Hypeloom Master Service Agreement
This Hypeloom Master Services Agreement (“Agreement”) is made between Hypeloom, Inc., a C-Corp with offices at 441, 166 Geary St STE 1500, San Francisco, CA 94108 (“Hypeloom”) and Customer and governs the Customer’s use of the Services (each as defined below). “Customer” means a person or entity that accepts and agrees to the terms of this Agreement as of the earlier date on which such person or entity signs an order form indicating acceptance of this Agreement or uses the service. Hypeloom reserves the right to modify or update thisAgreement in its sole discretion, the effective date of such updates and/or modifications will be the earlier of: (i) 30 days from the date of such update or modification; or (ii) Customer’s continued use of the Service. The Customers hall be notified in writing should any update and/or modification occur within48 hours of such update or modification.
IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT ACCESSOR USE THE SERVICE. THE SERVICE IS INTENDED FOR THE CUSTOMER AND ITS AUTHORIZED USERS ONLY AND IS NOT FOR USE BY CHILDREN UNDER 13 YEARS OF AGE. IF AN INDIVIDUAL IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, SUCH PERSON REPRESENTS AND WARRANTS THAT IT HAS THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY TO THIS AGREEMENT AND THIS AGREEMENT APPLIES TO SUCH ENTITY WHICH IS DEEMED THE CUSTOMER.
If Customer and Hypeloom have executed a written agreement governing Customer’s access to and use of the Service as a Hypeloom customer, then the terms of such signed agreement will govern and will supersede thisAgreement.
This Agreement includes and incorporates the contents of an Order Form sent to the Customer, as well as the accompanying Terms andConditions and contains, among other things, warranty disclaimers and liability limitations. Each party’s acceptance of this Agreement was and is expressly conditional upon the other’s acceptance of the terms contained in thisAgreement to the exclusion of all other terms.
Services: Professional Services shall consist of lead generation services for Customer whereby Hypeloom’s freelancers will source meetings with prospective clients of Customer, which will be held over videoconferencing tools such as Zoom/GoogleMeet and may consist of a pitch by Customer’s designated applicable account executive. This includes both cold calling and cold emailing as methods for generating leads.
Fees: A dollar amount for each Qualified Meeting specified in the Order Form as “Price per Qualified Meeting.” Qualified Meeting pricing may be reasonably adjusted no more than once every one month by theCustomer, subject to review and approval by Hypeloom.
Platform Fee:
Launch Period (First SixMonths of operations):For the initial six months following the Effective Date ("LaunchPeriod"), access to the Hypeloom platform will be provided free of charge to the Customer.
Post-Launch Period: After the Launch Period, Hypeloom reserves the right to introduce a Platform Fee for continued access to the platform. This fee may include options for a standard or premium account, with different levels of access or features. Hypeloom will notify the Customer in writing at least thirty (30) days before any such fees are implemented, allowing the Customer to choose whether to continue using the platform under the new terms.
Instant Payment Process: As soon as a Freelancer books a meeting with a Prospect on behalf of the Customer, Hypeloom will immediately process a payment for the amount corresponding to the meeting based on the agreed Price per Qualified Meeting. This payment will be held in escrow by Hypeloom.
Meeting Validation: Once the meeting takes place, the Customer has 48 hours to validate the meeting as per the Qualification Criteria defined in this Agreement. Upon validation:
-If the meeting is confirmed as a Qualified Meeting, Hypeloom will release the payment to the Freelancer immediately.
-If the meeting does not meet the Qualification Criteria, Hypeloom will refund the payment back to the Customer.
Service Term; Minimum Purchase Amount: The ServiceTerm will be from the Effective Date and continue for a twelve-month period.There is no minimum purchase amount applicable under this Order Form.
TERMS AND CONDITIONS
1. PROFESSIONAL SERVICES 1.1 Subject to the terms and conditions of thisAgreement, Hypeloom will use commercially reasonable efforts to provideCustomer with the services (the “Professional Services”) set forth in the order form between the Parties (the “Order Form”). Unless otherwise stated in anOrder form, the Professional Services shall consist of lead generation services for Customer whereby Hypeloom’s freelancers engaged through the Hypeloom platform (such individuals, the “Freelancers”) will source meetings with prospective clients of Customer (“Prospects”), which will be held over videoconferencing tools such as Zoom and may consist of a pitch by Customer’s designated applicable account executive and a demonstration of Customer’s product(s). Fees will be determined based on successful meetings (as determined below), and the Customer will pay the Platform Fee and Fees outlined in the Order Form. 1.2 A meeting will only be deemed successful and thereafter invoiced by Hypeloom if it fulfills certain qualification criteria (such criteria, the “Qualification Criteria”). A meeting that fulfills theQualification Criteria will be known as a “Qualified Meeting.” QualificationCriteria shall be composed of “Adjustable Qualification Criteria” and“Permanent Qualification Criteria,” which shall be as described below. There is no minimum duration or required format for a meeting to qualify as a Qualified Meeting.
1.2.1 Permanent Qualification Criteria The following qualifications shall be the PermanentQualification Criteria: (a) the meeting is scheduled and takes place between the Customer’s account executive and a representative of the Prospect, and (b)following the meeting, the Customer’s account executive rates the meeting at least a 6 or above on a survey sent by Hypeloom, which is described below inSection 1.2.3 (the “Customer Survey”). Customer account executives are expected to keep their calendar availabilities updated. If a meeting is scheduled according to the Customer’s account executive’s calendar availability as provided by the Customer, and the account executive is unable to attend the meeting without advance notice 48 hours before the meeting, Hypeloom reserves the right to invoice the Customer for the meeting if the adjustable qualification criteria are met after reviewing call notes and recordings.
1.2.2 Adjustable Qualification Criteria Customer may adjust the Adjustable Qualification Criteria along with Fees per Qualified Meeting no more than once every one month, subject to review and approval by Hypeloom in writing, which may be over email. Hypeloom shall publish and keep up to date the Adjustable QualificationCriteria via documentation accessible to both Freelancers and the Customer, such method of documentation to be as reasonably determined by Hypeloom. The initial Adjustable Qualification Criteria shall be theAdjustable Qualification Criteria specified in the Order Form.
1.2.3 Customer Survey The Customer must complete a Customer Survey for any meeting that occurs within 48 hours, but ideally on the same day, of Hypeloom’s introduction to the Prospect via a scheduled meeting. The Customer’s account executive will rate the meeting at least a 6 or above in the Customer Survey according to the Adjustable Qualification Criteria, or, AdjustableQualification Criteria notwithstanding, deems the meeting of comparable or greater value to the Customer to justify the rating. The Customer Survey shall include the current AdjustableQualification Criteria and will consist of the following questions (or similar): - “Please rate the meeting quality on a scale of 1-10 where10 means the meeting was perfect, and you’d love to get more just like it, and1 means it was terrible, and we should never book another meeting on your calendar like this again.”- “Please provide brief written context for the meeting rating.” If the Customer fails to complete the Customer Survey within48 hours of the originally scheduled meeting time, Hypeloom shall invoice theCustomer for the meeting as if it were a Qualified Meeting. Hypeloom may use subcontractors to perform the ProfessionalServices. Hypeloom reserves the right to suspend Customer’s access tothe Professional Services in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Hypeloom.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will cooperate with Hypeloom in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Hypeloom may reasonably request, including by promptly completing the Customer Surveys following any meetings.
2.2 Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”).Customer may change the individual designated as Primary Contact at any time by providing notice to Hypeloom via email.
3. CONFIDENTIALITY
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business(hereinafter referred to as “Proprietary Information” of the Disclosing Party).The Parties agree that any contact information, including any personally identifiable information for any Prospect or representative of a Prospect, is the Confidential Information of Hypeloom.
3.2 The Receiving Party agrees:(i) not to divulge to any third person any such ProprietaryInformation or use the Proprietary Information in a manner not contemplated by this Agreement,(ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and(iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a)is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it by a third party, or (d) was independently developed without use of anyProprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the ReceivingParty gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Hypeloom may aggregate anonymized data and use such aggregated data to evaluate and improve the Professional Services and otherwise for its business purposes.
3.3 Customer acknowledges that Hypeloom does not wish to receive any Proprietary Information from Customer that is not necessary for Hypeloom to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Hypeloom may reasonably presume that any unrelated information received from Customer is not confidential or ProprietaryInformation.
3.4 Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, oris included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
4. INTELLECTUAL PROPERTY RIGHTS; PROSPECT CONTACT INFORMATION
4.1 Except as expressly set forth herein, Hypeloom alone (and its licensors, where applicable) will retain all intellectual property rights relating to the methods by which it provides the ProfessionalServices or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the methods of performing the Professional Services, which suggestions are hereby assigned to Hypeloom. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement.
4.2 Any contact information for Prospects, including personally identifiable information, is explicitly recognized by Customer to bethe Confidential Information of Hypeloom. Customer hereby agrees to indemnify and hold harmless Hypeloom against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of any privacy applicable laws relating to such information or misuse of the foregoing.
5. PAYMENT OF FEES
5.1 Customer will pay Hypeloom the applicable fees asset forth on the Order Form (the “Fees”). To the extent applicable, Customer will pay Hypeloom for additional services, such as other consulting fees, the placement fee pursuant to Section 2.3. All payments will be made in accordance with the PaymentSchedule and the Method of Payment. If not otherwise specified, payments will be due within thirty (30) days of invoice and are nonrefundable.
5.2 Unpaid Fees are subject to a finance charge of one per cent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on Hypeloom's net income) unless Customer has provided Hypeloom with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Hypeloom on account thereof.
6. TERMINATION
6.1 Subject to earlier termination as provided below, this Service Agreement is for the Service Term as specified in the Order Form.
6.2 In the event of any material breach of thisAgreement, the non-breaching party may terminate this Agreement prior to the end of the Service Term by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice,(i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business.
6.3 Either party may terminate this Agreement at will by giving thirty (30) days prior written notice to the other party.
6.4 All sections of this Service Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
7. WARRANTY DISCLAIMER
THE PROFESSIONAL SERVICES AND HYPELOOM PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. HYPELOOM (ANDITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ANDNON-INFRINGEMENT.
8. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY (OR ANY OF ITS AGENTS,AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE,INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, PROFESSIONAL SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANYWAY CONNECTED WITH THE USE OF THE PROFESSIONAL SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE PROFESSIONAL SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT,TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OFEACH PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID TO HYPELOOM HEREUNDER IN THE TWELVE-MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in fullforce and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by either Party except with the other Party’s prior written consent, which shall not be unreasonably withheld. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither Party has any authority of any kind to bind the other Party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile ore-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. This Agreement will be governed by the laws of the State of California,U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction. Hypeloom is permitted to disclose thatCustomer is one of its customers to any third-party at its sole discretion.
