Hivy Terms of Service
SCOPE OF APPLICATION
USE OF OUR PLATFORM
These Terms shall constitute the entire agreement between us and Customer regarding your use of the Platform.
Use Restrictions. Customer shall not directly or indirectly (a) use any information or content provided to you by us to create any application, service, software or documentation that is similar to the Platform, (b) copy, distribute, disassemble, decompile, reverse engineer or otherwise attempt to discover any source code, algorithms or trade secrets underlying the Platform, (c) encumber, sublicense, transfer, distribute, rent, lease, resell, time-share or use the Platform in any service bureau arrangement or otherwise for the benefit of any third party, (d) adapt, combine, create derivative works of or otherwise modify the Platform, (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to these Terms (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction, (f) harvest or scrape any content from the Platform or (g) aid or permit others to do any of the foregoing.
Third Party Vendors. The Platform may permit you to access other third-party services, supplies or resources. In addition, we may provide links to the websites of affiliated companies and certain other businesses (collectively with any third-party services, supplies or resources, “Third Party Vendors”). We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these Third Party Vendors or the content of their web sites and/or businesses. We do not assume any responsibility or liability for the actions, products or content of any of these Third Party Vendors or any other third parties. We will not assess the suitability, legality or ability of any Third Party Vendors, and Customer expressly waives and releases us from any and all any liability, claims or damages arising from or in any way related to such third party. Although we may choose to intervene or attempt to resolve a dispute, you agree that we have no obligation to do so and that all transactions are ultimately solely between you and Third Party Vendors. When you access third party resources, you do so at your own risk.
Relationship of the Parties; No Third Party Beneficiaries. The parties are independent contractors and nothing in these Terms shall be construed as constituting a joint venture, common undertaking or other association between the parties. Neither party shall be deemed to be an employee, agent, partner nor legal representative of the other party for any purpose, and neither party shall have any right, power or authority to create an obligation or responsibility on behalf of the other party, or to make any representation or warranty on behalf of such party, except as set forth in the respective Terms. There are no third party beneficiaries to these Terms.
Fees and Expenses. To the extent Customer’s use of and access to the Platform requires the payment of any fees now or in the future (the “Paid Services”), such fees and applicable payment terms will be set forth on an applicable order form, or communicated through the Platform or other reasonable means determined by us. If you use any Paid Services, you shall be responsible for paying to us the applicable fees (“Fees”) for such Paid Services. Please note that any payment terms presented to you in the process of using a Paid Service are deemed part of this Agreement.
Taxes. To the extent any Fees are applicable, such Fees and other amounts payable to us hereunder do not include any sales, use, value added or other similar taxes, tariffs or duties, payment of which will be the sole responsibility of Customer, unless otherwise specified by us. In the event Customer is required by law to make any deduction or to withhold from any sum payable hereunder, then the sum payable by Customer to us shall be paid to us net of such deduction or withholding. Customer shall pay the applicable tax authorities any such required deduction or withholding. Customer shall reimburse us for any such amounts that we pay on Customer’s behalf no later than simultaneously with the Fees for the related services.
As between you and us, we shall exclusively own and shall continue to own all rights, title and interest in and to any processes, methodologies, techniques, data, information, software and materials of any kind used by us and/or our personnel in connection with the Platform including all our Confidential Information (as defined below), worldwide copyrights, trademarks or service marks, moral rights, trade secret rights, know-how and any other intellectual property rights therein, and any improvements thereto (collectively “Hivy Materials”). Customer shall have no rights in the Hivy Materials except as expressly agreed to herein and in writing by the parties. All of our rights not expressly granted herein are hereby retained.
The Platform and any software we use may be subject to limitations, delays, and other problems inherent in the use of the internet, telecommunications, networks and electronic communications. We are not responsible for any delays, delivery failures, or other damage resulting from such problems.
MARKETING COMMUNICATIONS AND OPT-OUT
We may provide promotional information to Customer on a regular basis, including via email or any other means of electronic communication. Customer may opt out of these communications by sending an email to email@example.com
Our Confidential Information. “Confidential Information” means any of our know-how, trade secrets, and other business or other information that is designated as “confidential” or “proprietary” at the time of disclosure to you or that due to its nature or under the circumstances of its disclosure you know or should have reason to know should be treated as confidential or proprietary.
Exclusions. Confidential Information does not include information that: (a) is or becomes rightfully generally known to the public through no fault or breach of these Terms or any obligations of confidentiality or (b) is rightfully known by you at the time of disclosure without any obligation of confidentiality.
Use and Disclosure Restrictions. You shall keep all Confidential Information strictly confidential and shall not disclose it for any reason. You shall not use any Confidential Information except solely to the extent necessary to use the Platform in accordance with these Terms. You shall employ all reasonable steps to protect our Confidential Information from unauthorized use or disclosure, including, but not limited to, all steps that you takes to protect your own information of like importance, but no less than reasonable care.
THE PLATFORM AND ALL GOODS AND SERVICES RELATED THERETO ARE PROVIDED STRICTLY ON AN “AS IS” BASIS. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ENTIRE RISK ARISING OUT OF ITS USE OF THE PLATFORM, SOFTWARE, SERVICES AND ANY SUPPLIES PURCHASED THROUGH AND/OR FROM US, REMAINS SOLELY WITH CUSTOMER. WE DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE PLATFORM OR ANY SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE PLATFORM, OR SOFTWARE, OR ANY SUPPLIES AND/OR SERVICES PURCHASED OR OBTAINED THROUGH THE PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY SERVICES, GOODS, INFORMATION, OR OTHER MATERIALS PURCHASED OR OBTAINED THROUGH THE PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS IN THE PLATFORM, ANY SERVICE, SOFTWARE OR SUPPLIES WILL BE CORRECTED, OR (F) THE SOFTWARE OR THE SERVER(S) THAT MAKE THE PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY SERVICES, PLATFORM, ANY OTHER SOFTWARE OR SUPPLIES AND HEREBY DISCLAIM ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE IN TRADE.
TERM AND TERMINATION
These Terms shall remain in full force and effect until terminated pursuant to the terms herein. We may terminate your access to all or any part of the Platform at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your account. If you wish to terminate your account for the Platform, you may do so by following the instructions on Platform; provided that if you use the Platform pursuant to a subscription, your termination may not be effective until after the end of the then-current subscription period. Unless otherwise set forth in these Terms or through the Platform by us, you are responsible for all accrued and unpaid Fees and other expenses incurred through and including the effective date of expiration or termination of these Terms. Any fees paid hereunder are non-refundable. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation ownership provisions, warranty disclaimers, indemnity and limitations of liability.
We reserve the right to (a) modify or discontinue, temporarily or permanently, the Platform (or any part thereof) and (b) refuse any and all current and future use of the Platform or suspend or terminate Customer’s account (or any part thereof) on the Platform at any time in our sole discretion by posting a notice on the Site or through the App or Platform, or by sending a communication via e-mail or by another appropriate means of electronic communication. We shall not be liable to Customer or any third party for any modification, suspension or discontinuation of the Platform. We may also impose limits on certain features and services or restrict your access to parts or all of the Platform without notice or liability. While we will use commercially reasonable efforts to timely provide notice of modifications, it is also your responsibility to check these Terms periodically for changes. Your continued use of the Platform following notification of any changes to these Terms constitutes acceptance of those changes, which will apply to your continued use of the Platform going forward. Your use of the Platform is subject to the Terms in effect at the time of such use.
Customer shall indemnify, defend and hold us and our directors, officers, licensors, employees, shareholders, affiliates, agents, representatives, partners and suppliers harmless, from and against any and all liability, claims, lawsuits, losses, demands, damages, costs and expenses, including but not limited to reasonable attorney’s fees, expert’s fees, court costs, and other costs (the “Losses”) arising from any third party claim due to (i) any use of the Platform, services and/or supplies, (ii) any breach of any of Customer’s representations, warranties or covenants or other terms contained in these Terms or any other agreement in which these Terms are incorporated or to which these Terms are attached or made part of, (iii) a specification or instruction provided by or on behalf of Customer; (iv) bodily injury, personal injury (including death) to any person, damage to tangible property, or violation of any third party intellectual property rights, resulting from the negligent acts or willful misconduct of Customer or its personnel or agents hereunder; (v) Customer’s violation of any third party rights including but not limited to rights of third party vendors referred to Customer via the Platform; or (vi) Customer’s use or misuse of the Platform, any services or supplies.
LIMITATION OF LIABILITY
In no event shall we and/or any of our licensors, directors, shareholders, officers, employees, agents, representatives, partners or suppliers (the “Released Parties”) be liable to Customer for any indirect, incidental, consequential, punitive, special or exemplary damages of any kind, including, but not limited to, loss of profits, loss of business opportunity, loss of data, loss of use, and loss of production arising from or in any way connected to these Terms, the Platform or any supplies or services, even if such damages were foreseeable and whether or not the Released Parties have been advised of the possibility therefor. Our total liability for any and all claims relating to or arising under these Terms shall be limited to the greater of (a) the sum of payments made by Customer to us under such Terms for the particular service giving rise to the claim in the 3 month period prior to the claim arising or (b) $500.00. This limitation of liability shall apply to all legal theories, including breach of contract, tort and strict liability, whether for negligence or otherwise.
Customer agrees that we may, at our own expense, refer to Customer and utilize Customer’s logos and marks in promotional materials, press releases, advertisements, and other public disclosures, solely as a reference to our representative Customers.
APPLE, INC. DEVICE AND SERVICE TERMS
If you are accessing the Platform on a device provided by Apple, Inc. (“Apple”) or otherwise obtained access to the Platform through the Apple App Store, the following terms shall apply:
Both you and we acknowledge that these Terms are concluded between you and us only, and not with Apple, and that Apple is not responsible for, does not endorse, and is not involved in the Platform;
The Platform are licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Platform for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as applicable;
You will only use the Platform in connection with an Apple device that you own or control;
You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Platform;
In the event of any failure of the Platform to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Platform;
You acknowledge and agree that we, and not Apple, are responsible for addressing any claims you or any third party may have in relation to our Platform;
You acknowledge and agree that, in the event of any third party claim that the Platform or your possession and use of the Platform infringes that third party’s intellectual property rights, we, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
Both you and we acknowledge and agree that, in your use of the Platform, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
Both you and we acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
Modification of Terms. We may amend or modify these Terms from time to time, for example, to reflect changes to the law or changes to the Platform. We may, at our sole discretion, provide Customer with written notice of any such changes, revisions, amendments or modifications, provided, however that any such changes, revisions, amendments or modifications shall become effective without any further action by any party, but shall not apply prior to the effective date of such changes, revisions, amendments or modifications. Changes addressing the Platform or changes made for legal reasons will be effective immediately. You should look at the Terms regularly. We will post notice of modifications to these Terms on this page or otherwise reasonably communicate them to you, in our sole discretion. If you do not agree to the modified Terms, you should discontinue your use of the Platform and provide notice to us.
If you do not comply with these Terms, and we do not take action right away, this doesn’t mean that we are giving up any rights that we may have (such as taking action in the future). If it turns out that a particular term is not enforceable, this will not affect any other terms.
Assignment. You may not assign these Terms or any other contract with us or any of our rights or obligations without our express prior written consent. Any purported assignment or delegation in violation of this Section 15.3 shall be null and void. No assignment or delegation relieves Customer of any of its obligations under these Terms. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties’ permitted successors and assigns.
Governing Law. These Terms and all claims arising in connection with these Terms shall be governed and construed in accordance with the laws of the State of New York without giving effect to the conflicts of law principles thereof.
Dispute Resolution. To expedite resolution and reduce the cost of any dispute, controversy or claim related to these Terms (“Dispute”), we and Customer agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon receipt of a written notice by the other party from the party asserting a claim.
We take Disputes seriously and will work to investigate any claims made. In the event of any Dispute resulting from a claim of theft by one of our employees or contractors, Customer agrees to notify us immediately. We shall investigate such matter and may work with private investigators and the police as we deem necessary. Customer shall share any supporting evidence with us or any investigative body.
Any Dispute that is not resolved by the aforementioned procedure shall be finally settled in New York, New York, in English, in accordance with the Streamlined Arbitration Rules (“Rules”) and Procedures of JAMS, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
If you do not wish to be bound by the arbitration and class-action waiver provisions in this Section 15.5, you must notify us in writing within 30 days of the date that you first accept these Terms (unless a longer period is required by applicable law). Your written notification must be mailed to us at the following address: 161 Avenue of the Americas, 11th Floor New York, NY 10013. If you do not notify us in accordance with this Section 15.5, you agree to be bound by the arbitration and class-action waiver provisions of these Terms, including such provisions in any Terms revised after the date of your first acceptance. Such notification must include: (i) your name; (ii) your user name; (iii) your mailing address and (iv) a statement that you do not wish to resolve disputes with us through arbitration. If we make any changes to this Section 15.5 of these Terms (other than a change to the address at which we will receive notices of dispute, opt-out notices, or rejections of future changes to this Section 15.5), you may reject any such change by sending us written notice within 30 days of the change to the address set forth in this Section 15.5. It is not necessary to send us a rejection of a future change to this Section 15.5 of these Terms if you had properly opted out of the arbitration and class-action waiver provisions in this Section 15.5 in the first 30 days after you first accepted these Terms. If you have not properly opted out of the arbitration and class-action waiver provisions in this Section 15.5, by rejecting a future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this arbitration provision, as modified by any changes you did not reject. This notification affects these Terms only; if you previously entered into other arbitration agreements with us or enter into other such agreements in the future, your notification that you are opting out of the arbitration provision in these Terms shall not affect the other arbitration agreements between you and us.
If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Section 15.5 will be null and void. This arbitration agreement will survive the termination of your relationship with us.
Injunctive Relief. In the event of a violation or threatened violation of Sections 4 and/or 7 by Customer, we shall have the right, in addition to such other remedies as may be available to us at law or pursuant to these Terms, to temporary or permanent injunctive relief enjoining such act or threatened act in any court of competent jurisdiction without any requirement to post a bond or provide other security. The parties acknowledge and agree that the legal remedies for such violations or threatened violations are inadequate and that we would suffer irreparable harm.
Waiver of Jury Trial. The parties hereby irrevocably waive their right to a trial by jury in any litigation in any court with respect to any claim, controversy or dispute arising out of or in connection with these Terms.
Notices. All notices, requests, consents, claims, demands, waivers and other communications required or permitted under these Terms shall be in writing and delivered in person, by electronic transmission including email (provided receipt shall have been acknowledged in writing by the recipient thereof), by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested. All communications for us must be sent to 161 Avenue of the Americas, 11th Floor New York, NY 10013 and to Customer at the address provided by Customer at the time of registration, or to such other address that may be designated by the respective parties in writing from time to time.
Waiver. The failure or delay by either party to exercise any right under these Terms shall not be construed as waiver of such right.
Entire Agreement. These Terms constitute the entire and exclusive agreement of the parties regarding its subject matter and supersedes any and all prior or contemporaneous agreements, communications, and understandings (both written and oral) regarding such subject matter.
Severability. If any provision of these Terms is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by the applicable law.
Force Majeure. We will not be responsible for any failure or delay in our performance under these Terms due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.
Counterparts. These Terms may be executed in counterparts, in electronic form or facsimile, each of which will be deemed an original, and all of which together will constitute one and the same instrument.