Your use of the Hibu Assistant platform (the “Platform”) and any documentation provided to you by Hibu that describes the features, functions and operation of such platform (the “Documentation”) shall be subject to the following use terms:
1. License. We and Our Representatives grant you a non-exclusive, non-transferable, revocable license during the Term, without the right to sublicense, to use the Platform solely for the purpose of accessing and using this Service. Except for the limited licenses granted hereunder, we and Our Representatives reserve all rights not expressly granted and no such additional rights may be implied.
2. Prohibited Activities. You will not, and will not authorize or permit any end user, employee, agent or representative, or any other third party, to (a) modify, translate, reverse engineer, de-compile, disassemble, create derivative works of or otherwise seek access to the source code of the Platform; (b) disclose, provide, distribute, license, sublicense, sell, assign or transfer the Platform or Documentation, in whole or in part, to any party, or allow any party to in any way access or utilize the Platform or Documentation other than as expressly provided herein; (c) access or use the Platform to infringe, violate, dilute or misappropriate the intellectual property rights of any third party or any rights of publicity or privacy; (d) access or use the Platform to violate any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control (including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control), unfair competition, anti-discrimination and/or false advertising); (e) access or use the Platform to store defamatory, trade libelous, unlawfully threatening, or unlawfully harassing data; (f) access or use the Platform to store obscene, pornographic or indecent data in violation of applicable law; (g) access or use the Platform to introduce or propagate any unauthorized data, malware, viruses, worms, Trojan horses, spyware, worms, other malicious or harmful code; or (i) remove from the Platform any language or designation indicating the confidential nature thereof or the proprietary rights or trademarks of Hibu or its suppliers. You may not attempt to discover or use any access codes or similar information provided from time to time by Hibu. Any unauthorized work developed by you in contravention of clause (a) above, and all intellectual property rights embodied therein, shall be the sole and exclusive property of Hibu and its suppliers and you hereby assign all rights in them (including moral rights) to Hibu.
3. Ownership. You acknowledge that as between you and us: (a) all right, title and interest in and to this Service, the Platform, and the Documentation, and all patents, copyrights, trade secrets, trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols and other proprietary rights embodied therein or associated therewith, are and shall remain with us and Our Representatives; (b) no right or interest in this Service, the Platform or the Documentation is conveyed other than the limited licenses granted herein; (c) this Service, the Platform and the Documentation are protected by copyright and other intellectual property laws; and (d) this Service, the Platform and the Documentation embody valuable confidential and secret information of us and Our Representatives, the development of which required the expenditure of considerable time and money.
4. License to Your Content. You grant us and Our Representatives a non-exclusive, transferable, royalty-free license during the Term to use your trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols and all other marketing or promotional content provided by you to us in connection with the advertising, promotion and sale of your products, services or business, and to sublicense such content to third parties in connection with the provision of this Service. You acknowledge that offers make to customers and prospective customers utilizing the Platform (“Offers”) posted on third-party sites may not carry the trademark or branding of us or Our Representatives. You further acknowledge and agree that we or Our Representatives may modify your content in our reasonable discretion in order to effectively provide this Service, provided that such modifications shall not materially alter the terms of any Offer without your prior written consent. In the event you elect, in connection with this Service, to communicate to us suggestions for improvements to this Service ("Feedback"), we and Our Representatives shall be entitled to use the Feedback without restriction and such Feedback will not be treated as confidential to you. You hereby grant to us and Our Representatives a royalty-free, sub licensable, transferable, perpetual, irrevocable worldwide license in and to the Feedback to use in any manner related to our operations.
5. Customer Data. You agree to allow us and Our Representatives to collect data regarding your customers, prospective customers and other contacts (the “Customer Data”), provided that we and Our Representatives will not use such Customer Data for any purpose other than to provide this Service to you, to respond to your request for assistance with any technical problems and/or queries related to use of the Platform or as otherwise directed by You. We and Our Representatives shall also have the right to use or disclose Customer Data in a format that does not personally identify you or your contacts, including as aggregated de-identified data. You agree to hold us and Our Representatives harmless from any and all data protection claims arising out of the access and use of the Customer Data in accordance with this Paragraph 8(v).
(a) You agree to honor all Offers created via this Service consistent with such Offers’ applicable terms and conditions (including expiration date). You represent and warrant that any Offer, upon claim by a customer, shall be available for redemption by such customer. You are responsible for charging customers for all applicable sales or use tax at the time the Offer is redeemed. You agree that all Offers will prominently include any applicable rules, restrictions or limitations necessary to comply with applicable law, and that such rules, restrictions or limitations will be presented to prospective purchasers prior to purchase.
(b) We retain editorial control over all content, including the right to edit Offer content in our discretion if we believe it will improve the performance of the Offer.
(c) We and Our Representatives will not be responsible for any inaccuracies, misrepresentations, product or service liability, or offensive, infringing, libelous or illegal materials resulting from the use of Offers. You are solely responsible for and release us and Our Representatives from liability for any injuries, illness, damages, claims, liabilities and costs arising from or related to any act or omission by you in connection with your use of an Offer or the services/goods provided in connection with such Offer.
7. Compliance with Laws. You represent, warrant and agree that in accessing the Platform, you will comply with all applicable Laws, including but not limited to any State or Federal laws that govern online promotions, offers, gift cards, coupons, and/or gift certificates, data privacy and protection, Laws pertaining to the sending of email marketing messages including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”), Laws pertaining to text marketing, including but not limited to the Telephone Consumer Protection Act (“TCPA”), and HIPAA. Without limiting the foregoing:
(a) You acknowledge and agree that as between you and Hibu, you are the sender of emails and SMS text marketing messages sent via the Platform. Although we will make every effort to ensure that email and SMS Text marketing messages sent on your behalf comply with the TCPA and CAN-SPAM, you assume full responsibility for ensuring that marketing messages are only sent to those who are legally eligible to receive them. Emails sent by you via the Platform must include all information required by CAN-SPAM.
(b) You agree not to upload to the Platform, incorporate into any contact list you provide to us in connection with this Service or otherwise provide to us in connection with this Service any protected health information of any kind within the meaning of the Health Insurance Portability and Accountability Act of 1996, as amended (HIPAA).
(c) You agree not to use this Service to send any content that is illegal, harmful, unwanted, inappropriate, objectionable, confirmed to be criminal misinformation, or that otherwise poses a threat to the public, even if the content is permissible by law. Other prohibited uses include messages that are illegal in the jurisdiction where the message recipient lives. Examples include, but are not limited to:
8. Warranties; Disclaimer.
(a) We hereby represent and warrant that during the Term, the Platform will operate in all material respects in accordance with the Documentation. Our sole obligation and your exclusive remedy hereunder with respect to any breach of the foregoing warranty shall be to use reasonable efforts to correct any such failure. If we and Our Representatives, in our sole discretion, are unable to correct such failure, we will notify you and you will have the right to terminate this Agreement upon thirty (30) days’ written notice to us. This warranty will not apply to any defects or non-conformance caused by any software other than the Platform or hardware not supplied by us or Our Representatives. We will have no obligation to undertake correction of errors caused by (i) content provided by or passed through you or in connection with the Platform; (ii) operating system modifications, changes or updates applied by you; (iii) the use or combination of the Platform with any other software or hardware not supported by us or Our Representatives; (iv) causes external to the Platform, such as problems with the hardware, network or other infrastructure with which the Platform is used; (v) unauthorized or improper use of the Platform; or (vi) any modification of the Platform by anyone not approved by us.
(b) EXCEPT AS EXPRESSLY PROVIDED HEREUNDER, THE PLATFORM AND THE SERVICE IS PROVIDED TO YOU "AS IS," WITHOUT WARRANTY OF ANY KIND. WE HEREBY DISCLAIM ALL OTHER WARRANTIES WITH RESPECT TO THESE SERVICE TERMS, THE PLATFORM, THE SERVICE OR THE OFFERS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. Without limiting the generality of the foregoing, we do not warrant that the Platform or the Service will meet your requirements or operate without interruption or downtime or be error free.
9. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE, NOR ANY OF OUR REPRESENTATIVES, BE LIABLE TO YOU OR ANY OTHER THIRD PARTY FOR LOST REVENUES, LOST PROFITS OR OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, RELIANCE OR EXEMPLARY DAMAGES ARISING FROM YOUR OR ANY OTHER THIRD PARTY'S USE OF OR INABILITY TO USE THIS SERVICE, INCLUDING, BUT NOT LIMITED TO, LOSS OF TECHNOLOGY, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE DAMAGES WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. THE MAXIMUM AGGREGATE LIABILITY OF US AND OUR REPRESENTATIVES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), SHALL NOT EXCEED THE ACTUAL FEES PAID BY YOU FOR THE SERVICE FOR THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY HEREUNDER.
10. Cessation of use of Platform. Upon termination of this Agreement for any reason, (a) you will cease to use the Platform, this Service and the Documentation; and (b) you will immediately return to us, or at our request, destroy, without the retention of copies in any media, all copies of the Platform and the Documentation in your possession or under your control, including any possession by any employee, consultant, agent or representative of your business.