Customer Agreement

Last Updated: August 3, 2020

By accessing the Highfive website. clicking/checking the “I Agree” box, or by utilizing the Highfive video conferencing and screen sharing system (the “Service”), you agree to be bound by these terms and all exhibits, order forms, and incorporated policies (the “Agreement” or “Terms”) located at www.highfive.com/terms/,  all of which are considered a part of and incorporated into this Agreement. 

This updated version of the Highfive Customer Agreement applies immediately to all new Orders and Order renewals on or after August 3, 2020. Customer’s use of and access to the Highfive website, services, products and embedded software therein (collectively, the “Service“) of Highfive Technologies, Inc. and its affiliates (“Highfive“) is conditioned upon Customer’s compliance with and acceptance of these Terms, which include your agreement to arbitration and auto-renewal. Please review thoroughly prior to accepting.

This Customer Agreement (this “Agreement”) is entered between you (the “Customer”) and Highfive Technologies, Inc. (“Highfive“). To make it easier to read this Agreement, Highfive may refer to either of us as a “Party” and collectively as the “Parties.” The terms “you,” “your,” and “yours” mean you, the purchaser of the Service (as defined below). The terms “we,” “us,” and “our” refer to Highfive.

The terms and conditions of this Customer Agreement (the “Terms”) available at www.Highfive.com/legal, govern the use and Highfive provision of Highfive’s video conferencing, collaboration, and screen sharing system, (the “Service”) including the Highfive and Dolby devices and the embedded software therein (the “Hardware”), whether Customer obtains the Service directly from Highfive or through an authorized distributor, reseller, or other Channel Partner of Highfive. Other terms associated with the use of and subscription to the Service and Hardware are set forth in a purchase order form that references the Terms and is executed by Customer and Highfive (an “Order”). 

  1. Rights, Restrictions and Responsibilities. 
    1. Terms of Use. The Service is available to Customer and anyone to whom Customer grants access to the Service or the Hardware through or by Customer in any method (its “Users”) as more fully described in the Order. Highfive grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable license to use solely in connection with the Service during the Term (as defined below) of this Agreement (i) all web-based software, applications, and technologies incorporated in the Service, and (ii) all software embedded in or otherwise running on the Hardware (collectively, the “Software”). Any corrections, bug fixes, new features or functions (“Updates”) added to the Service by Highfive in Highfive’s discretion during the Term of this Agreement are subject to this Agreement. Updates do not include any new versions of the Service or Hardware that Highfive markets or sells separately. Without limiting any other remedies Highfive may have, Highfive may suspend Customer’s access to and use of the Service that Highfive reasonably believes Customer may be in violation of this Agreement. Highfive may terminate Customer’s access to or use of the Service if  Highfive reasonably believes  Customer or its Users (i) has breached this Agreement or (ii) accessed or otherwise used the Service in violation of Highfive’s Acceptable Use Policy.
    2. Third-Party Licenses. Portions of the Service may rely on third party services, applications, code, hardware or products (“Third Party Components”). Highfive’s third party licensors and suppliers retain all rights in such Third Party Components. Customers shall have the right to use the Third Party Components solely as part of the Service at no additional cost. If Third Party Components are integrated or used in connection with the Service, Customer agrees that (a) Highfive makes no representations and disclaims all warranties, express or implied, regarding Third Party Components, (b) Highfive is not responsible and shall have no liability for Third Party Components or the unavailability of Third Party Components, (c) if Third Party Components are provided under a separate license or other agreement, such terms shall govern with respect to such Third Party Components (Customer’s use and access to Dolby devices is subject to the terms at http://dcpcfg.dolbyvoice.com/Dolby_Voice_Client_EULA.html), (d) Customer is solely responsible and liable for its use of Third Party Components, (e) Customer authorizes Highfive to share User Data (defined below) with providers of the Third Party Components as required for the operation of the Third Party Components, provided however, that Highfive is not responsible for any transmission, collection, disclosure, security, modification, use or deletion of User Data by or through Third Party Components or their providers, and (f) Highfive has no obligation to support any integration(s) of Third Party Components with the Service and may cease any integration of Third Party Components at any time, in Highfive’s sole discretion. 
    3. Restrictions. Customer agrees not to and to not permit anyone (directly or indirectly): (i) reverse engineer, copy, modify, create a derivative work of, hack or otherwise attempt to gain unauthorized access to any part of the Service or Hardware, or otherwise attempt to discover the source code or algorithms of the Hardware, including the Software therein; (ii) sell, assign, sublicense or otherwise transfer any right in the Service to anyone else; and (iii) remove any proprietary notices or labels that are part of the Service or Hardware. 
    4. Customer Responsibilities. Customers shall only use the Service and the Hardware in accordance with all specifications in this Agreement, through the Service or otherwise provided (the “Specifications”). Customers shall comply with all applicable laws and use of the Service and Hardware. Customer is also solely responsible for (i) the operation, performance and security of Customer’s own equipment, networks and other computing resources used to connect to the Service, (ii) maintaining the confidentiality of Customer’s account information and passwords, and (iii) all usage of the Service by Customer and Customer’s Users. Customer shall notify Highfive immediately of any unauthorized use of the Service or any other breach of security of which Customer becomes aware. 
  2. Orders, Pricing, Shipping and Returns. 
    1. Orders. Customers may purchase any number of subscriptions to the Service using Highfive’s current ordering processes, including any ordering document or online form Highfive makes available (the “Order”). Customer acknowledges and agrees that the then-current Terms are incorporated in, and are a part of, each Order relating to the provision of the Service, whether expressed in written form, by electronic data interchange or otherwise.  Customer represents and warrants that any employee or agent that places an order on behalf of Customer is duly authorized to commit Customer in Contract.  All Orders are subject to verification and acceptance by Highfive in Highfive’s discretion. 

      *PLEASE NOTE In order to access the Service, Customer must purchase a subscription to the Service. Any existing possession or interest in any Hardware device shall not include access to the Service nor any subscriptions thereto without additional payment.
    2. Fees and Payment. Customers agree to pay all applicable charges and fees as stated on each Order or on Highfive’s Pricing page (the “Fees”). All Fees are non-cancelable and non-refundable except as expressly stated herein. Customer authorizes HIghfive to charge any Payment Method associated with Customer’s account in the event Customer’s primary Payment Method is unsuccessful or no longer available to Highfive for payment of any Fees.. Highfive reserves the right to change any Fees and/or institute new Fees upon thirty (30) days’ prior notice (which may be sent by email) in Highfive’s sole discretion. Prices for any Service do not include the costs of shipping and delivering the Hardware to you. Please note that all prices and taxes are subject to change at any time.  If Customer believes that Highfive has billed Customer incorrectly, Customer must contact Highfive no later than thirty (30) days after the date of the invoice on which the believed error or problem appeared.
    3. Invoicing. Highfive may bill through an invoice. Full payment for invoices issued in any given month must be received by Highfive thirty (30) days after the date of the invoice.
    4. Credit Card Payment. If payment is made via credit card, Customer authorizes Highfive to charge the Fees and any other charges Customer may incur in connection with the Service to Customer’s credit card in advance and on a periodic basis in accordance with the terms of each Order. Customer’s credit card and all associated information shall be current at all times. If any payment due is not successfully settled, Customer agrees Highfive may (i) suspend the Service until all payments are successfully settled, including any payment past due and (ii) charge any Payment Method associated to Customer’s account, if applicable, or continue to charge Customer’s credit card, as it may be updated. Customers are responsible for any and all fees incurred by using a credit card. 
    5. Taxes. The Fees payable hereunder are exclusive of any sales, use, excise, value added, import, or other applicable deductions, withholdings, taxes, tariffs or duties (“Taxes”) unless otherwise set forth on an Order or on Highfive’s Pricing page. Customers are solely responsible for payment of all Taxes except for any taxes based solely on Highfive’s net income. If Customer is required to pay any Taxes, Customer shall pay such Taxes with no reduction or offset in the Fees payable to Highfive. If Highfive has the legal obligation to pay or collect Taxes for which Customer is responsible, Customer agrees to pay such Taxes and Highfive will invoice the appropriate amount to be paid by Customer or charge Customer’s credit card.
    6. Unpaid Fees. Fees and other amounts not paid by the due date are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus costs and expenses, including reasonable attorneys’ fees, that Highfive incurs in connection with the collection of any delinquent amounts.
    7. Disclaimers.
      1. Erroneous Product Information. In Highfive’s marketing, advertising, offering, and sale of the Services, Highfive attempts to describe the Service as accurately as possible. Nevertheless, Highfive does not warrant that any such information about Service, including the related Software and Hardware, is accurate, complete, reliable, current, or error-free. It is possible that such may be inaccurate or out-of-date, such as listing erroneous or out-of-date pricing information or referring to Service or features that are no longer available. Such information is provided only for Customer’s convenience and is not part of this agreement, or any other agreement with Highfive. 
    8. Shipping and Delivery. The estimated arrival or delivery date is not a guaranteed delivery date for the Hardware. Refused deliveries will be returned to Highfive’s warehouse. It may take up to forty five (45) days for the returned items to be identified as refused and processed for a refund. Unless agreed to by the parties in writing, Highfive shall select the method of shipment and the carrier for Hardware. Any time quoted for delivery is an estimate only; provided, however, that Highfive shall use commercially reasonable efforts to deliver all Hardware on or before the requested delivery date. Highfive shall not be liable for any delays, loss or damage of the Hardware in transit. Highfive may, in Highfive’s sole discretion, without liability or penalty, make partial shipments of Hardware to the Customer. The Customer shall pay for all shipping charges, insurance costs, taxes, duties and fees. 
    9. Returns and Exchanges. If, for any reason, Customer is not completely satisfied with Highfive’s Service, Customer may cancel the Service and return the Hardware within thirty (30) days of Customer’s Order for a full refund.  Note that Orders for a renewal, “free trial”, or prior subscriptions are not eligible for a full refund. To initiate a refund and return Customer’s Hardware, please contact Customer’s Highfive sales representative or email Highfive at info@highfive.com. If for any reason Customer would like to exchange the Hardware delivered to you, Highfive may in Highfive’s sole discretion agree to exchange the Hardware (same version) so long as Customer pay the related shipping and delivery costs. Highfive will of course comply with Highfive’s obligations under the warranty section below. Terms on for returns after termination or expiration of this Agreement are governed below  in Section 4.3. 
  3. Ownership, Privacy, Security. Protecting the privacy of Highfive’s Customers and their Users is very important to Highfive and Highfive will protect Customer’s information in accordance with Highfive’s Privacy Policy available at www.highfive.com/privacy/. 
    1. Service and Hardware. Except for the rights granted in this Agreement, Customer has no right, title, license or interest in or to the Service, Hardware or Software or any intellectual property rights related to the Service, Software or Hardware. As between Customer and Highfive, Highfive owns and reserves all rights with respect to the Service and Hardware and Software and all intellectual property rights related to the Service, Software, and the Hardware. Customers will lease the physical Hardware (including the Software inside) upon payment of the applicable fees. Customer is responsible for loss, repair, replacement and other costs, damages, fees and charges if Customer does not return the Hardware to Highfive in an undamaged condition. Customer hereby assign to Highfive all of Customer’s interest in any feedback Customer shares with Highfive related to the Service, Software or Hardware. 
    2. Customer Content. Users may display, upload and store files, recordings, sound, music, graphics and images in connection with Customer’s use of the Service (“Content”). Customer represents and warrants that it owns, or has the necessary permissions to use and authorize the use of its Users’ Content. Highfive will not have any right in or to such Customer Content, except that Customer hereby grants to Highfive, its subcontractors and third party providers a non-exclusive, worldwide, royalty-free, license to use, modify, reproduce, display, share, and distribute Customer Content, only as may be necessary to provide the Service, enforce this Agreement or as required by applicable law. Customer warrants that Customer has the right to grant such license and no Customer Content infringes on the rights of any third  Party. Customers will comply with all laws related to Customer Content. Customer acknowledges and agrees that, except as expressly set forth herein, (a) Highfive is not responsible in any manner for the Content, (b) Customer assumes all risks associated with its Content and the transmission of its Content and (c) Customer has sole responsibility for the accuracy, quality, legality, and appropriateness of its Content. 
    3. User Data. In order to set up accounts and use the Service, Customers may provide information, such as IP address, username, password, and personally identifiable information (e.g., name, phone number, email address, etc.) (“User Data”). Customer grants Highfive and its subcontractors the right to store, process and retrieve User Data in connection with providing and supporting the Service. Customer warrants that it has obtained required consent from Customers Users to transfer User Data to Highfive and to process the User Data as contemplated by the Service, and agrees that Highfive may transfer to, store and process User Data where Highfive uses facilities in connection with the Service in order to provide the Service and support the Service. To the extent that User Data provided or disclosed by Customer (as data controller or data exporter) is deemed “personal data” under applicable European Union law or regulation, (a) Customer agrees that Highfive may transfer to, store and process User Data in the United States and/or another country outside the European Economic Area where Highfive uses facilities in connection with the Service in order to provide the Service and support the Service and (b) Highfive shall (i) comply with Customer’s reasonable, lawful instructions relating to the security and confidentiality of the User Data, and will maintain administrative, physical, and technical safeguards intended to protect the security and integrity of the User Data and (ii) process the User Data only in accordance with Customer’s lawful instructions or the lawful instructions of the data subject. If Highfive cannot comply with Section 3.3(b), Customer’s sole and exclusive remedy shall be to terminate this Agreement and cease using the Service.
    4. Usage Data. Highfive may collect and analyze data and other information relating to the usage of 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 Highfive provide, improve, protect or promote the Service. Highfive owns and reserves all rights with respect to such Usage Data. 
    5. Recording. Certain features of the Service may allow Customers or Users of the Service to record calls or other communications. The notification and consent requirements relating to the recording of calls, and/or other communications may vary from state to state, and country to country. Customers should consult with an attorney prior to recording any call as some states or countries may require callers or Users to obtain the prior consent of all parties to a recorded call, or other communication before the caller or User may record the call, or other communication. Customer represent, covenant, and warrant that Customer will review all applicable laws before Customer use or allow the use of the Service to record any calls or other communications and will at all times comply with all applicable laws. Customers agree to inform all Users that they are obligated to comply with all laws relating to their use of the call recording feature of the Service. Violations of the call recording laws may be subject to criminal or civil penalties. Highfive expressly disclaims all liability with respect to Customer’s recording of telephone conversations and/or calls. Customer agrees to indemnify and hold harmless Highfive, and any third-party provider(s) from any and all third  Party claims, losses, damages, fines, or penalties arising out of Customer’s or Customer’s Users violation or alleged violation of any call recording laws. Highfive stores recorded calls for a minimum of 180 days, though Highfive reserve the right to change the length of time Highfive store recordings at any time. Links to access calls are not password protected, and anyone who has the link can access the recording. 
    6. Security. Highfive will use commercially reasonable technical, organizational and administrative security measures to keep Customer Content and Usage Data protected in accordance with industry standards. Highfive will not monitor Customer or Customer’s Users’ use of the Service, and will not view, access or process any Customer Content, except: (i) for the sole purpose of providing and improving the Service, as directed or instructed by Customer and Customer’s Users, (ii) as permitted in this Agreement, and/or (iii) for compliance with Highfive’s policies, applicable law, regulation, or governmental requests. 
  4. Term and Termination. 
    1. Term. This Agreement will be effective until the expiration of the term (the initial term as well as any additional terms, the “Term”) set forth in the Order (the “Termination Date”) and will be automatically renewed, at either the price set forth in the Order for the identical subscription or Bundle type or the price listed on Highfive’s Pricing​ page for Customer’s comparable subscription or Bundle type, at Highfive’s sole discretion. The renewal shall be effective for additional Terms of one year unless: (i) the Customer provides written notice to Highfive within 30 days of the end of the then-current Term of Customer’s wish to terminate the Service and return the Hardware; or (ii) this Agreement is terminated earlier pursuant to Section 4.2 If Customer subsequently purchase additional subscriptions, Highfive may offer Customer the option to extend the Termination Date of this Agreement upon payment of applicable pro-rated fees such that Customers access to the Service and the underlying customer agreement will terminate on the same date. Any unreturned Hardware will be charged at individual device prices at the time of termination and the price can change without notice. 
    2. Early Termination. Highfive may suspend or modify Customer’s use of the Service at any time if Highfive reasonably believes that Customer has breached Sections 1.3 or 1.4 above or Section 5 below. Either Party may terminate this Agreement if the other Party breaches this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice of such breach. If Customer terminates this Agreement pursuant to this Section 4.2 based on a breach of this Agreement by Highfive, then Highfive will refund Customer a pro-rated (on a monthly basis) portion of the upfront fees Customer paid under this Agreement. If Highfive terminate this Agreement pursuant to this Section 4.2, then (i) Highfive will not owe Customer any refunds, and (ii) Highfive will have the right to terminate the customer agreements for any other subscriptions for the Service Customer has purchased. 
    3. Effect of Termination. Upon expiration or termination of this Agreement: 
      1. Customer agrees to return all Hardware in an undamaged condition (including all shipping charges, insurance costs, taxes, duties and other fees) within thirty (30) days from termination or expiration of this Agreement (the “Return Date”).  Highfive shall not be liable for any delays, loss or damage of the Hardware in transit. Any loss, repair, replacement and other costs, damages, fees and charges of any Hardware not delivered to Highfive in an undamaged condition by the Return Date. Any Hardware not delivered by the Return Date will be charged in accordance with the list price of each individual device at the time of Termination. 
      2. Customer shall Immediately discontinue access to and use of the Service. 
      3. The license granted to Customer under Section 1.1 above will terminate. 
      4. Sections 1.3, 1.4, 1.5, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of this Agreement will survive any expiration  or termination. 
  5. Acceptable Use Policy.  
    1. Customer agrees to use the Service in compliance with the Acceptable Use Policy under Highfive’s then current Terms (available at www.highfive.com/legal/) and has read and acknowledges the Service is provided subject to Highfive’s Privacy Policy (located at www.highfive.com/privacy). If Customer becomes aware of any actual or potential violations of HIghfive’s Acceptable Use Policy, Customer agrees to contact HIghfive at support@highfive.com. It is Customer’s responsibility to ensure that Customer complies with all applicable laws and has the right to use the Service both as Customer is using it, and where Users and participants in Customer’s Meetings are located. Customer represents and warrants that it is not a person or entity appearing on the lists published by the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury or any other list that may be published by the U.S. Government, as amended from time to time, that is prohibited from acquiring access to or control of items under this Agreement, or with which Highfive is prohibited from doing business. Customer further represents that the Service shall not be used for or in connection with nuclear, chemical or biological weapons, weapons of mass destruction, missiles, unmanned aerial vehicles, and/or to support terrorist activities, each in a way that would violate any applicable law, or in any other way that would violate U.S. export controls or economic sanctions laws or regulations. If Highfive collects and provides Customer with information relating to participants in Customer’s Meetings, Customer will (a) only use such information to contact the participants in connection with Customer’s Meeting and (b) not share such information with any third parties. Customer agrees to promptly notify Highfive and terminate use of the Service if Customer discovers that any of the conditions described in this Section 1.4.1 apply. Without limiting any other remedies Highfive may have, Highfive may suspend any use of the Service that Highfive reasonably believes may be (or that is alleged to be) in violation of this Section 1.4.1.
    2. High Risk Use. Customer ACKNOWLEDGE THAT the Service IS NOT DESIGNED, MANUFACTURED, INTENDED, OR RECOMMENDED FOR USE FOR ANY HIGH-RISK OR FAIL-SAFE PURPOSE OR ACTIVITY, INCLUDING WITHOUT LIMITATION CONTACTING OR COMMUNICATING WITH EMERGENCY SERVICE PROVIDERS OR FIRST RESPONDERS, OR IN ANY ENVIRONMENT WHERE FAILURE, INTERRUPTION, MALFUNCTION, ERROR, OR UNAVAILABILITY COULD RESULT IN SUBSTANTIAL LIABILITY OR DAMAGES, PHYSICAL HARM OR PERSONAL INJURY, DEATH OR DISMEMBERMENT, OR PROPERTY OR ENVIRONMENTAL DAMAGE. Customer REPRESENT AND WARRANT THAT Customer AND Customer’s USERS WILL NOT USE the Service FOR ANY SUCH PURPOSE OR ACTIVITY OR IN ANY SUCH ENVIRONMENT. 
    3. Customer Legal Compliance. Customer represents and warrants that in all use and usage of the Service, Customer will at all times comply with all applicable laws, including but not limited to the rules, policies and regulation of the Federal Communications Commission (“FCC”), and all laws relating to Do-Not-Call provisions; unsolicited marketing; telemarketing; faxing; telemarketing; email marketing; spamming or phishing; data security or privacy; international communications; account or debt collection; recording of calls or conversations; export control; export of technical or personal data; end User, end-use, and destination restrictions imposed by the United States or foreign governments; consumer protection; pornography; trade practices; false advertising; unfair competition; anti-discrimination; harassment; defamation; intellectual property; or securities. 
    4. Unsolicited Advertisements and TCPA Compliance. Certain communication practices – including without limitation, the placing of unsolicited calls; the placing of commercial messages; the sending of unsolicited facsimile, internet facsimile, SMS, or other messages; and the use of certain automated telephone equipment to place certain calls – is regulated in the United States by the Federal Telephone Consumer Protection Act of 1991 (also known as the “TCPA”) (available at https://www.fcc.gov/document/telephone-consumer-protection-act-1991), the Junk Fax Prevention Act of 2005, and under a number of similar state, municipal or local laws, regulations, codes, ordinances and rules. Customer agree, represent and warrant that:
      1. Customer or Customer’s Users are the creators of the Customer Content, and are solely responsible for determining the destination(s) and recipient(s) of, all outbound communications made using the Service, be it through calls, voicemail, text, fax, spam, solicitations, or commercial messages that Customer may send and/or receive using the Service (“Customer Communication”); 
      2. All Customer Content, provided for transmission through the will be provided solely for lawful purposes, and in no event shall any Customer Communication or any Customer Content thereof be in violation of the TCPA or any other law; and 
      3. No unsolicited advertisements, commercial messages, solicitations, marketing or promotional materials, or commercial messages or content will be transmitted or distributed in the form of facsimiles or internet facsimiles through the Services.
    5. At Highfive’s sole option and without further notice, Highfive may use technologies and procedures, including without limitation, filters, that may block or terminate such unsolicited advertisements without delivering them. Customer agrees to indemnify and hold harmless Highfive, and any third-party provider(s) from any and all third Party claims, losses, damages, fines, or penalties arising: (i) out of Customer’s violation or alleged violation of the TCPA or Junk Fax Prevention Act or any similar regulation or legislation; or (ii) otherwise related to any Customer Content or Customer Communication.

    6. Prohibited Use of the Service. Neither Customer nor any User may use or allow use of the Service in any of the following ways:
      1. in any manner or for any purpose that is fraudulent, malicious, deceptive, dishonest, abusive, obscene, threatening, harassing, tortious, improper, defamatory, libelous, slanderous, or in violation of any law; 
      2. to intentionally send or transmit unsolicited or “junk” or “spam” advertisements, communications, or messages (commercial or otherwise) without consent, including without limitation through email, voicemail, SMS, facsimile, or internet facsimile; 
      3. to harvest or otherwise collect information about others, including without limitation email addresses or personally-identifiable information, without their consent; 
      4. to intentionally engage in blasting or broadcasting bulk communications, advertisements, or messages (e.g., sending hundreds of messages simultaneously), including without limitation through email, voicemail, SMS, facsimile, or internet facsimile; 
      5. to perform auto-dialing or “predictive” dialing (i.e., non-manual dialing or using a software program or other means to continuously dial or place out-bound calls) in violation of applicable law; 
      6. to transmit any communication that would violate any applicable law, including but not limited to the Telephone Consumer Protection Act, the Junk Fax Prevention Act of 2005, the rules governing the DoNotCall Registry, Canadian Unsolicited Telecommunications Rules; 
      7. to intentionally transmit or store any material that contains viruses, time bombs, Trojan horses, worms, malware, spyware, or any other programs or materials that may be harmful or dangerous; 
      8. to transmit misleading or inaccurate caller ID information with the intent to defraud, cause harm, or wrongfully obtain anything of value, including by creating a false Caller ID identity or forged email/SMS address or header or by otherwise attempting to mislead others as to the identity of the sender or the origin of any outbound Customer Communication; 
      9. to infringe, misappropriate, or otherwise violate the foreign or domestic IP Right or proprietary right of any  Party, including without limitation by transmitting or storing any material that might infringe, misappropriate, or otherwise violate any such right;
      10. to violate the right of privacy, personality, or publicity of any  Party, including without limitation by transmitting or storing any material that might violate any such right; 
      11. to violate any law regarding the transmission of technical data or information or software through the Service;
      12. to contact or communicate with any emergency service providers or first responders; or 
      13. in any manner that interferes with Highfive’s ability to provide high quality products or services to other customers. 
    7. A breach of obligations in this Section 5.5 constitutes a material breach of this Agreement, as applicable, such that Highfive may suspend the Service, terminate the Agreement immediately, or take any other action Highfive deems necessary to enforce the terms of this Section.

    8. Prohibited Acts. Customer represent, warrant, covenant, and agree that neither Customer nor any User shall do any of the following during the term of this Agreement: 
      1. transfer, rent, lease, sell or otherwise in any way give access to the Hardware to any third  Party except as expressly permitted hereunder; 
      2. transmit, upload, distribute in any way, or store any corrupted file or material that contains viruses, time bombs, Trojan horses, worms, malware, spyware, or any other programs or materials that may be harmful or dangerous or may damage the operation of the Service or another  Party’s computers, devices, equipment, systems, or networks; 
      3. take advantage of, bypass, exploit, or otherwise avoid Customer’s obligations or the provisions, restrictions, and prohibitions set forth in this Agreement (or attempt to do so); 
      4. interfere with or disrupt networks or systems connected to the Service; 
      5. sell; resell; distribute; lease; export; import; or otherwise grant or purport to grant rights to third parties with respect to the Service, the Software and the Hardware or any part thereof without Highfive’s prior written consent; 
      6. display or use of any Highfive trademark or logo, including the “Highfive Mark” in any manner in violation of Highfive’s then-current policies on Highfive’s trademark and logo usage or without Highfive’s express, prior written permission, to be granted or denied in Highfive’s sole discretion, 
      7. display or use of any third  Party trademark or logo without the prior, written consent of the third  Party that owns the third  Party trademark or logo; 
      8. undertake, direct, attempt, cause, permit, or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of the Service, the Software or Hardware, or part thereof; 
      9. defeat, disable, or circumvent any protection mechanism related to the Service; 
      10. intercept, capture, sniff, monitor, modify, emulate, decrypt, or redirect any communication or data used by Highfive for any purpose, including without limitation by causing any product to connect to any computer server or other device not authorized by Highfive or in any manner not authorized in advance in writing by Highfive; 
      11. allow any service provider or other third  Party – with the sole exception of Highfive’s authorized maintenance providers acting with Highfive’s express, prior authorization – to use or execute any software commands that facilitate the maintenance or repair of any software or hardware used in conjunction with the Service; 
      12. gain access to or use (or attempt to gain access or use) any device, system, network, account, or plan in any unauthorized manner (including without limitation through password mining); 
      13. engage in or to allow trunking or forwarding of Customer’s Highfive telephone or facsimile number to (an)other number(s) capable of handling multiple simultaneous calls, or a key system; or 
      14. violate or take any action to jeopardize, limit, or interfere with Highfive’s intellectual property rights, including without limitation intellectual property rights in the Service, the Software and the Hardware. 
  6. A breach of obligations in this Section 5.6 constitutes a material breach of this Agreement, as applicable, such that Highfive may suspend service, terminate the Agreement immediately, or take any other action Highfive deems necessary to enforce the terms of this Section.

  7. Warranties and Disclaimers. 
    1. Service Availability. Highfive will use Highfive’s best efforts consistent with other companies like Highfive to keep the Service up and running, but no one is perfect. the Service may be temporarily unavailable for scheduled or unscheduled maintenance. Highfive will use reasonable efforts to provide advance notice of any scheduled service disruption. Highfive does not warrant that the Service will be uninterrupted or error free. Highfive does warrant that the Service will function in all material respects as provided in the Specifications (unless of course Customer used the Service in a manner inconsistent with the Specifications or this Agreement, including using the Service outside of the United States, Canada, Europe, and Australia/New Zealand). 
    2. Hardware Warranties. Highfive warrants that during the Term of this Agreement the Hardware will be free from material defects in materials and workmanship and will function in all material respects as provided in the Specifications (unless of course Customer used the Hardware in a manner inconsistent with the Specifications or this Agreement, including using them outside of the United States or Canada, Europe, and Australia/New Zealand or damaged the Hardware yourself). Otherwise, Customer use the Hardware at Customer’s own discretion and risk. Customer’s sole and exclusive remedy for a breach of the warranty set forth in this Section 6.2 is for Highfive to, at Highfive’s expense, either repair or replace the Hardware at issue. 
    3. Disclaimer of Warranties. Except as set forth in this Agreement, Highfive disclaims all warranties, express, implied, statutory, or otherwise, including any implied warranty of merchantability, fitness for a particular purpose, non-infringement, or title. Highfive assumes no responsibility for any damages to Customer’s hardware, software, or other materials. 
  8. Indemnity. 
    1. Indemnification by Highfive. Highfive agrees to indemnify you, Customer’s affiliates, and their employees, officers, directors, successors, assigns, agents for all losses (including reasonable attorneys’ fees) relating to any third  Party claims alleging that use of the Service or the Hardware as permitted under this Agreement infringes or misappropriates the intellectual property rights of a third  Party; provided that Customer (i) promptly give Highfive written notice of such claim, (ii) give Highfive sole control of the defense and settlement of the claim (provided that Highfive may not settle or defend any claim unless it unconditionally releases Customer of all liability), and (iii) provide Highfive all reasonable assistance, at Highfive’s expense. 
    2. Indemnification by Customer. Customer agrees to indemnify Highfive, Highfive’s 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 Customer’s (or Customer’s employees, agents, or Network Users’) (i) grossly negligent acts or intentionally committed wrongful acts; (ii) use of the Service in any manner not authorized in the Specifications; or (iii) any breach of this Agreement; provided that Highfive (i) promptly give Customer written notice of such claim, (ii) give Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless it unconditionally releases Highfive of all liability), and (iii) provide Customer all reasonable assistance, at Customer’s expense. 
  9. Limitation of Liability. Except for damages arising from either Party’s indemnification obligations hereunder and breach by Customer of Section 1.3, 1.4 or 5 above, neither Party will be liable for: indirect, incidental, exemplary, special, or consequential, damages; loss or corruption of data; or loss of revenues, profits, goodwill, or anticipated sales or savings. Except for damages arising from Highfive’s indemnification obligation hereunder, in no event will Highfive’s total cumulative liability to Customer and anyone who uses the Service through Customer’s account exceeds the aggregate amount Customer has paid to Highfive to purchase the Service during the prior twelve (12)-month period.
  10. Changes. The Terms of this Agreement may be modified as agreed upon by the Parties. If Highfive seeks to modify the Terms, Highfive may notify Customer by revising the “Last Updated” date at the top of the Terms (available at www.Highfive.com/legal) notification through the Service, notification through Customer’s purchasing account, email notification, or by other means. Customer agrees to the modified Terms by Customer’s continued use of the Service after such notification. 
  11. Such changes will be effective upon your use of the Service after such notification, except any material changes will only be effective upon the earlier of (i) thirty (30) days after such notification and consent, and (ii) your continued use of the Service once you know about the changes.
  12. except any material changes will only be effective upon the earlier of (i) thirty (30) days after such notification and consent, and (ii) your continued use of the Service once you know about the changes.
  13. Such changes will be effective upon your use of the Service after such notification, except any material changes will only be effective upon the earlier of (i) thirty (30) days after such notification and consent, and (ii) your continued use of the Service once you know about the changes. 
  14. Confidentiality. Business or technical information (collectively, “Confidential Information”) provided by one of Highfive (the “Discloser”) to the other (the “Recipient”) will be kept confidential by the Recipient and may not be used or disclosed except to perform this Agreement. Confidential Information does not include information that (a) is or was lawfully received by the Recipient from another  Party without confidentiality obligations, (b) becomes available in the public domain through no action or inaction of the Recipient, or (c) is developed independently by the Recipient without reference to the Discloser’s Confidential Information. If legally permissible, Recipient will provide Discloser prompt written notice if legally compelled to disclose Discloser’s Confidential Information. 
  15. Export Laws. Customer may not remove or export from the United States or allow the export or re-export of the Service or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. 
  16. Miscellaneous Legal Stuff. This Agreement, together with any Orders, exhibits, and incorporated policies, constitutes the sole and entire agreement between the parties with respect to the subject matter contained herein, and replaces and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. Except as explicitly provided under this Agreement, where there is a direct conflict between the Last Updated Terms (available at www.Highfive.com/legal) and the Order, the terms contained in the Order will apply and any conflicting or additional terms and conditions are of no force or effect unless agreed to in writing signed by the Parties. There are no third-party beneficiaries to this Agreement. Notices to be given by a Party to the other pursuant to this Agreement shall be in writing and directed to the address provided in the applicable Order and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt) or (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested) or by certified or registered mail, return receipt requested, postage prepaid.
  17. Notwithstanding the foregoing, notices to be given by Highfive to Customer pursuant to this Agreement shall be in writing 
  18.  be delivered means  shall be in writing   and directed to the address provided in the applicable Order and shall be deemed to have been given 
  19. If any provision of this Agreement is found unenforceable, this Agreement will be construed as if it had not been included. Highfive may assign this Agreement without the consent of Customer. Customer may not assign this Agreement without Highfive’s consent unless Customer assign it in connection with a merger, acquisition or sale of Customer’s assets upon delivering prior written notice to us. No failure or delay by Highfive in exercising any right under this Agreement will constitute a waiver of that right. The headings used in this Agreement are for convenience of reference only and do not affect the meaning or construction of this Agreement. This Agreement is governed by the laws of California without reference to conflicts of law rules. For any dispute relating to this Agreement, the Parties consent to personal jurisdiction and the exclusive venue of the courts in San Mateo County, California, except that either Party may elect to resolve the dispute through binding non-appearance-based arbitration through an established alternative dispute resolution provider they both agree on. 
  20. Contacting Highfive. For any questions or concerns, please visit Highfive’s Contact Page at www.Highfive.com/contact. For any questions or concerns regarding this Agreement, please contact Highfive’s Legal Team at legal@highfive.com