HYDRA TERMS AND CONDITIONSLast updated: 25 February 2022
These terms and conditions (the “General Terms
”) govern the use of, and the subscription to, the Hydra App and Hydra Demo App provided by Lerna inc. (“Lerna
”). By accessing the Hydra App or by the Parties accepting the present agreement, you agree to the General Terms on behalf of yourself as a User (“User
”). If you do not agree with the terms of the General Terms, do not use or access the Hydra App.
1. DEFINITIONS AND INTERPRETATION
1.1. The following capitalized terms shall have the meaning ascribed to them below:
(i) “User Data
” means any content, which may include Personal Information of Users, that Users submit or transfer to Lerna in conjunction with the Services;
(ii) “User Personal Information”
means any Personal Information contained within User Data;
(iii) “Effective Date
means the first date a User accessed the Hydra App;
(iv) “Hydra App
” means the platform commercialized by Lerna as “Hydra” and accessed by Users;
” means Lerna and User;
(vi) “Personal Information
” has the meaning set out in Privacy Laws;
(vii) “Privacy Laws
” means all applicable data protection and privacy legislation, regulations and guidance governing the protection of Personal Information;
(ix) “Sensitive Personal Information
” has the meaning set out in Privacy Laws, and may include race, ethnicity, national origin, religious affiliation, sexual orientation or physical or mental disability;
” means any user who accesses the Hydra App; and
1.2. The term “including” is not limiting and means “including, without limitation”.
2. ACCESS AND USE OF THE HYDRA APP
During the Term (as defined in Section 7.1 (Term)), Lerna grants to Users the right to access and use the Hydra App, and any related services, in accordance with the General Terms (the “Services
2.2. Services Revisions.
Lerna shall offer the Services materially in accordance with the description provided. Lerna may revise the content, features and functions of the Hydra App at any time without notice.
2.3. Temporary Suspension of the Services.
Lerna may limit or suspend the Services from time to time, at its discretion, including to perform upgrades to, and maintenance of, the Hydra App.
2.4. Unacceptable Use.
Users shall not, nor attempt to, nor permit third parties to: (i) share non-public features or content of the Hydra App with any third party; (ii) copy, duplicate, reverse engineer, decompile, decode, decrypt, disassemble, record, alter, enhance, modify, merge, adapt, translate, create any derivative works or otherwise reproduce any part of the Hydra App (for clarity purposes, Users shall not access the Hydra App in order to build a product or service competing with the Services or to build a product using ideas, features, functions or graphics similar to those of the Hydra App); (iii) send any viruses, worms, time bombs, trojan horses or other harmful or malicious code, files, scripts, agents or programs; (iv) attempt to gain unauthorized access to, or disrupt the integrity or performance of the Hydra App; or (v) use the Hydra App in a manner that overburdens, or that threatens the integrity, performance or availability of the Website or the Hydra App. Furthermore, the Hydra App shall not be used to collect, manage or process Sensitive Personal Information and Lerna will have no liability that may result from the Users' use of the Hydra App to collect or process Sensitive Personal Information. In the event that it suspects any breach of this Section, Lerna may suspend Users’ access the Services without advance notice, in addition to such other remedies as Lerna may have. LERNA ASSUMES NO LIABILITY FOR ANY UNACCEPTABLE USE OF THE HYDRA APP.
2.5. Account Security and Access.
Users shall take all reasonable steps to prevent unauthorized access to the Hydra App, including by protecting their passwords and other login information. User is responsible for any activity occurring in its account. Users shall immediately notify Lerna if it becomes aware of any unauthorized access to, or use of, its account.
2.6. User Systems.
User is responsible for maintaining and updating any operating systems, Internet browsers, anti-virus software, or other software to access and use the Services. The Services may not work properly if User’s operating systems and anti-virus software are not up-to-date.
2.7. Indemnification by User.
User shall defend, indemnify and hold harmless Lerna and its partners, officers, directors, shareholders, parents, subsidiaries, agents, successors and assigns against any judicial, administrative or arbitration action, third party suit, claim, investigation or proceeding, including any interest accrued, arising out of, or related to (i) the content or nature of User Data, including User Data in breach of Section 2.4 (Unacceptable Use); or (ii) the breach of any warranty, covenant or other obligation contained in the General Terms by User; or (iii) User's alleged or actual use, misuse, inappropriate use or failure to use the Services, including in violation of Sections 2.4 (Unacceptable Use). Lerna must provide the User with prompt written notice of any such claim, suit or proceeding, and allow User the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting the User defense and settlement of such matter. The User shall not settle or compromise any such claim, suit or proceeding without Lerna’s prior written consent, such consent not to be unreasonably withheld, when (a) it results in liability or admission of any liability by Lerna; (b) the settlement does not include a full release of liability for Lerna; or (c) the settlement includes terms other than a full release of liability for Lerna and the payment of money.
2.8. Compliance with Laws.
When providing or using the Services, the Parties shall comply with all applicable laws, including Privacy Laws.
3. DATAUser Data
3.1. User Data.
3.2. Protection of User Data.
3.3. Telemetric Data.
To the extent permitted by law, telemetric data related to how Users access and use the Hydra App and other features of their device (including features and functions of the Hydra App being used by Users, stack trace data and reports related thereto) and the anonymized or aggregated data derived from such telemetric data does not constitute User Data, and is owned by Lerna.Personal Information
3.4. Personal Information.
3.5. Confidential Information
. “Confidential Information
” means any non-public, confidential or sensitive information, including User Data, disclosed by a Party or on its behalf (the “Disclosing Party
”) to the other Party (the “Receiving Party
”), and excludes any information that is:
(i) subject to applicable Privacy Laws, publicly available or later becomes publicly available other than through a breach of the General Terms;
(ii) as evidenced by documentary and competent evidence: (a) known to the Receiving Party or its employees, agents or representatives prior to such disclosure or (b) without using the Confidential Information, is independently developed by the Receiving Party or its employees, agents or representatives subsequent to such disclosure; or
(iii) as evidenced by documentary and competent evidence, subsequently lawfully obtained by the Receiving Party or its employees, agents or representatives from a third party without obligations of confidentiality, provided that such source is not, to the knowledge of the Receiving Party, in breach of its obligations of non-disclosure towards the Disclosing Party.
3.6. Use or Disclosure of Confidential Information.
The Receiving Party shall only use or disclose Confidential Information to exercise its rights and fulfill its responsibilities under the General Terms. The Receiving Party shall exercise the same degree of care and protection with respect to the Confidential Information that it exercises with respect to its own confidential information and in any event, at least diligent and prudent care. The Receiving Party shall not directly or indirectly disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information, except that Lerna may disclose Confidential Information to its third party service providers in connection with the performance or the improvement of the Services, in which case Lerna will ensure that the third party maintains reasonable data practices for maintaining the confidentiality and security of the Confidential Information and preventing unauthorized access. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. The Receiving Party shall give the Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with the Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at the Disclosing Party’s expense. The provisions of this Section shall supersede any prior non-disclosure agreement by and between the Parties, and such agreement shall have no further force or effect.
4. LERNA’s WARRANTIES AND DISCLAIMERS
Lerna represents and warrants that: (i) the Hydra App does not infringe on any third-party intellectual property rights or constitute a misuse or misappropriation of a trade secret; (ii) contingent upon User’s proper use of the Hydra App does not infringe on any third party intellectual property rights; and (iii) it has the right to grant the access and use of the Hydra App to User.
4.2. Warranty Disclaimers.
LERNA DOES NOT WARRANT THAT THE HYDRA APP WILL BE UNINTERRUPTED, TIMELY, DEFECT FREE, ERROR FREE, VIRUS FREE OR FREE OF OTHER HARMFUL COMPONENTS OR WILL NOT BE SUBJECT TO UNAUTHORIZED USE OR DISCLOSURE. USER ACCEPTS THAT THE HYDRA APP ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL DEFECTS AND ERRORS, IF ANY. LERNA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. INFORMATION CREATED BY THIRD PARTIES AND THAT MAY BE ACCESSED ON THE HYDRA APP IS NOT ENDORSED BY LERNA, AND MAY NOT HAVE BEEN REVIEWED BY LERNA, AND REMAINS THE RESPONSIBILITY OF THE THIRD PARTY. Lerna does not control User Data and does not guarantee the accuracy, integrity or quality of such User Data AND OF ANY INFORMATION OBTAINED THROUGH THE HYDRA APP. User is solely responsible for evaluating the accuracy, reliability, completeness and usefulness of User DATA AND any information obtained through THE use of the Hydra App, and for making and implementing decisions based on such information, and dealing with any related consequences. Lerna assumes no liability for any OF SUCH INFORMATION handled by USER through the Hydra App. LERNA ASSUMES NO LIABILITY IF USER USES THE HYDRA APP
5. LIMITATION OF LIABILITY
5.1. Dollar Cap.
EXCEPT FOR FRAUD, PHYSICAL INJURY OR DEATH OR INTENTIONAL OR GROSS FAULT, OF LERNA OR FOR THE INDEMNIFICATION FOR INTELLECTUAL PROPERTY INFRINGMENT REFERED TO IN SECTION 6.2 (INDEMNIFICATION), IN NO EVENT SHALL LERNA’S AGGREGATE, CUMULATIVE LIABILITY OF PROVEN DIRECT DAMAGES ARISING OUT OF OR RELATED TO THE GENERAL TERMS EXCEED THE TOTAL AMOUNT PAID AND PAYABLE, IF ANY, BY USER HEREUNDER IN THE 12 MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY, OR ONE HUNDRED DOLLARS IN CASE OF A USER. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE OR EXTEND THIS LIMIT. PARTIES UNDERSTAND THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SERVICE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF LERNA WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. LERNA HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE THE RIGHTS TO ACCESS AND USE THE SERVICES.
IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, GOODWILL, BUSINESS OR DATA OR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE GENERAL TERMS, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR INTENTIONAL OR GROSS FAULT OF THE PARTY. THE FOREGOING EXCLUSIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
6. INTELLECTUAL PROPERTY AND FEEDBACK
6.1. No Rights granted.
Lerna retains all right, title, and interest in and to the Hydra App and the content User accesses through the Hydra App, other than User Data. The General Terms do not grant User any intellectual property rights in or to the Hydra App or in Lerna’s logos and other trademarks.
7. TERM AND TERMINATION
The General Terms are effective as of the Effective Date, and as long as the Hydra App is offered by Lerna and User is accessing the Hydra App (the “Term”).
Should Lerna no longer wish to offer the Services, the User will need to immediately cease to use the Hydra App and delete the application from its devices.
Any rights and obligations of the Parties hereunder that by their nature are reasonably intended to survive termination or expiration of the General Terms, shall survive termination or expiration of the General Terms including Sections 2.4 (Unacceptable Use), 2.7 (Indemnification by User), 3.6 (Use or Disclosure of Confidential Information), 4.2 (Warranty Disclaimers), 5 (Limitation of Liability), 6 (Intellectual Property and Feedback), 7 (Term and Termination) and 8 (General) shall survive termination of the General Terms.
8.1. Governing Law and Venue.
The General Terms shall be governed, construed and enforced solely in accordance with the laws applicable in the Canadian province of Quebec, without reference to: (i) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties’ rights or duties; (ii) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (iii) other international laws. Any litigation in any way relating to the Services or the General Terms shall be brought and venued exclusively in the judicial district of Montreal in the Canadian province of Quebec, and the Parties waive any objection that such venue is inconvenient or improper.
8.2. Specific Performance. Notwithstanding any other provision in the General Terms, a non-breaching Party may, upon any breach of the General Terms, immediately seek enforcement of the General Terms by means of specific performance or injunction, without any requirement to post a bond or other security.
8.3. Force Majeure.
Except as expressly provided otherwise in the General Terms, Lerna shall not be liable by reason of any failure or delay in the performance of its obligations on account of an unforeseeable and irresistible event, including external causes with the same characteristics, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, act of God, war, terrorism and governmental action.
8.4. No Other Agreements.
The General Terms are the complete and exclusive statement of the Parties’ agreement relating to the subject matter hereof and supersedes all oral or written offers, understandings, representations, conditions, warranties, covenants and other communications between the Parties relating hereto, including any non-disclosure agreements relating to the subject matter hereof.
Lerna may send notices pursuant to the General Terms to User’s email contact points provided by User. Notices shall be deemed received 24 hours after they are sent.
8.6. Assignment & Successors.
The General Terms shall be binding upon and inure to the benefit of the Parties’ respective successors and assigns.
No waiver by either Party of any default in performance on the part of the other Party shall constitute a waiver of any subsequent breach or default by the defaulting Party.
To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of the General Terms invalid or otherwise unenforceable in any respect. In the event that a provision of the General Terms is held to be invalid or otherwise unenforceable, such provision shall be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of the General Terms shall continue in full force and effect.
Unless User has a superseding written agreement with Lerna, Lerna may amend the General Terms from time to time on its website, as its business evolves. Any revisions to the General Terms will become effective on the date Lerna publishes the changes. Users can review the most current version of the General Terms at any time by visiting this page at https://www.lerna.ai/demo/terms. If Users use the Services, as the case may be, after the effective date of any changes, that use or access will constitute the acceptance of the revised General Terms.IN WITNESS WHEREOF, the undersigned have read, understood and executed the General Terms and agree to be bound by its provisions as of the Effective Date.