2018 SERVICE TERMS
Last Updated: May 6, 2018
These Terms of Service (the “Terms”) govern the license and use of the products and services offered by David Morris Enterprises, LLC dba The HiPER Solutions Group (HSG) (“HSG”). These Terms are incorporated into the applicable Subscription Agreement (defined below) entered into between you, or the entity listed on the applicable Subscription Agreement (hereinafter, the “Client”) and HSG, and these Terms together with the applicable Subscription Agreement, constitute the valid, complete, and binding contract between HSG and Client. PLEASE NOTE, THESE TERMS ALSO CONTAIN AN AGREEMENT TO ARBITRATE IN SECTION 14 BELOW WHICH WILL REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST HSG TO BINDING AND FINAL ARBITRATION.
If you do not agree to all of the terms and conditions of these Terms or the Subscription Agreement, or if you do not have such authority, do not accept the Subscription Agreement and do not access or use the HiPER Subscription.
“Authorized Users” means Team Leads and Team Members.
“HiPER Subscription” means the HiPER Platform and Services made available to Client by HSG as further set forth on the applicable Subscription Agreement.
“HiPER Platform” means HSG’s proprietary online platform service and online survey tools made available to Client, solely over the internet, by HSG to Client under these Terms.
“Services” means the experiences and services described in the applicable Subscription Agreement to be provided by HSG to Client as part of the HiPER Subscription.
“Subscription” means a subscription purchased by Client to access and use the HiPER Subscription.
“Blind Data” means any and all aggregated non-personally identifiable data or information resulting from Client’s or its Authorized Users’ use of the HiPER Platform, Services or any other services provided by HSG.
“Client Data” means any and all data or information (including personally identifiable information) of Client or its Authorized Users, provided to HSG or submitted through the HiPER Platform by Client or its Authorized Users, or collected by HSG or a third party on behalf of Client, in connection with the HiPER Subscription or any other services provided hereunder.
“Feedback” means any and all suggestions and feedback provided to HSG by Client or Authorized Users regarding the functioning, features, and other characteristics of the HiPER Platform, Services, or other materials or services provided or made available by HSG under the applicable Subscription Agreement.
“Fees” means the Subscription Fee and any and all other fees and expenses payable by Client to HSG under these Terms or the Subscription Agreement for Client’s access and use of the HiPER Subscription or other services provided by HSG to Client hereunder.
“HSG Website” means HSG’s website located at www.thehsg.com or any other website designated by HSG.
“Intellectual Property Rights” means patents and patent applications, inventions (whether or not patentable), trademarks, service marks, trade dress, copyrights, trade secrets, know-how, data rights, specifications, mask-work rights, moral rights, author’s rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all derivatives, renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country or jurisdiction.
“Subscription Agreement” means the electronic or written subscription agreement entered into between Client and HSG for the subscription purchased by Client for access and use of the HiPER Subscription provided by HSG during the Subscription Term.
“Subscription Term” means the term set forth on the Subscription Agreement for the applicable Subscription purchased by Client for the HiPER Subscription.
“Subscription Fee” means the subscription fee set forth on the Subscription Agreement and payable by Client to HSG for the Subscription to the HiPER Subscription.
“Team Lead” means an employee or contractor of Client who is authorized to use the HiPER Platform as set forth in the Subscription Agreement and designated by Client as the team leader to input team data, access and manage reports, delineate goals, and check subscription progress through the HiPER Platform, solely for Client’s internal business purposes, and otherwise in compliance with these Terms.
“Team Members” means employees or contractors of Client who are authorized to use the HiPER Platform as designated in the Subscription Agreement, solely for Client’s internal business purposes, and otherwise in compliance with these Terms. For the avoidance of doubt, the term “Team Members” shall not include Team Leads.
HIPER SUBSCRIPTION; RESTRICTIONS; SERVICES
HiPER Subscription. Subject to the terms and conditions of these Terms and the applicable Subscription Agreement, HSG shall provide the HiPER Subscription, during the Subscription Term, to Client and Authorized Users as further set forth on the Subscription Agreement.
HiPER Platform. Subject to the terms and conditions of these Terms and the Subscription Agreement (including the payment of applicable fees), HSG will provide Client and Authorized Users, during the Subscription Term, access to the HiPER Platform. HSG hereby grants to Client a non-exclusive, non-transferable, limited license, solely during the Subscription Term to access and use, and permit its Authorized Users to access and use the HiPER Platform, over the Internet, solely for Client’s internal business purposes and in accordance with the usage parameters set forth on the Subscription Agreement.
Restrictions. Client acknowledges that the HiPER Platform embodies, contains, and constitutes valuable trade secrets of HSG. Client agrees that it will not, and it will not permit any Authorized User or third party to: (a) modify, adapt, translate or create derivative works based on the HiPER Platform; or (b) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the HiPER Platform; or (c) distribute, license, sublicense, assign, transfer or otherwise make available to any third party any HiPER Platform, except to the extent expressly permitted in Section 2.2; or (d) access or use the HiPER Platform other than as expressly set forth in these Terms. HSG reserves all rights and licenses not expressly granted to Client in Section 2.2 and no implied license is granted by HSG. Client agrees not to remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of HSG or its suppliers on or within the HiPER Platform or any materials provided by HSG in connection with the HiPER Subscription. Client acknowledges and agrees that any non-compliance by any Authorized User with any of the requirements above or these Terms will be deemed a breach by Client of these Terms and the applicable Subscription Agreement.
Services. Subject to the terms and conditions of these Terms (including the payment of applicable fees), HSG will provide Client the Services specified in the applicable Subscription Agreement (which, for the avoidance of doubt, excludes technical support). The scope, timeline and tasks of the parties with respect to the Services shall be as specified in the applicable Subscription Agreement. Any additional services outside the scope of Services set forth in an applicable Subscription Agreement shall be specified in a separate purchase order or statement of work. Any such additional services shall be based on HSG’s then-current rates for such additional services.
TERMS OF SUBSCRIPTION
Client Data. Client understands and agrees that Client will be solely responsible for Client’s, and its Authorized Users’, use of Client’s account associated with the HiPER Platform. HSG will use reasonable measures to protect the personally identifiable information of Client and its Authorized Users submitted or provided to HSG in connection with the HiPER Subscription. Client grants to HSG a non-exclusive, perpetual, royalty-free, fully-paid, worldwide license, under all of Client’s intellectual property and proprietary rights, to any and all Client Data reasonably necessary for HSG to provide Client the HiPER Subscription and other services hereunder. Client represents and warrants that it has all the rights necessary to grant the licenses granted herein to HSG in and to such Client Data.
Indemnification. Client will defend at its own expense any claim or action against HSG or its officers, directors, employees or contractors (each an “HSG Indemnified Party”) brought by a third party, and will indemnify and hold harmless each HSG Indemnified Party from and against all costs (including reasonable attorneys’ fees) and damages incurred by such HSG Indemnified Party in any such claim or action, to the extent that the action is based on: (a) Client Data; (b) Authorized User claims. The foregoing obligations are conditioned on HSG notifying Client promptly in writing of such action, giving Client sole control of the defense thereof and any related settlement negotiations, and at Client’s reasonable request and expense, cooperating and assisting in such defense. Under no circumstances shall Client enter into any settlement that involves an admission of liability, negligence or other culpability of HSG or any HSG Indemnified Party or requires HSG or any HSG Indemnified Party to contribute to the settlement without HSG’s prior written consent.
FEES AND PAYMENT TERMS
Fees. Client shall pay HSG Fees specified in the Subscription Agreement, purchase order, or statement of work (as applicable) in accordance with the terms specified therein. Unless otherwise specified on such Subscription Agreement, purchase order or statement of work, all Fees due hereunder are payable in United States dollars and based on the Subscription to the HiPER Subscription or other services purchased by Client and not actual usage. Client acknowledges and agrees that HSG incurs substantial administrative and technical costs in providing the HiPER Subscription. Client further understands and agrees that all Fees are non-cancellable and non-refundable.
Taxes. All Fees payable hereunder are exclusive of all applicable sales, use, value-added and other taxes, or other similar charges, and Client will be responsible for payment of all such taxes (other than taxes based on HSG’s income), and any related penalties and interest, arising from the payment of the Fees, the delivery of the HiPER Platform, or performance of any services by HSG.
HSG, and its suppliers and licensors, as applicable, retain all right, title and interest in and to all Intellectual Property Rights in the HiPER Platform and materials provided or made available to Client in connection with the services provided by HSG, and any and all modifications, updates, and enhancements to the foregoing items. In addition, Client hereby licenses Feedback and Blind Data to HSG on a worldwide, perpetual, irrevocable, non-exclusive, freely-transferable, fully paid, and royalty-free basis, for HSG to use and exploit in any manner and for any purpose. Subject to the licenses granted to Blind Data, Feedback, and Client Data granted to HSG, Client shall retain all right, title and interest, including all Intellectual Property Rights, in and to Client Data and Client’s Confidential Information.
“Confidential Information” means, with respect to (a) HSG: (i) the HiPER Platform and Feedback, and (ii) any and all proprietary and non-public and all information and/or materials provided or disclosed by HSG to Client in connection with HiPER Subscription, and (b) with respect to Client: (i) Client Data (excluding Blind Data), (ii) any invention, formula, customer information, trade secret, business plan, or employee list of Client’s that is disclosed, made available, or provided to HSG by Client in the course providing the HiPER Subscription, and (ii) all materials and information disclosed in connection with the HiPER Subscription that are marked “confidential” by Client or that HSG knows or should have known, under the circumstances, are considered confidential by Client. Each party receiving (the “Receiving Party”) Confidential Information of the other party (the “Disclosing Party”) will: (c) not disclose to any third party or cause to be disclosed any Confidential Information unless authorized in writing by the Disclosing Party; (d) refrain from using the Disclosing Party’s Confidential Information except to the extent authorized under the Agreement; and (e) preserve and protect the confidentiality of the Disclosing Party’s Confidential Information with the same degree of care the Receiving Party uses to protect its own Confidential Information, but in no event less than reasonable care. Confidential Information does not include information that is: (f) publicly available through no fault of the Receiving Party; (g) otherwise known by the Receiving Party through no wrongful conduct of the Receiving Party and without confidentiality restrictions; (h) disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; or (i) independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. The Receiving Party may disclose the Disclosing Party’s Confidential Information without violating this Section to the extent that such disclosure is (j) necessary for the Receiving Party to enforce its rights under these Terms or (k) required by law or court order; provided, however, that the Receiving Party shall first give the Disclosing Party prompt notice of such order so that the Disclosing Party may take appropriate actions to protect its rights, including seeking a protective order or other appropriate remedy.
Client permits HSG to use Client’s name and logo in press releases, on web sites, and other promotional material, provided HSG will not reveal any non-public and proprietary information designated “confidential” in writing by Client. In addition, if Client discloses Client Data to HSG for the purposes of joint development of a case study or other HSG research, HSG may attribute such information with Client’s name and logo.
Termination for Cause. Either party may terminate the Subscription Agreement if the other party materially breaches any provision of these Terms or the Subscription Agreement (which, on the part of Client, shall include failure to pay any undisputed Fees) and such material breach remains uncured thirty (30) days after delivery of written notice to the breaching party describing such breach in reasonable detail. The foregoing rights of termination are in addition to any other rights and remedies provided in these Terms or Subscription Agreement or under applicable law.
Effects of Termination. Upon expiration of the applicable Subscription Term, or earlier termination of these Terms or the Subscription Agreement, Client shall cease (and require all Authorized Users to cease) using the HiPER Platform, and shall destroy, any and all HSG Confidential Information, and all copies thereof, in Client’s possession or control. Upon any termination of these Terms or the Subscription Agreement for any reason, any unpaid Fees for the entire term of the then-current Subscription Term shall be immediately due and payable.
Survival. The following Sections of these Terms will survive expiration of the applicable Subscription Period or any termination of the Subscription Agreement: 1, 2.3, 4, 5, 6, 7, 8, 9.2, 9.3, 10, 11, 12, 13, 14 and 15.
THE HIPER PLATFORM, SERVICES AND ANY OTHER MATERIALS OR CONTENT PROVIDED BY HSG ARE PROVIDED AS-IS. HSG MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH REGARD TO THESE TERMS OR THE HIPER PLATFORM, SERVICES, OR ANY OTHER MATERIALS OR CONTENT PROVIDED BY HSG, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. HSG DOES NOT WARRANT THAT THE HIPER PLATFORM, SERVICES, OR ANY OTHER MATERIALS OR CONTENT PROVIDED BY HSG WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OF THEIR USE WILL BE CORRECT, ACCURATE, OR RELIABLE. CLIENT ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES AND THAT NO WARRANTIES ARE MADE BY ANY OF HSG’S SUPPLIERS.
LIMITATION OF LIABILITY
IN NO EVENT SHALL HSG BE LIABLE, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF OR DAMAGE TO DATA, LOSS OF PROFITS, WORK STOPPAGE, PERSONAL INJURY, PROPERTY DAMAGE OR LOSS OR IMPAIRMENT OF OTHER ASSETS, ARISING FROM OR IN CONNECTION WITH THESE TERMS, THE SUBSCRIPTION AGREEMENT OR HSG’S PERFORMANCE THEREUNDER OR ANY RESULTS OR RECOMMENDATIONS RESULTING FROM THE USE OF THE HIPER PLATFORM, SERVICES, OR OTHER MATERIALS OR CONTENT PROVIDED BY HSG OR THE USE, MISUSE, OR THE INABILITY TO USE, IN WHOLE OR IN PART, THE HIPER PLATFORM, SERVICES OR OTHER MATERIALS OR CONTENT PROVIDED BY HSG, OR WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT HSG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL HSG’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR IN CONNECTION WITH THESE TERMS, THE SUBSCRIPTION AGREEMENT, AND THE HIPER PLATFORM, SERVICES AND OTHER MATERIALS AND CONTENT PROVIDED BY HSG, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, EXCEED THE SUBSCRIPTION FEE ACTUALLY PAID TO HSG BY CLIENT UNDER THE SUBSCRIPTION AGREEMENT CORRESPONDING TO THE HIPER SUBSCRIPTION IN RESPECT OF WHICH THE LIABILITY AROSE AND LIMITED TO THE AMOUNT OF SUCH SUBSCRIPTION FEE PROPORTIONATE TO THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE FIRST CLAIM GIVING RISE TO SUCH LIABILITY AROSE. CLIENT AGREES THAT HSG’S SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THESE TERMS OR THE SUBSCRIPTION AGREEMENT. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES SET FORTH IN THESE TERMS.
Notwithstanding anything in these Terms to the contrary, HSG will have no responsibility or liability of any kind under these Terms, arising or resulting from: (a) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by HSG; (b) nonconformities resulting from Client’s, its Authorized Users’, or any third party’s misuse, abuse, negligence, or improper or unauthorized use of all or any part of the HiPER Platform, Services or other materials provided by HSG; (c) modification, amendment, revision, or change to the HiPER Platform by any person other than HSG; or (d) any other factor outside of HSG’s reasonable control.
GOVERNING LAW; Dispute resolution
These Terms and the Subscription Agreement shall be governed by the laws of the state of California, United States, without giving effect to any conflicts of laws principles.
Before resorting to formal dispute resolution in accordance with this Section, HSG encourages Client to first contact HSG directly to seek a resolution. Client and HSG agree that any and all disputes or claims may arise between Client and HSG relating in any way to these Terms, the Subscription Agreement or Client’s use, or inability to use, the HiPER Platform or Services, shall be resolved exclusively through final, binding and confidential arbitration. The location of arbitration shall be San Francisco, California, USA, and the arbitration shall be conducted under the rules of the American Arbitration Association, as such rules are then prevailing, provided that the arbitrator and the parties shall comply with the following: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator shall be binding, final, and confidential, and may be entered in any court of competent jurisdiction. Notwithstanding anything in these Terms to the contrary, to the extent Client has in any manner violated or threatened to violate any of HSG’s intellectual property rights, HSG may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of California, United States of America, and Client consents to the personal jurisdiction and exclusive venue in such courts.
Neither the rights nor the obligations arising under these Terms of the Subscription Agreement are assignable by Client, and any such attempted assignment or transfer shall be void and without effect. Any waiver, amendment or modification of any provision of these Terms or the Subscription Agreement must be in writing and executed by both parties. The failure of either party to exercise any right provided for by these Terms or the Subscription Agreement shall not be deemed a waiver of that right. Each party represents and warrants to the other that the execution and delivery of these Terms and the Subscription Agreement and the performance of such party’s obligations thereunder have been duly authorized and that these Terms and the Subscription Agreement are a valid and legal agreement binding on the party and enforceable according to their terms. If any term or provision of these Terms or the Subscription Agreement are determined to be illegal, unenforceable, or invalid in whole or in part for any reason, that provision shall be stricken from these Terms or the Subscription Agreement, as applicable, and shall not affect the legality, enforceability or validity of the remainder of these Terms or the Subscription Agreement, as applicable. The parties acknowledge and agree that they are dealing with each other as independent contractors and nothing in these Terms or the Subscription Agreement and performance thereof shall be construed as creating a joint venture or agency between HSG and Client. HSG may delegate the performance of any services hereunder to its affiliates and contractors. These Terms together with the Subscription Agreement constitutes the entire agreement between the parties regarding this subject matter, and supersedes all prior oral or written agreements or communications with regard to the subject matter described. Any notice or other communication required or permitted under these Terms shall be given in writing and shall be conclusively deemed effectively given upon personal delivery or delivery by courier, or on the first business day after transmission if sent by confirmed facsimile transmission or electronic mail transmission, or five (5) business days after deposit in the United States first class mail, by registered or certified mail, postage prepaid, addressed to the party’s address designated in the Subscription Agreement or at such other address as each party may designate by ten (10) business days’ advance written notice to the other party in accordance with this Section. The headings of Sections of these Terms are for convenience and are not to be used in interpreting these Terms. As used in these Terms, the word “including” means “including but not limited to.” Any delay in performance of any duties or obligations of either party will not be considered a breach of these Terms if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, telecommunications or Internet failure, or any other event beyond the reasonable control of such party.
CHANGES TO THESE TERMS
HSG reserves the right to change the terms and conditions of these Terms in its sole discretion from time to time. All such changes will be effective when posted on the HSG Website or emailed to Client at the e-mail designated in Client’s account. Client agrees to review the HSG Website periodically for changes. HSG reserves the right to change or discontinue the HiPER Subscription, HiPER Platform, and/or the Services, in whole or in part, including without limitation, the Internet based services, pricing, services, technical support options, and other product-related policies. Client’s continued use of the HiPER Subscription, or any part thereof, after such changes are made to these Terms and are provided on the HSG Website or emailed to Client will indicate Client’s acceptance to such changes.
QUESTIONS OR ADDITIONAL INFORMATION
If Client has questions regarding these Terms, please send an e-mail to email@example.com.
David Morris Enterprises, LLC
dba The HiPER Solutions Group (HSG)
75 Broadway Street, Suite 202
San Francisco, CA 94111
© 2018, David Morris Enterprises, LLC, All Rights Reserved.