TERMS AND CONDITIONS OF HYPOTHESIS SERVICES

1. DEFINITIONS. 

Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.

1.1 “Authorized User” means any individual who is an employee, contractor, or student of Subscriber and is authorized by Subscriber to access the Services pursuant to Subscriber’s rights under this Agreement.

1.2 “Confidential Information” means all proprietary or confidential information relating to a Disclosing Party that is disclosed or otherwise supplied in confidence to the Receiving Party under this Agreement.  Confidential Information does not include any information that the Receiving Party can establish:  (a) was known to the Receiving Party prior to receiving the same from the Disclosing Party, free of any restrictions; (b) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; (c) is acquired by the Receiving Party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the Receiving Party.

1.3 “Confidential Student Information” means information provided by Subscriber that personally identifies a student who is enrolled or was previously enrolled at the Subscriber’s institution.  

1.4 “Directory Information” means the following Confidential Student Information:  student’s name, student’s ID number, student’s school email address, enrollment status, dates of attendance, and any other information that is considered directory information under the Subscriber’s “Directory Information Policy.” 

1.5 “Documentation” means the technical materials provided by Hypothesis to Subscriber in hard copy or electronic form describing the use and operation of the Services.

1.6 Error” means a reproducible failure of the Services (i.e., and not of a user) to conform to the Documentation in a material respect.

1.7 “Error Corrections” means bug fixes or workarounds intended to correct Errors in the Services.

1.8 “Services” means the hosting of the Hypothesis annotation service on behalf of Subscriber, following the standard Hypothesis product Service Level Agreement described at https://web.hypothes.is/sla/, along with any additional services ordered by Subscriber through an Order Form.

1.9 “Subscriber Content” means any content and information submitted via or in connection with the Service by on behalf of Subscriber, an Authorized User or any other end user of the Services.

1.10 “Supported Environment” means the minimum hardware, software, and connectivity configuration specified from time to time by Hypothesis as required for use of the Services.  The Hypothesis LMS app functions within a modern web browsing environment: A version of Chrome, Firefox, Safari or Microsoft Edge released within the last 12 months.

2. PROVISION OF SERVICES

2.1 Access.  Subject to Subscriber’s payment of the Fees and compliance with the terms of this Agreement, Hypothesis will provide Subscriber with access to the Services.

2.2 Support Services. Hypothesis will provide Subscriber with the support services described at https://web.hypothes.is/sla/. 

3. INTELLECTUAL PROPERTY

3.1 License Grant.  Subject to the terms and conditions of this Agreement, Hypothesis grants to Subscriber a non-exclusive, non-sublicensable, non-transferable license during the Term, solely for Subscriber’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form, to access and use the Services in accordance with the Documentation.  

3.2 Restrictions.  Subscriber agrees that it will not, nor will Subscriber allow any other party to, (a) modify or create derivatives of the Services; or (b) sublicense, lease, rent, loan, distribute, transfer or otherwise allow the use of the Services for the benefit of any third party (other than Subscriber’s Authorized Users hereunder).

3.3 Ownership.  Except for the licenses granted by Hypothesis under this Agreement, Hypothesis owns all right, title and interest (including, but not limited to, all copyright, patent, trademark and trade secret rights) in and to the Services. 

4. FEES. 

Subscriber shall pay Hypothesis the fees set forth in the Order Form (the “Fees”). Hypothesis shall invoice Subscriber for such Fees on the schedule set forth on the Order Form and the amounts set forth in such invoices shall be due from Subscriber within ten (10) days’ of receipt.  All taxes and other governmental charges (except for income taxes), if any, imposed on Subscriber payments hereunder shall be deemed to be in addition to the Fees charged, and borne solely by Subscriber.  

5. SUBSCRIBER CONTENT AND RESPONSIBILITIES

5.1 License; Ownership.  Subscriber hereby grants Hypothesis a non-exclusive, worldwide, royalty-free, fully-paid and transferable license (a) to use the Subscriber Content as necessary for purposes of providing the Services; and (b) to use Subscriber’s trademarks, service marks, and logos as required to provide the Services.  As between the parties, Subscriber owns all right, title and interest in the Subscriber Content. Subscriber retains the right, at its sole discretion, to review and approve any and all materials that use the name, trademarks, service marks, and/or logos of Subscriber; therefore Hypothesis agrees to present such materials to Subscriber prior to their distribution or publication, if requested by Subscriber. 

5.2 Subscriber Warranties.  Subscriber represents and warrants that (a) prior to using the Services in connection with any individual end user, Subscriber shall have obtained the consent of such end user to contact such end user via the Services in such form as required to comply with applicable law; (b) that its use of the Services will comply with all applicable law; and (c) the Subscriber Content shall not: (i) infringe any copyright, trademark, or patent right; (ii) misappropriate any trade secret; (iii) be deceptive, libelous, obscene, pornographic or unlawful; (iv) contain any viruses, worms or other malicious computer programming codes that may damage Hypothesis’ system or data; or (v) otherwise violate any privacy or other right of any third party.  

5.3 Authorized User Access.  Subscriber may permit any Authorized Users to access and use the features and functions of the Services as contemplated by this Agreement.   User IDs cannot be shared or used by more than one Authorized User at a time.  Subscriber is solely responsible for maintaining the confidentiality of all User IDs, passwords, and other access protocols – and Hypothesis will not be liable for any activities undertaken by any third party using the foregoing (except third parties acting through Hypothesis).  Subscriber will immediately notify Hypothesis of any unauthorized use of its User IDs, passwords, or other access protocols  – or any other breach of security relating to the Services known to Subscriber.

6. WARRANTIES AND DISCLAIMERS

6.1 Warranties.  Hypothesis represents and warrants to Subscriber that (i) the Services will operate free from material Errors during the Term, (ii) the Services will comply with all laws, and (iii) the Services will be provided in a professional manner.  With respect to any breach of Section 6.1(i), provided that Subscriber notifies Hypothesis in writing of any breach of the foregoing warranty during the Term, Hypothesis shall, as Subscriber’s sole and exclusive remedy, provide the support described at https://web.hypothes.is/sla/. 

6.2 Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1, THE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS,” AND HYPOTHESIS HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.  SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.

7. Limitation of Liability.

EXCLUDING HYPOTHESIS’ INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN IN RESPECT OF THIRD-PARTY CLAIMS, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS PERFORMANCE HEREUNDER, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND (B) IN NO EVENT SHALL EITHER PARTY’S LIABILITY UNDER THIS AGREEMENT EXCEED, IN THE AGGREGATE, THE AMOUNT PAID BY SUBSCRIBER IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE ACT OR OMISSION GIVING RISE TO SUCH CLAIM.  SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO SUBSCRIBER.

8. CONFIDENTIALITY; PRIVACY

8.1 Confidentiality.  During the Term, Hypothesis and Subscriber will maintain the confidentiality of Confidential Information. The recipient of any Confidential Information (“Receiving Party”) of the other party (“Disclosing Party”) agrees not to use  or disclose to any third party such Confidential Information for any purpose except as expressly permitted under this Agreement. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement.  The Receiving Party will limit access to the Disclosing Party’s Confidential Information to Authorized Users (with respect to Subscriber as Receiving Party) or to those employees who have a need to know such Confidential Information to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement, and who have been informed of the confidential nature of such information.  In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care.  At the Disclosing Party’s request or upon the expiration or termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.

8.2 Privacy.  Hypothesis agrees that its performance of the Services may involve the disclosure of Confidential Student Information by the Subscriber to Hypothesis.  Hypothesis agrees that it will not use or re-disclose Confidential Student Information except in compliance with the Family Education Rights and Privacy Act (“FERPA”) (20 U.S.C. § 1232g; 34 C.F.R. Part 99) and all applicable state and federal laws.  The Subscriber acknowledges that Hypothesis is a “school official” with a legitimate educational interest in receiving Confidential Student Information under FERPA and Hypothesis agrees that it will comply with the requirements of 34 C.F.R. § 99.33 regarding its use and redisclosure of Confidential Student Information.  The Subscriber agrees and consents to Hypothesis’ use of Directory Information so long as such use complies with FERPA.  The Subscriber acknowledges that it is responsible for notifying Hypothesis that a student has opted-out of the Subscriber’s “Directory Information Policy.”  Hypothesis shall have in place and maintain appropriate and current technical and organizational practices to ensure the appropriate privacy and security of data collected from Authorized Users of the Services as described in the Hypothesis Privacy Policy for Learning Management System Users, found at https://web.hypothes.is/privacy/lms/.  Hypothesis acknowledges that it also has in place a separate privacy policy that covers use of Hypothesis’ annotation service on the open web (outside of a learning management system), found at https://web.hypothes.is/privacy/. 

8.3 Data Security. Hypothesis agrees that it will store and process Confidential Information, including Confidential Student Information, in accordance with customary industry standards.  Hypothesis shall implement and maintain commercially reasonable administrative, technical and physical security measures to protect Confidential Information from unauthorized access, disclosure and use.  Hypothesis will conduct periodic risk assessments and remediate identified material security vulnerabilities in a commercially reasonable manner.  Hypothesis will have a written data breach response plan and will take commercially reasonable steps to notify the Subscriber once it becomes aware of a data breach known to involve, or likely involving, Subscriber Confidential Information.  Hypothesis will cooperate with the Subscriber to comply with any applicable data breach notification laws.

8.4 Confidential Student Information Return and Destruction.  Upon termination or expiration of this Agreement or thereafter, at the Subscriber’s written request, Hypothesis shall, in a reasonable period of time, destroy such Confidential Student Information that Hypothesis knows it possesses to the extent that destruction is reasonably practicable, or return such Confidential Student Information to Subscriber.  Hypothesis shall not be required to return or destroy Directory Information it has received or obtained or any personal information for an end user who has an active personal account for the Services. Notwithstanding the foregoing, Subscriber acknowledges that data may be retained in archive files or otherwise in a format not easily accessible to general users.  

8.5 User Works. As between Hypothesis and Subscriber, information submitted by any user directly to the Services (such as personal notes, annotations, and comments to be shared with other users), will be owned by the applicable users, in accordance with applicable copyright law. For clarity, such information will not be deemed “Directory Information” or “Confidential Student Information”. Hypothesis will use such information (i) only for purposes of providing the Services and (ii) only in accordance with its privacy policy and all applicable laws.

8.6 Aggregate Use. Notwithstanding anything herein to the contrary (or in any other documents executed by the parties), Hypothesis will have a perpetual, irrevocable right to retain and use – in an aggregate, de-identified form – any information provided by users of the Services for Hypothesis’ own use in internally improving of its products and services  (for example, helping refine its algorithms). Such data will not be disclosed to any third party unless subject to a prohibition on re-identification or it is otherwise in a form that re-identification is not possible.

8.7 Communications from Hypothesis.  Hypothesis may send email communications to employees, contractors, or staff of Subscriber who are Authorized Users of the Services.  Email communications from Hypothesis regarding the Services beyond the administration of Authorized User accounts are opt-out.  Authorized Users may opt out of email communications by (1) using the “unsubscribe” link provided in every email or (2) contacting support@hypothes.is.

9. INDEMNIFICATION

9.1 By Hypothesis.  Hypothesis shall indemnify, defend and hold harmless Subscriber against any third-party claims that the use of the Services as permitted hereunder infringes any copyright, patent or other intellectual property right of a third party, and Hypothesis shall pay any resulting, to the extent payable to third parties: losses, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees).  Hypothesis’ indemnity obligations are contingent on Subscriber providing Hypothesis with prompt written notice of all claims and threats thereto, sole control of all defense and settlement activities, and all reasonably requested assistance with respect thereto. Hypothesis is not responsible for any settlement it does not approve in writing. If any portion of the Services becomes, or in Hypothesis opinion may become, the subject of a claim of infringement, Hypothesis may, at Hypothesis’s option, and as Subscriber’s sole and exclusive remedy therefor: (a) procure for Subscriber the right to continue using the Services; (b) replace the Services with non-infringing software or services which do not materially impair the functionality of the Services; (c) modify the Services so that the Services become non-infringing; or (d) terminate this Agreement and refund any fees paid by Subscriber to Hypothesis for the remainder of the term then in effect, and upon such termination, Subscriber will immediately cease all use of the Documentation and Services.  Notwithstanding the foregoing, Hypothesis shall have no obligation under this Section 9.1 or otherwise with respect to any third-party claim based upon (i) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Services in combination with other products, equipment, software or data not supplied by Hypothesis; or (iii) any modification of the Services by any person other than Hypothesis or its authorized agents.

10. TERM AND TERMINATION

10.1 Term.  The Agreement will be effective during the term set forth in the Order Form (the “Term”) unless earlier terminated under Section 10.2.  

10.2 Termination.  Either party may terminate this Agreement immediately upon written notice to the other party if the other party materially breaches this Agreement and fails to cure such breach within (30) days after its receipt of written notice of such breach.  

10.3 Effect of Termination.  Immediately upon termination of this Agreement, (a) the licenses granted to either party shall immediately terminate; and (b) Hypothesis shall cease to make available and Subscriber shall cease to use the Services. Termination shall not relieve Subscriber’s obligation to pay all charges accrued before the effective date of termination.  Sections 3.3, 6, 7, 8, 9, 10.3, 11 and 12 will survive the expiration or termination of this Agreement. 

11. GOVERNING LAW.  

This Agreement will be governed by the laws of the State of California, without reference to conflicts of laws principles.  

12. MISCELLANEOUS. 

The parties are independent contractors and nothing in this Agreement shall be deemed to create the relationship of partners or joint venturers between the parties. These Terms and Conditions, together with the Order Form(s), contain the entire agreement of the parties and supersedes any prior or present understanding or communications regarding its subject matter, and may only be amended in a writing signed by both parties.  In the event of a conflict between the terms in the Order Form and these Terms and Conditions, the terms contained in these Terms and Conditions shall control unless otherwise expressly stated in the Order Form. In the event any provision of this Agreement is held by a court of law or other governmental agency to be void or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions shall remain in full force and effect.  Neither party shall assign this Agreement without the other party’s prior written consent; provided that, either party may assign this Agreement to its successor pursuant to a merger, consolidation or sale of substantially all of its assets related to this Agreement (but the assigning party will promptly notify the non-assigning party in writing of the assignment). This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.  Neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance (other than payment of Fees due hereunder) caused by reasons beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, strikes, failure of suppliers, fires, floods or earthquakes. The use of the Services is subject to U.S. export control laws and may be subject to similar regulations in other countries.   Subscriber agrees to comply with all such laws. Any notice given under this Agreement shall be in writing and shall be sent via overnight mail by a nationally recognized express delivery service addressed to the address and the signatory set forth above.  There are no third-party beneficiaries to this Agreement.  This Agreement may be executed in counterparts, each of which shall be deemed an original and both of which shall be taken together and deemed one instrument.