Last Updated: December 6, 2016
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.
If we make any changes to this Agreement, we will notify you by updating the “Last Updated” date above on the Site and either through the Service, in an email notification, or by other means. 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 (ii) your continued use of the Service once you know about the changes.
Now for the details you have been waiting for:
Rights, Restrictions and Responsibilities.
- Use of Service. Highfive grants you a non-exclusive, non-transferable, non-sublicensable, revocable license to use solely in connection with the Service during the term 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 (the “Updates”) added to the Service by us in our discretion during the term of this Agreement are subject to this Agreement. For clarity, Updates will not include any new versions of the Service that we market or sell separately. We reserve the right to suspend the Service or terminate the Agreement if you breach this Agreement or you or your users misuse the Service.
- Third-Party Licenses. Portions of our Service rely on software and hardware that we license from third-parties (the “Third Party Components”). Don’t worry, we’ve made sure you have the right to use any such Third Party Components as part of the Service at no additional cost to you. However, our third party licensors and suppliers retain all rights in such Third Party Components. Your use of the Dolby device is subject to the terms available at http://dcpcfg.dolbyvoice.com/Dolby_Voice_Client_EULA.html
- Restrictions. You agree not to (and not permit anyone who obtains access to your Network (as defined below), the Hardware or our Service directly or indirectly), reverse engineer, copy, modify, create a derivative work of, hack or otherwise attempt to gain unauthorized access to any part of the Service, or otherwise attempt to discover the source code or algorithms of our software or hardware. You also agree to not sell, assign, sublicense or otherwise transfer any right in the Service to anyone else or remove any proprietary notices or labels that are part of the Service. The Hardware and the Service are only certified to be used by residents of the United States and Canada, and are intended for end users only and are not authorized for resale. “Network” means your local area network, created in whole or in part by use of the Service and “Users” means anyone given access to the Service or the Hardware through you.
- Customer Responsibilities. Similarly, please use the Service only in accordance with all specifications available on our Site, through the Service or provided otherwise by us (the “Specifications”). And, of course, it is your responsibility to comply with all applicable laws in your use of the Service. You are also solely responsible for (i) the operation, performance and security of your own equipment, networks and other computing resources used to connect to the Service, (ii) maintaining the confidentiality of your account information and passwords, and (iii) all usage of the Service by you and your Users. You will notify us immediately of any unauthorized use of the Service or any other breach of security of which you become aware.
- Publicity. Other than using your company name and logo in customer lists on HighFive’s website and collateral, we won’t use each other’s name or trademarks without written consent.
Orders, Pricing, Shipping and Returns.
- Orders. You may purchase any number of subscriptions to our Service using our then-current ordering processes, including any ordering document or online form we make available (the “Order”). We will require that you execute a separate Order each time you purchase one or more subscriptions to our Service and you must enter into a separate agreement with us for each such Order. The Order is subject to acceptance and verification by us in our discretion. All information provided by or on behalf of you in connection with the Order must be current, complete and accurate and you are responsible for keeping such information updated. By placing an Order, you: (i) authorize us to bill your payment instrument; (ii) are agreeing to this Agreement, on behalf of yourself or the entity you represent in connection with the purchase; (iii) you represent and warrant that you have the authority to agree to this Agreement on behalf of yourself or the entity you represent, and that you are of sufficient legal age to purchase and use our Service.
- Prices and Payment. Your access to the Service is contingent upon your payment of the applicable fees set forth on the Site at www.highfive.com/pricing/. Depending on the order, we will calculate and charge sales tax (which you are responsible for paying) in accordance with applicable laws. Prices for our Service do not include the costs of shipping and delivering the Hardware to you.
- Shipping and Delivery. The estimated arrival or delivery date is not a guaranteed delivery date for the Hardware. Refused deliveries will be returned to our warehouse. It may take up to forty five (45) days for the returned items to be identified as refused and processed for a refund. Highfive and/or the freight carrier will be responsible for loss or damage that occurs when the Hardware is in transit to you.
- Returns and Exchanges. If, for any reason, you are not completely satisfied with our Service, you may cancel the Service and return the Hardware within thirty (30) days of purchase for a full refund (unless you previously used the Service on a “free trial” or similar basis). To initiate a refund and return your Hardware, please contact your Highfive sales representative or email us at email@example.com. If for any reason you would like to exchange the Hardware delivered to you, we may in our sole discretion agree to exchange it for new Hardware (same version) so as long as you pay the related shipping and delivery costs. We will of course comply with our obligations under the warranty section below.
Ownership, Privacy, Security.
- Service and Hardware. Except for the rights granted in this Agreement, you have no right, title, license or interest in or to the Service (excluding the physical Hardware you purchased) or Software or any intellectual property rights related to the Service, Software or Hardware. As between you and Highfive, Highfive owns and reserves all rights with respect to the Service and Software and all intellectual property rights related to the Service, Software, and the Hardware. You will own the physical Hardware (excluding the Software inside) purchased by you upon payment of the applicable fees. You hereby assign to Highfive all of your interest in any feedback you share with us related to the Service, Software or Hardware.
- Usage Data. We 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 us provide, improve, protect or promote the Service. Highfive owns and reserves all rights with respect to such Usage Data.
- Security. We will use commercially reasonable technical, organizational and administrative security measures to keep Customer Content and Usage Data protected in accordance with industry standards. We will not monitor you or your 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 you and your Users, (ii) as permitted in this Agreement, and/or (iii) for compliance with our policies, applicable law, regulation, or governmental requests.
Term and Termination.
- Term. This Agreement will be effective until the expiration of the term set forth in the Order (the “Termination Date”), unless terminated earlier pursuant to Section 4.2, and may only be renewed upon written consent of both of the Parties. If you subsequently purchase additional subscriptions or Hardware, we may offer you the option to extend the Termination Date of this Agreement upon payment of applicable pro-rated fees such that your access to the Service and the underlying customer agreement will terminate on the same date.
- Early Termination. We may suspend or modify your use of the Service at any time if we reasonably believe that you have breached sections 1.3 or 1.4 above. Either Party may terminate this Agreement if the other Party breaches this Agreement and fails to cure such breach within ten (10) days following receipt of written notice of such breach. If you terminate this Agreement pursuant to this section 4.2 based on a breach of this Agreement by Highfive, then we will refund you a pro-rated (on a monthly basis) portion of the upfront fees you paid under this Agreement. If we terminate this Agreement pursuant to this section 4.2, then (i) we will not owe you any refunds, and (ii) we will have the right to terminate the customer agreements for any other subscriptions for the Service you have purchased.
- Effect of Termination. Upon expiration or termination of this Agreement, you will immediately discontinue access to and use of the Service and the license granted to you under section 1.1 above will terminate. Sections 1.3, 1.4, 1.5, 3, 4, 6, 7, 8, 9 and 10 of this Agreement will survive any expiration or termination.
Warranties and Disclaimers.
- Service Availability. Highfive will use its best efforts consistent with other companies like us to keep the Service up and running, but no one is perfect. The Service may be temporarily unavailable for scheduled or unscheduled maintenance. We 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 you used the Service in a manner inconsistent with the Specifications or this Agreement, including using the Service outside of the United States or Canada).
- 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 you used the Hardware in a manner inconsistent with the Specifications or this Agreement, including using them outside of the United States or Canada, or damaged the Hardware yourself). Otherwise, you use the Hardware at your own discretion and risk. Your sole and exclusive remedy for a breach of the warranty set forth in this section 5.2 is for Highfive to, at its expense, either repair or replace the Hardware at issue.
- Disclaimer of Warranties. Except as set forth in above in Section 5.1 and 5.2, 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.
- Indemnification by Highfive. We agree to indemnify you, your 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 you (i) promptly give us written notice of such claim, (ii) give us sole control of the defense and settlement of the claim (provided that we may not settle or defend any claim unless it unconditionally releases you of all liability), and (iii) provide us all reasonable assistance, at our expense.
- Indemnification by Customer. 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 your (or your 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 we (i) promptly give you written notice of such claim, (ii) give you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless it unconditionally releases us of all liability), and (iii) provide you all reasonable assistance, at your expense.
- Limitation of Liability. Except for damages arising from either Party’s indemnification obligations hereunder and breach by Customer of section 1.3 or 1.4 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 exceed the aggregate amount Customer has paid to Highfive to purchase the Service during the prior twelve (12)-month period.
- Confidentiality. Business or technical information (collectively, “Confidential Information”) provided by one of us (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.
- Export Laws. You 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.
- Miscellaneous Legal Stuff. This Agreement is the entire agreement between you and us and supersedes all prior agreements and understandings about your use of our Service. In the event of a conflict between this Agreement and any other terms posted on the Site, the terms of this Agreement shall govern. There are no third-party beneficiaries to this Agreement. Communications we send to you electronically will be deemed to be in writing. Any notice you provide to us under this Agreement will be in writing and sent by overnight courier or certified mail (receipt requested) to the address above. 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. You may not assign this Agreement without our consent unless you assign it in connection with a merger, acquisition or sale of your assets upon delivering prior written notice to us. No failure or delay by us 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.
If you have any questions or concerns about the Service or this Agreement, please contact us at firstname.lastname@example.org.