THIS AGREEMENT CONSISTS OF THE TERMS AND CONDITIONS WHICH GOVERN YOUR ("CUSTOMER"), ACCESS TO AND USE OF HOPPER INC.'S ("HOPPER") PLATFORM (DEFINED BELOW) AND CONSTITUTES A BINDING AGREEMENT BETWEEN CUSTOMER AND HOPPER. BY CLICKING THE “I ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE PLATFORM IN ANY WAY OR MANNER, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT (THE DATE OF SUCH OCCURRENCE BEING THE “EFFECTIVE DATE”). IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, CUSTOMER REPRESENTS THAT IT HAS THE RIGHT, AUTHORITY, AND CAPACITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT, CUSTOMER MUST NEITHER CLICK “I ACCEPT” NOR ACCESS OR USE THE PLATFORM IN ANY WAY OR MANNER.

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Witnesseth: That

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WHEREAS, Hopper owns and provides licenses to the Platform; and
WHEREAS, Customer wishes to receive, and Hopper is prepared to provide Customer with access to the Platform, subject to the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereafter set forth, the parties hereby agree as follows:

1.    Definitions. For purposes of this Agreement, the following capitalized terms shall have the following meaning:

1.1.    “Feedback” means any feedback, suggestions, recommendations, comments, ideas, questions, and any information about defects, errors, or problems in respect of the Platform provided by or on behalf of Customer.

1.2.    “Intellectual Property Rights” means all worldwide, whether registered or not (a) patents, patent applications, and patent rights; (b) rights associated with works of authorship, including copyrights, copyright applications, copyright restrictions, mask work rights, mask work applications and mask work registrations; (c) trademarks, trade names, service marks, logos, domain names, goodwill and trade dress; (d) rights relating to the protection of trade secrets and confidential information; (e) rights analogous to those set forth herein and any other proprietary rights relating to intangible property; and (f) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.

1.3.    “Platform” means Hopper’s proprietary open source life cycle management platform including updates and upgrades solely provided that they are generally made available for free by Hopper to all of its customers.

1.4.    “Order Form” means the purchase order for the licensing of the Platform signed by the parties and subject to the terms and conditions of this Agreement.

2.    License

2.1.    Subject to Customer’s compliance with the terms and conditions of this Agreement (including without limitation payment in full of all Fees (defined below)) Hopper shall grant Customer a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable and fully revocable right to use the Platform solely in object code during the Term (defined below) internally for its intended purpose. Customer hereby grants Hopper permission to access Customer’s systems and code in order to carry out Hopper’s obligations hereunder.

2.2.    Customer shall not (and shall not allow any third party) to: (i) sell, license (or sub-license), rent, lease, lend, use, assign, transfer, pledge, or share Customer’s account credentials or any of Customer’s rights under this Agreement with/to any third party; (ii) transfer, distribute, commercialize, scrap, copy all or any part of the Platform or the Hopper IPR (as defined below); (iii) refer to the Platform by use of framing; (iv) make use of the Platform in any jurisdiction where same is illegal or which would subject Hopper or its affiliates to any registration requirement within such jurisdiction or country; (v) use, or encourage, promote, facilitate or instruct others to use the Platform for any illegal use; (vi) transmit or upload any viruses, spyware or other harmful, infringing, illegal, disruptive or destructive content or files; (vii) access the Platform through or use with the Platform any unauthorized means, services or tools including without limitation any data mining, robots, or any other automated means or data gathering and extraction tools, including without limitation in order to extract for re-utilization of any parts of this Platform; (viii) perform any act that destabilizes, interrupts or encumbers the Platform or its servers or use automatic means, robots or crawlers, that enable sending more request messages to the servers of the Platform, in a given period of time, than a human can reasonably send in that time period by using the Platform; (ix) penetrate or circumvent or attempt to penetrate or circumvent any technical restrictions or limitations included in the Platform or its servers; (x) copy, modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), make any attempt to discover the source code of the Platform or create derivative works thereof; (xi) access or use the Platform for benchmarking or similar competitive analysis purposes or in order to build a competitive product or service; (xii) ship, transfer or export the Platform or use the Platform in any manner that is prohibited by law, including without limitation, to sell, distribute, download or export the Platform: (a) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Lebanon or Syria, (b) to anyone on the U.S. Commerce Department's Table of Denial Orders or U.S. Treasury Department's list of Specially Designated Nationals, (c) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. or Israeli government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, (d) otherwise in violation of any export or import restrictions, laws or regulations of the U.S. or Israel or any foreign agency or authority. Customer is solely responsible for acquiring and maintaining all of the hardware and software necessary to access and make use of the Platform.

2.3.    The Platform includes third party software, files, and components that are subject to the open source and third party license terms ("Third Party Components"). Customer’s right to use such Third Party Components as part of, or in connection with, the Platform is subject to any applicable acknowledgements and license terms accompanying such Third Party Components contained therein or related thereto. If there is a conflict between the licensing terms of such Third Party Components and this Agreement, the licensing terms of the Third Party Components shall prevail in connection with the related Third Party Components. Such Third Party Components are provided on an "AS IS" basis without any warranty of any kind and shall be subject to any and all limitations and conditions required by such third parties. Customer hereby agrees to such terms associated with the Third Party Components.

3.    Support. Hopper shall provide Customer with support in accordance with the Service Level Agreement attached hereto as Exhibit A.

4.    Representations and Warranties. Each party represents and warrants that it has the full corporate power and authority required to enter into this Agreement and to carry out its obligations hereunder. Customer shall be solely liable and responsible for its use of the Platform, including for obtaining all consents, permits, and licenses in connection therewith, and shall comply with all applicable laws, rules, and regulations.

5.    Ownership. Hopper or its licensors own all right, title, and interest in and to the Platform, Hopper confidential information, Feedback, and all modifications, enhancements, and derivatives thereof and all Intellectual Property Rights thereto ("Hopper IPR"). Nothing herein contained shall be construed as granting Customer or any third party any right, title, or interest in or to the Hopper IPR.

6.    Fees‍

6.1.    Customer shall pay Hopper annually in advance all amounts set forth in the Order Form (“Fees”). The Fees are non-refundable. Unless expressly stated otherwise in the Order Form, all Fees shall be paid within fourteen (14) days of the date of Hopper’s invoice. Without derogating from any other remedy available to Hopper by law, contract, or equity, any Fees not paid when due shall bear a late payment charge, until paid, in an amount equal to 1.5% per month or, if lower, the maximum rate allowed by law. In addition, Customer shall reimburse Hopper for all reasonable costs (including legal fees and expenses) in collecting unpaid Fees.

6.2.    Fees are exclusive of taxes, charges and levies and Customer shall bear all taxes, charges and levies. In the event that Customer is required by law to deduct or withhold any amount from any Fees the Fees shall be deemed as grossed-up and increased such that the actual net amount to be paid to Hopper shall be equal to the Fees that would have been due to Hopper without such deduction or withholding.

7.    Disclaimer

7.1.    NOTWITHSTANDING ANY OTHER PROVISION TO THE CONTRARY, THE PLATFORM AND ANY DELIVERABLES PROVIDED HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND. HOPPER DOES NOT PROVIDE ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, USEFULNESS, RELIABILITY, TIMELINESS OR ACCURACY.

7.2.    HOPPER DOES NOT WARRANT THAT THE PLATFORM WILL MEET THE REQUIREMENTS OF CUSTOMER OR THAT THE PLATFORM OR THE SERVERS ON WHICH IT IS HOSTED WILL BE UNINTERRUPTED OR ERROR-FREE AND DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM.

8.    Confidential Information. The parties shall comply with the provisions of the Mutual Non-Disclosure and Confidentiality Agreement entered into between the parties.

9.   Indemnification. Customer shall defend, indemnify, and hold Hopper, its affiliates, and their respective stockholders, directors assignees, officers, employees, and contractors harmless against any and all claims, damages, losses, liabilities, expenses, and costs, arising out of or in connection with Customer’s systems, code, or use of the Platform.

10.    Limitation of Liability. UNDER NO CIRCUMSTANCES WILL HOPPER OR ITS AFFILIATES, SHAREHOLDERS, DIRECTORS, AGENTS, EMPLOYEES, LICENSORS OR SUPPLIERS (COLLECTIVELY “REPRESENTATIVES”) BE LIABLE UNDER ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT OR THE PLATFORM EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST BUSINESS OPPORTUNITY, LOSS OF GOODWILL, LOST REVENUES AND LOSS OF DATA. IN ANY EVENT, HOPPER AND ITS REPRESENTATIVES’ TOTAL AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE PLATFORM OR OTHERWISE SHALL NOT EXCEED THE PAYMENTS ACTUALLY MADE TO HOPPER BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO SUCH CLAIM.

11.     Term and Termination

11.1.    Unless earlier terminated pursuant to Section 11.2 below, and unless expressly stated otherwise in the Order Form, the term of the Agreement shall be for twelve (12) months following the Effective Date (“Initial Term”). The Initial Term shall renew automatically, without notice, for additional twelve (12) month periods (each a “Renewal Term”) unless either party sends the other party a notice of non-renewal at least thirty (30) days prior to the expiration of the then current term (the Initial Term and Renewal Term shall collectively be known as “Term”). For avoidance of doubt, the Fees shall increase each Renewal Term as set forth in the Order Form.

11.2.    This Agreement may be terminated by either party upon written notice to the other party: (i) if such other party breaches a material term or condition of this Agreement and fails to completely cure such breach within thirty (30) days after receipt of said notice of such breach; or (ii) if such other party is adjudicated as bankrupt, becomes insolvent, suffers permanent or temporary court appointed receivership of substantially all of its property, makes a general assignment for the benefit of creditors, or suffers the filing of a voluntary or involuntary bankruptcy petition that is not removed or cancelled within sixty (60) days.

11.3.    Upon expiration or termination of this Agreement for any reason: (i) all of Customer’s rights and licenses hereunder shall immediately terminate and Customer shall immediately cease using the Platform; (ii) the due date of all outstanding invoices shall automatically be accelerated and become immediately due and payable to Hopper; (iii) Customer shall promptly destroy or return to Hopper, at Hopper’s election, all Hopper IPR in Customer’s possession or under Customer’s control; and (iv) receiving party shall at disclosing party’s option, either destroy or deliver to the disclosing party all confidential information in its possession or under its control, in any media or form whatsoever. The following sections shall survive termination or expiration of this Agreement: 1, 2.2, 4, 5, 6, 7, 8, 9, 10, 11.3, and 12.

12.    General.

12.1.    Waiver. Failure of a party to insist upon the performance by the other party of any term hereof shall not be deemed a waiver of the rights of the first-mentioned party with respect thereto. All waivers must be in writing to info @ hopper.security.

12.2.    Notices. All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given or made as of the date delivered or transmitted, and shall be effective upon receipt, if delivered personally, sent by air courier, or sent by electronic transmission, with confirmation received.

12.3.    Assignment. Customer shall not assign or transfer any of its rights or obligations hereunder, whether by contract or by operation of law, except with Hopper’s prior written consent. Hopper may assign, subcontract and transfer its rights and obligations under this Agreement at its sole discretion.

12.4.    Relationship of the Parties. The relationship established between the parties by this Agreement is solely that of independent contractors. Neither party shall be deemed to be an agent or legal representative of the other party and no employee of either party shall be considered to be an employee of the other party.

12.5.    Entire Agreement; Modification. This Agreement and its Exhibits and applicable Order Forms constitute the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior discussions, agreements, representations and understandings between the parties. This Agreement may only be amended by an instrument in writing signed by each of the parties hereto.

12.6.    Governing Law and Jurisdiction. This Agreement and any action related thereto shall be governed, controlled, interpreted and defined by and under the laws of the State of Delaware, USA. The exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement shall be the courts in the State of Delaware, USA and each of the parties hereto submits itself to the exclusive jurisdiction and venue of such courts for the purpose of any such action. The United Nations Convention for the International Sale of Goods is expressly excluded from this Agreement.

12.7.    Severability. Any provision of this Agreement prohibited by, or unenforceable under, applicable law shall be ineffective to the extent of such prohibition and shall be replaced by an enforceable provision to the same or the nearest possible equivalent effect. Notwithstanding the foregoing, the other provisions hereof shall continue in effect unless the ineffectiveness of any provision shall substantially affect the consideration received by either party hereunder.

12.8.    Force Majeure. Hopper shall not be liable for delays or failures in performance resulting from causes beyond its reasonable control, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties.

12.9.    Aggregate Data. Notwithstanding anything to the contrary, Hopper may use, retain and transfer aggregate and anonymized usage and transaction data in respect of the use of the Platform for any purpose and without any restrictions or payment Obligations.

12.10.    No Third Party Beneficiaries. No provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than Customer and Hopper any rights, remedies or other benefits under or by reason of this Agreement.

12.11.    Publicity. Hopper may use Customer’s name and logos in order to refer to Customer as a customer of the Platform in Hopper’s website and marketing materials. Upon Company’s request, Customer shall reasonably cooperate with Company in the preparation of a case study document regarding Customer’s use of the Platform and Customer’s benefits from such use.

Exhibit A- SLA‍

This Service Level Agreement (“SLA”) is an integral part of Hopper Inc. (“Hopper”)’s End User SaaS Agreement (“Agreement”) and is subject to the terms, conditions, disclaimers, and limitations (including limitation of liability) set forth therein. Defined terms shall have the meaning ascribed to them in the Agreement, unless defined otherwise herein.

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AVAILABILITY

This SLA provides certain remedies in the event that Hopper experiences Downtime (defined below) solely as a result of failure of Hopper’s infrastructure. The overall Availability (defined below) metric, to be provided on a reasonable efforts’ basis, is 99.9%, measured by Hopper on a monthly basis, as set forth herein ("SLA Metric").

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DEFINITIONS‍

For the purpose of this SLA, the terms in bold are defined as follows:

Available or Availability means when the Platform is active and enabled and Customer has reasonable access to the Platform, subject to the exclusions defined in Downtime below.

Business Hours means each hour during a Business Day (defined below).

Business Days means 9:00 AM EST to 5:00 PM EST, on Monday through Friday, excluding holidays.

Downtime means the total number of minutes that Customer cannot access the Platform. The calculation of Downtime excludes time that Customer is unable to access the Platform due to any of the following: (a) Maintenance Time; (b) Customer’s own Internet service provider; (c) Force majeure event; (d) Any systemic Internet failures; (e) Any failure in Customer’s own hardware, software or network connection; (f) Customer’s bandwidth restrictions; (g) Customer’s acts or omissions; (h) Anything outside of the direct control of Hopper; or (i) Customer’s failure to comply with any User Responsibilities, user qualifications or user requirements detailed herein.

Maintenance Time means the time period during which the Platform may not be Available each month so that Hopper can perform routine maintenance to maximize performance or upgrade the Platform, on an as needed basis.

Total Monthly Minutes means the number of days in the month multiplied by 1,440 minutes per day.

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MAINTENANCE NOTICES‍

Hopper will make reasonable efforts to communicate the date and time that Hopper intends to make the Platform unavailable at least forty-eight (48) Business Hours in advance (or longer if practical). Customer understands and agrees that there may be instances where Hopper needs to interrupt the Platform without notice in order to protect the integrity of the Platform due to security issues, virus attacks, spam issues, or other unforeseen circumstances. Below are the Maintenance windows and their definitions:

Emergency Maintenance: These change controls happen immediately with little to no notification ahead of time.

Preventative Maintenance: These change controls are when Hopper detects an item in the environment that Hopper needs to take action on, to avoid emergency change controls in the future. These change controls, if possible, will usually occur in low peak hours with peak being defined by Hopper’s network metrics.

‍Planned Maintenance: These are change controls being done to: (a) Support ongoing product and operational projects to ensure optimal performance; (b) Deploy non-critical service packs or patches; and (c) Periodic redundancy testing. Where possible planned maintenance will be notified five (5) Business Days prior; however, certain circumstances may preclude Hopper from doing so, such as an external vendor issuing a change control to Hopper (e.g. the power company alerting Hopper to perform power testing 48 hours ahead of time, etc.).

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USER RESPONSIBILITIES

Minimum Requirements: The required configurations Customer must have to access the Platform include: (a) Internet connection with adequate bandwidth; (b) Internet browser; (c) SCM (source code management) integration; and (d) Slack integration.

Web-based Administration Interface: The Platform includes an interface that constitutes the Web-based Administration Interface provided to all users enabled with the Platform, therefore the users can manage their own account. Customer should use discretion when granting internal administrative privileges to the Web-based Administration Interface. Hopper is not responsible for Downtime related to negligence in the Web-based Administration Interface.

Please note that this SLA does not include any backup or recovery Platform services.

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SERVICE LEVELS AND CREDITS

Term of SLA: This SLA shall only become applicable to the Platform upon ninety (90) days following the activation of the Platform and shall not apply upon termination or expiration of the Agreement.

​Measurement: Hopper uses a proprietary system to measure whether the Platform is Available, and Customer agrees that said Hopper system will be the sole basis for resolution of any dispute that may arise between Customer and Hopper regarding this SLA.

Availability is calculated based on the following formula:
A = (T – M – D) / (T – M) x 100%

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A = Availability
T = Total Monthly Minutes
M = Maintenance Time
D = Downtime

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Hopper will use commercially reasonable efforts to respond to support tickets as follows:

Level of Error*: Critical

​Definition: An event or problem that has a significant business impact, or an immediate severe impact to a core business process or an operation that is mission critical to the business. The event or problem may render the Platform non-functional.

Estimated Response Time: Four (4) Business Hours of Hopper confirming Customer’s support ticket.

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Level of Error*: High

Definition: An event or problem that has a major business impact or a critical operation. The event or problem may severely limit the operation of the Platform.

Estimated Response Time: Eight (8) Business Hours of Hopper confirming Customer’s support ticket.

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Level of Error*: Medium

Definition: An event or problem that disrupts the operation of the Platform. A workaround is available and use of the Platform can continue.

Estimated Response Time: Two (2) Business Days of Hopper confirming Customer’s support ticket.

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Level of Error*: Low

Definition: An event or problem that has limited business impact, is not critical in nature or does not have any significant impact.

Estimated Response Time: Five (5) Business Days of Hopper confirming Customer’s support ticket.

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* To be determined by Hopper on a case base by case basis at Hopper’s sole discretion

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In the event that, in any given month, the Availability measured by Hopper is lower than the SLA Metric for longer than two (2) consecutive hours, then Customer shall be entitled to receive a credit of one percent (1%) of the monthly fees payable by Customer for the license to use the Platform (“Monthly Fees”) for each consecutive hour following such two (2) initial hours in which the Availability measured by Hopper is still lower than the SLA Metric (“Credit”). However, the total Credit provided to Customer per month shall not exceed fifty percent (50%) of the Monthly Fees.

EXCLUSIVE REMEDY

The remedies set forth herein shall be Customer’s sole and exclusive remedy and Hopper’s sole and exclusive liability for failure to meet this SLA, the SLA Metric, or the service levels herein.

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