1.1.1. The Sites. The “Sites” include, but not limited to, the Websites, the Platform Services, and/or any other software or service provided through or with the Websites or the Platform Services in any manner. By accessing or using the Sites, you become a “User”. We reserve the right, at any time, for any reason, at our sole discretion, and without prior notice to modify, replace, or stop providing the Sites; to create usage limits for the Sites; or to change, improve, or correct information, materials, and descriptions on or of the Sites. You are obligated to review the Sites periodically for changes and modifications.
1.1.2. The Platform Services. The “Platform Services” are Hy.ly’s multi-tenant software applications and platforms, which Hy.ly makes available to its subscribing customers via the internet on a pay-per-use basis for the purposes of aiding multifamily residential properties to market to and engage prospects and residents throughout the customer lifecycle. The Platform Services may be customized for use by our customers who manage and run the Platform Services from a subdomain within our Sites (or, on rare occasions, from their own domain).
1.1.3. Sites Intended for U.S.-Based Users. The Sites are controlled and operated from facilities within the United States. We make no representations that the Sites are appropriate or available for use in any other country, territory, or jurisdiction. You shall not access the Sites from territories where the content, including, but not limited to, any information, materials, videos, webinars, images, infographics, alerts, texts, articles, assessments, checklists, forms, ratings, design, data, source code, analytics, photos, software, trademarks, copyrights, and/or other information (collectively, “Content”) on the Sites are prohibited. It is your sole responsibility to be aware of and to observe all applicable laws and regulations of your country, territory, or jurisdiction of residence and you are must satisfy yourself before accessing the Sites that you are allowed to access the Sites under those laws and regulations. IF YOU ARE LOCATED OUTSIDE OF THE UNITED STATES, YOU USE OR ACCESS THE PLATFORM SOLELY AT YOUR OWN RISK AND INITIATIVE.
Acceptance of the TOS.
2.1. User Acceptance. We offer the Sites to you subject to your acceptance of these TOS and all other operating rules, policies, and procedures that may be published by us to the Sites including, but not limited to, our Privacy Policy (available at https://hy.ly/privacy-policy/), Acceptable Use Policy (available at https://hy.ly/acceptable-use-policy/), or any other policy to which you may agree through your acceptance of an Ancillary Agreement (collectively, the “PS Policies”). Each of the PS Policies is incorporated herein by reference.
2.2. Ancillary Agreements. Your use of some services or areas within the Sites may be subject to additional specific terms and conditions and/or agreements (that you may be required to affirmatively agree with) between you and us that set out additional, substantive terms, which terms shall govern specific technical use of the Sites and/or your relationship with us when you make use of the Sites (each an “Ancillary Agreement”). These TOS will continue to apply to you even after you have agreed to an Ancillary Agreement.
2.3. Conflicts. If there is a conflict between these TOS and any or the PS Policies or Ancillary Agreements, these TOS shall take precedence unless expressly stated otherwise in the Sites Policy or Ancillary Agreement. References to TOS herein, except for those references in Sections 2.1, 2.2, or 2.3 are deemed to be followed by “and/or each of the PS Policies and Ancillary Agreements which are incorporated herein by reference.”
2.4. TOS Subject to Change. We reserve the right, at our sole discretion and without prior notice, to amend, modify, or replace the TOS at any time for any reason (each such instance, “Updated TOS”). Updated TOS will become effective on the date it we post it. You are solely responsible for periodically checking for Updated TOS. References to “TOS” herein, except for in this sentence, include all Updated TOS. Your continued use of the Sites following the posting of any Updated TOS constitutes acceptance of the Updated TOS. You agree not to contest the admissibility or enforceability of the Sites’ electronically stored copy of the TOS in any proceeding arising out of or related to the TOS. WE STRONGLY ADVISE YOU TO PERIODICALLY REVIEW THE PLATFORM FOR ANY CHANGES AND CONTACT YOUR LEGAL ADVISOR WITH ANY QUESTIONS.
2.5. Conflict with Prior Version. If there is a conflict between two versions of the TOS to which you have agreed or been deemed to agree, the more recent version shall take precedence unless it is expressly stated otherwise.
Eligibility for Use of the Sites.
3.1. Eligibility to Use the Sites. You may access, browse, and use the publicly available portions of our Sites and Sites without registering as a User, however, certain features are only accessible to registered Users.
3.2. User Access and Registration.
3.2.1. User Registration. You may register to use the Sites only if (a) you are a real person and you are at least 18 years old, fully able and competent to enter into the terms and conditions stated in this and other agreements on the Sites, and all registration information you submit is truthful, accurate, and complete; (b) you have the full right and authority to enter into, execute, and perform your obligations under the TOS and no pending or threatened claim or litigation known to you would have a material adverse impact on your ability to perform as required by the TOS; and (c) if you are accessing the Sites on behalf of an entity – for example, your employer or a company you work for or control – you represent and warrant that you are authorized to accept the TOS on that entity’s behalf, that the entity is authorized to do business under applicable law in your jurisdiction, and you that you have the legal authority to bind the entity to these TOS (in which case, the references to “you” and “your” herein, except for in this sentence, refer to that organization or entity).
3.2.2. Registering a User Account. To gain access as a User of the Sites, you must complete the registration process. We reserve the right, at any time, for any reason, at our sole discretion, and without prior notice to refuse registration of or cancel any user account.
3.2.3. True, Accurate, Current, and Complete. You represent and warrant that all information that you provide or will provide shall be true, accurate, current, and complete. We and our affiliates and agents are entitled to rely upon the information you provide as true, accurate, current, and complete without any independent verification. We reserve the right to suspend or terminate your account if any information provided during the registration process or thereafter proves to be untrue, inaccurate, not current, or incomplete. You shall indemnify, defend, and hold Hy.ly and any Hy.ly Associates harmless against any Claim (as defined in Section 13) arising out of or related to the truth, accuracy, currentness, and completeness of the information you provide. “Hy.ly Associates” means any of Hy.ly’s officers, directors, employees, agents, representatives, licensors, advertisers, suppliers, and operational service providers and any of its affiliates, successors, and assigns, including any of their respective officers, directors, employees, agents, representatives, licensors, advertisers, suppliers, and operational service providers.
3.2.4. Right of Removal. We reserve the right to remove any Content or terminate, limit, or restrict your access to the Sites and/or the licenses granted herein for any reason, at any time, and in our sole discretion.
Acceptable Use; User Conduct; Content Use Limitations.
4.1. Acceptable Use.
4.1.1. You must agree to our acceptable use policy as may be updated by us from time to time and available at https://hy.ly/acceptable-use-policy.
4.1.2. In addition, you may not (a) use the Sites for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Sites; (b) provide Sites passwords or other log-in information to any third party; (c) share non-public Sites features or Content with any third party; (d) access the Sites in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions, or graphics, or (iii) copy any ideas, features, functions, or graphics of the Sites; or (e) engage in web scraping or data scraping on or related to the Sites including, but not limited to, collection of information through (i) any software that simulates human activity or (ii) any bot or web crawler. If we suspect any breach of the requirements of this Section 4.1.2, we reserve the right to suspend your access to the Sites without advanced notice in addition to such other remedies as we may have. Neither these TOS nor our acceptable use policy requires that we take any action against you or any other third party for violating the acceptable use policy, this Section 4.1.2, or these TOS, and we remain free to take any such action we see fit.
4.2. User Conduct. You are solely responsible and liable for: (a) your use of the Sites including, but not limited to, your conduct, unauthorized-user conduct, and any conduct that would violate the requirements of the TOS applicable to you; and (b) any use of the Sites through your account, whether authorized or unauthorized. In addition:
4.2.1. Unauthorized Access. You must take reasonable steps to prevent unauthorized access to the Sites including, but not limited to, by protecting your passwords and other log-in information. You are solely responsible (a) for maintaining the confidentiality of your password and your account, and (b) for periodically changing your password to maintain security. You shall not share your password, let anyone else access your account, or do anything else that might jeopardize the security of your account. You shall not transfer your account to anyone without first getting our express written permission.
4.2.2. Requirement to Notify of Compromised Account. You must notify us immediately of any known or suspected unauthorized use of the Sites or breach of its security and you shall use your best efforts to stop any unauthorized use. If you suspect that unauthorized access to your account or the Sites has occurred including, but not limited to, if you have concerns that your username or password may have been compromised, you must notify us in writing through a secure method (which may not be through your Sites account) at SecurityAlert@hy.ly as soon as practicable, but in no case in less than 2 hours from the discovery of any unauthorized use of your account or any other breach of security.
4.2.3. Users and Sites Access. You acknowledge and agree that you are liable for any damages or losses to Hy.ly and any other user by any use of your account, either authorized or unauthorized and you shall indemnify, defend, and hold Hy.ly and any Hy.ly Associates harmless against any Claim arising out of or related to your failure to maintain the confidentiality of your password and account.
4.2.4. Compliance with Laws. You acknowledge and agree that you are liable for compliance 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 electronic data. You are solely responsible for ensuring compliance with the laws of your specific jurisdiction, as well as any restrictions that you may be subject to by a department of your local government or any state or federal government agency or department whether within the United States or elsewhere.
4.3. Content Use Limitations.
4.3.1. Content Use. Your use of the Sites and its Content, whether supplied by us, any other User, or any other third party may only be used for the lawful and intended purposes expressly authorized by us. Any misuse or unauthorized use of the Sites, the Content, or other violations of the TOS, may violate applicable law, including, but not limited to, copyright laws (including the Digital Millennium Copyright Act), trademark laws, laws of privacy, laws of publicity, identity theft, and communications statutes and regulations. You agree and authorize Hy.ly to terminate your account and access to the Sites at any time with or without notice and report you to the appropriate authorities and/or other interested parties, such as a claimed intellectual property owner if we become aware of any such misuse or unauthorized use.
4.3.2. Content You Provide. By posting Content on the Sites, you represent and warrant that you have or will have at the time of posting all necessary rights to make the Content available on the Sites and acknowledge that all postings on the Sites are not confidential and are available for public viewing. Even if such Content or activity does not violate applicable law, you are prohibited from posting or transmitting any material on or through the Sites that (a) is or could be offensive, fraudulent, unlawful, threatening, disingenuous, libelous, defamatory, obscene, scandalous, inflammatory, pornographic or profane; (b) could constitute or encourage conduct that would be considered a criminal offense, including, but not limited to, conduct that constitutes anti-competitive collaboration or antitrust violations; or (c) gives rise to civil liability, or otherwise violates any law. We reserve the right to determine, in our sole discretion, if Content you post meets the foregoing definition. Hy.ly will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting any such information or materials on the Sites. You shall indemnify, defend, and hold Hy.ly and any Hy.ly Associates harmless against any Claim arising out of or related to the Content that you post to the Sites
Term and Termination.
5.1. Effective Date. These TOS shall be effective as of the later of (a) the date on which you first accessed or used the Sites and, by so accessing or using, accepted these TOS, or (b) the date following your first access or use of the Sites after which we posted Updated TOS to the Sites as recorded at the top of these TOS.
5.2. Suspension of Services. We may permanently or temporarily terminate or suspend your access to the Sites, for any reason or for no reason, at our sole discretion, with or without notice or liability, including, but not limited to, if in our sole determination you violate any provision of the TOS. You agree that neither Hy.ly, nor any of its subsidiaries or affiliates shall be liable to you or to any third party for any such modification, suspension, or discontinuance. You shall indemnify, defend, and hold Hy.ly and any Hy.ly Associates harmless against any Claim arising out of or related to such suspension or termination.
5.3. Effects of Termination. Upon termination of the TOS or your access to the Sites, for any reason or no reason, you will continue to be bound by each of the terms in the TOS which, by their nature, should survive termination, including, but not limited to, ownership provisions, intellectual property, warranty disclaimers, indemnification, limitations of liability, dispute resolution, and any other provision that must survive to fulfill its essential purpose.
Fees and Payment Terms.
6.1. Use of the Sites may be subject to certain fees or charges (each a “Fee”) under a Platform Services Subscription Agreement. Any such Fees are subject to the terms of the applicable agreement. If you are an Authorized User (as defined in a Platform Services Subscription Agreement) of a Customer (as defined in a Platform Services Subscription Agreement) who has contracted with us via a Platform Services Subscription Agreement, you are bound by the restrictions of that agreement with respect to your use of the Sites. As an Authorized User of a Customer, you may have certain additional liabilities and restrictions; please see the Customer who authorized your use of the Sites for information regarding such additional restrictions.
Digital Millennium Copyright Notice.
7.1. Digital Millennium Copyright Act (DMCA) Claims. We take the intellectual property rights of others seriously and require that our Users do the same. The DMCA established a process for addressing claims of copyright infringement that we have implemented for the Sites. If you own a copyright or have authority to act on behalf of a copyright owner and want to report a claim that a third party is infringing that material on or through the Sites, we will expeditiously take appropriate action once you send a notice to our copyright agent (see Section 7.2) that includes all of the following: (a) a description of the copyrighted work that you claim is being infringed; (b) a description of the material you claim is infringing and that you want removed or access to which you want disabled and the URL or other location of that material sufficient for us to locate the material; (c) your address, telephone number, and email address; (d) the following statement: “I have a good faith belief that the use of the copyrighted material I am complaining of is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)”; (e) the following statement: “The information in this notice is accurate and, under penalty of perjury, I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right that is allegedly infringed”; and (f) an electronic or physical signature of the owner of the copyright or a person authorized to act on the owner’s behalf.
7.2. Designated Copyright Agent. You may address such claims to our designated copyright agent by sending (a) mail to the attention of “Copyright Agent” or (b) email with the subject line “Copyright Agent” to the respective address listed in Section 10.1.2.
7.3. Removal upon Request. You acknowledge, accept, and agree that if we receive a notice of a claim of copyright infringement, we may immediately remove the identified materials from our Sites without liability to you or any other party and we will refer the claims of the Complaining Party to the United States Copyright Office for adjudication as provided in the DMCA.
7.4. Repeat Infringers. We may, in appropriate circumstances and at our sole discretion, disable or terminate the accounts of users who may be repeat infringers. This process does not limit our ability to pursue any other remedies we may have to address suspected infringement.
7.5. Preceding Procedure for Internal Use Only. Please note that this procedure is exclusively for notifying us and our affiliates that you believe your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. § 512(c), but do not constitute legal advice. IT IS ADVISABLE TO CONTACT AN ATTORNEY REGARDING YOUR RIGHTS AND OBLIGATIONS UNDER THE DMCA AND OTHER APPLICABLE LAWS. Please forward any allegations that other intellectual property right is being infringed to dmca@hy.ly. We may, in our sole discretion, terminate the accounts of those who are accused of copyright infringement or other intellectual property rights. You shall indemnify, defend, and hold Hy.ly and any Hy.ly Associates harmless against any Claim arising out of or related to removal of offerings under this Section 7.
Intellectual Property; Licenses.
8.1. Our Property. All Content on the Sites are either our property or used with permission and you recognize that the Sites, its Content, and all its components are protected by copyright and other laws. We retain all right, title, and interest in and to the Sites, including, but not limited to, all software used to provide the Sites, all logos, and all trademarks reproduced through the Sites, and these TOS do not grant you any intellectual property rights in the Sites, or any of its components. The trademarks, logos, and/or slogans displayed on the Sites, including the mark Hy.ly, (collectively the “Trademarks”) are owned by us and/or others. You shall not construe anything on the Sites as granting any license or right to use the Trademarks without our express written permission or the express written permission of the third-party owner of the Trademarks. Your misuse of the Trademarks, or any other Content on the Sites, except as provided in the TOS, is strictly prohibited. We will aggressively enforce our intellectual property rights to the fullest extent of the law.
8.2. Feedback and Suggestions. You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials, or any other information about Hy.ly or our products or services (collectively, “Feedback”). 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, to develop, copy, publish, or improve the Feedback in Company’s 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 any and 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 that you provides to us as confidential
8.3. Licenses.
8.3.1. Limited License to Users. We grant you a limited, revocable, non-exclusive, non-transferable license to view, copy, and print Content on the Sites for personal, non-commercial purposes.
8.3.2. Limited License to Search Engines. We grant the operators of public search engines a limited, non-exclusive, non-transferable license to copy materials from publicly available areas of the Sites solely for creating publicly available, searchable indices of the Sites. You may not use any robot, spider, or other automatic device, process, or means to access the Sites for any purpose, including monitoring or copying any of the material on the Sites. In addition, you must respect any robots.txt protocols and exclusions.
8.3.3. License to Your Content. By providing Content on the Sites, you grant us a royalty-free, non-exclusive, worldwide license, under your intellectual property rights, to copy, reformat, index, modify, display, distribute, and put to commercial and other uses the Content and any of your intellectual property that you provide or post to the Sites. We shall pay you no compensation with respect to our use such Content. We neither represent nor warrant that your use of materials displayed on the Sites will not infringe the rights of third parties not owned or affiliated with us. You further grant all Users a limited, revocable, non-exclusive, non-transferable license to view, copy, and print Content you post to the Sites for their personal, non-commercial purposes.
California Consumer Privacy Act.
9.1. The California Consumer Privacy Act (“CCPA”) provides consumers with specific rights regarding their Personal Information (as defined in the CCPA). Those consumers have certain rights with respect to information about them about the collection and use of their Personal Information for the previous 12 months. In addition, they have the right to ask such businesses to delete Personal Information collected about them, subject to certain exceptions. If the business sells Personal Information, they have a right to opt out of that sale. Finally, a business cannot discriminate against a consumer for exercising their CCPA rights. For more information on your rights under the CCPA, please refer to our Privacy Policy (available at https://hy.ly/privacy/).
Notification; Communication.
10.1. Notification.
10.1.1. Notification to You. You acknowledge and agree (a) that we may send communications to you verbally or via any mailing address, email, telephone, or facsimile number provided by you to us through your account; (b) to notify us of any changes in your address or contact details; (c) that all communications will be deemed delivered to you when sent and not when received; (d) that we may provide notifications, including those regarding modifications to the TOS, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on the Sites, as determined by us in our sole discretion; and (e) that you may opt out of certain means of notification as described in the TOS, provided however, that we are not responsible for any automatic filtering or blocking you or your network provider may apply including, but not limited to, to email notifications we send to the email address provided to us or via settings or options you may choose in your browser.
10.1.2. Notification to Us. You shall send notices pursuant to the TOS: by mail to: Hy.ly Inc. 43745 Welty Ct Ashburn, VA 20147 Attn: Legalby email to: legal@hy.ly or to such other addresses as we may provide to you through the TOS or other means of communication in the future. We will deem notices received by us upon the earlier of (a) actual receipt or delivery in person, (b) by certified mail return receipt requested; or (c) by email once you have received a written confirmation of receipt in the same thread as your original email; provided, however, that automatic replies will not constitute a written confirmation under this Section 10.1.2.
Third-Party Links.
11.1. Third-Party Links. The Sites may contain links to other websites, middle-ware, application programming interfaces (APIs), or embedded features belonging to or operated by third parties (each a “Third-Party Link”). By making Third-Party Links available, we do not and shall not imply an affiliation, sponsorship, endorsement, approval, investigation, verification, or monitoring by Hy.ly of any Third-Party Link nor its respective owners, Content, information, materials, products, or services contained in or accessible through it. We provide Third-Party Links only as a convenience to you. We have not reviewed all Third-Party Links provided on the Sites. We are not responsible for the information contained on any Third-Party Links or your use of or inability to use any Third-Party Links. You acknowledge and agree that Hy.ly shall not be liable or responsible, directly or indirectly, for any damage or loss caused or alleged to be caused by or related to the use of or reliance on any Content, goods, or services available through any third-party website or resource. The terms of use and privacy policies of Third-Party Links govern your access and use of the Third-Party Links. We strongly encourage you to carefully review the terms of use and privacy policies of any Third-Party Services from which you access through our Sites. YOU AGREE THAT ACCESS AND USE OF THIRD-PARTY LINKS, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON THIRD-PARTY LINKS OR AVAILABLE THROUGH THIRD-PARTY LINKS, IS SOLELY AT YOUR OWN RISK AND DISCRETION.
Disclaimer of Liability.
12.1. USE AT YOUR OWN RISK. YOU AGREE THAT ANY RELIANCE UPON ANY CONTENT OR INFORMATION DISTRIBUTED THROUGH OR ACCESSED FROM THE PLATFORM IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, IN NO EVENT SHALL HY.LY OR HY.LY ASSOCIATES (AS DEFINED IN SECTION 3.2.3) BE LIABLE FOR DAMAGES UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY ARISING OUT OF OR RELATED TO YOUR ACCESS TO, OR USE OF THE PLATFORM. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE PLATFORM IS TO STOP USING THE PLATFORM. IF USING MATERIALS FROM THE PLATFORM RESULT IN THE NEED FOR SERVICING, REPAIR, OR CORRECTION OF EQUIPMENT OR DATA, YOU AGREE AND CONSENT TO ASSUME ANY SUCH COSTS.
12.2. EXCLUSIONS IN SOME JURISDICTIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OF IMPLIED WARRANTIES INCLUDED HEREIN, SO THE EXCLUSIONS IN THIS SECTION 12 MAY NOT APPLY TO YOU.
12.3. PLATFORM PROVIDED AS IS. YOU ACKNOWLEDGE AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY LAW HY.LY PROVIDES AND YOU ACCEPT THE PLATFORM ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HY.LY: (A) HAS NO OBLIGATION TO INDEMNIFY OR DEFEND YOU AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (B) DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL PERFORM WITHOUT INTERRUPTION OR THAT THE PLATFORM WILL BE FROM INACCURACIES, FAILURES OF PERFORMANCE, ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAYS IN OPERATION, TRANSMISSIONS, COMPUTER VIRUSES, OR LINE OR PLATFORM FAILURES AND WE SHALL ASSUME NO RESPONSIBILITY FOR, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE PLATFORM OR YOUR DOWNLOADING OF ANY CONTENT FROM THE PLATFORM; (C) DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT USER DATA WILL REMAIN PRIVATE OR SECURE; AND (D) NEITHER ENDORSES NOR REPRESENTS THE COMPLETENESS, RELIABILITY, OR ACCURACY OF ANY CONTENT OR INFORMATION DISTRIBUTED THROUGH OR ACCESSED FROM THE PLATFORM, AND WE NEITHER PERFORMED ANY INVESTIGATION INTO SUCH INFORMATION NOR SHALL WE BE LIABLE FOR ANY INVESTMENT DECISIONS MADE BASED UPON SUCH INFORMATION.
12.4. AVAILABILITY. YOU ACKNOWLEDGE AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY LAW HY.LY DOES NOT AND SHALL NOT GUARANTEE AND WE EXPRESSLY EXCLUDE ALL LIABILITY FOR DAMAGES ARISING OUT OF, RELATING TO, OR REGARDING YOUR USE, DELAY, OR ANY UNAVAILABILITY OF THE PLATFORM AND ITS CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF MONEY, SUSPENSION OR TERMINATION OF YOUR ACCOUNT, OR FOR ANY DAMAGE CAUSED TO YOUR COMPUTER, COMPUTER SOFTWARE, PLATFORMS, PROGRAMS, AND THE DATA THEREON. UNDER NO CIRCUMSTANCES WILL HY.LY OR HY.LY ASSOCIATES BE LIABLE FOR ANY DAMAGES INCLUDING, BUT NOT LIMITED TO, GENERAL, SPECIAL, PUNITIVE, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR ANY OTHER DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR BUSINESS INTERRUPTION) OF ANY KIND WHETHER IN AN ACTION IN CONTRACT, TORT, OR NEGLIGENCE ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE ANY PART OF THE PLATFORM OR ANY THIRD-PARTY LINK OR IN CONNECTION WITH OR AS A RESULT OF ANY INACCURACY, FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION, TRANSMISSION, COMPUTER VIRUS, OR LINE OR PLATFORM FAILURE, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, AND/OR EXPENSES.
12.5. USER CONTENT. YOU ACKNOWLEDGE AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY LAW HY.LY DOES NOT AND SHALL NOT BE RESPONSIBLE AND WE EXPRESSLY EXCLUDE ALL REPRESENTATION AND WARRANTIES, EXPRESS OR IMPLIED, ARISING OUT OF, RELATING TO, OR REGARDING ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY USER.
12.6. LIMIT TO LIABILITY. LIABILITY ARISING OUT OF OR RELATED TO THESE TOS OR THE USE OF THE SITES WILL NOT EXCEED ONE HUNDRED DOLLARS. IN NO EVENT WILL HY.LY BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THESE TOS OR THE USE OF THE SITES. THE LIABILITIES LIMITED BY THIS SECTION 12 APPLY: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF HY.LY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 12.6, YOU AGREE AND CONSENT THAT HY.LY’S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION OF ANY KIND OR NATURE SHALL BE LIMITED TO COMPENSATORY DAMAGES AND LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE. FOR CLARITY, THE LIABILITY LIMITS AND OTHER RIGHTS STATED IN THIS SECTION
12.6 SHALL APPLY LIKEWISE TO HY.LY ASSOCIATES.
12.7. NOTWITHSTANDING THE FOREGOING, IF A WRITTEN AGREEMENT BETWEEN YOU AND HY.LY CONFLICTS WITH THE LIMITATIONS IN THIS SECTION 12, THE OTHER AGREEMENT SHALL CONTROL.
Indemnification.
13.1. You agree to indemnify, defend and hold Hy.ly and Hy.ly Associates harmless from and against any and all claims, actions, proceedings, losses, expenses, damages, and costs including, but not limited to, reasonable attorneys’ fees (each a “Claim”) resulting from any breach or violation of the TOS by you or arising out of or related to your use of the Sites and whether or not such Claims arise out of or are related to our negligence. For clarity, with respect to this Section 13 and all other sections which expressly provide indemnification of Hy.ly by you, Claims shall include, but are not limited to, Claims by you or your employees, agents, or Authorized Users: (a) related to unauthorized disclosure or exposure of personally identifiable information or other private information; (b) related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos, or other Content uploaded to the Sites through a User account; and (c) that use of the Sites through a User account harasses, defames, or defrauds a third party or (d) violated the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. We reserve the right to assume, at our sole expense, the exclusive defense and control of any such Claim and all negotiations for settlement or compromise, and you agree to fully cooperate with us in the defense of any such negotiations, as requested by us.
Dispute Resolution.
14.1. Agreement to Amicably Resolve Disputes. In the event of any Claim, controversy, or alleged dispute between you and Hy.ly or Hy.ly Associates (each a “Dispute”), and except to the extent necessary for an IP Protection Action, you hereby agree to attempt in good faith to amicably to resolve any Dispute through the following procedures. “IP Protection Action” means any action to seek injunctive or other equitable relief in a court of competent jurisdiction solely to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. TO THE FULLEST EXTENT PERMITTED BY LAW, FAILURE TO FOLLOW THESE PROCEDURES SHALL CONSTITUTE YOUR WAIVER OF YOUR RIGHTS TO ANY FURTHER PROCEEDING WITH RESPECT TO ANY DISPUTE, DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATED TO THE TOS OR YOUR USE OF THE PLATFORM. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO FURTHER DISPUTE RESOLUTION PROCEEDINGS INCLUDING THE RIGHT TO ARBITRATION OR LITIGATION.
14.2. Dispute Conference. In the event of a Dispute, either party may call for a resolution conference by sending written notice to the other at the address provided by you vi a your account information or by us at the address in Section 10.1.2. In the case of an entity, within 3 business days of the response to the other party that the notice email was received, each party shall designate an executive with authority to make commitments to represent the party in order to resolve the Dispute (a “Senior Manager”). The parties’ (or the Senior Managers) shall meet in person or by telephone (“Dispute Conference”) within 3 business days of their designation and shall negotiate in good faith to resolve the dispute. The Dispute Conference must commence within 30 days following obtaining knowledge of the cause of action forming the basis of the Dispute. Failure to commence a Dispute Conference within the 30-day period constitutes a waiver of your rights to any further proceeding. Except to the extent necessary for an IP Protection Action, neither party shall initiate mediation, arbitration, or litigation until 30 business days after the Dispute Conference.
14.3. Mediation. If the Dispute remains unresolved following the Dispute Conference, a party may attempt to resolve such dispute through mediation under the auspices of the American Arbitration Association in Loudon County, Virginia, at that party’s sole expense. Mediation must commence within 90 days following obtaining knowledge of the cause of action forming the basis of the Dispute. Failure to commence mediation within the 90-day period constitutes a waiver of your rights to any further proceeding. Except to the extent necessary for an IP Protection Action, neither party may initiate arbitration or litigation until 30 days after mediation.
14.4. Arbitration. If the Dispute remains unresolved following mediation, a party may attempt to resolve such dispute through arbitration under the auspices of the American Arbitration Association (“AAA”) in Loudon County, Virginia, at that party’s sole expense, subject to the following: (a) Parties agree to submit any Dispute for resolution by final binding arbitration after serving written notice, which notice shall state in detail the controversy, question, claim, or alleged breach along with details regarding the parties’ attempt to resolve such Dispute through the preceding procedures. Upon such notice and attempts to resolve, a party may then commence an arbitration proceeding, before a single arbitrator to be selected by the AAA, under the rules of the AAA under its Commercial Arbitration Rules. Arbitration must commence within 6 months following obtaining knowledge of the cause of action forming the basis of the Dispute. Failure to commence arbitration within the 6-month period constitutes a waiver of your rights to any further proceeding. (b) In any arbitration and subject to the ultimate discretion of the presiding arbitrator, each side will be limited to a maximum of one day of argument (including rebuttal), and the parties agree in good faith to minimize discovery burdens (e.g. confine the scope to actual areas in dispute and limit the topics and number of pages on which information is requested to matters directly relevant). (c) Any decision of the arbitrator shall be final and binding and may not be appealed to any court of competent jurisdiction, or otherwise, except upon claim of fraud or corruption, provided however, that implementation of such decision shall in no way be delayed or otherwise impaired pending the outcome of any such appeal. Any court having jurisdiction thereof may enter judgment upon the award rendered in such arbitration. (d) Notwithstanding the foregoing, you agree that the following matters shall not be subject to binding arbitration, at our sole election: (1) any Dispute arising out of or related to allegations of criminal activity; (2) any Disputes concerning our intellectual property rights; and (3) any claim for injunctive relief.
14.5. Litigation. A court of competent jurisdiction located within Loudon County, Virginia shall decide any IP Protection Action or any other Dispute which is not subject to arbitration. Each party hereby waives any claim that such venue is improper or inconvenient.
14.6. No Joint Disputes or Class Actions. You agree that any claim, controversy, or alleged dispute between you and us, our members, or our affiliates (“Dispute”), will be limited between you, individually, and us. To the fullest extent allowable by law, you agree that no dispute resolution proceeding of any kind, whether mediation, arbitration, or litigation shall be joined with any other party or decided on a class action basis.
Miscellaneous.
15.1. Confidentiality of Information. You should not post any confidential or proprietary information to publicly available portions of the Sites. However, as a User, you shall protect all Content with the same degree of care you use to protect your own information of similar nature and importance, but in no case with less than reasonable care. In cases where Content is marked “Confidential” or any non-public information relating to any party’s technology, customers or potential customers, business plans, promotional and marketing activities, finances or other business affairs, or any other non-public, sensitive information, you should consider the information a trade secret or otherwise confidential and utilize the same efforts to protect and maintain its secrecy that are reasonable under the circumstances to protect and maintain the secrecy of your own information of similar nature and importance.
15.2. Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other and neither may make commitments on the other’s behalf.
15.3. No Third-Party Beneficiaries. Except as expressly provided in the TOS there shall be no third-party beneficiaries to the TOS.
15.4. Assignment & Successors. You may not assign any of your rights or delegate any of your responsibilities or obligations hereunder without our express written consent. Except to the extent forbidden in this Section 15.4, these TOS will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
15.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of the TOS invalid or otherwise unenforceable in any respect. If a provision of the TOS is held to be invalid or otherwise unenforceable, you agree to allow us to replace such void or unenforceable provision of the TOS with a valid and enforceable provision that will achieve, to the extent possible, the economic, business, and other purposes of such void or unenforceable provision and each such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law. The remaining provisions of the TOS will continue in full force and effect.
15.6. No Waiver. Neither party will be deemed to have waived any of its rights under the TOS by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. A waiver of a breach of the TOS shall not be construed as a waiver of any continuing or succeeding breach of the TOS, the TOS themselves, or a waiver of any right under these TOS.
15.7. Choice of Law; Jurisdiction; Waiver of Jury Trial. All Claims arising out of or related to the TOS and/or the use of the Sites shall be governed solely by the internal laws of the State of Virginia, including, but not limited to, applicable federal law and without reference to any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties or other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts located in Loudon County, Virginia. You hereby agree to the personal and exclusive jurisdiction and venue of such courts. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU HEREBY WAIVE YOUR RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY CLAIM ARISING OUT OF OR RELATED TO THE TOS AND/OR THE USE OF THE PLATFORM. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. This Section 15.7 governs all claims arising out of or related to the TOS and/or the use of the Sites, including, but not limited to, negligence, contract, tort, strict product liability, or otherwise.
15.8. Interpretation. The titles and headings of the paragraphs and the “#WhatItMeans” section of these TOS have been inserted for convenience of reference only and are not intended to summarize or otherwise describe the subject matter of the paragraphs and shall not be given any consideration in the construction of these TOS. “Include(s)” and “including” shall be deemed to be followed by “but not limited to.” “Or” is not exclusive. “Herein” refers to the TOS as a whole. These TOS shall be construed without regard to any presumption, rule of construction, or interpretation against the drafting party.
15.9. Entire Agreement. These TOS set forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
