materially decrease the overall functionality of the Hyphenate Platform during the applicable subscription term (the “Performance Warranty”). Hyphenate will use reasonable efforts to correct a verified breach of the Performance Warranty reported by Customer. If Hyphenate fails to do so within 30 days after Customer’s warranty report, then either party may terminate the applicable Order Form as it relates to the non-conforming Hyphenate Platform, in which case Hyphenate will provide Customer a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the term. To receive these remedies, Customer must report a breach in reasonable detail within 30 days after discovering the issue. These procedures are Customer’s exclusive remedies and Hyphenate’s sole liability for breach of the Performance Warranty.
6.3 Customer
Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Hyphenate to use the same as contemplated hereunder.
6.4 Disclaimers
EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. HYPHENATE DOES NOT REPRESENT OR WARRANT THAT THE HYPHENATE PLATFORM OR ANY OUTPUT WILL BE ERROR-FREE. HYPHENATE IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY PLATFORMS.
6.5 No-Charge Products
FROM TIME TO TIME, CUSTOMER MAY HAVE ACCESS TO FREE ACCOUNTS OR TRIAL USE, PRE-RELEASE, ALPHA OR BETA VERSIONS OR FEATURES (COLLECTIVELY, “NO-CHARGE PRODUCTS”) OFFERED BY HYPHENATE. CUSTOMER’S USE OF NO-CHARGE PRODUCTS IS SUBJECT TO ANY ADDITIONAL TERMS THAT HYPHENATE MAY SPECIFY. HYPHENATE MAY MODIFY OR TERMINATE CUSTOMER’S RIGHT TO USE NO-CHARGE PRODUCTS AT ANY TIME. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HYPHENATE DISCLAIMS ALL OBLIGATIONS, WARRANTIES AND LIABILITIES WITH RESPECT TO NO-CHARGE PRODUCTS, INCLUDING ANY SERVICE LEVEL OR INDEMNITY OBLIGATIONS.
7. Indemnification
7.1 Indemnity by Hyphenate
Hyphenate will defend Customer against any claim, demand, suit or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Hyphenate Platform as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret, and will indemnify Customer for any damages finally awarded (or any settlement approved by Hyphenate) in connection with such Claim; provided that Customer promptly notifies Hyphenate, Hyphenate has sole authority to defend and/or settle the Claim, and Customer reasonably cooperates. If the use of the Hyphenate Platform has become, or is likely to become, the subject of an infringement claim, Hyphenate may at its option and expense (i) procure the right to continue using the Hyphenate Platform; (ii) replace or modify it to be non-infringing with comparable functionality; or (iii) if neither is reasonably practicable, terminate the applicable Order Form and provide a pro rata refund of prepaid fees. Hyphenate has no liability for any Claim caused by (A) designs or specifications provided by Customer; (B) use not in accordance with this Agreement; (C) modification by or on behalf of Customer; (D) Customer Materials; or (E) combination with other products or services where the Hyphenate Platform would not by itself be infringing (the “Excluded Claims”). This Section states Hyphenate’s sole liability and Customer’s exclusive remedy for any IP infringement or misappropriation claim.
7.2 Indemnification by Customer
Customer will defend Hyphenate against any Claim made or brought against Hyphenate by a third party arising out of any Excluded Claims, and will indemnify Hyphenate for any damages finally awarded (or any settlement approved by Customer) in connection with such Claim; provided that Hyphenate promptly notifies Customer, Customer has sole authority to defend and/or settle the Claim, and Hyphenate reasonably cooperates.
8. Limitation of Liability
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, BREACH OF SECTION 5, OR INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO LEGAL THEORY (WHETHER IN TORT, CONTRACT OR OTHERWISE) WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF USE, LOST PROFITS, LOST SALES OR BUSINESS, INTERRUPTION OF BUSINESS, OR LOST CONTENT OR DATA, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE; OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE LIABILITY IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM (THE “ORDINARY CAP”). NOTWITHSTANDING THE FOREGOING, HYPHENATE’S AGGREGATE LIABILITY FOR BREACH OF SECTION 2.2 (INCLUDING THE DPA) AND/OR SECTION 5.1 IN RELATION TO CUSTOMER MATERIALS WILL NOT EXCEED TWO TIMES (2X) THE ORDINARY CAP.
9. Termination
9.1 Term
The term of this Agreement will commence on the Effective Date and continue until terminated as set forth below. The initial term of each Order Form will begin on the applicable subscription start date indicated in such Order Form and will continue for the subscription term set forth therein.
9.2 Termination
Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice if (a) the other party commits any material breach and fails to remedy it within thirty (30) days after written notice, or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings, assignment of substantially all its assets for the benefit of creditors, or a bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
9.3 Effect of Expiration / Termination
Upon expiration or termination of this Agreement (a) all rights and obligations will immediately terminate except that any terms that by their nature should survive will survive, including those relating to payment, proprietary rights, confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability, termination and the general provisions below; and (b) except as set forth herein, each receiving party will return or destroy, at the disclosing party’s option, any Confidential Information of such disclosing party in its possession or control.
9.4 Customer Materials Retrieval
Upon Customer’s written request made on or prior to expiration or termination of the applicable Order Form, Hyphenate will give Customer limited access to the Hyphenate Platform for up to thirty (30) days after such expiration or termination, at no additional cost, solely for retrieving Customer Materials. Subject to such retrieval period and Hyphenate’s legal obligations, Hyphenate has no obligation to maintain or provide any Customer Materials and will, unless legally prohibited, delete Customer Materials after expiration or termination, provided that Hyphenate need not remove copies from backup media until scheduled deletion and will continue to protect such Customer Materials in accordance with this Agreement.
10. General
10.1 Insurance
During the term of this Agreement, Hyphenate will maintain, at its own cost, statutory Worker’s Compensation and Employer’s Liability as required by law; Commercial General Liability on an occurrence basis with a minimum combined single limit of $1,000,000 per occurrence; and Professional Errors & Omissions and Cyber Liability coverage covering the Hyphenate Platform with limits of not less than $2,000,000 per claim or occurrence / $2,000,000 aggregate.
10.2 Publicity
Customer agrees that Hyphenate may refer to Customer’s name and trademarks in Hyphenate’s marketing materials and website; however, Hyphenate will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).
10.3 Assignment
Neither party may assign or transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
10.4 Amendment; Waiver
No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any waiver will apply only to the specific provision and circumstances for which it was given. Failure or delay by either party to enforce any provision will not be deemed a waiver of future enforcement of that or any other provision.
10.5 Relationship
Nothing contained herein will constitute any association, partnership, agency, employment or joint venture between the parties, or be construed to evidence an intention to establish any such relationship. Neither party will have the authority to obligate or bind the other, and nothing herein gives rise to any rights of any kind to any third parties.
10.6 Unenforceability
If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect.
10.7 Governing Law
This Agreement will be governed by the laws of the State of New York, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
10.8 Notices
Any notice required or permitted hereunder will be given in writing by personal delivery, certified mail (return receipt requested), or overnight delivery, to the respective address set forth in the signature blocks, or such other address designated pursuant to this Section. Notices to Hyphenate: Hyphenate, Inc., 1450 Broadway, Suite 12-107, New York, New York 10018, Attn: Legal.
10.9 Entire Agreement
This Agreement comprises the entire agreement between Customer and Hyphenate with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials, presentations and agreements (oral and written). No oral or written information or advice given by Hyphenate, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.
10.10 Force Majeure
Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations (excluding payment obligations) due to causes beyond its reasonable control (a “Force Majeure Event”), including earthquake, flood or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks, or the inability to obtain sufficient supplies, transportation or other essential commodity or service, or any change in or adoption of any law, regulation, judgment or decree.
10.11 Interpretation
For purposes hereof, “including” means “including without limitation”.
Exhibit B — Service Level Agreement
Availability Commitment
The Hyphenate Platform will be Available 99.5% of the time, measured on a calendar monthly basis (the “Availability Commitment”). “Availability” means that the Hyphenate Platform is accessible to Customer. Availability measures will not include downtime resulting from:
- Upgrades: Customer will receive prior notice by email of Hyphenate’s upgrade windows, scheduled between 5pm and midnight Pacific Time to the extent feasible. Downtime due to upgrades excluded from the Availability calculation will not exceed 2 hours per month.
- Pre-scheduled maintenance periods: Customer will receive at least 24 hours’ prior notice by email; maintenance will be scheduled between 5pm and midnight Pacific Time. Downtime excluded from the calculation will not exceed 2 hours per month.
- Emergency maintenance periods: Customer will receive prior notice by email on a commercially reasonable efforts basis, for applying critical security patches and other emergency repairs.
The Availability Commitment does not apply to any downtime that results from: account suspension or termination due to Customer’s breach of the Agreement; disengagement of functionality at Customer’s request; Force Majeure Events; or Customer’s (or its service provider’s) equipment, software or other technology. Hyphenate will provide Customer with reports on Availability upon request.
Service Credits
If Hyphenate fails to achieve the Availability Commitment in a month, Customer may claim a credit based on the subscription fee paid by Customer and attributable to such month, as provided below:
- 99.5% – 100.0% availability: 0% credit
- 97.0% – 99.49% availability: 4% credit
- 94.0% – 96.99% availability: 6% credit
- 92.0% – 93.99% availability: 10% credit
- Below 92.0% availability: 50% credit
Customer will not be entitled to a credit if it is in breach of this Agreement, including its payment obligations. To receive a credit, Customer must file a claim within five (5) days following the end of the month in which the Availability Commitment was not met by contacting Hyphenate at support@hyphenate.ai with a complete description of the downtime, how Customer was adversely affected, and for how long. This credit remedy is Customer’s sole and exclusive remedy for the unavailability of the Hyphenate Platform.
Customer Support
Hyphenate live technical support business hours run from 9:00am to 5:00pm Pacific Time on weekdays. Technical support can be contacted via email at support@hyphenate.ai or via shared channels in the customer communication platform. Live technical support will not be available on Christmas Day (December 25) and New Year’s Day (January 1); limited support will be available during business hours on other Hyphenate holidays.