Hyly Platform Services Purchase Terms

This is an offer by Hy.ly Inc., a Delaware corporation (“Hy.ly,” “us,” “our,” “we”) for the customer listed on the accompanying Purchase Order (“Customer,” “you,” “your”). The “Purchase Order” is the offer to license the specified products or services listed above for the period of time and at the cost indicated therein. The contract effective date is the date the form is submitted. By accepting and submitting payment for the Purchase Order, you agree as follows:

 

1. Services and Acceptance. You agree that your use, and our provision, of the Platform Services including but not limited to your authorization to grant Authorized Users use of the applications identified on the Purchase Order and any patches, bug fixes, releases, versions, modifications, successors, derivative works, or Documentation to them, that we make available for your use (collectively, the “Platform Services”) are limited by these Purchase Terms. We are neither responsible nor liable for your or your Authorized Users’ use of any of our products or services if you have not accepted these terms and conditions of purchase, including but not limited to any attached, linked, or referenced exhibits that further define them and which are hereby incorporated as an integral thereof (these “Purchase Terms”). An “Authorized User” is any individual to whom you have granted access to use the Platform Services on your behalf by providing log-in credentials, regardless of whether or not the Authorized User actually accesses the Platform Services. Such Authorized Users may include (x) your employees, independent contractors, customers, visitors, and (y) any present or future entity that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with that party (an “Affiliate”). “Documentation” includes any online or printed user manuals, functional specifications, or instructions regarding the Platform Services that we provide to you.

 

2. Fees. (a) You agree that you shall pay us the fees outlined in the Purchase Order. (b) At our sole discretion and with no fewer than 90 days’ prior notice to you, we may increase the fees with each such increase to begin upon the next Renewal Term following the 90-day notice period. Any such increase shall not exceed the lesser of 5% of the fees charged during the preceding term or our then-current generally applicable rates, less 15%. (c) If your fees are being assessed on a tiered system, your option to move from one tier to another shall not be considered a renewal for the purposes of the limits to fee increases set out in Section 2, and you will be charged our then-current fee for that tier unless agreed to by us in writing. (d) If you received a discount or other promotional offer, we reserve the right to automatically and without notice renew your subscription to the applicable Platform Services at the regular fee. (e) We reserve the right to change our posted fees at any time, at our sole discretion.

 

3. Payment of Fees by Owner, not Client. Client represents and warrants that if it is acting as a property manager to property that is owned by another party (an “Owner”) it has the power and authority to act on behalf of the Owner of the applicable property for whom the Platform Services are being provided including the power and authority to enter into and renew service contracts in the name of Owner (or in the name of Client as agent for the Owner). Subject to the preceding sentence, Hy.ly acknowledges and agrees that all fees under this Agreement remain the sole responsibility of the Owner and Client is not and will not be liable for the payment of fees under this Agreement even if Client makes a payment to Hy.ly on behalf of Owner. Notwithstanding the foregoing, liability as to all other matters in this Agreement remain the responsibility of Client.

 

4. Authorized Users. You may grant access to Authorized Users access to and use of the Platform Services in such numbers and according to such restrictions as are determined under the applicable subscription; provided, however, that (a) each Authorized User is required to agree to our terms of service posted at https://hy.ly/terms-of-service/ (“AU TOS”) as it may be updated by us from time to time; (b) you agree to make reasonable efforts to ensure your Authorized Users’ compliance with those AU TOS and our acceptable use policy (posted at https://hy.ly/acceptable-use-policy/) (“AUP”); (c) you may not, from or on our behalf, make any representations or warranties or purport to create any obligations or liabilities to any third party including but not limited to Authorized Users. We reserve the right to reject any Authorized User for any reason that does not violate applicable law at our sole discretion. We shall have no obligation to continue providing Support, services, service level remedies, or other remedies to any Authorized User we reject.

 

5. SMS / Text. If your Purchase Order includes portions of the Platform Services that offer text messaging or short message service (“SMS”) support, you agree that we may send SMS or text messages to those individuals or entities who have both affirmatively agreed to the terms of use of a particular software or service (an “End User”) and also initiated an interaction with the Platform Services by providing their phone number to Hy.ly (an “SMS Request”). Following an SMS Request, Hy.ly will send one SMS message to the End User, which will include a link for the End User to opt in to further SMS messages. Only if the End User affirmatively accepts further SMS communications (“Opts-In”) will we send any additional messages, including but not limited to appointment booking features. We assume no liability and will not be responsible for any lack of communication, loss of profits, loss of business, or any similar losses or claim of losses due to lack of communication via SMS with any End User that Opts-In.

 

6. Support. Unless otherwise outlined in the Purchase Order, we will provide during our standard Support hours of 9:00 a.m. to 6:00 p.m. Eastern time, Monday through Friday, excluding federal holidays. We try to respond to Support requests within 12 hours of receipt. To receive Support, you must send your Support request to support@hy.ly stating the nature of your Support request and must include the following: (a) a short narrative of the issue including both the URL of the page where you observed it and a screenshot of the issue; (b) clear steps we can take to recreate the issue, and (c) your expectation of the functionality you expected. We may update our Support procedures at our sole discretion.

 

7. Support Exclusions. We are not obligated to correct any Errors or provide any other Support to the extent such Errors or need for Support are considered by us at our reasonable discretion to be an Error or need for Support that is created by (w) your or your Authorized Users’ actions, failure to act, negligence, or willful misconduct including, but not limited to, any unauthorized access to or modifications of the Platform Services or its operating environment; (x) misuse or unauthorized use of your access credentials or those of any Authorized User; (y) a failure or defect of your, your Authorized Users’, or a third party’s equipment, software, facilities, third-party applications, or internet connectivity (or other causes outside of our firewall); or (z) your or your Authorized Users’ use of the Platform Services other than as outlined in any Documentation (each a “Support Exclusion”).

 

8. Error Correction. We will use reasonable efforts during our normal business hours to correct or provide a workaround for any reproducible material failure of the Platform Services to function according to its Documentation (each an “Error”) as soon as is practicable. Additional access to your information, data, or systems may be required to correct such an Error, and the license you grant to us under Section 11 (Customer Data) shall extend to the extent necessary to correct Errors. This Section 5 provides your sole and exclusive remedy for any Errors in the Platform Services; however, an Error that is determined to be a Service Level Failure will be addressed pursuant to Section 9 (Service Level Failures).

 

9. Service Levels. We will use reasonable efforts to make the Platform Services operate in all material respects in order for you and your Authorized Users to access and use it (“Available”) at least 99.5% of the time as measured over the course of each Service Period (the “Service Availability Requirement”). The Platform Services will be considered Available, and no Service Level Failure shall be deemed to have occurred in the case of a Support Exclusion, Scheduled Downtime, or the disabling, suspension, or termination of an Authorized User or the Platform Services pursuant to these Purchase Terms. If we consider a reported failure to be a material failure of the Platform Services to meet the Service Availability Requirement (each a “Service Level Failure”), we will issue you a credit of 5% of the monthly Fees for the Platform Services due for the Service Period in which a Service Level Failure occurred (“Service Credit”); provided, however, that such determinations will be ours to make at our reasonable discretion and we have no obligation to issue any Service Credit to you unless you (a) report the Service Failure to us as soon as you become aware of it, but in no case more than 12 hours after becoming aware of a Service Failure; and (b) you request the Service Credit in writing within 15 days of the Service Level Failure. Any Service Credit will be issued to you as a credit to your account in the calendar month following our determination of the validity of a Service Credit. Service Credits are not refundable or redeemable except as a credit to your next payment. This Section 9 sets forth our sole obligation and liability and your sole remedy for any Service Level Failure.

 

10. Scheduled Downtime. Scheduled maintenance will not typically result in interruption of or downtime to Platform Services. However, if we require an interruption of or downtime to Platform Services to perform maintenance for which we give you advance notice (“Scheduled Downtime”), we will make reasonable efforts to (i) provide you with at least 24 hours’ notice and (ii) perform maintenance activities during the non-peak hours of 10:00 p.m. to 5:00 a.m. Eastern time. You understand and agree that certain maintenance tasks must be performed on an emergency basis. If emergency maintenance is required, we will make reasonable efforts to contact you with as much advanced notice of any interruption of or downtime to the Platform Services.

 

11. Customer Data. You own all rights, title, and interest in any information, documents, or electronic files that you provide to us or that are provided to us on your behalf (“Customer Data”); provided, however, that Customer Data does not include data that has been aggregated, de-identified, derived, or processed by us after input by you or another on your behalf. You hereby grant us a non-exclusive, non-transferable, non-sublicensable right and license to use, copy, transmit, modify, and display your Customer Data solely to provide the Platform Services and related services to you, including but not limited to the correction of Errors. We will only access your Customer Data as necessary to perform our obligations under these Purchase Terms, including but not limited to providing the Platform Services and Support. You acknowledge and agree that we do not have nor shall we have any responsibility or liability for the accuracy of data uploaded to the Platform Services by you or another on your behalf, including, but not limited to, Customer Data and any other data uploaded by Authorized Users.

 

12. Data Backup. Platform Services are designed to perform routine data backups. In the event of any loss, destruction, damage, or corruption of Customer Data, we will, as our sole obligation and liability to you and as your sole remedy, use commercially available means to restore Customer Data from our then-most-current backup of Customer Data following our then-current backup procedures. However, the Platform Services do not replace the need for you to maintain regular data backups or redundant data archives and should not be used or treated as a data repository or data storage system.

 

13. Data Deletion. Subject to Section 17 (Obligations upon Termination), we reserve the right to permanently erase Customer Data if your account is delinquent, suspended, or terminated for 30 days or more. However, if you notify Hy.ly in writing of a litigation hold or document preservation request pursuant to Section 29(g) (Notices) within the 30 days, we agree to continue to store Customer Data or to effectuate the export and transfer of Customer Data to you at your sole cost and expense.

 

14. Statistical Datasets. Subject to Section 18 (California Consumer Privacy Act), we may use, reproduce, publicize, or otherwise exploit any aggregate, de-identified, derived, or processed information or statistics of, regarding, or relating to your data or any resultant information, data, export file, score, or other means of reporting provided by the Platform Services whether or not used in conjunction with or created through the use of the Platform Services (“Statistical Datasets”) in any way, in our sole discretion; provided, however, that (a) data derived from your data will not constitute the only data within any Statistical Dataset and (b) we may not sell Statistical Datasets.

 

 

(a) Security Regulations. We will comply with applicable consumer privacy laws and regulations in the creation, collection, receipt, access, use, storage, disposal, and disclosure of any electronically-stored personally identifiable information contained in Customer Data (“PII”) and will employ and maintain commercially available security measures to protect PII in accordance with accepted industry standards.

 

(b) Security Incidents. A “Security Incident” is, with respect to the safeguards put in place by a party for the security, confidentiality, and integrity of systems in that party’s control, including the information processed, stored, or transmitted on or through them: (i) any successful unauthorized access, use, disclosure, modification, destruction of information stored on, or material interference with the operations thereof; (ii) any actual or potential material jeopardy to the confidentiality, integrity, or availability thereof; (iii) a material violation or imminent threat of material violation of security policies and procedures or acceptable use policies applicable thereto; or (iv) an event or occurrence that materially compromises PII contained in Customer Data. Notwithstanding the foregoing, a Security Incident explicitly excludes any incident that does not involve actual or suspected impermissible use or disclosure of PII, including ongoing events which are inconsequential, routine, or do not constitute a material threat to the security or unauthorized access to, use of, or disclosure of PII (such as typical pings and port scans).

 

(c) Security Incident Procedures. We will (i) maintain a Security Incident breach response plan following accepted industry standards and implement its procedures in the event of a Security Incident; (ii) notify you within 48 hours after becoming aware of a Security Incident affecting Customer Data; and (iii) not inform any third party of a Security Incident for which we notify you without your prior consent, other than to inform a complainant that a matter has been forwarded to the appropriate legal counsel or as otherwise required by law. Upon our notification to you of a Security Incident, you agree that you shall coordinate with us at your own cost to investigate a Security Incident following our then-current response plan.

 

(d) Customer Assumes Risk of Exposure. While we provide commercially available security measures to protect your data, you acknowledge and agree that hosting data online involves risks of unauthorized disclosure or exposure. You assume all such risks by accessing and using the Platform Services, except those caused by our negligence or intentional misconduct. You acknowledge and understand (i) that provision of the Platform Services may involve the transmission of Customer Data over the internet, local area networks, network communications facilities, telephones, or other electronic means of data transmission (collectively, “Networks”), only part of which may be owned or operated by us; and (ii) that Customer Data may be accessed by unauthorized parties when communicated across Networks. We offer no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through any errors, actions, or omissions of a third party. Our Platform Services are hosted through AWS, Azure, or another comparable hosting service.

 

16. Term. Unless otherwise specified on the Purchase Order, the term of these Purchase Terms shall begin as of the date you accept and submit payment and will continue for 1 month (the “Initial Term”) and thereafter shall renew for successive 1-month terms unless terminated by written notice of non-renewal to us no less than 7 calendar days prior to the expiration of the then-current term (each a “Renewal Term” and, together with the Initial Term, the “Term”).

 

17. Obligations upon Termination. Subject to Section 22 (Return of Information), upon expiration of the Term, we will immediately terminate your access to the Platform Services and, at your request, we will cooperate in effectuating a transition of Customer Data that was properly uploaded or stored in the Platform Services to you (or to a third party selected by you) in CSV format within 30 calendar days of the request. After 30 calendar days have elapsed, you agree to pay all reasonable expenses to effectuate the export and transfer, if any, including but not limited to labor costs.

 

 

(a) This Section 18 only applies to the collecting, using, storing, retaining, disclosing, or otherwise processing PII from California residents on your behalf if you are a “business” subject to the Consumer Privacy Act of 2018, as amended (Cal. Civ. Code §§ 1798.100 et. seq.) (“CCPA”). Terms defined in the CCPA, including “business,” “personal information,” “service provider,” “commercial purpose,” and “business purposes,” carry the same meaning in this Section 18.

 

(b) Hy.ly’s CCPA Obligations. We: (i) will comply with our obligation as a service provider under the CCPA and only collect, use, retain, or disclose personal information that we receive from you or for which you provide or permit us access to on your behalf through the Platform Services specified in the Purchase Order (the “Contracted Business Purposes”); (ii) will neither collect, use, retain, disclose, sell, nor otherwise make personal information available in any way that does not comply with CCPA; provided, however, that if a law or legal order requires us to disclose personal information for a purpose unrelated to the Contracted Business Purpose, we will first inform you of the legal requirement and give you an opportunity to object or challenge the requirement, unless the law or legal order prohibits such notice; (iii) limit the personal information we collect, use, retain, or disclose to those activities reasonably necessary and proportionate to achieve the Contracted Business Purposes or another purpose for which service providers are permitted under CCPA; (iv) will promptly comply with your written request or instruction requiring us to provide, amend, transfer, or delete personal information or stop, mitigate, or remedy any unauthorized processing of personal information; (v) will provide a CCPA-compliant notice addressing use and collection methods for those Contracted Business Purposes requiring the collection of personal information from individuals on your behalf, with your notice and including your reasonable requested changes; (vi) may, as the CCPA permits, aggregate, de-identify, anonymize, or pseudonymize personal information so such data no longer meets the personal information definition, and may, thereafter, use such aggregated, de-identified, anonymized, or pseudonymized data for our own research and development purposes or any other permitted use under CCPA; provided, however, that we will not (nor will we attempt to) re-identify any previously aggregated, de-identified, anonymized, or pseudonymized data and will contractually prohibit any downstream data recipients from attempting to or actually re-identifying such data; (vii) will reasonably cooperate and assist you with meeting your CCPA compliance obligations and responding to CCPA-related inquiries, including responding to verifiable consumer requests, considering the nature of our processing and the information available to us; (viii) will notify you upon our receipt of any complaint, notice, or communication related to either party’s compliance with the CCPA as soon as is practicable, but in no case, more than 5 business days following the receipt of a verifiable consumer request under the CCPA; and (ix) may use subcontractors to provide Contracted Business Services provided that we remain liable to you for the subcontractor’s performance of its obligations under this Section 18.

 

(c) CCPA Representations and Warranties. Both parties represent that they shall (i) comply with all applicable requirements of the CCPA when collecting, using, retaining, or disclosing personal information; and (ii) promptly notify the other party of any changes to the CCPA’s requirements that may adversely affect Hy.ly’s performance under these Purchase Terms. Hy.ly represents and warrants that (1) we understand and will comply with the restrictions and prohibitions in these Purchase Terms and the CCPA with respect to selling personal information and retaining, using, or disclosing personal information outside of the parties’ direct business relationship; and (2) we have no reason to believe any CCPA requirements or restrictions prevent us from performing any of the Contracted Business Purposes or otherwise under these Purchase Terms.

 

19. Customer Duties. (a) You understand and agree that (i) our ability to provide the Platform Services is limited to your good faith cooperation with requests from us; (ii) your failure to provide items and information in a timely fashion as requested by us may result in our delay or inability to provide related Platform Services and that, in our reasonable discretion and with advance written notice to you, your repeated failure to provide necessary items and information may result in us suspending performance of any or all Platform Services or the termination of these Purchase Terms; (iii) you must provide us a primary contact (including information to allow us to reach him/her during business hours) who is authorized to make decisions with regard to contractual and technical matters, the addition of Platform Services, Authorized Users, access, and other matters deemed necessary by us in the provision of the Platform Services; (iv) during the Term and at your expense, you must acquire and maintain reliable access to Networks; and (v) you must promptly notify us within 48 hours after becoming aware of any Security Incident that you discover which poses actual or potential material jeopardy to the confidentiality, integrity, or availability of the Platform Services and work with us to promptly correct the situation (each party to be responsible for its own expenses). If at any point, you request services, including but not limited to providing Support, which requires us to log in to a system or service to which you maintain credentials, you must provide us with the applicable credentials required to facilitate the performance of the services in accordance with these Purchase Terms; provided, however, that we only utilize such access on an as-needed basis to fulfill our performance obligations herein. (b) You represent and warrant that, to your knowledge, no Networks, operating systems, or software under your control contains and you maintain commercially available protection consistent with current information technology standards to protect against viruses, Trojan horses, worms, or other software routines or hardware components designed to permit unauthorized access to, disable, erase, or otherwise harm software, hardware, or data. (c) You are solely responsible for (i) maintaining the security of all your Authorized User names and passwords, (ii) the security of your information systems used to access the Platform Services, and (iii) your Authorized Users’ compliance with the terms of these Purchase Terms. You must take all reasonable steps to prevent unauthorized access to the Platform Services, including but not limited to protecting passwords and other log-in information. We maintain the right at any time to suspend access to any customer or Authorized User if we believe, in our reasonable, but sole, discretion, that such a suspension is necessary to preserve the security, integrity, or accessibility of the Platform Services, our other customers, users, or ourselves.

 

20. Restrictions on Use. You and your Authorized Users must comply with the AUP, and you are responsible and liable for: (a) your Authorized Users’ use of the Platform Services including, but not limited to, unauthorized Authorized User conduct and any Authorized User conduct that would violate the AUP or the requirements of these Purchase Terms; and (b) any use of the Platform Services through your account, whether authorized or unauthorized. If you become aware of any actual or threatened activity prohibited by this Section 20, you must, and you must cause your Authorized Users to, (x) notify us promptly, but in no case more than 48 hours following the discovery of any known or suspected unauthorized use of the Platform Services or breach of its security by you, your Authorized Users, or resulting from the compromise of you or your Authorized Users passwords or other log-in credentials; and (y) use best efforts and any lawful measures within your control that are necessary to stop the activity or threatened activity and mitigate its effects. If we suspect any breach of the AUP by you or your Authorized Users, in addition to such other remedies we may have, we reserve the right (but not the requirement) to suspend your or their access to the Platform Services without advanced notice.

 

21. Compliance with Laws. Parties shall comply with all applicable laws including, but not limited to, laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data (i) for Hy.ly, in our provision of the Platform Services; and (ii) for the Customer, in your use of the Platform Services.

 

22. Confidentiality. (a) Each party agrees to (i) only use Confidential Information furnished to it hereunder in furtherance of the activities contemplated within these Purchase Terms, and (ii) not disclose the Confidential Information to any other persons without the disclosing party’s express written authorization, except that Hy.ly may disclose information as necessary to its workforce, including subcontractors solely for purposes of providing the Platform Services and related services to customers. Subcontractors used by the parties will be subject to confidentiality agreements of similar strength before such Confidential Information is shared. (b) A receiving party may disclose Confidential Information of the disclosing party as required to comply with binding legal orders or as otherwise required by law, provided that the receiving party (i) gives the disclosing party reasonable written notice to allow it to seek a protective order or another appropriate remedy (except to the extent compliance with the foregoing would cause the receiving party to violate a court order or other legal requirement), (ii) discloses only such information as is required by the governmental entity or otherwise required by law, and (iii) and uses reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed. (c) At any time upon request of the disclosing party, the receiving party shall promptly return all copies, extracts, or other reproductions in whole or in part of the Confidential Information in its possession; provided, however, that the receiving party is not required to destroy copies included in electronic backups performed in the ordinary course of its business. To the extent such computer backup procedures create copies of Confidential Information, the party may retain such copies in its archival or backup computer storage for the period in which it typically archives backup computer records. However, those backup copies remain subject to the provisions of these Purchase Terms until they are destroyed. (d) This Section 22 will survive the expiration, termination, or cancellation of these Purchase Terms for a period of 3 years, except for Confidential Information constituting a trade secret, with respect to which this Section 22 will survive for so long as such Confidential Information remains a trade secret. “Confidential Information” means all tangible and intangible information of a party that: (i) derives independent economic value, actual, or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; or (ii) the disclosing party designates as confidential or, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Any information regarding the material terms and conditions of these Purchase Terms, the Platform Services, or Hy.ly’s application programming interfaces for the Platform Services are Confidential Information of Hy.ly. (e) Notwithstanding the foregoing, you acknowledge and agree that we develop our own products and services and work with many other vendors and development partners, and either these third parties or we could in the future develop (or already have developed) products similar to yours. You expressly agree that nothing in the Purchase Terms limits our right to develop (or have developed for us) any products, concepts, systems, or techniques that are similar to or compete with any of your applications, products, concepts, systems, or techniques contemplated by or embodied in information you disclose to us.

 

23. Intellectual Property Rights. (a) We represent and warrant that we own and/or have license to – and you acknowledge and agree that – all rights, title, and interest in and to the Platform Services and Statistical Datasets, including any and all copyrightable materials or any other content thereof which is or may be subject to any intellectual property rights under any applicable law including any artwork, graphics, images, website templates and widgets, literary work, source and object code, computer code, html and other web scripts or code, applications, audio, music, video and other media, designs, animations, interfaces, documentation, derivatives, and versions thereof, the “look and feel” of the Platform Services, methods, products, algorithms, data, interactive features and objects, advertising and acquisition tools and methods, inventions, trade secrets, logos, domains, customized URLs, trademarks, service marks, trade names, and other proprietary identifiers, whether or not registered and/or capable of being registered and any derivations thereof (collectively, “Intellectual Property”) are owned by and/or licensed to Hy.ly. (b) You represent, warrant, and covenant to us that you own or otherwise have and will have the necessary rights and consents in and relating to the Customer Data so that, as received by us and maintained in accordance with these Purchase Terms, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights, of any third party or violate any applicable Law. (c) All rights, title, and interest in and to any improvement, modification, enhancement, update, or derivative work in, to, of, or based on the Platform Services, or any derivative of the Platform Services which is conceived, created, made, or put to practice by you or on your behalf by any party (each and “Improvement”) are and shall remain the sole property of Hy.ly including, but not limited to, any Improvements made to the Platform Services by Hy.ly under your direction. Notwithstanding the foregoing, you hereby assign to us any rights, title, or interest you may have to any such Improvements. For the avoidance of doubt, Improvements shall include but are not limited to feature upgrades, Platform Services modules, plugins, third-party software integration, API integration, and any interface between the Platform Services and any other software. (d) Subject to your full compliance with these Purchase Terms and timely payment of all applicable fees, Hy.ly hereby grants you, for the Term, a non-exclusive, non-transferable, non-sublicensable, fully revocable, limited license to use the Platform Services including, but not limited to, any Improvements, to market your products & services as expressly permitted by these Purchase Terms and solely within the Platform Services. These Purchase Terms do not convey any right or interest in or to our Intellectual Property (or any part thereof), except for the limited license expressly granted above. Nothing in these Purchase Terms constitutes an assignment or waiver of our Intellectual Property rights under any law. (e) All right, title, and interest in and to any third-party materials integrated or included in the Platform Services, including all intellectual property rights therein, are and will remain with the respective rights holders in any such third-party materials. You have no right, license, or authorization with respect to the Platform Services except as expressly set forth in these Purchase Terms or the applicable third-party license, in each case subject to Section 20 (Restrictions on Use). Hy.ly and our respective third-party licensors expressly reserve all other rights in and to the Platform Services.

 

24. Feedback and Suggestions. You and your Authorized Users may voluntarily post, submit, or otherwise communicate any questions, comments, suggestions, ideas, original or creative materials, or any other information about Hy.ly or our products or services (collectively, “Feedback”) to us. You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, but not limited to, developing, copying, publishing, or improving the Feedback at our sole discretion. Nothing will or may restrict our right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback without compensating or crediting you. By providing us Feedback, you irrevocably assign to us any right, title, and interest you may have in such Feedback and explicitly and irrevocably waive all claims relating to any past, present, or future moral rights, artists’ rights, or any other similar rights worldwide in or to such Feedback. You understand that Hy.ly has not, will not, and does not agree to treat any Feedback you provide to us as confidential.

 

25. Indemnification. Each party shall indemnify, defend, and hold the other, the other’s Affiliates, and all of their stockholders, officers, trustees, directors, agents, and employees (each, an “Indemnified Party”) harmless at all times from and after the Effective Date against any liability, loss, damages (including punitive damages), claims, settlement payments, costs, and expenses, interest, awards, judgments, diminutions in value, fines, fees, and penalties, or other charges, including reasonable legal expenses, arising out of or relating to any claim by an unaffiliated third party: (a) alleging (i) in the case of Hy.ly, that the use in accordance with these Purchase Terms of the Platform Services infringes or misappropriates any intellectual property or privacy rights of the unaffiliated third party, or (ii) in the case of the Customer, that the Customer Data infringes or misappropriates any intellectual property or privacy rights of the unaffiliated third party; (b) alleging any breach or alleged breach by a party, its agents or subcontractors of any applicable laws or regulations relating to the gathering, transmission, processing, use, receipt, reporting, disclosure, maintenance, storage, or other treatment of a third party; (c) alleging a party’s breach of any representation, warranty, or covenant under these Purchase Terms, or (d) that arises or is alleged to have arisen solely out of the negligence or intentional misconduct of the indemnifying party (each a “Third-Party Claim”). Notwithstanding the foregoing, if the Platform Services becomes the subject of such a claim of infringement, then we may, at our option: (x) procure for you the right to use the Platform Services free of any liability for infringement; (y) replace or modify the Platform Services to make it non-infringing but with reasonably comparable functionality at no additional cost to you; or (z) if we determine within 30 calendar days that options (x) or (y) are not reasonably feasible or commercially available as the case may be, grant you a refund for the unused portion of any prepaid fees and refund any deposits paid by you for the affected Platform Services. Furthermore, we have no liability for, and no obligation to indemnify you against, any Third-Party Claim arising or alleging based in whole or in part on the use of the Platform Services other than as specified in these Purchase Terms or the Documentation, including use with third-party hardware and software products not explicitly authorized by us.

 

26. Disclaimers and Limitations. OTHER THAN AS EXPRESSLY SET FORTH IN THESE PURCHASE TERMS, HY.LY MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM SERVICES, THE SERVICES PROVIDED, OR THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE, OR RESULTS OF USE OF THE PLATFORM SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS SPECIFICALLY SET FORTH HEREIN, WE DISCLAIM ANY WARRANTY THAT THE PLATFORM SERVICES, THE SERVICES PROVIDED BY US, OR THE OPERATION OF THE PLATFORM SERVICES ARE OR WILL BE ACCURATE, ERROR-FREE, OR UNINTERRUPTED. WE MAKE NO, AND HEREBY DISCLAIM ANY, IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.

 

27. Disclaimer of Consequential Damages. NEITHER YOU NOR WE HAVE ANY LIABILITY WITH RESPECT TO THE PLATFORM SERVICES, SERVICES, OR EACH PARTY’S RESPECTIVE OBLIGATIONS UNDER THESE PURCHASE TERMS OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS AND THE COST OF COVER) EVEN IF YOU OR WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

28. Limitations of Remedies and Liability. (a) EXCEPT AS PROVIDED FOR IN SECTION ‎28(b), OUR TOTAL LIABILITY TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF PERSONALLY IDENTIFIABLE INFORMATION, DATA BREACH, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS, IS LIMITED TO THE AMOUNT DUE AND PAYABLE TO US BY YOU (WHETHER OR NOT PAID) DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY. THESE LIMITATIONS OF LIABILITY SHALL NOT APPLY TO (i) EITHER PARTY’S DAMAGES RESULTING FROM THE OTHER PARTY’S INTENTIONAL OR WILLFUL MISCONDUCT OR DAMAGES ARISING OUT OF PERSONAL INJURY OR DEATH; (ii) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THESE PURCHASE TERMS; OR (iii) IN THE CASE OF THE CUSTOMER, A BREACH OF SECTION ‎20 (RESTRICTIONS ON USE) OR SECTION ‎2 (FEES; PAYMENT TERMS). (b) OUR TOTAL LIABILITY TO YOU FOR A SECURITY INCIDENT IS LIMITED TO A CLAIM MADE TO OUR CYBER LIABILITY INSURANCE POLICY AND SHALL BE LIMITED SOLELY TO ITS COVERAGE LIMITS WHICH LIMITS SHALL BE MINIMALLY $3,000,000 PER OCCURRENCE AND $3,000,000 IN THE AGGREGATE. THIS IS THE SOLE AND EXCLUSIVE REMEDY FOR ANY ACTION PURSUANT TO THIS SECTION ‎28.

 

 

(a) Promotional Materials. Subject to the prior written approval of the other party, which approval shall not be unreasonably withheld, either party may include statements and may use the other party’s name and logos on its website, commercial advertisements, and promotional materials for the sole purpose of indicating that Customer is a subscriber to the Platform Services. Parties shall provide the other party with a logo and any corresponding logo usage guidelines for these purposes, or if not provided, a party may use any logo of the other party available through the other party’s website or promotional materials.

 

(b) Amendments. The parties may amend these Purchase Terms only by a written agreement of the parties that identifies itself as an amendment to these Purchase Terms and specifies the section to be amended.

 

(c) Assignment. You may not assign these Purchase Terms without our prior written consent. Any attempt by you to assign your rights or obligations under these Purchase Terms in breach of this Section 29(c) will be void and of no effect.

 

(d) Attorneys’ Fees. If any action is brought to enforce these Purchase Terms, or because of an alleged breach or default relating to these Purchase Terms, the prevailing party will be entitled to recover reasonable attorneys’ fees and other costs incurred in such action or proceeding, in addition to any other relief to which it may be entitled, the amount to be set by a court and not a jury.

 

(e) Company Policies. Notwithstanding anything else herein to the contrary, you are on notice of our company policies including, but not limited to our Privacy Policy, AUP, DMCA Policy, and Personal Information Processing Policy. You recognize that these policies are not part of this Agreement and this Agreement does not restrict our right to revise those policies at our discretion.

 

(f) Governing Law; Venue; Waiver of Jury Trial. The laws of the State of Virginia (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to these Purchase Terms and the transactions contemplated herein, including, but not limited to, its interpretation, construction, performance, and enforcement. Any actions regarding or arising out of these Purchase Terms must be brought exclusively in a court of competent jurisdiction sitting in Loudon County, Virginia, and each party to these Purchase Terms submits to the jurisdiction of such courts for all such actions. Each party waives, to the fullest extent permitted by law, any objection that it may now or later have to (i) the laying of venue of any such action brought in any state or federal court sitting in Loudon County, Virginia; and (ii) any claim that such action brought in any such court has been brought in an inconvenient forum. To the extent permitted by applicable law, each party waives the right of trial by jury in any action arising out of, relating to, or in connection with these Purchase Terms and the transactions contemplated herein.

 

(g) Interpretation. “Include(s)” and “including” are deemed to be followed by “but not limited to,” “or” is not exclusive, and the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to these Purchase Terms as a whole. The paragraph headings in these Purchase Terms are for reference only and shall not affect the interpretation of these Purchase Terms. These Purchase Terms shall be construed without any presumption, rule of construction, or interpretation against the drafting party. Unless the context otherwise requires, references to Sections mean the Sections of these Purchase Terms.

 

(h) Notices. Any notice required to be given under these Purchase Terms shall be in writing and shall be (i) delivered by hand; (ii) sent by U.S. post office or nationally recognized overnight courier, in either case with a return receipt or signature confirmation with tracking; or (iii) sent via email; in the case of (i), (ii), or (iii) to the other party’s respective addresses set out below (or at such other address for a party as may be specified in a notice given in accordance with this Section 29(g)): Notice may be sent to Customer at the address supplied by Customer below the signature block or for Hy.ly to 43745 Welty Ct, Ashburn, VA 20147 Attn: CEO, legal@hy.ly. A notice will be deemed received if delivered (i) by hand, upon written confirmation of receipt; (ii) by U.S. post office or nationally recognized overnight courier, at the time of delivery; or (iii) by email, upon a reply by the recipient to the original message provided, however, that (1) automatic return receipt, automatic replies (such as do-not-disturb or out of office replies), or other automated responses shall not constitute a reply for the purposes of notice under these Purchase Terms, and (2) parties shall reply promptly and in good faith to such notices.

 

(i) Severability. Each provision of these Purchase Terms shall, as nearly as possible, be interpreted in such a manner as to be effective and valid under applicable law. However, if any provision of these Purchase Terms is prohibited by or invalid under applicable law, (i) such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of these Purchase Terms, and (ii) you agree that we may modify these Purchase Terms to give effect to the original intent as closely as possible.

 

(j) Survival of Certain Provisions. Parties agree that the provisions in Section 20 (Restrictions on Use), Section 19 (Security), Section 17 (Obligations on Termination), Section 22 (Confidentiality), Section 23 (Intellectual Property Rights), Section 25 (Indemnification), and Section 26 (Disclaimers) in addition to any other provision that, by its terms, is intended to survive the expiration or termination of these Purchase Terms, shall survive the expiration or termination of these Purchase Terms.

 

(k) Waiver. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated and does not operate as a waiver on any future occasion. Neither a failure nor delay in exercising any right, remedy, power, or privilege or in enforcing any condition herein nor any act, omission, or course of dealing between the parties constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from these Purchase Terms.

 

(l) Entire Purchase Terms. This constitutes the final agreement between the parties. It is the complete and exclusive expression of the parties’ agreement on the matters contained herein. All prior and contemporaneous negotiations and agreements between the parties regarding the matters addressed herein are expressly merged into and superseded by these Purchase Terms. The provisions of these Purchase Terms cannot be explained, supplemented, or qualified through evidence of trade usage or a prior course of dealings. In accepting these Purchase Terms, neither party has relied upon any statement, representation, warranty, or agreement of any other party except for those expressly contained in these Purchase Terms. There are no conditions precedent to the effectiveness of these Purchase Terms, other than any that are expressly stated in these Purchase Terms.