These Terms of Service (the “Terms”) constitute an agreement governing the use of the Service (defined below) between our Customer and HiThrive Inc., the provider of the Service (which we refer to in these Terms as “HiThrive,” “we” or “us”). Our “Customer” is either (i) the initial individual subscriber for the Service who invites other individuals to join the initial subscriber’s group to use the Service, where that group of individuals is not part of the same business or organization, or (ii) a business or organization, where an individual initiates a subscription for the Service on behalf of that business or organization, providing an email address using the domain of such business or organization, or (iii) the organization identified in the applicable Order Form. When we refer to “you,” “your,” and “yours” in these Terms, we are referring to the Customer. References to the “Service” refer to the online software as a service (“Software”) subscribed to by you and made available by us and supporting services, as described in the Order Form or otherwise made available by us. For the resolution of doubt, “Service” includes implementation and configuration services, Help Center and Library information and resources, and Customer Care and support services, as applicable. We and you are each sometimes referred to herein as a “party.”
The individual who initiates a subscription for a Customer is considered the “Administrator” for the Customer. The Customer may elect to change the Administrator(s) from time to time. The Administrator and other individual(s) using the Service under a Customer’s subscription are referred to in these Terms as a “User” or “Users.” The initial Administrator represents and warrants to us, on behalf of the Customer, that such Administrator has the authority to bind the Customer to these Terms. By using the Service, the Customer acknowledges and agrees that it shall be legally bound by these Terms. The Administrator shall ensure that all Users are notified of these Terms, including the Use Restrictions set forth below. If the Customer does not agree to be bound to these Terms as a legal contract, the Customer must terminate its subscription and ensure that its Users cease use of the Service.
- 1. Accessing the Service
The Administrator has certain responsibilities on behalf of a Customer.
- 1.1 Obtaining a Subscription
The Administrator must obtain and maintain a subscription for the Customer and its Users to access and use the Service. A subscription may be procured through one of several alternatives: (i) through the HiThrive website, (ii) by completing and submitting to us an Order Form, or (iii) through your account with an integrated third-party service, such as Slack or Microsoft Teams (a “Third Party Service”). If you select one of the first two methods, the Administrator shall provide us with an email address and other information we require to establish a Customer subscription. If you choose the Third Party Service option, we’ll create the Customer account by extracting from your Third Party Service certain information regarding you and your Users, such as name, email address and other information that the privacy settings on the Third Party Service permit us to obtain. We refer to this information we obtain from you and/or a Third Party Service as “Customer Information.” Please contact us at email@example.com for more information.
You must ensure that the Customer Information is accurate and complete, and is updated in a timely manner when necessary. If the Customer Information is incorrect, we may not be able to contact you, and we reserve the right to suspend or terminate your subscription. If we provide the Administrator with a password for a Customer administrator account, it is the Customer’s responsibility to establish and maintain security for such password. We reserve the right to not provide the Customer’s password to anyone unless we are satisfied, in our sole discretion, that the individual requesting the password is authorized by the Customer. You must notify us immediately of any unauthorized access to or use of your password, or the Service. You are responsible for all activities that occur under your subscription, whether or not you know about or authorize them.
A Customer subscription is completed when we accept the Customer request and make the Service available to the Customer and its Users, and shall remain in effect for the period of time specified in the Customer account settings or in the Order Form, as applicable, or until any earlier termination according to these Terms. You may be eligible to use the Service for an initial free trial subscription before purchasing a subscription. Please see our Pricing Page or applicable Order Form for information regarding subscription pricing.
- 1.2 Eligibility
The Administrator shall ensure that all Users are 18 years or older, and are authorized by the Customer to use the Service. The Service is not directed to minors, and we rely on Administrators to ensure minors do not use the Service. We do not knowingly collect personal information from minors and, if we learn that we have inadvertently obtained information in violation of applicable laws prohibiting collection of information from minors, we will promptly delete it.
- 1.3 Compliance
It is the Administrator’s obligation to ensure that all Users comply with our Use Restrictions. In addition, the Administrator shall ensure that all Users comply with the Customer’s policies and legal obligations, as we do not assume any responsibility for actions taken, or omissions by, Users when using the Service.
- 2. Providing the Service to You
- 2.1 Availability
HiThrive will endeavor to make the Service available 24 hours a day, 7 days a week, excluding such periods when the Service may be unavailable due to necessary maintenance, updates or other factors, and unanticipated downtime. We anticipate that Service unavailability will be infrequent and of very limited duration and should we know that there will be any extended unavailability, we will use reasonable efforts to provide advance notice to you. However, HiThrive does not offer any guarantee or warranty that the Service will be available at all times, or that it will continue to be offered indefinitely.
- 2.2 Service Providers
- 2.3 Third Party Services
The Service may allow you to connect to or otherwise interact with one or more third-party service providers (for example, a human resources information system) for purposes permitted by the Service. Because we do not control such third-party service providers, access to any such third-parties through the Service may be implemented, suspended or terminated by us from time to time in our sole discretion, including as may be necessary for security or maintenance purposes or as required by applicable law. It is your sole responsibility to enter into and maintain any agreement between you and any such third party for the provision of their services to you or otherwise, and we are not hereby made a party to such agreement. To the extent you or your representatives or Authorized Users use the Service to transmit any Customer Content (defined below) to or from any such third party, you direct and authorize us to provide or receive, respectively, such Customer Content to or from such third party. To the extent you or your representatives or Authorized Users use the Service to connect or otherwise interact with any such third party, or have identified or designated any such third party as your third-party service provider, you authorize us to allow such third party to access your Customer Content as necessary for us to provide the Service to you. You acknowledge and agree that such third parties are not our agents, that we are not responsible for their services, compliance, accuracy, actions or omissions or for their maintenance or treatment of your Customer Content, that we will not be liable for and specifically disclaim liability for any damage or loss caused thereby, that access to such third party via the Service does not imply any endorsement by us, and that any of your Customer Content submitted to such third parties via the Service will be governed by your agreement (if any) with such third party. We are not responsible for any disclosure, modification or deletion of Customer Content resulting from access by such third party.
- 2.4 Updates
We reserve the right to update, upgrade or otherwise modify the Software at any time and with or without notice; provided, however, we will provide advance notice of anticipated downtime when possible. We may suspend provision of the Software, at any time with reasonable notice (except in emergency cases relating to security or adverse impacts on the Service), for security or maintenance purposes or as required by applicable law. We will use commercially reasonable efforts to minimize the duration of any such suspension.
While we expect to provide updates and other modifications to the Service from time to time, and guidance on how to use the Service as it may be updated, we shall not have any obligation to provide specific support to you with respect to the use or modifications of the Service.
We may share information about future enhancements or other changes to the Service, but you should not rely upon them when deciding to subscribe. Your decision to subscribe should be based upon the functionality available when you are making that decision, and not on the potential future functionality.
- 3. Ownership
- 3.1 Company Properties
As between you and us, the Service and all content therein (excluding Customer Content, defined below) (collectively, the “Company Properties”), any all and all modifications, enhancements, upgrades and updates thereto, and all copyrights, trademarks, service marks, trade secrets, patents and other intellectual property rights therein (registered or unregistered), are the exclusive property of us and our suppliers. All rights in and to Company Properties not expressly granted to you in these Terms are reserved by us and our suppliers. For the avoidance of doubt, these Terms do not grant you any right to copy, transmit, transfer, modify or create derivative works of the Company Properties, or reverse engineer, reverse compile, reverse assemble or otherwise determine or derive source code of the Company Properties, or any other right in or to the Company Properties not specifically set forth herein.
- 3.2 Customer Content
As between you and us, you are the owner of the content, information, and other data (including, as applicable, any Confidential or personal information) uploaded by you to the Software, or otherwise transmitted by you or your representatives or third-party service providers in connection with your use of the Service (collectively, “Customer Content”). You hereby grant us a non-exclusive, worldwide, royalty- free and fully paid license, during the Term, to use the Customer Content as necessary for the purpose of providing the Service to you. Notwithstanding the foregoing license, we have no obligation to process, render, prepare or produce the Customer Content in any manner or format other than as described in the Documentation. You are responsible for the accuracy, quality and legality of Customer Content, the means by which you acquired Customer Content, your use of Customer Content with the Service and your interoperation of any Customer Content with the Service.
- 3.3 Protecting Customer Data
- 3.4 License to Use Feedback
You grant us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into our Software and Service any suggestion, enhancement request, recommendation, correction or other feedback provided by you or your Authorized Users relating to the operation of the Company or the Service.
- 4. Term and Termination
- 4.1 Term
The term of your subscription and rights to use the Service will terminate on the date set forth in your Order Form, if any. The “Effective Date” means the Effective Date specified on the Order Form or, if no date is specified, the date the Order Form was entered. The “Initial Subscription Term” means the Initial Service Term of the Software subscription specified in the Order Form or the period from the Effective Date through the expiration of the Initial Service Term. Unless sooner terminated as provided in this Section 4, these Terms will be effective beginning on the Effective Date and remain in effect for the combined duration of the Initial Subscription Term and any subsequent Service Term (each a “Renewal Term”), such that these Terms are coterminous with the natural expiration or earlier termination of the latest Order Form, as applicable. The Initial Subscription Term collectively with each Renewal Term is the “Term”. Notwithstanding the foregoing, the maximum term of use for any complimentary Software product is the earlier of the renewal, expiration, or termination of a paid Software product included on the Order Form, provided that use of a complimentary (unpaid) Software product or Service may be terminated by us at any time and for any reason.
- 4.2 Renewal
Unless an Order Form provides otherwise, (i) all subscriptions automatically renew (without the need to go through the Service-interface “check-out” or execute a renewal Order Form) for an additional period equal to the preceding term; and (ii) subject to any price increase (see below), the per-User pricing during any automatic renewal term will remain the same as it was during the immediately prior term. You may notify us of your desire to not automatically renew by providing us with at least thirty (30) days’ notice prior to the end of the subscription term to stop the subscription from automatically renewing; if you do so, your right to use the Service shall terminate at the end of the then-current subscription term.
- 4.3 Termination for Breach
Either party may terminate these Terms or any Order Form if the other party materially breaches these Terms or Order Form and fails to cure such breach within thirty (30) days after it receives written notice of such breach. A material breach includes, without limitation, a failure to make a full and timely payment (not disputed in good faith), or a commission of any of the acts contemplated in Section 5. If you terminate these Terms or an Order Form due to HiThrive’s breach, any related prepaid Fees for Services not yet provided will be refunded to you.
- 4.4 Effect of Termination
Sections 3 (Ownership), 4 (Term and Termination), 6 (Confidentiality), 7 (Payment of Fees) (with respect to Fees accrued prior to termination), 8 (Warranties and Disclaimer), 9 (Indemnification), 10 (Limitation of Liability), 11 (Dispute Resolution), and 12 (General) will survive any termination of these Terms. Termination of these Terms with respect to one Order Form does not terminate these Terms with respect to any other Order Form.
- 5. Use Restrictions
You agree to ensure that Users shall not do any of the following:
- ● Post, upload, publish, submit or transmit any Customer Data that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
- ● Use, display, mirror or frame the Service or any individual element within the Service, HiThrive’s name, any HiThrive trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without HiThrive’s express written consent;
- ● Access, tamper with, or use non-public areas of the Service, HiThrive’s computer systems, or the technical delivery systems of HiThrive’s providers;
- ● Attempt to probe, scan or test the vulnerability of any HiThrive system or network or breach any security or authentication measures;
- ● Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by HiThrive or any of HiThrive’s providers or any other third party (including another user) to protect the Service or Customer Data;
- ● Attempt to access or search the Service or Customer Data or download Customer Data from the Service through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by HiThrive or other generally available third-party web browsers;
- ● Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- ● Use any meta tags or other hidden text or metadata utilizing a HiThrive trademark, logo URL or product name without HiThrive’s express written consent;
- ● Use the Service or Customer Data, or any portion thereof, for any purpose contrary to Customer’s policies or requirements, or in any manner not permitted by these Terms;
- ● Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Service or Customer Data to send altered, deceptive or false source-identifying information;
- ● Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Service or Customer Data;
- ● Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Service;
- ● Collect or store any personally identifiable information from the Service from other users of the Service without their express permission;
- ● Impersonate or misrepresent your affiliation with any person or entity;
- ● Violate any applicable law or regulation; or
- ● Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Service or Customer Data or to review or edit any Customer Data, we have the right to do so for the purpose of operating the Service, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Customer Data stored within the Service, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Customer Data to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Service. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
- 6. Confidentiality
- 6.1 Definition
Each party may have access to the other party’s information, which will be deemed “Confidential Information” if identified as such by the disclosing party or if the information by its nature is normally and reasonably considered confidential, such as information regarding product, methodology, research, customers, business partners, business plans and any information that provides a competitive advantage. Your Confidential Information includes Customer Content; Confidential Information of the Company includes all non-public aspects of the Service and these Terms and all Order Forms (including pricing).
- 6.2 Standard of Care
The receiving party will use the same degree of care as it uses to protect its own Confidential Information of a like nature, but not less than a reasonable degree of care, to (a) prevent use or copying of the disclosing party’s Confidential Information for any purpose other than to perform its obligations or exercise its rights as provided under these Terms, and (b) prevent disclosure of the disclosing party’s Confidential Information other than to its employees (or agents bound by similar confidentiality obligations) with a need to access the Confidential Information for purposes consistent with these Terms. Confidential Information will remain the property of the disclosing party and will be returned or (along with all copies) destroyed upon request, at which time the receiving party will provide to the disclosing party a written certification of such return or destruction. Without limiting any other provision of these Terms, with respect to its obligations under this Section 6, the receiving party will be responsible for the acts and omissions of its employees, contractors and agents to the same extent as if those acts and omissions were those of the receiving party. The parties acknowledge, intend, and agree that this Section 6 and the obligations set forth herein supersede any and all prior confidentiality, non-disclosure, or similar agreements between the parties.
- 6.3 Exceptions
Information will not be deemed Confidential Information hereunder if it: (i) it is information that becomes generally known to the public through no fault of the receiving party, its affiliates or their agents or representatives; (ii) is or becomes known to the receiving party without restriction from a third party other than as a result of breach of contract or wrongful or tortious act; or (iii) is independently developed by the receiving party without reference to or reliance on the disclosing party’s Confidential Information. Confidential Information may be disclosed to the extent required by applicable law, provided the disclosing party is given reasonable advance notice of such disclosure.
- 7. Payment of Fees
- 7.1 Fees
You will pay us the fees set forth in the online checkout or in the applicable Order Form (other than fees disputed in good faith) in accordance with the terms therein (the “Fees”). All Fees are nonrefundable except as expressly provided herein. Any Fees per User will apply with respect to the initial number of Users identified in the Order Form, plus any additional actual Authorized Users. Fees for additional Authorized Users will be prorated through the end of the current Term and will be invoiced to you in the month after the additional Users are granted access to the Software. With respect to any Order Form, we may increase the Fees in effect at the start of any Renewal Term by giving you at least forty-five (45) days advance written notice of such increase.
- 7.2 Payment
HiThrive accepts certain debit and credit cards as well as other forms of cash payment and electronic transfers as acceptable payment methods for the Service (each, an “Accepted Payment Method”), subject to the procedures and rules contained in these Terms and any applicable contract with the provider of the Accepted Payment Method. Accepted Payment Methods may vary by country or by certain features of the Service and may change from time to time. When you purchase with an Accepted Payment Method, the fees for your Service will be billed on or near the date of your purchase. You agree that we may process your Accepted Payment Method on each monthly, annual or other renewal term (based on the applicable subscription term), on or near the calendar day corresponding to the commencement of your Service subscription, as applicable. See “Cancellation” below for information on how to cancel a Service subscription. All invoices, fees and any other applicable charges are due and payable to us within thirty (30) days after the date of our applicable invoice. All Fees and other amounts are payable in United States Dollars.
In order to facilitate the charging and payment for your subscription, you agree that we have permission to retain and/or share with financial institutions and payment processing firms (including any institutions or firms we retain in the future) information regarding your purchase and your submitted payment information in order to process your payment, and to use your Customer Information to provide you with notices and disclosures relating to renewals and recurring charges. If your Service subscription began on a day not contained in a subsequent month (e.g., your service began on January 30, and there is no February 30), HiThrive will process your payment on or near the last day of such month. (This is what we mean by paying on an autorenewal basis.) See below for information describing what you must do to change your Accepted Payment Method.
- 7.3 Paying our Payment Processor
When you purchase the Service, you are granting HiThrive the irrevocable right and permission with respect to such purchase to provide your personal data and payment information to any third-party payment processor we contract with (such as Stripe and/or one of its financial service providers) on your behalf, and to grant such firm(s) (and/or one of their respective financial service providers) the rights to collect, use, retain, and disclose such data and information. In addition, you authorize HiThrive to (i) obtain and verify your identity as necessary to complete financial transactions, and (ii) determine your eligibility and authority to complete such purchase.
Please note that your obligation for payment to, and relationship with, such payment processor is a contractual matter between you and such third-party; HiThrive is not a party to, or responsible on account of, such contract. While we select our payment processors carefully and enter into detailed agreements imposing performance obligations (including confidentiality) on them, we cannot and do not guarantee their performance.
- 7.4 Changes to Payment Methods and Account Information
You are responsible for ensuring that your Customer Information, including all payment information (address, debit or credit card number and expiration date), is accurate and up to date. You may change this information at any time by logging into your account through the HiThrive website, accessing your account page and making the changes or by contacting firstname.lastname@example.org If you have any difficulty making any change to the payment method, you must notify us by contacting email@example.com and demonstrating to our satisfaction your authority to change the payment method used for the Service.
If your credit card expires or the information is otherwise invalid, or you or another party controlling the payment method make changes to your billing account too close in time to when we charge for the Service subscription (so we cannot reasonably act on your changes prior to billing), we will probably not be aware of this, and we will bill the current charges to the card we had on record; the continuation of your Service subscription constitutes your authorization for us to do so, and you remain responsible for any uncollected amounts and any charges incurred by you or us as a result of billing to an invalid card or other payment method.
- 7.5 Cancellation of a Service Subscription
You may elect to cancel your subscription to the Service at any time. Except as otherwise provided in these Terms, any cancellation of the Service will be effective as of the end of the then-current subscription term. If you desire to cancel your subscription for the Service, you must notify us by contacting firstname.lastname@example.org and demonstrating to our satisfaction that the individual requesting cancellation is authorized to cancel the Customer’s subscription. If you are using the Service during any trial period without charge, and we have provided that you will be charged a subscription fee at the end of the trial period, you must cancel the Service prior to the end of the trial period in order to avoid incurring the charges for the paid subscription for the Service.
We may cancel any Service subscription you have purchased if you fail to pay the applicable subscription fee and any applicable Taxes in full and in a timely manner according to these Terms or any agreement with a payment processor. A failure to pay occurs in any situation where HiThrive has not received timely payment, including where any credit card issuer or payer bank refuses to transmit the funds that are then due, or the payment processor you have contracted with notifies us of your failure to pay. We may, in our discretion, elect not to cancel a Service subscription immediately for non-payment, in which case you will continue to be responsible for the fees due for the duration of the applicable subscription. In addition, if you fail to pay for a Service, we may elect to suspend your rights to use that Service or we may change the type of Service you have to a non-paid version of the Service, if applicable. We will endeavor to provide you notice promptly after any failure to make a payment to us in full and on time, but we are not obligated to do so.
- 7.6 Costs of Collection; Credit Card Chargebacks
In addition to the published fees for the Service, you agree to pay any reasonable costs we incur to collect any unpaid or past due amounts, including reasonable attorneys' fees and other associated costs. Delinquent payments will bear interest at the rate of 1% per month or the highest rate permitted under applicable law, whichever is less, from the payment due date until paid in full.
If you purchase a Service subscription with a credit card and then subsequently request your credit card issuer to reverse that payment, HiThrive may be charged a fee. Accordingly, in order to enable you to pay fees with a credit card, you acknowledge and agree that we reserve the right to suspend your ability to use the Service until such time as you reimburse us the amount of the fee we were charged by the card issuer.
- 7.7 Taxes
Fees do not include any taxes, levies, duties, export or import fees, or other governmental assessments of any nature, including but not limited to value-added sales, use or withholding taxes, imposed or assessed by any jurisdiction (collectively, “Taxes”). You are responsible for the payment of all applicable Taxes (other than Taxes assessable against us based on our income, property, franchise or employment) associated with your subscription to the Service. You agree to cooperate with us and provide us with timely and accurate information as may be required for the calculation and withholding of applicable Taxes. If we have a legal obligation to collect and remit Taxes for which you are responsible, we will invoice you and you will pay us that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
- 8. Warranties and Disclaimer
- 8.1 Each party represents that it has validly entered into these Terms and any resulting agreement and is not subject to any agreements that conflict with the undertakings provided hereunder.
- 8.2 We hereby warrant that during the Term:
- a) we own, or otherwise properly license, the Software, and the Service, and have the full power and authority required to use, publish, transfer, and/or license any and all rights and interests in and to the Software and Service to you;
- b) we shall provide and perform all Software and Service in a professional and workmanlike manner in accordance with prevailing industry standard practices for similar enterprise software as a service; and
- c) all Software, Service, Company Properties, and any other content provided to you under these Terms shall comply with applicable law.
- 8.3 EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SERVICE, SOFTWARE, AND ALL COMPANY PROPERTIES ARE PROVIDED “AS IS,” AND NEITHER PARTY MAKES AND WE SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE DO NOT WARRANT THAT THE SERVICE, SOFTWARE, OR COMPANY PROPERTIES WILL BE ERROR-FREE OR UNINTERRUPTED. YOU AGREE THAT WE ARE NOT LIABLE FOR ANY CLAIMS ARISING FROM ANY ADVICE PROVIDED BY US IN CONNECTION WITH THE SERVICES. IMPLEMENTATION AND ADVISORY SERVICES ARE PROVIDED AT YOUR OWN RISK. FURTHER, ANY CONFLICTING TERM HEREIN NOTWITHSTANDING, WHERE APPLICABLE, COMPLIMENTARY SERVICES ARE ACCEPTED BY CUSTOMER AS-IS AND ARE NOT SUBJECT TO ANY SERVICE LEVEL AGREEMENT OR PRODUCT PERFORMANCE WARRANTIES.
- 8.4 You hereby warrant that:
- a) you own, or otherwise properly license, the Customer Content;
- b) you have the full power and authority to make the license grants hereunder; and
- c) the Customer Content provided to us under these Terms shall comply with any applicable law.
- 9. Indemnification
- 9.1 By us
We will defend, indemnify, and hold harmless you and your officers, directors, employees and agents from and against all claims, damages, losses and external expenses (including reasonable attorneys’ fees), except where caused in whole or in part by your use of the Service in violation of these Terms, arising out of any claim by any third party to the extent such claim:
- a) alleges that the Service or Software (in each case as made available to you for use in accordance with these Terms) infringes or misappropriates any such third party’s intellectual property rights, under the Uniform Trade Secrets Act, U.S. patent, copyright, trademark or other applicable intellectual property law. Notwithstanding the foregoing, we will have no obligation under this paragraph and will not otherwise be liable to the extent the claim is based on: (i) use of the Service or Software in combination with any hardware, software, data, content, or other component not provided by us; (ii) Customer Content; or (iii) use of the Service or Software other than in accordance with these Terms and the Documentation; or
- b) is based on or alleges our violation of applicable laws.
- 9.2 By you
You will defend, indemnify and hold harmless us and our officers, directors, employees and agents from and against all claims, damages, losses and external expenses (including reasonable attorneys’ fees) arising out of any claim by any third party to the extent such claim is based on or related to: your use of the Software or Service in violation of these Terms, or other than in accordance with any advice, training, materials or resources, or implementation services provided by us in connection with the Service; your Customer Content; or your violation of applicable law or the rights of any third party.
- 9.3 Procedures
The person or entity seeking indemnification hereunder (the “Indemnified Person”) will provide detailed written notice to the indemnifying party promptly after learning of the claim, and the indemnifying party will not be obligated to indemnify only to the extent it is materially prejudiced by any delay in such notice. The indemnifying party will have the right to assume control of the defense and settlement of the claim (provided that the prior, written agreement of the Indemnified Person will be required in order to enter into any settlement or compromise that does not include a full release of the Indemnified Person or that requires any payment or admission of wrongdoing by the Indemnified Person), in which case the Indemnified Person (i) will provide reasonable assistance at the indemnifying party’s reasonable expense and (ii) may employ counsel at its own expense. If we believe our intellectual property is or may become the subject of a claim of infringement or misappropriation, we may, at our option and expense, procure for the right to use the intellectual property, or modify or replace the intellectual property to make it non-infringing and functionally equivalent. If we reasonably conclude that neither of these alternatives is reasonably available, we may require the return or destruction of its intellectual property upon written request and the termination of these Terms to the extent performance is based upon or involves the use of such intellectual property, in which case you would be entitled to a refund of any prepaid fees for the period after termination.
- 10. Limitation of Liability
EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, USE OR PROFIT, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING TO THE SERVICE OR THESE TERMS, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EACH PARTY’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE SERVICE OR THESE TERMS WILL NOT EXCEED THE SUBSCRIPTION FEES PAID OR PAYABLE BY YOU DURING THE THEN-CURRENT OR MOST RECENT SUBSCRIPTION TERM PRIOR TO THE INITIAL EVENT CAUSING OR RESULTING IN SUCH LIABILITY, OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO HITHRIVE, AS APPLICABLE. REGULATIONS AND JUDICIAL PRECEDENT IN CERTAIN STATES LIMIT THE MAXIMUM AMOUNT THAT DAMAGES CAN BE LIMITED BY OPERATION OF CONTRACT. IF UNDER SUCH CIRCUMSTANCES, THE FOREGOING LIMITATION OF LIABILITY IS DEEMED INEFFECTIVE AS A MATTER OF LAW, IT SHOULD INSTEAD BE CONSTRUED TO LIMIT LIABILITY TO THE MINIMUM AMOUNT THAT WOULD BE CONSISTENT WITH SUCH LAWS OR PRECEDENT WHILE STILL GIVING EFFECT TO THE INTENTION OF THIS CLAUSE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HITHRIVE AND YOU.
- 11. Dispute Resolution
- 11.1 Arbitration
The parties will attempt in good faith to resolve any dispute arising out of or relating to the Service or these terms by negotiation. Any such dispute not so resolved will be resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (except to the extent that such rules are inconsistent with the provisions set forth herein). Such dispute will be heard in New York County, New York, United States, by one neutral arbitrator. The arbitrator(s) will have the authority to award compensatory damages only, and will not have the authority to consolidate actions or claims. The award rendered by the arbitrator(s) will be final and binding, and judgment upon such award may be entered in any court having jurisdiction thereof. Notwithstanding any other provision herein, any demand by a party for arbitration must be made in writing to the other party within the period prescribed by the state or federal statute of limitations applicable to the claim upon which the demand is based. If demand is made after such period, the claim will be void and deemed waived. The existence, conduct and content of such arbitration will be kept confidential, and neither party will disclose the same to any person other than its attorneys, auditors, financial advisors, assignees or potential assignees, except as may be required by law or governmental authority or for financial reporting purposes.
- 11.2 Limitations Period
Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms or the use of the Service must be filed or otherwise commenced within one (1) year after such claim or cause of action arose or be forever barred.
- 11.3 Injunctive Relief
Notwithstanding any other provision hereof, either party may seek to enforce its rights hereunder with respect to the protection of its Confidential Information or intellectual property through temporary or permanent injunctive relief, which will be in addition to any other available relief and which will not require a bond or security. Each party acknowledges that any breach by a party of its obligations hereunder with respect to the Confidential Information or intellectual property rights of the other party might constitute immediate, irreparable harm to such other party for which monetary damages would be an inadequate remedy.
- 12. General Terms
- 12.1 Complete Agreement
These Terms together with any applicable Order Form constitute the entire and exclusive understanding and agreement between HiThrive and you regarding the Service, and these Terms supersede and replace any and all prior oral or written understandings or agreements between HiThrive and you regarding the Service. However, to the extent of any conflict or inconsistency between these Terms and any Order Form entered into between the parties, the terms of such Order Form shall control. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding a HiThrive-accepted Order Form) will be incorporated into or form any part of these Terms, and all such terms or conditions will be null and void.
- 12.2 Severability
If any provision of these Terms is, for any reason, held to be invalid, illegal, or unenforceable, the other provisions of these Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- 12.3 Assignment
Neither party may assign or otherwise transfer these Terms or any rights or obligations hereunder without the written consent of the other party, except that either party may, without such consent, assign or transfer these Terms to an Affiliate or a purchaser of all or substantially all of its assets or to a successor organization by merger, consolidation, change of control, conversion or otherwise. These Terms are binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
- 12.4 Notices
Any notice required or permitted under these Terms must be in writing and delivered by email (i) to you at the email address included within your Customer Information or (ii) to HiThrive at email@example.com. We may also elect to provide notice to you by delivering a message to one or more Users within the Service if the initial Administrator is no longer a User within Customer’s subscription, and you have not provided us with the identity of a replacement Administrator. You agree that all notices and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. The date of receipt will be deemed the date on which such notice is transmitted.
- 12.5 Waiver
Any provision of these Terms may be waived only in a writing signed by the party to be bound thereby. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- 12.6 Governing Law
These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
- 12.7 Public Announcements
You grant us the right to use your name, logo, trademarks and/or trade names in press releases, webpages, product brochures and financial reports indicating that you are a customer of ours. All other public statements or releases will require the mutual consent of the parties.
- 12.8 Relationship of Parties
Neither these Terms nor the cooperation of the parties contemplated under these Terms will be deemed or construed to create any partnership, joint venture or agency relationship between the parties. Neither party is, nor will either party hold itself out to be, vested with any power or right to bind the other party contractually or act on behalf of the other party as a broker, agent or otherwise.
- 12.9 Force Majeure
Neither party will be liable for any delay or failure to perform its obligations hereunder (other than any obligation to make a payment) resulting from any cause beyond such party’s reasonable control, including pandemic, weather, fire, floods, labor disputes, riots or civil disturbances, acts of government, and acts of war or terrorism, provided that, in every case, the delay or failure to perform is beyond the control and without the fault or negligence of the party claiming excusable delay and that such party cures the breach as soon as possible after the occurrence of the unforeseen event.
- 13. Applicable Customer Terms
The following Applicable Customer Terms shall automatically apply to the contract between HiThrive and any government Customer described below, in which case any conflict between the Applicable Customer Terms and the Terms provided above shall be governed by these Applicable Customer Terms:
- 13.1 U.S. Government Customers
If Customer is a United States government or public entity (or use of the Service is for the United States government), the terms of this Section apply:
- a) The Service is a “commercial item,” as defined at 48 C.F.R. §2.101, and constitutes “commercial computer software” and “commercial computer software documentation,” as used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202 to §227.7204. This commercial computer software and related documentation is provided to end users for use, by and on behalf of the United States government, with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
- b) The sections in the Terms under the captions “Autorenewal,” “Indemnity,” and “Dispute, Resolution” and are hereby waived to the extent they are inconsistent with federal law.
- c) We agree that Customer’s seals, trademarks, logos, service marks, trade names, and the fact that Customer uses our Service, will not be used by us in such a manner as to state or imply that our products or services are endorsed, sponsored or recommended by Customer or by any other element of the United States government, or are considered by Customer or the United States government to be superior to any other products or services. Except where Customer has provided any design or content into the Service, or for links to or promotion of such pages, we agree not to display any Customer or government seals, trademarks, logos, service marks, and trade names on our homepage or elsewhere on one of our hosted sites unless permission to do so has been granted by Customer or by other relevant federal government authority. We may list Customer’s name in a publicly available customer list so long as the name is not displayed in a more prominent fashion than that of any other customer.
- 13.2 State or Local Government Customers
This Section applies to Customer if Customer is a state or local government, but only to the extent the Service is being used in the User’s official capacity as a state or local government official. The sections in the Terms under the captions “Autorenewal,” “Indemnity,” and “Dispute Resolution,” will not apply to Customer only to the extent Customer’s jurisdiction’s laws prohibit Customer from accepting the requirements in those sections.
- 13.3 HiThrive Not a Government Contractor
Notwithstanding any provision in these Applicable Customer Terms to the contrary, HiThrive shall not be considered a government contractor for any federal, state, local, or foreign government.
- 13.4 Healthcare Customers
Unless Customer has entered into a written agreement with HiThrive to the contrary, Customer acknowledges that HiThrive is not a “Business Associate” as defined in the Health Insurance Portability and Accountability Act and related amendments and regulations as updated or replaced (“HIPAA”), and that the Services are not HIPAA compliant. Customer must not use, disclose, transmit or otherwise process any “Protected Health Information” as defined in HIPAA (“PHI”) through the Services. Customer agrees that we cannot support and have no liability for PHI received from Customer, notwithstanding anything to the contrary herein.
- 14. Contact Information
If you have any questions about these Terms or the Service, please contact HiThrive at firstname.lastname@example.org, phone: 646-484-8574, physical address: HiThrive Inc., PO Box 20073, New York, NY 10014.
- 15. Other
Please note that “Slack”, "Microsoft Teams", and “Stripe” are trademarks of Slack Technologies, Inc., Microsoft Corporation, Inc., and Stripe, Inc., respectively, and or their respective affiliates in the U.S. and other countries, and other trademarks and service marks referenced herein are the trademarks of their respective owners. HiThrive does not endorse any of these services, and neither Slack, Microsoft Teams, Stripe nor any other services mentioned in these Terms should be interpreted as an endorsement or recommendation of any HiThrive service, and no assumption of any endorsement should be taken from HiThrive’s integration with or use of any of those services.