Terms and Conditions

Last Updated: September 10th, 2020

1. Governing Law
The Sales Documentation and these Terms and Conditions shall in all respects be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein. The courts of British Columbia shall have the exclusive jurisdiction to hear any matters arising in connection with the Sales Documentation or these Terms and Conditions, including all exhibits, schedules, attachments, and appendices attached thereto, and each party irrevocably submits and attorns to the exclusive jurisdiction of the courts of British Columbia. Hypekraft and Customer’s obligations under this Section shall survive the termination of the Sales Documentation and these Terms and Conditions.

2. Orders
(a) Purchase Orders cannot be cancelled by the Customer except on terms that will fully compensate Hypekraft and as expressly agreed to in writing by Hypekraft.
(b) Purchase Orders can be cancelled by Hypekraft at any time by providing written notice to the Customer if Hypekraft reasonably determines that it will be unable to provide Goods or Services to the Customer in accordance with the Customer Specifications.

3. Applicability
(a) These terms and conditions (these “Terms and Conditions”) apply to, and are hereby incorporated by reference in, all purchase orders (the “Purchase Orders”) and the like issued and accepted by Hypekraft Digital Ltd. (“Hypekraft”) and any other documentation issued and accepted by Hypekraft with respect to a Customer (the “Customer”) purchase of Goods (the “Goods”) or services (the “Services”), including, but not limited to, all sales quotations, estimates, acknowledgements, invoices and similar documents (collectively with Purchase Orders, the “Sales Documentation”).
(b) The Sales Documentation and these Terms and Conditions comprise the entire agreement between Hypekraft and the Customer and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms and Conditions prevail over any of the Customer’s general terms and conditions of purchase regardless of whether or when the Purchaser submitted its Purchase Order or such terms. The fulfilment of the Customer’s Purchase Order does not constitute acceptance of any of the Customer’s terms and conditions and does not serve to modify or amend these Terms and Conditions.

4. Amendment and Modification of Terms and Conditions
Hypekraft reserves the right, in its sole discretion, to amend or modify these Terms and Conditions and such amended or modified Terms and Conditions shall be binding on the Customer. The Customer acknowledges and agrees that it has no right to amend or modify these Terms and Conditions.

5. Alterations To Services
(a) If the Customer wishes to change the scope or performance of the Services, it shall submit details of the requested change to Hypekraft in writing. Hypekraft shall, within a reasonable time after such request, provide a written estimate to the Customer of (i) the likely time required to implement the change; (ii) any necessary variations to the fees and other charges for the Services arising from the change; (iii) the likely effect of the change on the Services; and (iv) any other impact the change might have on the performance of the Services. The Customer and Company shall agree in writing on the terms of the change in scope or performance of the Services in accordance with Section 4.
(b) Notwithstanding anything to the contrary contained in these Terms and Conditions, Hypekraft may, from time to time change the Services without the consent of the Customer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Sales Documentation.

6. Pendulum (AI Agent)
Hypekraft Digital Ltd. (Hypekraft) Owns and operates the Pendulum AI support AI Agent services, software service API, site and related services (as those terms are defined below). These terms of use apply to anyone with whom Hypekraft has executed an order form that incorporates these terms, as well as all end users who access the service on behalf of such customer.
By using the services or site in any way, you hereby agree to these terms of use and Hypekraft’s privacy policy, available at http://localhost/websites/0420_hypekraft2.website/privacy-policy/

Definitions
In this Terms of Use:
(a.1) Terms defined in the order form shall have the same meaning in this Agreement unless the context indicates otherwise.
(a.2) “Agreement” or “Terms of Use” means these Terms of Use and the Order Form.
(a.3) “Agent” means Hypekraft’s (Pendulum) proprietary conversational, artificial intelligence-powered assistant which can access End User Data and be deployed through the Channel.
(a.4) “Conversation” means a single instance of a conversation between any End User and the Agent on any channel. For the avoidance of doubt, each new or renewed conversation between any End User and the Agent on any Channel (even the same channel) shall be a separate Conversation.
(a.5) “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (i) patents and inventions; (ii) trade-marks; (iii) Internet domain names, whether or not trade-marks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website and URLs; (iv) works of authorship, expressions, designs and industrial design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (v) trade secrets; and (vi) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection under the laws of any jurisdiction in any part of the world.
(a.6) “Pattern Data” means non-personally identifiable information, data and reports derived from or compiled through the Services, including but not limited to demographics data, mobility patterns, location data and trend data such as aggregated data and statistics indicating the frequency of use and popularity of the services. For greater certainty, Pattern Data is data that does not identify a specific Customer or its End Users and is data that does not relate to a specific Customer’s business (including data relating to a specific Customer’s locations that receive the Services).
(a.7) “Site” means www.hypekraft.com and any sub-site of that site.
(a.8) “You” means Customer or End User or any other user of the Site or Services.
License
(b.1) License Grant. The Services are protected by copyright, trade secret, and other Intellectual Property Rights laws. Hypekraft grants You a limited, non-exclusive, non-transferable right and license to use the Services and Software Service API during the Term set out in any Order From submitted by Customer and accepted by Hypekraft in accordance with the terms and conditions of this Terms of Use and such Order Form. You shall not have a right to use the Services in the absence of an agreed and executed Order Form. Except for rights expressly granted to You hereunder, Hypekraft reserves all other rights, title and interest in and to the Services and the underlying technology and Intellectual Property Rights used to provide the Services. Customer acknowledges that only Hypekraft shall have the right to maintain, enhance or otherwise modify the Services and Hypekraft technology unless specific permissions are granted to Customer in a separate agreement with Hypekraft.
(b.2) Services Restriction. You shall use the Services solely as contemplated in this Terms of Use and shall not directly or indirectly license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or, save as expressly permitted by this Terms of Use, otherwise make the Services available to any third party including making the Services available through any file-sharing method or any application hosting service. You shall not, except to the extent expressly agreed upon in writing by Hypekraft with Customer:

• Modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on Hypekraft’s technology except to the extent expressly agreed upon in writing by Hypekraft with Customer or to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary;
• circumvent any user limits or other use restrictions that are built into the Services;
• remove any proprietary notices, labels, or marks from the Services or Hypekraft technology;
• access the Services in order to (i) build a competitive product or service; or (ii) copy any ideas, features, functions or graphics of the Services; or
• use the Services in a manner that:

(i). Infringes or violates the Intellectual Property Rights or any other rights of anyone else (including Hypekraft);

(ii). Violates any law or regulation, including any applicable export control laws;

(iii). Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;

(iv). Attempts, in any manner, to obtain the password, account, or other security information from any other user;

(v). Violates the security of any computer network, or cracks any passwords or security encryption codes; or

(vi). Runs any form of auto-responder or “spam” on the Services, or any processes that run or are activated while Customer are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure).

Proprietary Rights
(c.1) Reservation of Rights. All right, title and interest in and to the Services (including without limitation the Software Service API), including all Intellectual Property Rights therein are and will remain with Hypekraft and its licensors. The customer acknowledges and agrees that it has no right, license or authorization with respect to any of the Services (including any Intellectual Property Rights therein) except as expressly set forth in this Terms of Use. All other rights in and to the Services are expressly reserved by Hypekraft and its licensors.

(c.2) Hypekraft may freely use any suggestions, feedback or ideas You may provide. By providing any feedback to Hypekraft, You grant Hypekraft a perpetual, worldwide, fully transferable, sublicensable, non-revocable, royalty-free, license to use the feedback that You provide. Hypekraft may put any provided feedback in various uses that may include but not limited to modifying and improving the Services, Hypekraft’s other current and future services/products, services advertising or marketing materials without any payment or other further obligation to You.

(c.3) In the course of providing the Services to Customer during the Term, Hypekraft and the Services will develop, create and accrue additional machine learning based on the AI Agent interactions with End Users,  which will be extracted from the AI Agent on an anonymized basis only and incorporated into the Services (“Machine Learning”), provided that only generic Machine Learning, which does not identify Customer or any Customer Confidential Information may be incorporated into the Services. Without limiting the provisions of Section 5.1 above, all right, title and interest in and to the Machine Learning, including all Intellectual Property Rights therein are and will remain with Hypekraft and its licensors. The customer acknowledges and agrees that it has no right, license or authorization with respect to any of the Machine Learning (including any Intellectual Property Rights therein) except as expressly set forth in these Terms of Use. 

Limitations of Liability
(d.1) Neither party shall be responsible for any other person’s or entity’s errors, acts, omissions, failures to act, negligence or intentional conduct, including without limitation entities such as either party’s affiliates, subsidiaries, agents or subcontractors. In no event shall either party be liable for any consequential, incidental, punitive or special damages which either party or end-users, affiliates, parent companies, associates, agents, officers, directors or employees may incur or suffer in connection with this Agreement, resulting from either party’s acts or omissions pursuant to this Agreement.

7. Binding Nature of Agreement
This Terms of Use shall ensure to the benefit of and shall be binding upon the parties hereto together with their successors and permitted assigns.

8. Support
Customer is solely responsible for providing all support and technical assistance to its End Users with respect to the Services. Customer acknowledges and agrees that Hypekraft has no obligation to provide support or technical assistance directly to the End Users of Services and Customer shall not represent to any such End Users that Hypekraft is available to provide such support. Customer agrees to use commercially reasonable efforts to provide reasonable support to End Users of the Services.

9. Limitation on Amount of Liability
Hypekraft will be free of all liability to the CLient/Licensee. In addition, if Hypekraft is prevented from executing its obligations under this Agreement in whole or in part due to Force Majeure, such as acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labour disputes, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 60 days, the Customer shall be entitled to give notice in writing to Hypekraft to terminate the entire agreement between Hypekraft and the Customer.

10. Termination
In addition to any remedies that may be provided under these Terms and Conditions, Hypekraft may terminate a Purchase Order with immediate effect upon written notice to the Customer, if the Customer: (i) fails to pay any amount when due under the Purchase Order and these Terms and Conditions and such failure continues for 7 days after Customer’s receipt of written notice of non-payment; (ii) has not otherwise performed or complied with any of these Terms and Conditions, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

11. Severability
If any provision in the Sales Documentation or in these Terms and Conditions is held to be unenforceable, such provision shall be severed from the Sales Documentation or these Terms and Conditions. The other provisions of the Sales Documentation and these Terms and Conditions shall be construed as if such unenforceable provision had never been contained in it.