The Services (defined below) are provided by Hyphenated Enterprises LLC (the “Company”), and Company offers the use of the Services, including all information, tools, and documentation made available to you, the user (the “Customer”), conditioned upon your acceptance of all terms, conditions, policies and notices stated here. By visiting Company’s website and/or subscribing or accessing the Services you agree to be bound by the following terms and conditions (“Terms of Use”, “Terms”).

Please read these Terms of Use carefully before subscribing to the Services. By accessing or using any part of the Services, you agree to be bound by these Terms of Use. If you do not agree to all the terms and conditions of this agreement, then you may not access the Services or use any Services.  Company reserves the right to update, change or replace any part of these Terms of Use by posting updates and/or changes to our website. It is Customer’s responsibility to check this page periodically for changes. Your continued use of or access to the website and any part of the Services following the posting of any changes constitutes acceptance of those changes.

1. OVERVIEW

1.1. Introduction. Company provides a remote software service that measures computer memory and processing performance and produces reports.

1.2. Definitions.

“Account-Related Information” means contact information, biographical information, contacts used for marketing and user account administration, and any other information otherwise maintained in or used for access to existing accounts.

“Affiliate” means any entity controlling, controlled by, or under common control with the referenced entity, where the term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.

“Agreement” means these Terms of Use, each Service Order, and the  Terms of Service (as defined in the Service Order), as each may be amended from time to time. 

“Company Technology” means all Services, documentation, deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements. 

“Customer Content” means data or content submitted to Company by Customer in connection with the use of the Services.

“Customer Property” means a website or mobile application which has Company code or services embedded in their own website or application.

“Documentation” means the technical user documentation, if any, provided with the Services.

“Feedback” means customer submitted comments, questions, suggestions, or other feedback relating to Services to the Company.

“Force Majeure Event” means unforeseen events that occur after the agreeing to the terms of this Agreement and that are beyond the reasonable control of such party. 

“Laws” means all applicable local, state, federal, foreign and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.

“Personal Information” means any information that identifies, relates to, describes, or is capable of being associated with, or could reasonably be linked, directly or indirectly, to an identified or identifiable living natural person, including but not limited to: (i) Identifiers such as a name, postal address, unique personal identifier, online identifier Internet Protocol address, email address, account name, social security number, government identification card number, or other similar identifiers; (ii) any medical records or other protected or regulated health information; (iii) any financial information or any other information subject to regulation or protection under specific laws or regulations; or (iv) information defined as “personal information,” “personally identifiable information,” “personal data,” or similar expressions under applicable privacy or data security Law. 

“Services” means Company’s proprietary software-as-a-service solution(s) for computer performance. Services shall also include a) any corresponding SDKs, APIs, documentation, code, or software that may be made available by Company in connection with such Service; b) any onboarding assistance provided; and c) subsequent enhancements, updates and bug fixes to the foregoing made generally available by Company for no additional fee.

“Service Order” means each Service Order (“SO”) referencing this Agreement.

“Subscription Term” means the subscription basis that is identified as such on the Service Order with a specified rate and term.

“Third Party Claim” means any claim by a third party alleging that a Service when used as authorized under this Agreement infringes a U.S. patent, U.S. copyright, or U.S. trademark and that Company knew of such infringement

“Usage Data” means technical data about Customer’s use of the Services that is non-personally identifiable with respect to Customer .

2. COMPANY SERVICES

2.1. Access to Services. Company will provide to Customer the specific Services as specified in the applicable SO. Customer may access and use these Services during the Subscription Term (as defined herein) solely for its own benefit and in accordance with the terms and conditions of these Terms of Use and the Documentation, and any scope of use restrictions designated in the applicable SO. 

2.2. Permitted Users. 

2.2.1. General. Use of and access to the Services is permitted by and only by the Company. Private keys are intended to be granted to the Customer only and may not be shared. Customer will be responsible for any and all actions taken using Customer’s accounts and private keys. 

2.3. General Restrictions. Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party other than Permitted Users; (b) use the Services to provide, or incorporate the Services into, any product or service of a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly required by applicable law (and then only upon advance written notice to Company); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; or (e) remove or obscure any proprietary or other notices contained in the Services (including any reports or data printed from the Services).  

2.4. Trial Subscriptions. If Customer receives free access or a trial or evaluation subscription to Services (“Trial Subscription”), then Customer may use the Services in accordance with the terms and conditions of this Agreement for a period of thirty (30) days or such other period granted by Company (the “Trial Period”). Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a paid subscription to the Services. Certain Trial Subscriptions may include pre-release and beta products (“Beta Releases''). Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription. If Customer does not enter into a paid Subscription Term, this Agreement and Customer’s right to access and use the Services will terminate at the end of the Trial Period. Company has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, COMPANY WILL HAVE NO WARRANTY, INDEMNITY, DATA ARCHIVING, SERVICE LEVEL, OR SUPPORT OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS. 

3. CUSTOMER CONTENT 

3.1. Rights in Customer Content. As between the parties, Customer will retain all right, title and interest (including any and all intellectual property rights) that Customer may have in and to the Customer Content as submitted to or accessed through the Services or submitted to Company. Subject to the terms of this Agreement, Customer hereby grants to Company a non-exclusive, worldwide, royalty-free right to use, copy, store, and transmit the Customer Content solely to the extent necessary to provide the Services to Customer. 

3.2. Storage by Company. Customer is solely responsible for all data submitted to Company. Unless otherwise agreed to in the Service Order  or as required by Law under the governing jurisdiction, any Customer Content will be retained subject to Company’s data retention policies and confidentiality obligations under this Agreement. Customer specifically acknowledges that Company is not obliged to maintain backup copies of any reports or Customer Content and that Company may be unable to restore such reports in the event of accidental loss or destruction. 

3.3. Customer Obligations.  

3.3.1. General.  Customer will ensure that Customer’s use of the Service and all Customer Content is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Content. Customer represents and warrants to Company that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Content as contemplated in this Agreement (including granting Company the rights in Section 3.1), and that no Customer Content will violate or infringe (i) any third party intellectual property, publicity, privacy or other rights or (ii) any Laws. 

3.3.2. No Personal Information. Customer acknowledges that the Services are not designed for use with (and do not require) Personal Information included in Customer Content. Customer specifically agrees not to use the Services to collect, store, process or transmit any Personal Information and will not submit to the Services any Customer Content containing any Personal Information. Company will have no liability under this Agreement for Personal Information included within Customer Content, or any security incident or breach regarding such Personal Information, notwithstanding anything to the contrary herein.

3.3.3. Customer Content Guidelines. Customer will not use the Services with any Customer Content that contains viruses, bots, worms, scripting exploits or other similar materials; or could otherwise cause damage to Company or any third party.  

3.4. Indemnification by Customer. Customer will indemnify, defend and hold harmless Company from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any Customer Content or acts or omissions of Customer that constitute a breach by Customer of Section 3.3 (Customer Obligations) or (b) any service or product offered by Customer in connection with or related to the Services. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Company at Customer’s expense.  

4. OWNERSHIP.  

4.1. Company Technology. This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Company or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Company Technology. Except as expressly set forth in this Agreement, no rights in any Company Technology are granted to Customer. 

4.2. Feedback. Customer hereby grants Company a non-exclusive, royalty-free and fully paid-up license to use and exploit all Feedback in connection with Company’s products or services and Company may freely use the Feedback without the need to pay compensation for any use of such Feedback. 

4.3. Usage Data. Notwithstanding anything to the contrary herein, Customer agrees that Company may obtain Customer Content and technical data about Customer’s use of the Services that is non-personally identifiable with respect to any Customer or end user (“Usage Data”), and Company may use the Usage Data in any manner it deems fit to analyze, improve, market, support and operate the Services and otherwise for any legitimate business purpose during and after the term of this Agreement. For clarity, this Section 4.3 does not give Company the right to identify Customer as the source of any Usage Data.

5. SUBSCRIPTION TERM, FEES & PAYMENT
	
5.1. Subscription Term. Each Service that is provided on a subscription basis is identified as such on the SO with a specified rate and term (the “Subscription Term”). 

5.2. Fees and Payment. All fees are as set forth in the applicable SO and will be subject to the applicable payment terms set forth in the applicable SO. Except as expressly set forth anywhere in this Agreement, all fees are non-refundable. Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Company. Customer must make all payments of Fees without any setoffs, withholdings, or deduction of any kind. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.  

5.3. Suspension of Service. In addition to any of Company’s other rights or remedies (including but not limited to any termination rights), Company reserves the right to suspend Customer’s access to the Services or terminate this Agreement for any reason or no reason, including but not limited to: (i) Customer's account is overdue; (ii) Company determines that Customer has breached Section 2.3 (General Restrictions) or Section 3.3 (Customer Obligations); (iii) Company determines that suspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the Services; or (iv) Company determines that Customer operates in an undesirable industry such as the development or sale of weapons to the armed services of any country. Company will have no liability for taking action as permitted above in this section. 

6. TERM AND TERMINATION

6.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.

6.2. Termination for Cause. Either party may terminate this Agreement (including all related SOs) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days). 

6.3. Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Services and delete (or, at Company’s request, return) any and all copies of the Documentation and any other Company Confidential Information in its possession. Provided this Agreement was not terminated for Customer’s breach, Customer may retain and internally use copies of all reports exported from any Service prior to termination. Any Fees accrued but not paid shall become immediately due and payable upon Termination. 

6.4. Survival. The following Sections will survive any expiration or termination of this Agreement: 2.3 (General Restrictions), 2.4 (Trial Subscriptions), 3.2 (Storage by Company), 3.4 (Indemnification by Customer), 4 (Ownership), 5.2 (Fees and Payment), 6 (Term and Termination), 7.2 (Warranty Disclaimer), 8 (Limitation of Remedies and Damages), 9 (Confidential Information), 10 (General Terms).
  
7. LIMITED WARRANTY

7.1. Limited Warranty. Company warrants, for Customer’s benefit only, that each Service will operate in substantial conformity with the applicable Documentation or description of Service in SO. Company’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for Company to use commercially reasonable efforts to correct the reported non-conformity, or if Company determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. Company shall be entitled to bill, in such cases, for the period for which Services were utilized by Customer. The limited warranty set forth in this Section 7.1 will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services.

7.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 7.1, ALL SERVICES ARE PROVIDED “AS IS”. NEITHER COMPANY NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. COMPANY DOES NOT WARRANT THAT CUSTOMER’S USE OF ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES COMPANY WARRANT THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER CONTENT  WITHOUT LOSS. COMPANY WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF COMPANY. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

7.3. Specific Disclaimers.  TO THE EXTENT PERMITTED BY LAW, COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM (I) THE TRANSFER OF DATA OVER PUBLIC COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, OR (II) ANY DELAY OR DELIVERY FAILURE ON THE PART OF ANY OTHER SERVICE PROVIDER NOT CONTRACTED BY COMPANY, AND CUSTOMER ACKNOWLEDGES THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. CUSTOMER ACKNOWLEDGES THAT COMPANY CANNOT GUARANTEE THE ABSOLUTE PREVENTION OF CYBER-ATTACKS SUCH AS HACKING, SPYWARE, AND VIRUSES. ACCORDINGLY, COMPANY SHALL NOT BE LIABLE FOR ANY UNAUTHORIZED DISCLOSURE, LOSS OR DESTRUCTION OF CUSTOMER DATA ARISING FROM SUCH RISKS AS LONG AS SUCH RISK CANNOT BE ATTRIBUTED TO WILLFUL MISCONDUCT OR FRAUD ON COMPANY’S PART.   

8. LIMITATION OF REMEDIES AND DAMAGES

8.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES, OR THE DOCUMENTATION FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
  
8.2. Liability Cap. COMPANY’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES, THE DOCUMENTATION, OR THE COMPANY CODE AT ANY TIME WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO COMPANY DURING THE TWELVE (12) MONTHS PRIOR TO SUCH TIME UNDER THE RESPECTIVE SO.   

8.3. Excluded Claims. “Excluded Claims” means any claim arising (a) from Customer’s breach of Section 2.3 (General Restrictions); (b) under Section 3.3 (Customer Obligations) and Section 3.4 (Indemnification by Customer); or (d) from a party’s breach of its obligations in Section 9 (Confidential Information) (but excluding claims related to Customer Content).   

8.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

9. CONFIDENTIAL INFORMATION. Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical, personal and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Company Technology, performance information relating to any Service, and the terms and conditions of this Agreement will be deemed Confidential Information of Company without any marking or further designation. Customer Content will be deemed Confidential Information of Customer without the need for any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement or respective SO. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Company, its subcontractors), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 9 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 9. The Receiving Party’s confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by administrative or judicial process, applicable law, or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.  

10. GENERAL TERMS

10.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized will be null and void.

10.2. Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.  

10.3. Governing Law; Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Massachusetts and the United States without regard to conflict of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. All disputes relating to or arising out of this Agreement shall be resolved in a state or federal court located in or encompassing the city of Boston, Massachusetts, USA, and the parties hereby consent to the jurisdiction of such courts.  

10.4. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs incurred in connection with such action.  

10.5. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the SO or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand or email, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. 

10.6. Entire 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 and communications relating to the subject matter of this Agreement. 

10.7. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur that are beyond the reasonable control of such party (each, a “Force Majeure Event”), such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or data or telecommunications networks or services.

10.8. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf.

10.9. Assent, Amendment. By using the Services, you agree to be bound by the terms of this Agreement as it may be updated from time to time. This Agreement may be amended by the Company from time to time by posting of such amendment to the website located at https://account.sciagraph.com. You will be notified of such amendment by email, public announcement, or other method chosen by the Company in their complete discretion. If Customer does not wish to be bound by an amendment to this Agreement, Customer must immediately cease all use of the Services and notify Company that Customer has not consented to such amendment. Continued use of the Services shall be conclusive evidence of Customer consent. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement.