#### hyScore.io Service Agreement ####
Date: April 2018
This HYSCORE.IO Customer Agreement (this “Agreement”, “SA”, “Service Agreement”) contains the terms and conditions that govern your access to and use of the Service Offerings (as defined below) and is an agreement between hyScore.io GmbH (“hyScore”, “we,” “us,” or “our”) and you or the entity you represent (“Customer”, “Partner”, “you” or “your”). This Agreement takes effect when you click an “I Accept” button or checkbox presented with these terms or, if earlier when you use any of the Service Offerings (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have the legal authority to bind that entity. Please see Section 14 for definitions of certain capitalized terms used in this Agreement.
1. USE OF THE SERVICE
1.1 Generally. You may access and use the Service in accordance with this Agreement. Service Level Agreements and Service Terms apply to the Service. You will comply with the terms of this Agreement and all laws, rules, and regulations applicable to your use of the Service.
1.2 Your Account. To access the Services, you must have an hyScore or AWS account associated with a valid email address and a valid form of payment. Unless explicitly permitted by the Service Terms, you will only create one account per email address.
1.3 Third-Party Content. Third-Party Content may be used by you at your election. Third-Party Content is governed by this Agreement and, if applicable, separate terms and conditions accompanying such Third-Party Content, which terms and conditions may include separate fees and charges.
2.1 To the Service. We may change or discontinue any or all of the Service Offerings or change or remove functionality of any or all of the Service Offerings from time to time. We will notify you of any material change to or discontinuation of the Service Offerings.
2.2 To the APIs. We may change or discontinue any APIs for the Services from time to time. For any discontinuation of or material change to an API for a Service, we will use commercially reasonable efforts to continue supporting the previous version of such API for 12 months after the change or discontinuation (except if doing so (a) would pose a security or intellectual property issue, (b) is economically or technically burdensome, or (c) would cause us to violate the law or requests of governmental entities).
2.3 To the Service Level Agreements. We may change, discontinue or add Service Level Agreements from time to time in accordance with Section 12.
3.1 The definitions and rules of interpretation set out in this clause 3 shall apply in this SA.
“Confidential Information” means the terms of this SA and in an individual Service Agreement and all information, data and/or any other confidential information concerning the other parties business and/or services that it has received or obtained or may receive or obtain from the other party.
“Data” means all contextual or ambient data provided by hyScore to the Customer pursuant to a Service Agreement.
“Intellectual Property Rights” means all intellectual property rights including patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Customer’s Customers” means of any the Customer’s customers who make use of the Services through the Customer’s platform.
“Services” means the provision of the contextual and ambient data services set out in the Service Agreement.
“Service Agreement” means the legally binding agreement made between hyScore and the Customer pursuant to this SA for the provision of Services.
3.2 Clause headings shall not affect the interpretation of this SA.
3.3 Where the words “include(s)” or “including” are used in this SA, they are deemed to have the words “without limitation” following them, and are illustrative and shall not limit the sense of the words preceding them.
4. NATURE OF AGREEMENT
4.1 This SA shall apply to all Services provided to the Customer during the term of this SA.
4.2 Each Service Agreement shall be a separate contract between hyScore and the Service Provider but shall incorporate the terms and conditions of this SA save to the extent these terms and conditions are varied in the relevant Service Agreement. Any variation to this SA that is set out in an individual Service Agreement shall only apply to that Service Agreement and shall not apply to any other Service Agreement unless otherwise stated.
4.3 In the event of any conflict between the provisions of this SA and the provisions of an individual Service Agreement, the provisions of the Individual Service Agreement shall prevail.
4.4 hyScore shall provide the Services on a non-exclusive basis and nothing in this SA or any individual Service Agreement shall prevent hyScore from contracting with any other business or individual in relation to services which are similar or identical to the Services.
5.1 This SA shall commence on the Effective Date and shall continue in full force and effect until terminated in accordance with clause 13.
6.1 Following the execution of a Service Agreement, hyScore shall provide the Services with reasonable care and skill and in accordance with the terms of the relevant Service Agreement.
6.2 hyScore will provide a keyword contextualization and categorization service as an API service which can be used by the Customer and/or Customer’s Customers (“Customers”) for multiple purposes and use cases, such as Contextual Analysis, Enrichment of User Profile(s), Personalization, Recommendation, Target Group Segmenting, Tagging or any other use case.
6.3 hyScore grants to the Customer a non-exclusive, non-transferable right to use the Services, and make use of the Data, provided by hyScore pursuant to the Services in relation to the promotion of the Customer’s goods and/or services, and to permit the Customer’s Customers to use the Services, and make use of the Data, provided by hyScore pursuant to the Services in relation to the promotion of the Customer’s Customers’ goods and/or services (subject to the terms of this Service Agreement).
6.4 Subject to clauses 6.5, 6.6 and unless otherwise stated in a Service Agreement, the Customer shall not, and shall ensure that the Customers’ Customers do not:
6.4.1 reproduce, modify, adapt, merge, translate, disassemble, decompile, recompile or reverse engineer all or any part of any software or Data provided as part of the Services and/or any information or documentation which has been provided by hyScore; or
6.4.2 create derivative works based on the whole of or any part of any software and/or Data provided as part of the Services and/or any information or documentation which has been provided by hyScore.
6.5 The information necessary to achieve interoperability of any software provided as part of the Services with other computer software programs is available from hyScore on request.
6.6 The Customer has the right to make backup copies of any software provided as part of the Services to the extent such copies are reasonably necessary for the Customer’s own operational security and use within the scope of this Service Agreement.
6.7 Where agreed under the Service Agreement, hyScore shall provide support services in relation to the Services in accordance with the terms of the Service Agreement.
6.8 Default Service includes:
6.8.1 Access to the latest Contextual API Endpoint (api.hyscore.io/)
6.8.2 Default 24/7 Monitoring.
6.8.3 Support via email in between normal office hours.
6.8.4 API Usage Report (daily/weekly/monthly)
7. COSTUMER OBLIGATIONS
7.1 The Customer acknowledges and agrees that in order for hyScore to provide the Services, the Customer and, if applicable, the Customer’s Customers may need to provide third party data to hyScore. The Customer represents and warrants to hyScore that it has obtained all approvals and consents necessary in order to provide hyScore with such data in relation to the provision of the Services and where necessary the Customer shall ensure that the Customer’s Customers have obtained all approvals and consents necessary when providing third party data to hyScore.
7.2 The Customer shall not, and shall ensure that the Customer’s Customers do not, do anything which may disrupt, interfere or restrict the use of the Services, or any similar services, provided by hyScore to other users and shall not do anything or cause anything to be done which may introduce viruses, worms or any other harmful and disruptive material which may affect the Services.
7.3 Where any unique user identification and password is created to allow the Customer, or the Customer’s Customers, to obtain access to a user account as part of the Services (“Log-in Details”), the Customer shall keep the Log-in Details confidential and not disclose them to any person or party other than the Customer’s Customers who, in each case, are informed of the confidential nature of the Log-in Details. The Customer shall notify hyScore promptly if any Log-in Details are disclosed to any person or party other than the Customer’s Customers and/or if it becomes aware of anything that may compromise the security and/or operation of the Log-in Details and/or the Services.
7.4 The Customer shall indemnify, defend and hold hyScore, its officers, directors, managers, employees and agents harmless from and against any claims, liability and costs incurred by hyScore to the extent that such claims, liability or costs result or arise from the Customer’s breach of this clause 7.
7.5 The Customer shall permit hyScoret to inspect all records necessary to verify that the reports provided accurately show Customer’s usage and, if applicable, the Customer’s Customer usage of the provided Data.
8.1 Unless otherwise stated in this Service Agreement, the Customer shall pay hyScore all amounts due under the relevant Service Agreement in accordance with hyScore’s standard rate of fees from time to time in force.
8.2 hyScore shall be entitled to increase the Charges at any time and for any reason upon giving the Customer at least three months’ prior written notice via email.
8.3 Unless otherwise stated in an individual Service Agreement, hyScore shall provide monthly invoices to the Customer in respect of the Charges which shall be paid within 14 days of the date of invoice.
8.4 Unless otherwise stated in an individual Service Agreement, all amounts payable under this Service Agreement shall be payable in EURO (EUR, €) and shall be exclusive of value added tax or any other taxes, tariffs or rates.
8.5 All amounts shall be payable by the Customer to hyScore in full without any right to set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8.6 If the Customer fails to make any payment due to hyScore, in whole or in part, under this Service Agreement or an individual SA, the Customer shall pay interest on the overdue amounts at the rate of 4% above the official bank rate set by The European Central Bank (ECB/EZB) from time to time accruing on a daily basis until payment is made in full. Any fees incurred by or on behalf of hyScore as a result or arising from the collection of any outstanding amounts shall be payable in full by the Customer.
8.7 Notwithstanding any other provision of this SA, or an individual Service Agreement, hyScore’s obligations to provide the Services are conditional upon the Customer’s fulfillment of its payment obligations outlined in this clause 8, or as otherwise stated in this Service Agreement. Should the Customer fail to comply with its obligations outlined in this clause 8, or as set out in an individual Service Agreement, hyScore reserves the right to suspend the Services forthwith.
8.8 The Customer shall reimburse hyScore for all reasonable and properly incurred expenses and travel costs arising as a result of the provision of the Services.
8.9 The number of Monthly API Calls used for the purpose of determining the appropriate Monthly Contextual API Fee shall be taken from hyScore’s internal system records.
8.10 For the avoidance of doubt, the monthly Contextual API Fee terms only apply for when the hyScore’s Contextual API Service is used on the Partner’s / Customer’s platform, website or system. Any other usage of the Data provided via the hyScore’s API Services shall be subject to a separate service agreement.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 The Customer acknowledges and agree that all Intellectual Property Rights in the Services and any Intellectual Property Rights arising as a result of the Services (including any modifications, updates and enhancements of the Services whether or not such modifications, updates, and enhancements to the Services have been made by the Customer or hyScore) shall be owned by hyScore absolutely and shall only be licensed to the Customer in accordance with clause 4 or as otherwise set forth in the relevant Service Agreement. The Customer shall have no rights in or to the Services other than the right to use the Services in accordance with the terms of this SA and the relevant Service Agreement.
9.2 The Customer acknowledges and agrees that hyScore shall be entitled to use the Customer’s name and logo for promotional and marketing purposes.
10.1 Except as expressly and specifically provided in this MSA, all warranties and representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted, excluded from this SA and each individual Service Agreement.
10.2 hyScore shall use reasonable endeavours to ensure that any data provided to the Customer and/or any of the Customer’s Customers in the performance of the Services is accurate but the Customer agrees and acknowledges that the provision of the Services and any subsequent data is dependent on the data provided by the Customer or the Customer’s Customers. hyScore shall not be responsible for any results, decisions or analyses carried out by the Customer or any of the Customer’s Customers as a result of the Services and shall not be liable for any loss or damage whatsoever arising directly or indirectly from such decisions or the use of such results and analysis by the Customer and/or the Customer’s Customers.
10.3 The Customer acknowledges and agrees that hyScore is reliant on the internet in order to provide the Services to the Customer and as such cannot guarantee that the Services will always be available, uninterrupted or error free.
11. LIMITATION AND EXCLUSION OF LIABILITY
11.1 Subject to clause 9.3, hyScore excludes all liability, whether in tort (including negligence or breach of statutory duty) contract, misrepresentation restitution or otherwise for any direct, indirect, special or consequential loss, costs, damages, charges or expenses, loss of profits, loss of business, depletion of goodwill and/or any similar losses or loss of corruption of data or information, or pure economic loss, howsoever arising under this SA and/or any Service Agreement.
11.2 Subject to clauses 9.1 and 9.3, hyScore’s maximum liability, whether in contract, tort (including negligence), for breach of statutory duty or otherwise:
11.2.1 in respect of any one claim or series of linked claims under any Service Agreement shall not, in the aggregate, exceed the greater of (a) € 1,000 or (b) the fees paid in full by the Customer to hyScore pursuant to the relevant Service Agreement in the 12 months prior to the event giving rise to the relevant claim; and
11.2.2 in respect of any one claim or series of linked claims under this SA shall not exceed € 10,000.
11.3 Nothing in this SA or any Service Agreement shall limit or exclude hyScore’s liability for:
11.3.1 death or personal injury caused by hyScore’s negligence; or
11.3.2 fraud or fraudulent misrepresentation.
11.4 This clause 9 shall survive the termination or expiry of this SA.
12.1 Subject to clause 10.2 and except as expressly provided herein, both parties agree to keep confidential the Confidential Information. The parties shall only be permitted to use the Confidential Information for the purpose of implementing the arrangements contemplated in this SA or the relevant Service Agreement and shall not disclose Confidential Information to any third party.
12.2 The restrictions contained in this clause shall not apply to information which:
12.2.1 has come into the public domain other than by breach of this clause or any other duty of confidence;
12.2.2 is required to be disclosed pursuant to a juridical or other lawful government order but only to the extent required by such an order and subject to the party obliged to comply with such an order giving the other party reasonable notice of the terms of the order; or
12.2.3 at the time of disclosure was already known by the party to whom such information was disclosed without breach of this clause 10 or any other duty of confidentiality.
12.3 This clause 10 shall survive the termination or expiry of this SA.
13.1 Either party shall be entitled to terminate this SA and/or any Service Agreement with immediate effect by giving notice to the other party in writing in the event that:
13.1.1 the other party commits a material breach of its obligations herein and fails to remedy such breach (if capable of remedy) within 30 days of a written request to remedy the same; or
13.1.2 the other party is unable to pay its debts within the meaning of the Insolvency Act (EU) 2015/848 and/or ceases to carry on business.
13.2 Notwithstanding clause 11.1, each party shall be entitled to terminate this SA and/or any Service Agreement by providing the other party with at least one month prior written notice.
13.3 Unless the parties agree otherwise in writing, termination or expiry of this SA shall result in the automatic termination of any Service Agreement in force at that time and all rights granted to the Customer shall immediately cease and the Customer shall no longer be permitted to make use of the Services.
13.4 The termination or expiry of this SA or any Service Agreement shall not affect or prejudice the accrued rights of the parties as at such termination or expiry, or the continuation of any provision expressly stated to survive or implicitly surviving, such termination or expiry.
14. GENERAL PROVISIONS
14.1 hyScore shall not be in breach of this SA or any Service Agreement nor will it be liable for any delay in performing or failure to perform the Services if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances, hyScore shall be entitled to a reasonable extension of time for performing such obligations. If the period of delay or non-performance continues for a period of 3 months or more, either party shall be entitled to terminate this SA or the relevant Service Agreement by giving to the other party 14 days’ prior written notice.
14.2 This SA and the relevant Service Agreement constitute the entire agreement between hyScore and the Customer relating to the relevant Services and supersede and extinguish all previous written or oral agreements, representations, and understandings relating to such Services.
14.3 hyScore reserves the right to revise the terms of this SA at any time and for any reasons by notifying the Customer by email. The Customer’s continued use of the Services after receipt of such notice shall be deemed to constitute acceptance of any revised terms.
14.4 The Customer shall not be permitted, without first obtaining hyScore’s prior written consent, to assign or transfer any or all of its rights and obligations under this SA or an individual Service Agreement. hyScore may assign or transfer its rights and obligations under this SA or an individual Service Agreement, to any subsidiary, holding company or to any member of its group of companies or to a buyer of all or materially all of hyScore’s assets.
14.5 Each party represents and warrants that it has the right and full power and authority to enter into this SA and any subsequent Service Agreement.
14.6 Except where otherwise stated, any notice to be given under this SA or any Service Agreement shall be in writing and shall be delivered by hand or sent by first class post to the address of the other party set out in this SA (or such other address as may have been notified). Any such notice or other documents shall be deemed to have been served: if delivered by hand – at the time of delivery; and if sent by post – upon the expiration of 48 hours after posting.
14.7 This SA, each Service Agreement and any dispute or claim arising out of or in connection with it or them or its or their subject matter or formation (including non-contractual disputes or claims) (each a “Claim”) shall be governed by and construed in accordance with the laws of Germany and the courts of Berlin, Germany shall have the exclusive jurisdiction to settle any Claim.