End User Terms of Service

Last Updated: May 23rd, 2016

Thanks for using Highfive! These End User Terms of Service (these “Terms”) cover your access and use of Highfive’s video conferencing and screen sharing system and all related software, applications, and technologies available at and through the website www.highfiveinc.wpengine.com (the “Site”) and mobile applications (such system, software, applications and the Site together, the “Service”). Please read these Terms carefully before downloading, installing or using the Service. By registering to access and use our Service or by downloading, installing or using any part of the Service, you have indicated that you understand and accept these Terms as well as all rules, policies and disclaimers or warranties available on the Site or shared with you otherwise, including the Privacy Policy (https://highfiveinc.wpengine.com/privacy/).

The Service is not intended for and may not be used by people under the age of 13. By using the Service, you are representing to us that you’re over 13.

To make it easier to read these Terms, we may refer to you, the user of the Service as well as anyone else you’ve given access to the Service, as “User”, “you,” “your,” and “yours“. The terms “we,” “us,” and “our” refer to Highfive.

Your Account

In order to access and use the Service, you must create an account with Highfive and download our software and/or mobile application. Please safeguard your password to the Service, make sure that others don’t have access to it, and keep your account information current. You may create your own account, or one may be assigned or provided to you by someone else, for example, your employer, an administrator or another user who has invited you to access and use the Service. Such employer, administrator or other user may be able to access and view your use of the Service as well as restrict or terminate your access. As we describe in more detail in our Privacy Policy at <https://highfiveinc.wpengine.com/privacy/>, by accessing and using the Service, you consent to Highfive storing, processing and transmitting personally-identifiable information that you share with us when accessing and using the Service outside of the country you reside, or are located, at the time you access and use the Service.

Your Content

When you use the Service, you may provide us with things like files, content, documents, images, recordings, and other information you share, display, save, or upload on the Service (“Your Content“). The point of our Service is to let you communicate and share Your Content with others, so please think carefully about what you share. You will retain all ownership rights to Your Content, but you hereby grant to Highfive a license and right to use, modify, reproduce, display, store, share and distribute Your Content only as may be necessary to provide the Service or enforce these Terms or as required by applicable law. You warrant that you have the right to grant such license, our use of Your Content as permitted under these Terms will not violate any laws, and Your Content does not infringe on the rights of any third party. Content in the Service may be protected by others’ intellectual property rights so please don’t display, view, copy, upload, download or share content unless you have the right to do so.

We may collect and analyze data and other information relating to how you and other users use the Service (the “Usage Data”) for product development, diagnostic and corrective purposes, but will not disclose such Usage Data to any third parties except in aggregated or other de-identified form, other than to certain trusted third parties who help us provide, improve, protect or promote the Service. Highfive owns and reserves all rights with respect to such Usage Data.

Our Service

So long as you comply with these Terms, we give you a limited, nonexclusive, nontransferable, revocable license to use the Service. The Service is protected by copyright, trademark, and other US and foreign laws. These Terms don’t grant you any right, title or interest in the Service, others’ content in the Service, Highfive trademarks, logos and other brand features. We welcome your feedback, but note that you hereby assign to Highfive all your interest in any feedback you share with us about the Service without any obligation to you.

You acknowledge that Highfive may from time to time issue upgraded versions of the Service (or any related component of the Service such as software or a mobile application), and may automatically electronically upgrade the version of the Service or related component that you are using. You consent to such automatic upgrading, and agree that these Terms will apply to all such upgrades.

You agree not to misuse the Service or help anyone else to do so. For example, you must not even try to do any of the following in connection with the Service:

remove any proprietary notices or labels that are part of the Service;
probe, scan, or test the vulnerability of any system or network;
breach or otherwise circumvent any security or authentication measures;
access, tamper with, or use non-public areas or parts of the Service, or shared areas of the Service you haven’t been invited to;
interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Service;
access, search, or create accounts for the Service by any means other than our publicly supported interfaces (for example, “scraping” or creating accounts in bulk);
send unsolicited communications, promotions or advertisements, or spam;
send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”;
promote or advertise products or services other than your own without appropriate authorization;
sell the Service unless specifically authorized to do so;
publish or share content that is unlawfully pornographic or indecent, or that contains extreme acts of violence, or is harmful, threatening, abusive, harassing, tortious, vulgar, or libelous;
advocate bigotry or hatred against any person or group of people based on their race, religion, ethnicity, sex, gender identity, sexual preference, disability, or impairment;
violate the law in any way, including storing, publishing or sharing material that’s fraudulent, defamatory, or misleading; or
violate the privacy or infringe the rights of others;
share content that may pose or create a privacy or security risk to any person;
impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; or
exploit or solicit personal information from anyone under the age of 18.
Terms Required by Apple

The following applies to any Mobile Apps you acquire from the iTunes Store (“iTunes-Sourced Apps”): You acknowledge and agree that these Terms are solely between you and Highfive, not Apple, and that Apple has no responsibility for the iTunes-Sourced Apps or content thereof. Your use of the iTunes-Sourced Apps must comply with the App Store Terms of Service. Notwithstanding anything stated in these Terms, in the event of a conflict regarding the iTunes-Sourced Apps between these Terms and the App Store Terms of Service, the terms of the App Store Terms of Service shall govern. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes-Sourced Apps. In the event of any failure of the iTunes-Sourced Apps to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced Apps to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced Apps, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Highfive as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the iTunes-Sourced Apps or your possession and/or use of the iTunes-Sourced Apps, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes-Sourced Apps fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Highfive as provider of the software. You acknowledge that, in the event of any third-party claim that the iTunes-Sourced Apps or your possession and use of that iTunes-Sourced Apps infringes that third-party’s intellectual property rights, Highfive, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. government list of prohibited or restricted parties. You and Highfive acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as they relate to your license of the iTunes-Sourced Apps, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as they relate to your license of the iTunes-Sourced Apps against you as a third-party beneficiary thereof.

Copyright

Highfive respects the intellectual property rights of others. It is Highfive’s policy, at its discretion and when appropriate, to terminate the accounts of Users who may infringe or repeatedly infringe the copyrights of third parties. To submit a copyright infringement notification to Highfive, please submit a notification pursuant to the Digital Millennium Copyright Act (the “DMCA”) by providing the below-specified Copyright Agent with the following information in writing:

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You acknowledge that if you fail to comply with all of the requirements of the preceding paragraph, your DMCA notice may not be valid. Please see 17 U.S.C. § 512 for more information regarding the DMCA and DMCA notifications. Our Agent to Receive Notification of Claimed Copyright Infringement can be reached as follows:

By Email: legal@highfive.com

By Mail: 500 Arguello St., Suite 200, Redwood City, CA 94063

Termination

You’re free to stop using the Service at any time. We also reserve the right to suspend or end the Service at any time at our discretion and without notice. For example, we may suspend or terminate your use of the Service if you’re not complying with these Terms, or use the Service in a manner that would cause us legal liability, disrupt the Service or disrupt others’ use of the Service. We have no obligation to save any of Your Content and we may remove and delete Your Content upon suspension or termination of your use of the Service.

Service “AS IS”

TO THE FULLEST EXTENT PERMITTED BY LAW, HIGHFIVE AND ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICE, INCLUDING ANY CONTENT ON THE SERVICE. THE SERVICE IS PROVIDED “AS IS.” WE ALSO DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE ARE NOT RESPONSIBLE FOR ANY CONTENT POSTED OR SHARED VIA THE SERVICE. Some places don’t allow the disclaimers in this paragraph, so they may not apply to you.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR ANY LIABILITY FOR HIGHFIVE’S FRAUD, FRAUDULENT MISREPRESENTATION, OR GROSS NEGLIGENCE, IN NO EVENT WILL HIGHFIVE, ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS BE LIABLE FOR: (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR (B) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, REGARDLESS OF LEGAL THEORY. THIS WILL BE REGARDLESS OF WHETHER OR NOT HIGHFIVE OR ANY OF ITS AFFILIATES HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. ADDITIONALLY, HIGHFIVE, ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS WILL NOT BE LIABLE FOR AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICE FOR MORE THAN THE GREATER OF $100. Some places don’t allow the types of limitations in this paragraph, so they may not apply to you.

Indemnity

You agree to indemnify Highfive, its affiliates, and their employees, officers, directors, successors, assigns, agents for all losses (including reasonable attorneys’ fees) relating to any third party claims arising out of (i) Your Content, (ii) your grossly negligent acts or intentionally committed wrongful acts; or (iii) any violation of these Terms by you.

Resolving Disputes

We want to address your concerns without needing a formal legal case. Before filing a claim against Highfive, you agree to try to resolve the dispute informally by contacting (legal@highfive.com). We’ll try to resolve the dispute informally by contacting you via email. If a dispute is not resolved within sixty (60) days of submission, you or Highfive may bring a formal proceeding.

You and Highfive agree that any judicial proceeding to resolve claims relating to these Terms or the Service will be brought in the federal or state courts of San Mateo County, California, subject to the mandatory arbitration provisions below. Both you and Highfive consent to venue and personal jurisdiction in such courts.

YOU MUST CONTACT HIGHFIVE WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS, OR DISPUTE.

IF YOU’RE A U.S. RESIDENT, YOU ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS:

We Both Agree To Arbitrate. You and Highfive agree to resolve any claims relating to these Terms or the Service through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

Opt-out of Agreement to Arbitrate. You can decline this agreement to arbitrate by notifying us at (legal@highfive.com) within 30 days of first accepting these Terms.

Arbitration Procedures. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in San Mateo County, California or any other location we agree to.

Arbitration Fees & Expenses. All administrative fees and expenses of arbitration will be divided equally between you and Highfive. Each party will bear the expense of its own counsel, experts, witnesses, and preparation and presentation of evidence at the arbitration hearing.

Exceptions to Agreement to Arbitrate. Either you or Highfive may assert claims, if they qualify, in small claims court in San Mateo County, California. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Service, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the state and federal courts in San Mateo County, California to resolve your claim.

NO CLASS ACTIONS. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren’t allowed.

Controlling Law

These Terms will be governed by California law except for its conflicts of laws principles, unless otherwise required by a mandatory law of any other jurisdiction.

Entire Agreement

These Terms constitute the entire agreement between you and Highfive with respect to the subject matter of these Terms, and supersede and replace any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of these Terms. These Terms create no third party beneficiary rights.

Waiver, Severability & Assignment

Highfive’s failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable, the remaining provisions of the Terms will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights under these Terms, and any such attempt will be void but Highfive may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Service.

Modifications

We may revise these Terms from time to time, and will always post the most current version on our website. If a revision meaningfully reduces your rights, we will notify you (by, for example, sending a message to the email address associated with your account, posting on our blog or on this page). By continuing to use or access the Service after the revisions come into effect, you agree to be bound by the revised Terms.