Terms and Conditions



    1. “Software Applications” means the specific machine readable, object code modules as indicated in the Order, any updates derivatives, modifications, revisions and all permitted copies thereof for which Customer has a license to use or that may be supplied by Company or otherwise made available to Customer in accordance with the terms of this Agreement. The Software Applications will be available for use by Customer, subject to any restrictions or limitations described in the Order, in a Software-as-a-Service fashion.
    2. The Software Applications licensed under this Agreement to Customer are designated on Page 1 of the Order form and includes some or all of the following modules: Hypersonix Analytics Platform
    1. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services [in accordance with the Service Level Terms attached hereto as Exhibit B]. As part of the registration process, Customer will identify an administrative username and password for Customer’s Company account. Company reserves the right to refuse registration of or cancel passwords it deems inappropriate.
    2. Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit C.
    1. Customer will not, directly or indirectly: reverse engineer, 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 Company 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; or remove any proprietary notices or labels.
    2. With respect to any Software that is distributed or provided to Customer for their own internal use on the Customer Premises or devices; or for the use of their Shoppers on their premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
    3. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. [Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services.] Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
    4. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
    1. Each party (the “Receiving Party”) understands 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 Company includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). 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 person any such Proprietary Information. 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 (a) is or becomes generally available to the public, or (b) was in its possession or known by its prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
    2. Customer shall own all right, title, and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
    3. Notwithstanding anything to the contrary, Company shall have the right 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 Customer Data and data derived therefrom), and Company will be free (during 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 Company 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.
    1. Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or thencurrent renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
    2. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
    1. This Agreement is for the Initial Service Term as specified in the Order Form with an automatic renewal, unless cancellation from the customer is provided 30 days prior to the service term end date.
    1. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
    1. Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
    1. If any provision of this Agreement is found to be unenforceable, such provision shall be deemed to be deleted or narrowly construed to such extent as is necessary to make it enforceable, and this Agreement shall otherwise remain in full force and effect.
    1. Except for actions for non-payment or for breach of intellectual proprietary rights, no action relating to this Agreement may be brought later than one (1) year after the cause of action became known to the injured Party.
    1. All notices required or permitted under this Agreement and all requests for approvals, consents, and waivers, must be delivered by a method providing for proof of delivery. A confirmed facsimile transmission shall be deemed to provide proof of delivery.
    1. Company shall maintain, for the term hereof worker’s compensation coverage, as applicable, Comprehensive General Liability insurance on an occurrence basis, with liability limits of at least $1,000,000 (U.S.), combined single limit, Professional Liability Coverage of at least Five Million Dollars ($5,000,000) (which includes cyber liability coverage of at least $5,000,000); and umbrella liability coverage of at least Five Million Dollars ($5,000,000). If Customer so requests, Company shall send Customer a copy of a certificate evidencing insurance coverage.
    1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. 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 a 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 Customer does not have any authority of any kind to bind Company 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. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.

EXHIBIT A – Professional Services

  1. SERVICES – Customer may elect to obtain from Company optional professional services relating to the installation, implementation, and use of the Company’s Software including, but not limited to, user training and data conversion, pursuant to an Order, and subject to Customer’s payment of the Professional Services Fees as set forth in the Order (“Professional Services”). Unless otherwise specified in an Order, Customer shall be responsible for the installation and implementation of the Company’s Software Applications, user training, data conversion, and other services necessary for installing, implementing, and using the Software Applications. Customer may elect to engage Company to perform installation, user training and other services at Company’s prevailing service rates and upon the terms contained within the Order.
    1. Subject to Customer’s payment of the Professional Services Fees set forth in the Order, Company shall provide the Professional Services to Customer as agreed to by the Parties in one or more Order. If the Professional Service Fees are not paid as and when provided, Company may suspend or terminate performance of Professional Services and withhold any remaining work product or Deliverable.
    2. All right, title, and interest in and to any Deliverables and any part thereof, including (but not limited to) all copyrights, patents, mask work, trademarks, trade names, trade secrets and/or any other intellectual property rights therein, are and shall remain the sole and exclusive property of Company (or its suppliers). Customer is granted no title or ownership rights in or to the Software or the Deliverables.
    3. Without derogating from the above, Company (on behalf of itself and its suppliers), reserves all proprietary rights in and to (i) all designs, engineering details and other data pertaining to the Software and/or any Deliverable, (iii) all source code versions of the Software and related source code materials (iii) all original works, computer programs, discoveries, inventions, patents, know-how, and techniques arising out of work done wholly or in part by Company or its contractors, and (iv) any and all products developed as a result of such work.
    4. The Deliverables are licensed to Customer under the terms and conditions of the Agreement, which shall apply thereto. The Customer may use the Deliverables only in accordance with and subject to the terms and conditions of the Agreement. “Deliverable” means any work product and/or deliverable (including, without limitation, any designs, discoveries, inventions, know-how, techniques embodied therein) and the related Documentation, being the output of Services provided by Company to Customer, including, without limitation, any modifications, fixes, patches, workarounds, enhancements, or derivative works of the Company’s Software Application.
    5. Notwithstanding any other provision of this Agreement, Company shall be free to use any concepts, techniques and know-how used and developed in the course of any engagement and to continue to perform services similar to the Professional Services, including services to develop deliverables similar to the Deliverables, and including services rendered by personnel who have provided Professional Services to Customer, for other customers.
    6. Customer shall reimburse reasonable and actual travel expenses which may incurred during the rendering of Professional Services. These expenses will be invoiced monthly and are due upon receipt.

EXHIBIT B – Service Level Terms

  • The Services shall be available 99.9%, measured monthly, excluding scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third-party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation.

EXHIBIT C – Product Support

Company shall provide Support Services to Customer to enable the Software Applications to perform in all material respects in accordance with the Documentation. Customer shall report to Company any known errors, malfunctions, or defects that caused the applicable the Software Application to fail to perform any material functions as set forth in the Documentation. Support Services shall be limited to Company’s commercially reasonable efforts to correct the error, malfunction, or defect.

Company will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours of 5:00 am through 5:00 pm U.S. Pacific Time, with the exclusion of United States Federal Holidays (“Support Hours”).

Only individuals trained on the operation of the Software Applications shall have access to the Company’s Help Line for problem resolution. In no event will Company be responsible for providing support directly to Customer’s end users.

When Customer Requests Product Support, Company will assign the criticality of the service request as defined below and will use reasonable efforts to respond within these target response times:

Severity 1 (Critical Problems) – Severe Business Disruption

  • · If the Software is not operational or operating with severe adverse effects that are critically impacting operations, then Company shall have the following objectives: (i) within 60 minutes of being contacted by Customer’s Help Desk, a Company Support Analyst will communicate with Customer’s contact that has been identified to review the reported issue and (ii) a 8-hour Recovery Time Objective

Severity 2 (Serious Problems) – Major Business Disruption

  • If the Software Application(s) are operating with a loss of major functionality based on the intended design resulting in adverse effects that are restricting operations and without attention to the situation, customer could be further negatively impacted and the Severity level will be escalated to a Severity 1 condition, then Company shall have the following objectives: (i) within 60 minutes of being contacted by Customer’s Help Desk, a Support Analyst will communicate with Customer’s contact that has been identified to review the reported issue and (ii) a 24 hour Recovery Time Objective.

Severity 3 (Important Problems) – Minimal Business Disruption

  • If the Software Application(s) are operating with a loss of functionality, problem, defect or malfunction based on the intended design, but a workaround can be identified resulting in minor operational changes and no business disruption then Company shall have the following objectives: (i) within 60 minutes of being contacted by Customer’s Help Desk, a Support Analyst will communicate with Customer’s contact that has been identified to review the reported issue and (ii) a 72 hour Recovery Time Objective.

Severity 4 (Minor Problems) – No Business Disruption

  • If the Software Application(s) are operating are operating with a loss of functionality, problem, defect or malfunction based on the intended design required for future business operations, but a workaround can be identified resulting in minor operational changes and no business disruption, then Company shall have the following objectives: (i) within 60 minutes of being contacted by Customer’s Help Desk, a Support Analyst will communicate with Customer’s contact that has been identified to review the reported issue and (ii) a mutually agreed Recovery Time Objective

Recovery Time Objective shall mean the time it takes once all relevant information has been provided to the Company Support Analyst along with capturing and pulling any supporting data from the site and the time for Company to deliver an acceptable workaround or fix. Recovery time begins once the customer has conveyed the relevant information to the Support Analyst and all necessary data retrieval has been completed.

EXHIBIT D – Data Security Addendum

  1. Definitions
    1. Capitalized terms used herein shall have the meanings set forth in Section I.
    2. “Authorized Employees” means Company’s employees who have a need to know or otherwise access Personal Information to enable Company to perform its obligations under this Agreement.
    3. “Authorized Employees” means Company’s employees who have a need to know or otherwise access Personal Information to enable Company to perform its obligations under this Agreement.“Authorized Persons” means (i) Authorized Employees; and (ii) Company’s contractors, agents, outsourcers, and auditors who have a need to know or otherwise access Personal Information to enable Company to perform its obligations under this Agreement, and who are bound in writing by confidentiality obligations sufficient to protect Personal Information in accordance with the terms and conditions of this Agreement.
    4. “Highly-Sensitive Personal Information” means an (i) individual’s government-issued identification number (including social security number, driver’s license number or state-issued identified number); (ii) financial account number, credit card number, debit card number, credit report information, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account; or (iii) biometric or health data.
    5. “Personal Information” means information provided to Company by or at the direction of Customer, or to which access was provided to Company by or at the direction of Customer, in the course of Company’s performance under this Agreement that: (i) identifies or can be used to identify an individual (including, without limitation, names, signatures, addresses, telephone numbers, e-mail addresses and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, financial account numbers, credit report information, biometric or health data, answers to security questions and other personal identifiers, including those defined by state or federal privacy laws), in case of both subclauses (i) and (ii), including, without limitation, all Highly-Sensitive Personal Information. Customer’s business contact information is not by itself deemed to be Personal Information. Personal Information shall also include Customer Data as defined in the Subscription Services Agreement.
    6. “Security Breach” means (i) any act or omission that materially compromises either the security, confidentiality, or integrity of Personal Information or the physical, technical, administrative, or organizational safeguards put in place by Company that relate to the protection of the security, confidentiality or integrity of Personal Information, or a breach or alleged breach of this Agreement relating to such privacy practices.
  2. Standard of Care
    1. Company acknowledges and agrees that, in the course of its engagement by Customer, Company may receive or have access to Personal Information. Company shall comply with the terms and conditions set forth in this Agreement in its collection, receipt, transmission, storage, disposal, use and disclosure of such Personal Information and be responsible for the unauthorized collection, receipt, transmission, access, storage, disposal, use and disclosure of Personal Information under its control or in its possession by all Authorized Employees/Authorized Persons. Company shall be responsible for, and remain liable to, Customer for the actions and omissions of all Authorized Persons that are not Authorized Employees concerning the treatment of Personal Information as if they were Company’s own actions.
    2. Personal Information is deemed to be Confidential Information of Customer and is not Confidential Information of Company.
    3. In recognition of the foregoing, Company agrees and covenants that it shall :
    4. use and disclose Personal Information solely and exclusively for the purposes for which the Personal Information, or access to it, is provided pursuant to the terms and conditions of this Agreement, and not use, sell, rent, transfer, distribute, or otherwise disclose or make available Personal Information for Company’s own purposes or for the benefit of anyone other than Customer, in each case, without Customer’s prior written consent; and not, directly, or indirectly, disclose Personal Information to any person other than its Authorized Employees and Authorized Persons, including but not limited to any subcontractors, agents, outsourcers, or auditors without written Customer consent.
    5. keep and maintain all Personal Information in strict confidence, avoiding unauthorized access, use or disclosure.
  3. Information Security
    1. Company represents and warrants that its collection, access, use, storage, disposal, and disclosure of Personal Information does and will comply with all applicable federal and state privacy and data protection laws, as well as all other applicable regulations and directives
    2. Company shall implement administrative, physical, and technical safeguards to protect Personal Information that are no less rigorous than accepted industry practices and shall ensure that all such safeguards, including the manner in which Personal Information is collected, accessed, used, stored, processed, disposed of, and disclosed, comply with applicable data protection and privacy laws, as well as the terms and conditions of this Agreement
    3. At a minimum, Company’s safeguards for the protection of Personal Information shall include: (i) limiting access of Personal Information to Authorized Employees/Authorized Persons; (ii) securing business facilities, data centers, paper files, servers, back-up systems and computing equipment, including, but not limited to, all mobile devices and other equipment with information storage capability; (iii) implementing network, device application, database and platform security; (iv) securing information transmission, storage and disposal; (v) implementing authentication and access controls within media, applications, operating systems and equipment; (vi) encrypting Highly-Sensitive Personal Information stored on any mobile media; (vii) encrypting Highly-Sensitive Personal Information transmitted over public or wireless networks; (viii) strictly segregating Personal Information from information of Company or its other customers so that Personal Information is not commingled with any other types of information; (ix) implementing appropriate personnel security and integrity procedures and practices, including, but not limited to, conducting background checks consistent with applicable law; and (x) providing appropriate privacy and information security training to Company’s employees.
  4. Security Breach Procedures
    1. Company shall notify Customer of a Security Breach no later than 24 hours after Company becomes aware of it.
    2. Company shall use best efforts to immediately remedy any Security Breach and prevent any further Security Breach at Company’s expense in accordance with applicable privacy rights, laws, regulations, and standards. Company shall reimburse Customer for actual costs incurred by Customer in responding to, and mitigating damages caused by, any Security Breach, including all costs of notice and/or remediation.
    3. Company agrees to fully cooperate at its own expense with Customer in any litigation or other formal action deemed necessary by Customer to protect its rights relating to the use, disclosure, protection, and maintenance of Personal Information
    4. In the event of any Security Breach, Company shall promptly use its best efforts to prevent a recurrence of any such Security Breach.
  5. Return or Destruction of Personal Information
    1. At any time during the term of this Agreement at the Customer’s request or upon the termination or expiration of this Agreement for any reason, Company shall, and shall instruct all Authorized Persons to, promptly return to the Customer all copies, whether in written, electronic or other form or media, of Personal Information in its possession or the possession of such Authorized Persons, or securely dispose of all such copies, and certify in writing to the Customer that such Personal Information has been returned to Customer or disposed of securely. Company shall comply with all directions provided by Customer with respect to the return or disposal of Personal Information.
  6. SOC Report
    1. Upon Customer’s request, Company shall provide Customer with a then-current SOC II audit report (“SOC Report”) for Company’s data center or any data center used by Company at which Customer data is stored or may be stored. In the event that Company procures data center services from a third party to fulfill its obligations herein, the Company shall provide that third party’s SOC Report.

Additional Terms

  1. Marketing Commitments.
    1. With Customer’s advance approval, Hypersonix may use and display Customer’s logo on its website and in marketing materials.
    2. Upon Hypersonix’s reasonable request, Customer agrees to participate in a case study or relating to Customer’s use of the Subscription Services, which may be published on Hypersonix’s website or other marketing collateral and circulated to the general public. Such case study participation will require minimal time from Customer.
    3. Upon Hypersonix’s reasonable request, Customer will provide a quote and/or testimonial to be used by Hypersonix in its marketing materials.

Still learning about ProfitGPT for Retailers and eCommerce? Get Profit Perspectives delivered to your inbox every week!