These Terms of Service (“Terms of Service”), together with the Hibu Inc. Inc. Privacy Policy (the “Privacy Policy”) and any on-line or written order form or other written order confirmation or agreement for the purchase of the Services (as herein defined) (each, a “Service Order”), together constitute a binding agreement between Hibu Inc. (“Hibu”) and you or the legal entity you represent (“Merchant” or “you”). These Terms of Service also apply if you purchase a right to use the Services (as defined below) pursuant to a Service Order entered into between you and an authorized agent, vendor, or reseller of the Services (a “Vendor”).
Merchant desires to use our online advertising services, customer management services, call tracking service, and/or transaction processing service the “Services”) utilizing our marketing software platform (the “Platform”). Online advertising services include creating and managing Offers (as defined below), claiming Offers via a custom landing page, using our software to publish listings on directory sites such as Facebook, Google+, and Yelp, and using instructions and other documentation for the Platform (the “Documentation”). Customer management services include using the Platform to get customer contact information from customer emails, phone calls, and transactions (the “Interactions”), seeing data resulting from the Interactions, and using the Platform to send messages to customers through email and SMS text messages and other integrated applications.
FOR ANY EMAIL ACCOUNT THAT MERCHANT LINKS WITH THE SERVICES, OUR SOFTWARE WILL SCAN THE EMAIL HEADERS, THE EMAIL ATTACHMENTS, AND EVEN THE EMAIL BODIES FOR CONTACT INFORMATION AND OTHER RELEVANT DATA, AND USE SUCH COLLECTED INFORMATION, AS A NON-LIMITING EXAMPLE, FOR PURPOSES OF TIMING AND CONTENT GENERATION FOR REMARKETING EFFORTS.
BY USING THE PLATFORM AND THE DOCUMENTATION (TOGETHER, THE “SERVICES”), MERCHANT AGREES TO ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE, INCLUDING BUT NOT LIMITED TO THE LIMITATIONS ON LIABILITY SET FORTH HEREIN. IF MERCHANT DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE, MERCHANT IS NOT PERMITTED TO USE THE SERVICES.
A. Agreement to Provide Services. Subject to the terms and conditions of these Terms of Service and during the Term of these Terms of Service, Hibu will provide, and Merchant will access, the Services purchased by Merchant, and in accordance with any applicable Service Order(s). Unless otherwise provided in the applicable Service Order, Merchant’s Services start on the date of the initial charge to create the account (the “Initial Charge”) and continue on a month-to-month basis thereafter until terminated in accordance with Section 12. Merchant understands and agrees that by using the on-line registration process or completing a Service Order and consenting to the terms of these Terms of Service, Merchant has made a binding selection of the type of Services to be provided and all associated specifications, prices, policies, and documentation related to the delivery of the Services.
B. Service Orders. Each Service Order is hereby incorporated into these Terms of Service by this reference and is subject to the terms and conditions of these Terms of Service; provided, however, that in the event of conflict with the terms contained in any Service Order, the terms contained in these Terms of Service shall control. In the event of any conflict between the terms of these Terms of Service or a Service Order and any Merchant-issued order form or purchase order, the terms of these Terms of Service and the applicable Service Order shall control.
C. Offers. Upon acceptance of a Service Order, Merchant may (i) create, by using the Platform, an on-line coupon or similar marketing offer, deal, or advertisement to market its products or services (each, an “Offer”) or (ii) access the Platform to deliver its own Offers. Offers may be featured either on Merchant’s custom landing page or on third-party websites with which Hibu maintains a partnership (such site, a “Third-Party Partner Site”). An “Offer Campaign” is the active period in which an Offer is displayed. Hibu may create Offers for Merchants and/or implement an Offer Campaign as part of the Services based on Merchants' instructions and specifications. Merchant agrees to honor all Offers created via the Services consistent with such Offers' applicable terms and conditions (including expiration date). Merchant is responsible for charging customers for all applicable sales or use tax at the time the Offer is redeemed. Merchant agrees 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.
Hibu retains editorial control over all content and can edit Offer content in its discretion if it believes it will improve the performance of the Offer Campaign.
D. Claim or Use of Offers. Certain Offers may be claimed by End Users (“End User” is defined as a consumer or person that is or may become a customer of Merchant) and exchanged for goods and services from Merchant. Hibu shall not be responsible for any inaccuracies, misrepresentations, product, or service liability, or offensive, infringing, libelous or illegal materials resulting from the use of Offers. Merchant is solely responsible for redeeming the Offer in accordance with its terms. Merchant is solely responsible for and releases Hibu from liability for any injuries, illness, damages, claims, liabilities, and costs arising from or related to any act or omission of Merchant in connection with Merchant’s use of an Offer or the services/goods provided in connection with such Offer.
E. Offer Publication. If Merchant has purchased online advertising services, then upon Initial Charge, Merchant’s Offer will be published on Merchant’s customer landing page and on Third-Party Partner Sites across the mobile ad network. Hibu retains the right to publish Offers upon Initial Charge without further approval from Merchant. Should Merchant request any changes to the Offer, Merchant agrees to email spsupport@hibu.com or call Hibu at (855) 606-4900, or if specified in a Service Order, the Vendor from whom Merchant purchased a right to use the Services, to make any requested changes. Hibu agrees to make these changes within 48 business hours of receiving notice of the requested change as best as commercially reasonably possible.
F. Customer Management. If Merchant has agreed to Hibu tracking their customer Interactions, Hibu will record and display back to Merchant the customers’ Interactions with the Merchant. These Interactions may include but are not limited to: date of interaction, transaction amount, last 4 digits of customer credit card number, customer name, customer phone number, customer email address, and ways that the customer has interacted with the merchant. If Merchant has subscribed customers to its marketing mailing list, Hibu will send its customers emails and SMS text messages on behalf of the Merchant. Merchant is responsible for ensuring that SMS messages will only be sent to customers who have chosen to opt in to SMS text marketing. The Merchant has the option to remove customers from its marketing mailing list at any time, including removing all customers from the mailing list.
G. Phone forwarding service. If Merchant has enabled the Call Tracking service, Hibu will provide the Merchant with a phone number that forwards to a phone number chosen by the Merchant. Hibu will publish the forwarding number in Offers, in outgoing communications from the Platform and on Third-Party Partner Sites. Upon termination, Merchant is responsible for ensuring that the forwarding number is removed and replaced on all directory websites and any other places where it is listed and Hibu is under no obligation to continue renting, or otherwise supporting, the forwarding number.
H. Transaction processing service. If Merchant has enabled the Transaction processing service, Hibu will process the Merchant’s credit card transactions. This service does not require a change in the Merchant’s credit card processing system in most cases; in situations that do, Hibu may provide a new credit card payment processing device.
Hibu may modify these Terms of Service, or any policy or other terms referenced in these Terms of Service including but not limited to the Privacy Policy (collectively, “Additional Policies”) at any time by posting a revised version of the Terms of Service and the Additional Policies on the Hibu website. Unless otherwise set forth in these Terms of Service, the revised terms shall be effective fifteen (15) days after posting and notifying Merchants of the changes (including through a notice submitted by Hibu to a Vendor to be then passed along to a Merchant). Continued performance by Hibu of its obligations hereunder is adequate consideration for any such revisions. By continuing to use or receive the Services after the effective date of any revisions to these Terms of Service or any Additional Policies, Merchant agrees to be bound by the revised Terms of Service or any revised Additional Policies. It is Merchant's responsibility to check the websites listed herein regularly for changes to these Terms of Service or the Additional Policies, as applicable. If Merchant disagrees with any modifications to these Terms of Service, Merchant's sole and exclusive remedy shall be to terminate the receipt of Services in accordance with Section 12 herein.
A. License. Subject to the terms and conditions of these Terms of Service, Hibu grants to Merchant a non-exclusive, non-transferable, non-sublicensable, revocable license during the Term (as defined in Section 12), to (i) use the software and other technology supplied by Hibu to enable Merchant to receive or access the Platform solely for the purposes of accessing and using the Services; and (ii) use the Documentation in connection with the Merchant's use thereof. Except for the limited licenses granted hereunder, Hibu reserves all rights not expressly granted and no such additional rights may be implied.
B. Ownership. Merchant acknowledges that (i) all right, title and interest in and to the Services, including the Platform and Documentation therein, 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 Hibu or its third party licensors; (ii) no right or interest in the Services or the Platform is conveyed other than the limited licenses granted herein; (iii) the Services, the Documentation and the Platform are protected by copyright and other intellectual property laws; and (iv) Hibu asserts that the Services, the Documentation and the Platform embody valuable confidential and secret information of Hibu or its licensors, the development of which required the expenditure of considerable time and money.
C. No Modification. Merchant shall not (i) modify or alter the Platform; (ii) create derivative works of the Platform; (iii) decompile, disassemble, decode or reverse engineer the Platform, translate the Platform or otherwise attempt to learn the source code, structure, algorithms or internal ideas underlying the Platform or reduce the Platform by any other means to a human perceivable form; or (iv) bypass, delete or disable any copy protection mechanisms or any security mechanisms.
D. License to Merchant Marketing Content. Merchant hereby grants Hibu and Third-Party Partner Site(s) a non-exclusive, transferable, royalty-free license during the Term to use and display Merchant’s trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols and all other marketing or promotional content provided by Merchant to Hibu (“Merchant Marketing Content”) in connection with the advertising, promotion and sale of Merchant’s products, services or business, and to sublicense such Merchant Marketing Content to third parties in connection with the provision of such Services. Merchant acknowledges that Offers posted on Third-Party Partner Site(s) are not guaranteed to carry the Hibu trademark or branding. Merchant further acknowledges and agrees that Hibu or its sublicenses may modify Merchant Marketing Content in order to effectively provide the Services ordered in Hibu’s reasonable discretion, provided that none of such modifications shall materially alter the terms of any Offer without Merchant’s prior written consent.
E. License to Merchant Data. Merchant hereby grants to Hibu a non-exclusive, royalty-free, worldwide license to use the Merchant Data and Customer Data and perform all acts with respect to the Merchant Data and Customer Data to the extent reasonably necessary for Hibu to provide the Services hereunder.
F. Certain Other Obligations. Merchant agrees that Merchant (i) shall not sell, transfer, lend, provide or otherwise make available, or disclose to third parties, the Services or any components thereof; (ii) shall not obscure, alter or remove any notice of any copyright, trademark, trade name, service mark, logo, or other intellectual property or proprietary right designation appearing on or contained within the Services, the Platform, the Documentation or on any other Hibu materials; and (iii) shall take all reasonable precautions to prevent unauthorized or improper use of the Services.
G. Non-Assertion of Claims. During and after the term of these Terms of Service, Merchant will not assert, nor will Merchant authorize, assist, or encourage any third party to assert, against Hibu or any related party, any patent infringement or other intellectual property infringement claim with respect to the Platform, Documentation, Data, or the Services.
H. In the event Merchant elects, in connection with any of the Services, to communicate to Hibu (either directly or through a Vendor) suggestions for improvements to the Services (“Feedback”), Hibu shall be entitled to use the Feedback without restriction and Feedback will not be treated as confidential to Merchant. Merchant hereby grants to Hibu a royalty-free, sub licensable, transferable, perpetual, irrevocable worldwide license in and to the Feedback to use in any manner related to the operation of its business. In addition, Hibu hereby disclaims any and all liability for any comments, drawings, depictions, audio clips or other content made available on Merchant’s custom landing page by Merchants (“Comments”). Further Hibu (i) shall have a royalty-free, sub licensable, transferable, perpetual, worldwide, irrevocable license in and to such Comments to use in any manner related to the operation of its business, and (ii) reserves the right to remove any such content from the custom landing page immediately in its sole discretion.
A. In consideration for the provision of Services to Merchant, Merchant will pay to Hibu, or if Merchant purchases a right to use the Service from a Vendor, then Merchant will pay to such Vendor, all Services fees (“Fees”) set forth in the applicable Service Order, as adjusted from time to time.
Unless otherwise specified in the applicable Service Order, Fees for all Services are due within five (5) days of receipt of an invoice from Hibu. Fees are exclusive of all applicable taxes, which may be billed to Merchant in addition to the Fees. Hibu or Vendor will provide Merchant fifteen (15) days advance notice for any increase in fees or addition of new fees for any existing Services. Merchant’s continued use of the Services after a fee increase will constitute Merchant’s agreement to the increase in service fees.
B. Credit Card and eCheck. If Merchant is paying by credit card or eCheck, (a) Merchant hereby irrevocably authorizes Hibu, or if applicable, the Vendor, to charge the credit card or other payment method provided for any such amounts when due, (b) amounts due will be automatically charged on the payment due date and (c) if Merchant’s credit card expires, Merchant hereby gives Hibu, or if applicable, the Vendor, permission to submit the credit card charge with a later expiration date. Merchant shall inform Hibu of any change in Merchant’s credit card information, which may be required in writing. Merchant warrants that it is the legal cardholder for the credit card provided, and that it is legally authorized to enter into a recurring billing agreement. Hibu, or if applicable, the Vendor, reserves the right to have Merchant complete a credit application to determine Merchant's creditworthiness as a condition of receiving further Services.
C. Excess Usage, Late Payments, Billing Disputes. To the extent any Services provide a monthly allowance for usage of certain features, any usage charges in excess of the monthly allowance will be billed at the end of the applicable month. All billing disputes must be emailed to spsupport@hibu.com within fifteen (15) days of delivery of the billing statement, and disputes not made within that time are waived by Merchant. Late payments will accrue interest at a rate of one and one-half percent (1 1/2 %) per month, or the highest rate allowed by applicable law, whichever is lower. Merchant will be assessed a charge of twenty-five dollars ($25.00) for each check or other payment to Hibu which a financial institution refuses to honor for any reason. If Hibu, or if applicable, the Vendor, must initiate a collections process to recover Fees due and payable hereunder, then Hibu, or if applicable, the Vendor, shall be entitled to recover from Merchant all costs associated with such collections efforts, including but not limited to reasonable attorney’s fees. In the event Hibu, or if applicable, the Vendor, delivers to Merchant an invoice for any Fees or interest payments owed hereunder, such invoiced amounts shall be due within fifteen (15) days of the date of such invoice.
In the event an account is past due and Merchant requests to cancel per Section 12, Merchant is required to pay for the 30 days of service from their initial bill date decline.
A. Communications. Merchant is responsible for obtaining and maintaining all of the appliances, hardware, software, and services that Merchant may need to access and use the Services. Without limiting the foregoing, Merchant must obtain and maintain, and pay all charges, taxes and other costs and fees related to, internet access, telephone, computer, and other equipment, and any communications or other charges incurred by Merchant to access and use the Services.
B. TCPA. Merchant acknowledges and agrees that it is Merchant’s responsibility to ensure that its use of the Services complies with all applicable laws, including the Telephone Consumer Protection Act (TCPA) and similar state laws. The TCPA and similar state laws prohibit communications by text message using an automatic telephone dialing system for sales or marketing purposes unless the consumer has given prior express written consent to receive such text messages (which consent may be by electronic means). Any message, whether to a customer or a prospective customer, that advertises the commercial availability or quality of property, goods or services is a sales or marketing message.
The Platform can be used to send sales and marketing messages. The Platform has been configured to ensure that text messages can only be sent to persons who have consented to receive text messages from Merchant and that text messages cannot be sent to persons who have opted out from receiving text messages. Any reconfiguration or attempted reconfiguration of the Platform can result in text messages being sent in violation of the TCPA and similar state laws.
The Messaging Hub feature of the Service is not to be used for sending sales and marketing messages. Messaging Hub is designed for service-related communications to customers and for responses to prospective customers who contact you. It is not configured to ensure that Merchants can only send text messages to persons who have consented to receive text messages from Merchant. Accordingly, Merchant agrees that it will only use Messaging Hub to send service-related communications to such customers and to respond to prospective customers.
C. Account Use. Merchant is responsible and liable for all uses of the Services, whether such access or use is permitted by or in violation of these Terms of Service. Without limiting the generality of the foregoing, Merchant is responsible for all acts and omissions of all of Merchant’s employees, consultants, contractors, and agents who are authorized to access the Services under these Terms of Services and for whom access to the Services has been purchased (“Authorized Users”), and any act or omission by an Authorized User that would constitute a breach of these Terms of Service if taken by Merchant will be deemed a breach of these Terms of Service by Merchant. Merchant shall use reasonable efforts to make all Authorized Users aware of the provisions of the Terms of Service as applicable to such Authorized User's use of the Services and shall cause Authorized Users to comply with such provisions.
D. Passwords. Merchant is responsible for protecting and safeguarding any keys, certificates, passwords, access codes, Merchant IDs or other credentials and login information (collectively, “Passwords”) that have been provided to Merchant or that are generated in connection with Merchant use of the Services. Merchant will not disclose or make available any Passwords other than to Merchant’s Authorized Users and shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Passwords or the Services. Merchant is solely and fully responsible for all activities that occur in connection with Merchant’s Passwords. Without limiting the foregoing, Merchant is responsible for all charges and liabilities applicable to data and information transmitted to and stored under Merchant’s account on the Services. In the event Merchant believes the Passwords have been compromised, Merchant is solely responsible for notifying Hibu immediately by email to spsupport@hibu.com and phone call to (855) 606-4900.
E. Downtime. Merchant acknowledges that Merchant’s access to and use of the Services may be suspended for the duration of any scheduled or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions, or any other acts, omissions, or failures on the part of Hibu.
F. Suspension, Limitation or Termination. Hibu shall be entitled, without liability to Merchant, to immediately suspend, terminate or limit Merchant’s access to the Services at any time in the event (i) that Hibu determines that the Services is being used in violation of applicable federal, state or local law or ordinance, these Terms of Service, or any agreement applicable to the Services; (ii) that Hibu determines that the Services are being used in an unauthorized or fraudulent manner; (iii) that Hibu determines that the use of the Services adversely affects Hibu's equipment or service to others; (iv) Hibu is prohibited by an order of a court or other governmental agency from providing the Services; (v) of a denial of service attack or any other event which Hibu determines, in its sole discretion, may create a risk to the Services or to any other customers if the Services are not suspended; or (vi) of a security incident or other disaster that impacts the Services or the security of Merchant Data and Customer Data. In addition, Hibu shall have the right to immediately deny or suspend access to the Platform or Services in the event Hibu, or if applicable, a Vendor, is not timely paid any amount due in connection with the Services or Merchant’s breach or alleged breach of these Terms of Service. Without limiting the generality of this Section 5-F, Hibu shall have no liability for any damages, liabilities, or losses as a result of any suspension, limitation, or termination of Merchant’s right to use the Services in accordance with these Terms of Service.
G. Prohibited Activities. Merchant may not use the Services (i) in violation of these Terms of Service, including usage that exceeds storage volume limits or other parameters and restrictions described on the applicable Service Order or on our website; (ii) to infringe on, violate, dilute or misappropriate the intellectual property rights of any third party or any rights of publicity or privacy; (iii) 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); (iv) to store defamatory, trade libelous, unlawfully threatening, or unlawfully harassing data; (v) to store obscene, pornographic or indecent data in violation of applicable law; or (vi) to introduce or propagate any unauthorized data, malware, viruses, worms, Trojan horses, spyware, worms, other malicious or harmful code. Merchant may not use the Platform or Services in any application that may involve risks of death, personal injury, property damage or environmental damage. Merchant may not interfere with or attempt to interfere with or disrupt the integrity, security, functionality or proper working of the Services or the Platform. Merchant may not attempt to discover or use any license keys, access codes or similar information provided from time to time to Hibu. Merchant may not attempt to discover, access, read, alter, destroy, or damage any programs, data or other information stored on or in connection with the Platform or Services by any other party. Merchant may access the Services only through the interfaces and protocols provided or authorized by Hibu. Merchant may not access the Platform or Services through unauthorized means, such as unlicensed software clients. Merchant may not compile or use the Hibu-provided materials or any other information obtained through the Services or the Platform for the purpose of direct marketing, spamming, unsolicited contacting of sellers or customers, or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations.
Merchant may not use the Services to send any content that is illegal, harmful, unwanted, inappropriate, objectionable, confirmed to be criminal misinformation, or otherwise poses a threat to the public, even if the content is permissible by law. Other prohibited uses include:
– Anything that is illegal in the jurisdiction where the message recipient lives. Examples include, but are not limited to:
– Hate speech, harassment, exploitative, abusive, or any communications that originate from a hate group.
– Fraudulent messages.
– Malicious content, such as malware or viruses.
– Any content that is designed to intentionally evade filters.
H. CAN-SPAM Act. Merchant acknowledges and agrees that it is Merchant’s responsibility to ensure that its use of the Services complies with all applicable laws, including the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act). The CAN-SPAM Act establishes requirements for commercial email messages. CAN-SPAM requires that marketing emails include accurate subject lines, an “unsubscribe” button or other mechanism for a recipient to opt out from future emails, the name of the sender and a physical postal address. CAN-SPAM prohibits businesses from sending further emails to a person who has opted out. The Platform has been configured with email templates to ensure that emails that Merchant sends include the information required by CAN-SPAM, including an unsubscribe button. The platform is also configured to track opt outs in order to prevent Merchant from sending further messages to persons who have opted out. Any reconfiguration or attempted reconfiguration of the platform can result in emails being sent in violation of CAN-SPAM.
I. HIPAA Compliance. In providing the Services we do not undertake any obligations under the Health Insurance Portability and Accountability Act of 1996, as amended (HIPAA) relating to the protection of protected health information (PHI) and it is not our intention to collect PHI via the Services. If Merchant is a “health care provider” or other “covered entity” as defined by HIPAA, it is Merchant’s responsibility to ensure that Merchant’s use of the Services complies with HIPAA. Specifically, and without in any way limiting the foregoing:
J. Changes to the Services. Hibu has the right to change, modify, update, add to or discontinue the Services and any aspect or feature thereof, including but not limited to, hours of availability, equipment needed for access or use, and the type of files that can be stored. Hibu will provide Merchant fifteen (15) days advance notice of material changes to the Platform or Services. It is Merchant’s responsibility to this page periodically for any changes. You understand and agree that Hibu may need to change the telephone number(s) and/or the credit card payment processing system. Merchant’s continued use of the Services after a fee increase will constitute Merchant’s agreement to the increase in service fees. You agree that Hibu will not be liable for damages (including consequential or special damages) arising out of any such change and you hereby waive any claims with respect to any such change, whether based on contractual, tort or other grounds, even if Hibu has been advised of the possibility of such damages.
K. Customer Service Recordings. Merchant hereby consents to the monitoring and recording of any and all calls between Merchant and Hibu’s customer services representatives. Such monitoring or recordings will be used by Hibu for quality and training purposes.
A. Merchant Data. Merchant warrants that Merchant is the owner or legal custodian of, or otherwise has the right to provide to Hibu, all programs, data, information, and other content transmitted via the Platform and hosted through the Services, including, without limitation, the Merchant Marketing Content (collectively the “Merchant Data”) and has the full authority to transmit and store the Merchant Data through the Services. Merchant hereby authorizes Hibu to store Merchant Data transmitted by Merchant via the Platform. Merchant acknowledges that Merchant bears sole responsibility for adequate security, protection, and backup of Merchant Data on Merchant’s equipment. Merchant understands that the Services may store and backup files that are no longer usable due to corruption from viruses, software malfunctions and other causes, which might result in Merchant restoring files that are no longer usable. Without limiting the generality of this Section 6-A, Hibu will have no liability to Merchant for any unauthorized access to, or use, alteration, corruption, deletion, destruction, or loss of any of Merchant Data on Merchant’s equipment.
B. Customer Data. In connection with Hibu’s performance of the Services, Hibu may collect online data from Merchant or a Vendor and through the Platform regarding Merchant’s customers (the “Customer Data”). From time to time herein, Merchant Data and Customer Data are referred to individually and/or collectively as “Data.” Further, Merchant acknowledges that such Customer Data may include non-personal information and Personal Information of Merchant’s customers (as defined in the Privacy Policy and applicable state laws) as well as data on customer Interactions with Merchant. Upon termination, expiration or cancellation of your Hibu account (the “Action”), any and all access to any Customer Data is revoked upon the effective date of such Action. In other words, Merchant will no longer have any access or right to access the Platform or any Hibu system to access, use, or download the Customer Data. If Merchant retains any Customer Data, then to the extent that any privacy or data protection laws impose an obligation upon Hibu to comply with an individual's request for deletion of, access to or correction of their Personal Information, Merchant shall reasonably assist Hibu is satisfying such obligations during the Term and thereafter. Any and all risks and liabilities relating to the use, access, storage, processing, and distribution of Customer Data is fully assumed by Merchant during the Term and thereafter. Hibu agrees that it shall forward any such individual requests that it receives to Merchant and shall reasonably assist Merchant, at Merchant’s request and expense, to satisfy such obligations. Merchant shall hold Hibu, its subcontractors, suppliers, and licensors harmless from any and all data protection claims relating to such access. Hibu agrees that it shall: (i) implement security measures commercially reasonably designed to safeguard Merchant Data against unauthorized access, loss, destruction, damage, or disclosure; and (ii) provide commercially reasonable support to Merchant in complying with any legally mandated request or demand made by any court or governmental authority responsible for enforcing privacy or data protection laws. Hibu may transfer Data, including Customer Data to Hibu’s successor or acquirer in a merger, acquisition, or other consolidation, including without limitation the sale of all or substantially all of Hibu’s stock or assets or business to which these Terms of Service apply.
C. Google API User Data Policy Disclosure. Hibu uses Google APIs to connect to your gmail inbox when you enable the gmail integration. Our use of information from the Google APIs will be in compliance with the Google API Services User Data Policy, including the Limited Use requirements.
A. Authority. Merchant represents and warrants that (i) Merchant has full corporate right, power and authority to enter into these Terms of Service, (ii) the execution of these Terms of Service by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which Merchant is a party or by which Merchant is bound, and (iii) when accepted, these Terms of Service will constitute your legal, valid and binding obligation, in accordance with its terms.
B. Compliance with Law. In connection with the subject matter of these Terms of Service, Merchant agrees to, and warrants and represents that it shall, comply with all applicable United States Federal and State laws and regulations, 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, sending of electronic marketing messages including but not limited to the CAN-SPAM Act of 2003, and HIPAA.
C. Validity of Offers. Merchant warrants that any Offer, validly claimed by a customer shall be available for redemption by such customer. Merchant agrees to comply with the Offer terms and conditions as set forth in a particular Offer or any other advertising or marketing terms or Offers made available to Merchant's customers or potential customers via the Services and shall at all times honor the terms of any Offer offered or otherwise promoted via the Services. This Section 7-C shall remain in effect regardless of whether Merchant is currently using the Services.
D. Applications and Customer Data. Merchant represents and warrants: (i) that Merchant is solely responsible for its Customer Data, including without limitation, the security of such Customer Data; (ii) that Merchant has the necessary rights and licenses, consents, permissions, waivers and releases to use the Customer Data and to enable Hibu to use, receive, process, store, transfer, and disclose the Customer Data; (iii) that Merchant has a legally sufficient privacy policy or privacy notice that is made available to customers prior to their provision of any Personal Information to Merchant or Hibu; (iv) that the use and receipt by Hibu of Customer Data (a) does not violate, misappropriate or infringe any rights of Hibu or any third party, (b) does not constitute defamation, invasion of privacy or publicity, or otherwise violate any rights of any third party, and (c) is not designed for use in any illegal activity or does not promote illegal activities, including, without limitation, in a manner that might be illegal or harmful to any person or entity; or (v) does not distribute, share, or facilitate the distribution of unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code.
E. Authorization and Account Information. Merchant represents and warrants that: (i) the information Merchant provides in connection with Merchant's registration for the Services is accurate and complete; (ii) if Merchant is registering for the Services as an individual, that Merchant is at least 18 years of age and has the legal capacity to enter into these Terms of Service; and (iii) if registering for the Services as an entity or organization, (a) Merchant is duly authorized to do business in the country or countries where it operates, (b) the individual accepting these Terms of Service and completing the registration for the Services meets the requirements of subsection (ii) above and is an authorized representative of Merchant, and (c) Merchant's Authorized Users accessing the Services are duly authorized to access the Services and to legally bind Merchant to these Terms of Service and all transactions conducted under Merchant's account.
A. Platform and Services. Hibu warrants solely to Merchant that the Platform and the Services, when used in accordance with the terms of these Terms of Service, will function substantially in accordance with the Documentation. Hibu shall use commercially reasonable efforts to perform the Services according to the agreed upon terms and specifications between Merchant and Hibu in any applicable Service Order. Hibu’s sole obligation and Merchant’s exclusive remedy hereunder with respect to any failure of the foregoing obligations shall be to use reasonable efforts to correct any such failure. Hibu shall have no obligation for any failure resulting from (i) content provided by or passed through Merchant or third-parties in connection with the Services (including Marketing Content); (ii) operating system modifications, changes or updates applied by the Merchant; (iii) the use or combination of the Platform or the Services with any other software or hardware not supported by Hibu; (iv) causes external to the Platform or the Services, such as problems with the hardware, network or other infrastructure with which the Platform and the Services are used; (v) unauthorized or improper use of the Platform or the Services; or (vi) any modification of the Platform or the Services by anyone other than Hibu.
B. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREUNDER, THE PLATFORM AND THE SERVICES ARE PROVIDED TO MERCHANT “AS IS,” WITHOUT WARRANTY OF ANY KIND. HIBU HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THESE TERMS OF SERVICE, THE PLATFORM, THE SERVICES 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, Hibu does not warrant that the Platform or the Services will meet Merchant’s requirements or operate without interruption OR DOWNTIME or be error free. Notwithstanding anything in these Terms of Service to the contrary, the warranties provided by Hibu hereunder with respect to the Platform or the Services may not be extended, supplemented or modified by a Vendor, and if a Vendor makes any additional warranty, representation or commitment regarding the Platform or the Services (or modifies an existing warranty, representation or commitment granted by Hibu regarding the Platform or the Services), the Vendor shall be solely responsible for any such additional warranties, representations or commitments or modifications.
A. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL HIBU, NOR ANY OF ITS AFFILIATES, SUBCONTRACTORS, LICENSORS, VENDORS, SUPPLIERS OR RESELLERS, OR ANY OF ITS THIRD PARTY PARTNERS, BE LIABLE TO MERCHANT OR ANY OTHER THIRD PARTY FOR LOST REVENUES, LOST PROFITS OR OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, RELIANCE OR EXEMPLARY DAMAGES ARISING FROM MERCHANTS OR ANY OTHER THIRD PARTY'S USE OF OR INABILITY TO USE THE SERVICES INCLUDING, BUT NOT LIMITED TO, LOSS OF TECHNOLOGY, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE DAMAGES WHETHER OR NOT HIBU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. THE MAXIMUM AGGREGATE LIABILITY OF HIBU, ITS LICENSORS, VENDORS AND RESELLERS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), SHALL NOT EXCEED THE ACTUAL FEES PAID BY MERCHANT FOR THE SERVICE FOR THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY HEREUNDER.
B. Merchant may not bring any suit or action against Hibu for any reason whatsoever more than one (1) year after the cause of action accrued.
C. Furthermore and notwithstanding anything herein to the contrary, Merchant acknowledges and agrees that: (i) any Services ("Partner Services") provided by, through or in partnership with Vendor or any other third-party partner of Hibu ("Partners") ARE PROVIDED TO MERCHANT "AS IS," WITHOUT WARRANTY OF ANY KIND. HIBU HEREBY DISCLAIMS ON BEHALF OF THE PARTNERS ALL OTHER WARRANTIES WITH RESPECT TO SUCH PARTNER SERVICES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, NO PARTNER SHALL HAVE ANY LIABILITY TO MERCHANT OTHER THAN AS MAY BE SET FORTH IN THE PARTNER'S STANDARD END USER TERMS AND CONDITIONS FOR THE PARTNER SERVICES, (ii) each Partner is hereby granted a limited license to use any content supplied by Merchant in connection with the Partner Services ("Merchant Content"), with the right to sublicense to Partner's publisher partners in connection with the operation of the Partner Services, provided that Partner and its publisher partners shall not provide any third party with access to Merchant Content nor use Merchant Content for its or their own commercial benefit beyond the provision of the Partner Services; (iii) at Merchant's request, reasonable efforts will be used by the Partners to remove from publication any Merchant Marketing Content, but in no event will a Partner or its publisher partners have any liability if such Merchant Marketing Content nonetheless continues to be published; (iv) Merchant will cooperate to provide Hibu with all information reasonably required by a Partner to provide any Partner Services; (v) each Partner is an intended third party beneficiary of this Section 9.3; and (vi) the terms and conditions of all Partner Services shall be subject to the Partner's standard end user terms and conditions for such Services.
Unless otherwise specified in a Service Order (including a Service Order with a Vendor), Hibu or a Hibu agent will provide Merchant support to Merchant via a dedicated telephone number during our regular business hours, Monday through Friday from 9:00 AM to 6:00 PM EDT, excluding U.S. national holidays. In providing support, Hibu or a Hibu agent may use a variety of tools to aid in the process of resolving Merchant issues as a Merchant and may request that Merchant provides additional information in order to resolve these issues. Merchant hereby grants Hibu and such agent the right to use those tools and any information Merchant provides to Hibu in order to provide Merchant with support.
Merchant will indemnify and hold Hibu, its Partners, its and their investors, officers, directors, affiliates, subsidiaries, licensors, agents and employees (collectively, the "Hibu Parties") harmless against any loss, liability, claim, demand, damages, penalties, settlements, costs and expenses, including reasonable attorney's fees, resulting from any claim (including third party claims), suit, action or proceeding against a Hibu Party, resulting from or arising out of or in connection with (i) claims of intellectual property infringement based on (A) Merchant's use or combination of the Platform and the Services with any other software or hardware not supported by Hibu, if such infringement would not have occurred but for such use or combination; (B) any modification of the Platform and the Services by Merchant; or (C) the use by Merchant of any version of the Platform and/or Services other than the current version of the Platform and/or Services, if such version was made available by Hibu with notice that such version was being provided in order to avoid an alleged or potential infringement; (ii) claims relating to the Offers or the fulfillment thereof; or (iii) any breach by Merchant of any representation, warranty or obligation under these Terms of Service; or (iv) the use, transmission, access or disclosure of Customer Data. Hibu does not knowingly collect, either online or offline, personal information from persons under the age of thirteen (13). Merchant agrees to indemnify Hibu if, as a result of customer Interactions, Hibu collects Customer Data from persons under the age of 13.
A. Term. Subject to Hibu’s receipt of all applicable Fees, and unless otherwise set forth in the applicable Service Order, these Terms of Service shall commence upon Merchant's first use of the Services or acceptance of these Terms of Service (whichever comes first) and shall continue on a month-to-month basis thereafter until terminated in accordance with Section 12 (the “Term”). In the event the Service Order provides for a different Term, these Terms of Service shall continue in effect for the Term specified in the applicable Service Order and will automatically renew for subsequent month-to-month terms at Hibu’s then-current month-to-month pricing, unless either party provides notice of non-renewal at least 30 days prior to the expiration of the then-current Term. Unless otherwise specified in a Service Order (including a Service Order with a Vendor), notification of termination or non-renewal from Merchant to Hibu must be emailed to spsupport@hibu.com and must be confirmed by Merchant by phone and at (855) 606-4900 with a member of our support team during our regular business hours, Monday through Friday from 9:00 AM to 6:00 PM EDT, excluding U.S. national holidays.
B. Termination by Hibu. Hibu may terminate these Terms of Service for any reason upon fifteen (15) days’ advance notice to Merchant. Upon termination by Hibu pursuant to this paragraph, Merchant may be entitled to a pro-rata refund of any fees advanced to Hibu.
C. Termination By Merchant. Merchant may terminate these Terms of Service for any reason upon written notice to Hibu delivered no fewer than thirty (30) days prior to Merchant’s next billing period. In order for such notice to be deemed delivered, Merchant must confirm such notice by phone at (855) 606-4900 with a member of our support team during our regular business hours, Monday through Friday from 9:00 AM to 6:00 PM EDT, excluding U.S. national holidays. In the case Merchant fails to fully notify Hibu of their intent to cancel within this time, Merchant is responsible for the payment of services rendered for the subsequent billing term. Upon a termination by Merchant pursuant to this paragraph, Merchant shall not be entitled to a pro-rata refund of any fees advanced to Hibu.
D. Termination by Either Party. Either party may terminate these Terms of Service, effective on written notice to the other party, if: (A) the other party materially breaches these Terms of Service, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 15 days after the non-breaching party provides the breaching party with written notice of such breach; or (B) the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
E. Past Due Bills. In the event of a credit card decline, Hibu, or if applicable, a Vendor, will attempt to reach out to Merchant for a new payment method. If Hibu or, if applicable, a Vendor, fail to connect within 30 days, the account will be terminated due to non-payment and Hibu will attempt to collect on any past due balances at Merchant’s expense. Per Section 4.2, in the event Merchant, or if applicable, a Vendor, requests to cancel with a past due balance, Merchant is required to pay for a minimum of 30 days’ worth of service.
F. Consequences of Termination. Upon termination of these Terms of Service for any reason, Merchant shall cease to use the Platform, the Services, the Customer Data, and Documentation. Hibu retains the right to cease Merchant’s access to the Platform or Customer Data and services in the event of termination by either party.
G. Data Preservation, Retrieval or Transfer. In the event of a temporary suspension of Merchant’s access to Services, (i) Hibu will not take any action to intentionally erase or delete Merchant Marketing Content or Customer Data stored on the Services; and (ii) applicable Fees will continue to accrue. In the event of the termination of these Terms of Service, Merchant may, upon reasonable notice to Hibu, elect to retrieve Merchant Marketing Content or Customer Data directly. If these Terms of Service are terminated for any reason other than Merchant’s breach, Hibu will not take any action to intentionally erase or delete Merchant Marketing Content or Customer Data stored on the Services for a period of thirty (30) days, or for sixty (60) days with respect to customer Interactions as discussed above. If these Terms of Service are terminated on account of Merchant’s breach or alleged breach of these Terms of Service, Hibu will not take any action to intentionally erase or delete Merchant Marketing Content or Customer Data stored on the Services for a period of fifteen (15) days, or for sixty (60) days with respect to customer Interactions as discussed above. In each case, Merchant’s post-termination retrieval or transfer of Data or Marketing Content will be conditioned on Hibu’s receipt of all applicable Fees for the period following termination, payment in full of any other amounts owed, and Merchant’s compliance with such reasonable terms and conditions as Hibu may establish with respect to such retrieval or transfer. In addition, if Merchant utilizes the professional services of Hibu to assist Merchant in connection with such retrieval or transfer, Merchant will be responsible for Hibu's then current charges for such professional services. In the event that Hibu does not receive all such Fees and amounts due within the thirty (30) day or fifteen (15) day periods described above, or in the event that Merchant fails to notify Hibu of Merchant’s election with respect to Merchant Marketing Content or Customer Data within such period, Hibu shall have no obligation to continue to store Merchant Marketing Content or Customer Data or permit Merchant to retrieve or transfer the same.
H. Survival. The following shall survive the termination of these Terms of Service: (i) all liabilities accrued under these Terms of Service prior to the effective date of termination; and (ii) all provisions of Sections 3.2, 3.6, 4, 6, 7, 8.2, 9, 11, 12.4, 12.5 12.6 , 13 and 14 of these Terms of Service. Subject to the provisions of Section 9 hereof, the rights provided in this Section 12 shall be in addition to any and all rights and remedies available to a non-defaulting party at law or in equity upon any breach of these Terms of Service by the other party.
It is Hibu’s policy to respond to notices alleging that any material uploaded by users of the Services or the Platform infringes another persons’ copyright. If you believe that your copyright has been infringed, written notification must be submitted to the following Designated Agent:
Hibu Inc.
Legal Department
P.O. Box 354
East Meadow, New York 11554
inappropriatecontent@hibu.com
To be effective, the notification must include the following:
A. Marketing. Merchant agrees that Hibu may refer to Merchant by name and trademark in Hibu’s marketing materials and web site. Merchant understands and acknowledges that Hibu does not certify or endorse, and has no obligation to certify or endorse, any of Merchant's products or content.
B. Credit Card Authorization. By submitting your credit/debit card (“Bank Card”) data to Hibu, or if applicable, a Vendor, you authorize Hibu, or if applicable, a Vendor, in its complete discretion to submit a financial transaction(s) for a recurring charge to your issuing bank for settlement in accordance with the applicable Service Order or other instructions provided by you to Hibu. You agree that once Hibu, or if applicable, a Vendor, has approved or declined your transaction, Hibu has fully performed under the terms of this Agreement. You agree to contact Hibu, or if applicable, a Vendor, as described above in the event that you desire to cancel any recurring charge. Should you fail to contact Hibu, or if applicable, a Vendor, in accordance with these Terms of Service, you agree not to seek any redress against Hibu, or if applicable, a Vendor, for such recurring charges and you agree to indemnify and hold Hibu harmless from any losses or damages that you suffer as a result of a recurring charge. If you think that there is an error on your account, including an incorrect amount or unauthorized transaction, you agree to contact Hibu, or if applicable, a Vendor, 30 days prior to the next billing cycle by email and phone as described above. Upon proper notification, Hibu, in its sole discretion may issue a credit to your Bank Card.
C. Entire Agreement. These Terms of Service, Privacy Policy and applicable Service Orders set forth the complete understanding of the parties with respect to the subject matter hereof and supersede all prior understandings and communications relating thereto. No term or condition of any other document provided to Hibu which is different from, inconsistent with, or in addition to the terms and conditions set forth herein will be binding upon Hibu.
D. Waiver. The waiver by either party of a breach of any provision hereof shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of such party to avail itself of any right, power, or privilege that it has or may have hereunder operate as a waiver of any right, power or privilege.
E. Governing Law. These Terms of Service shall be governed by and construed in accordance with the laws of the State of New York as if made in and performed entirely within the State of New York. The parties expressly reject any application to these Terms of Service of the United Nations Convention on Contracts for the International Sale of Goods. All disputes, actions, claims, or causes of action arising out of these Terms of Service or the Services shall be subject to the exclusive jurisdiction of the state and federal courts located in New York, and Merchant hereby consents to the jurisdiction of such courts.
F. Assignment. Merchant may not assign its rights or delegate any obligations hereunder without the express prior written consent of Hibu. Any assignment by Merchant without the prior written consent of Hibu shall be null and void. Hibu may assign its rights or obligations hereunder without notice or consent; provided, however, that the Services shall continue to operate as specified in these Terms of Service. These Terms of Service shall inure to the benefit of each party's permitted successors and assigns.
G. Force Majeure. If either party is unable to perform any of its obligations hereunder (other than payment obligations) due to any act of God, fire, casualty, flood, war, strike, shortage or any other cause beyond its reasonable control, and if such party uses reasonable efforts to avoid such occurrence and minimize its duration and gives prompt notice to the other party, then the affected party's performance shall be excused and the time for its performance shall be extended for the period of delay or inability to perform. If the force majeure continues for more than thirty (30) calendar days, then either party may terminate these Terms of Service for convenience upon written notice to the other party.
H. Severability. In the event that any provision contained herein shall for any reason be held invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, to such extent such provision shall be deemed null and void and severed from these Terms of Service, and the remainder hereof shall remain in full force and effect and enforceable.
I. Independent Contractor. Neither Merchant nor Hibu shall be deemed to be an agent of the other and the relationship of Merchant and Hibu shall be that of independent contractors. Neither Merchant nor Hibu shall have any right or authority to assume any obligations, or to make any representations or warranties, whether express or implied, on behalf of the other party, or to bind the other party in any matter whatsoever.
J. Notices. Except as otherwise provided, notices under these Terms of Service shall be delivered by email addressed to the other party at such address as is set forth in the applicable Service Order or such other email address as Merchant may provide to Hibu. Such notice will be deemed to have been given as of the date it is delivered by electronic mail, personally, by confirmed facsimile or by courier, or five (5) days after it is sent by postal mail. All communications and notices to be made or given pursuant to these Terms of Service shall be in the English language.
K. Compliance With Laws. Merchant agrees to comply at all times with all laws, rules and regulations applicable to Merchant’s use of the Services, including but not limited to data privacy laws and legal requirements.
L. Headings. The headings of the sections of these Terms of Service are for convenience of reference only and shall not be considered in construing these Terms of Service.
If Merchant has any questions or concerns about what has been stated in this Terms of Service, please feel free to contact us at legal@hibu.com.
