Version Date: May 6, 2022
The below terms and the exhibits thereto (collectively, the “Terms”) apply to access to and use of the Services. In the event of a conflict between the Terms and an Order Form entered into between Hi Marley and a Subscriber, the terms of the Order Form shall supersede.
TERMS OF SERVICE
1.1 “Authorized User” means an individual person that is (a) an employee, consultant, or contractor of Subscriber performing services for Subscriber; and (b) authorized by Subscriber to use the Services.
1.2 “Documentation” means any documentation or information provided or made available by Hi Marley to Subscriber under these Terms.
1.3 “Effective Date” has the meaning given in the applicable Order Form.
1.4 “End User” means an individual person that is sent a communication from or sends a communication to an Authorized User of Subscriber, through the Services, including through SMS messaging.
1.5 “Hi Marley Technology” means, individually or together, the Services, the Documentation, and any other software, technology or data provided by Hi Marley to Subscriber, and includes any Updates to the foregoing.
1.6 “Order Form” means the ordering document between Hi Marley and Subscriber from which these Terms are referenced or attached.
1.7 “Services” means the Hi Marley intelligent messaging platform made available to Subscriber under an Order Form and these Terms, including any administrative portal made available by Hi Marley.
1.8 “Specifications” means the functionalities and features of the Services as set forth in the applicable Order Form.
1.9 “Subscriber” means the subscriber identified on the Order Form.
1.10 “Third Party Technology” means any software, code, algorithms, processes, methods, inventions, or other technology which is not owned by Hi Marley.
1.11 “Updates” means any update, upgrade, enhancement, new version, new feature or functionality, change, or other modification to the Services or any other Hi Marley Technology.
2. GRANTS AND RESTRICTIONS
2.1 Right to Use Services. Hi Marley hereby grants to Subscriber, exercisable by and through its Authorized Users, a limited, non-exclusive, non-sub-licensable, nontransferable, royalty-free right during the applicable Order Form Term to use and access the Services in accordance with the Documentation.
2.2 License to Documentation. Hi Marley hereby grants to Subscriber a limited, non-exclusive, non-sub-licensable, nontransferable, royalty-free license to use, copy and reproduce Documentation as reasonably necessary to support Subscriber’s and its Authorized Users’ use of the Services.
2.3 Limits on Authorized Users. The total number of Authorized Users will not exceed the number set forth in the applicable Order Form (“Max Authorized Users”), except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees (defined below) payable hereunder. The Max Authorized Users may not be adjusted downward during the applicable Order Form Term (defined below). Subscriber may terminate an Authorized User’s authorization to use the Services and reassign the associated credentials to another individual, but the rights may not be reassigned so frequently as to enable the sharing of a single set of credentials between multiple individuals.
2.4 Restrictions. Except as expressly set forth in these Terms, the licenses and rights granted to Subscriber in these Terms do not include any right to, and Subscriber will not: (a) modify, translate, or create a derivative work of any portion of the Hi Marley Technology; (b) sell, lease, loan, provide, distribute or otherwise transfer any portion of the Hi Marley Technology to any third party; (c) reverse engineer, disassemble, decompile, or otherwise attempt to gain access to the source code of any Hi Marley Technology; (d) remove, alter, or cover any copyright notices or other proprietary rights notices placed or embedded on or in any part of the Hi Marley Technology; or (e) cause or permit any third party to do any of the foregoing.
2.5 Contractors. Subscriber may allow third party contractors to access and use the Services as an Authorized User, if: (a) that contractor’s use is solely on behalf of Subscriber; and (b) that contractor agrees to be bound by terms at least as restrictive as these Terms. Subscriber will train all of its Authorized Users on proper use of the Services in compliance with these Terms. Subscriber is responsible for any act or omission of a contractor, or any other Authorized User, that, if undertaken by or attributable Subscriber, would be a breach of these Terms. For the avoidance of doubt, it will not be a defense to Subscriber’s obligation to indemnify under Section 10 that an act or omission was attributable to any third-party contractor of Subscriber.
2.6 No Warranties. Subscriber may not make any representation or any express or implied warranty to third parties (including, without limitation, to any End Users) on behalf of Hi Marley unless expressly authorized in writing by Hi Marley.
2.8 Order Forms. Notwithstanding anything to the contrary, Subscriber’s rights to use Hi Marley Technology, as granted under this Section 2, are contingent on an active Order Form between the Parties with pricing and other terms applicable to Subscriber’s use of the Hi Marley Technology.
2.9 Feedback. If Subscriber provides any feedback to Hi Marley concerning the functionality and performance of any portion of the Services (including identifying potential errors and improvements), Subscriber hereby assigns to Hi Marley all right, title, and interest in and to the feedback, and Hi Marley is free to use the feedback without payment or restriction.
2.10 Reservation of Rights. All rights not expressly granted in these Terms are reserved. No additional rights whatsoever (including, without limitation, any implied licenses) are granted by implication, estoppel or otherwise.
2.11 Changes to the Services. Hi Marley may modify the Services from time to time through periodic Updates. Hi Marley reserves the right to charge additional fees for Updates that add material new modules, features, or functionality (provided that Subscriber is not obligated to purchase such features unless agreed in an Order Form or amendment to an Order Form).
3. SUPPORT AND SERVICE LEVEL AGREEMENTS
3.1 Support. Hi Marley will provide Subscriber with reasonable technical support and assistance related to the Services during the Term. Subscriber is solely responsible for routine troubleshooting and intake of all issues and questions of End Users or Authorized Users related to the Services. Subscriber will then make commercially reasonable efforts to address and to correct all issues or problems of its End Users, in accordance with the Documentation and any training provided by Hi Marley to Subscriber under these Terms. If, after making those reasonable efforts, Subscriber cannot correct an error or problem related to the Services, Subscriber will notify Hi Marley, and Hi Marley will assist Subscriber (not the End Users) in diagnosing and correcting such error or problem. In no event will Hi Marley be responsible for providing support directly to End Users during the Term.
3.2 Service Levels. Hi Marley will provide the Services in accordance with the service levels in Exhibit A (“Service Level Agreement”).
4. INTELLECTUAL PROPERTY AND DATA
4.1 Intellectual Property. All right, title, and interest in and to the Hi Marley Technology, including all copyrights, patents, trademarks, trade secrets, or other intellectual property rights, are and will remain the sole and exclusive property of Hi Marley. Except for the limited licenses and rights granted in Section 2, nothing herein grants to Subscriber, or should be construed to grant to Subscriber, any right title or interest in or to Hi Marley Technology.
4.3 Data Protection. Hi Marley will process, store, transmit and use all information, including Customer Data and Registration Data, in accordance with the Hi Marley Data Security Standards, attached to these Terms as Exhibit B (“Security Standards”). Further, Hi Marley will comply with the data security obligations in Exhibit C (“Data Security Addendum”) as applicable to its performance under these Terms.
5. TERM AND TERMINATION
5.1 Term. These Terms will commence on the Effective Date, and unless terminated prior, continue through the applicable Order Form Term. Upon expiration of the applicable Order Form Term, unless otherwise stated in the Order Form, the Order Form Term will automatically renew for additional consecutive one-year terms (each a “Renewal Term” and collectively the “Term”) unless either Party provides written notice of its intent to terminate 30 days prior to the expiration of the Order Form Term or then-current Renewal Term.
5.2 Pilot Period. If the Order Form specifies that the Order Form Term will include an initial pilot period (“Pilot Period”), Subscriber may elect to terminate these Terms at any time during the Pilot Period without any further liability to Hi Marley. Subscriber will only be liable for those fees and expenses which are expressly designated as attributable to the Pilot Period in the Order Form.
5.3 Termination for Material Breach. Either Party may terminate these Terms if the other Party does not cure its material breach of these Terms within 30 days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this Section 5.3 will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the 30-day cure period.
5.4 Post-Termination Obligations. If these Terms are terminated for any reason: (a) all active Order Forms are immediately terminated; (b) Subscriber will pay to Hi Marley any fees or other amounts that have accrued prior to the effective date of the termination; (c) any and all liabilities accrued prior to the effective date of the termination will survive; and (d) Subscriber will immediately cease all use of the Services, Documentation, and other Hi Marley Technology.
5.5 Survival. Upon termination, Subscriber’s licenses under these Terms will end and Subscriber will cease all use of the Services and Hi Marley Technology. Sections 2.4, 2.6, 2.7, 2.9, 2.10,4.1, 4.2, 4.3, 5.4, 5.5, 6.2, 7, 8, 9, 10, 11 and 12 will survive any termination of these Terms.
6.1 Fees. Subscriber’s use of the Services and other offerings of Hi Marley is subject to the fees set forth in the Order Form, as well as any additional services fees set forth in any subsequent Order Form or similar document referencing these Terms (collectively, the “Fees”). Unless otherwise specified in the Order Form or in an applicable related document referencing these Terms, Subscriber will pay all undisputed amounts due within 30 days of the date of the applicable invoice in accordance with the wire instructions in the invoice. All amounts payable under these Terms are denominated in United States dollars, will be paid in United States dollars, and are non-refundable unless otherwise stated in the applicable Order Form.
6.2 Taxes. Other than net income taxes imposed on Hi Marley, Subscriber will bear all taxes, duties, and other governmental charges resulting from these Terms. Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received by Hi Marley after all such taxes are paid are equal to the amounts that Hi Marley would have been entitled to in accordance with these Terms as if the taxes did not exist.
7. REPRESENTATIONS AND DISCLAIMERS OF WARRANTY
7.1 Mutual Warranties. Each Party represents and warrants to the other that: (a) these Terms have been duly entered and constitute a valid and binding agreement enforceable against such Party; and (b) no authorization or approval from any third party is required in connection with such Party entering into or performing under these Terms.
7.2 Service Warranty. Hi Marley represents and warrants to the Subscriber that during the Term the Services will conform in all material respects with the Specifications (the “Service Warranty”). If Hi Marley breaches the Service Warranty, as Hi Marley’s sole liability and Subscriber’s exclusive remedy, Hi Marley will at its own cost and expense either: (a) within 90 days from notification of breach of the Service Warranty repair or replace the non-conforming portion of the Services so as to remedy the breach of the Service warranty; or (b) if despite Hi Marley’s commercially reasonable efforts the breach of the Service Warranty cannot be remedied within 90 days, Hi Marley will refund to Subscriber any pre-paid, unused fees equitably attributable to the portion of the Services in breach of the Service Warranty.
7.3 Additional Subscriber Warranties. Subscriber represents and warrants to Hi Marley that Subscriber’s use of the Services, including its collection and use of any data obtained through the Services, will be in compliance with all applicable laws, regulations, and statutes. Without limiting the foregoing, Subscriber represents and warrants that, with regard to End User data that is processed through the Services, Subscriber will provide End Users with any privacy notices and obtain any End User consents as required by applicable laws and regulations
7.4 Subscriber Representations and Warranties Regarding Messages. Subscriber represents and warrants that: (a) Subscriber and its Authorized Users will comply with all laws and contracts in connection with the content and transmission of calls, texts, and other messages (“Messages”) sent using the Services, including, without limitation, all federal and state telemarketing-related laws, rules and regulations, the Telephone Consumer Protection Act (47 U.S.C. § 227) the FCC’s implementing regulations (47 C.F.R. § 64.1200) (such laws, rules and regulations, as amended from time-to-time, collectively, the “Telemarketing Laws”); (b) Subscriber will use the Services only to send informational Messages that serve no marketing purpose; and, (c) Subscriber will not use the Services to send Messages to any individual who has indicated that he or she does not wish to be contacted by Subscriber or Hi Marley. Failure to comply with any provision of this Section 7.4 is a material breach of these Terms.
7.5 Subscriber Representations and Warranties Regarding Mass Notification. Should Subscriber use Hi Marley features that allow for a high volume of text messages to be simultaneously sent to multiple phone numbers (“Mass Notification”), Subscriber represents and warrants that (a) as to each specific telephone number for each End User to receive Messages from Subscriber sent using the Hi Marley Services (“Recipient”), Subscriber has obtained consents that are required by the Telemarketing Laws and Subscriber’s privacy policies; (b) Subscriber will retain documentary proof of such consents for at least four (4) years from the date Subscriber receives such consent; (c) Subscriber will use the Services only to send Messages closely related to the purpose(s) for which the telephone number and related consent were originally provided by Recipient; and, (d) Subscriber will provide a reasonable means for Recipients to rescind consent to receive Messages sent using the Services and will accept and honor any revocations of consent received by Hi Marley and conveyed to Subscriber. Hi Marley shall have the right to require Subscriber to provide a legal compliance plan in connection with Subscriber’s use of Hi Marley’s Mass Notification feature, and audit Subscriber’s compliance with such plan as well as with subsections (a), (b), (c), and (d), above. Failure to comply with any provision of this Section 7.5 is a material breach of these Terms.
7.6 DISCLAIMERS. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, HI MARLEY MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. HI MARLEY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. HI MARLEY DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES. HI MARLEY DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE, UNINTERRUPTED, OR ACHIEVE ANY PARTICULAR RESULT. HI MARLEY DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES WILL ALWAYS BE AVAILABLE.
8. LIMITATION OF LIABILITY.
8.1 Disclaimer of Indirect Damages. SUBJECT TO SECTION 8.3, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCE, BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS, INCLUDING BUT NOT LIMITED TO, LOST PROFITS OR LOSS OF BUSINESS, EVEN IF THAT PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
8.2 Cap on Liability. SUBJECT TO SECTION 8.3, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO HI MARLEY DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
8.3 EXCLUSIONS. THE DISCLAIMERS OF DAMAGES IN SECTION 8.1 AND LIMITATIONS ON DAMAGES IN SECTION 8.2 WILL NOT APPLY TO ANY LIABILITY ARISING FROM OR RELATED TO: (A) SUBSCRIBER’S PAYMENT OBLIGATIONS; (B) SUBSCRIBER’S BREACH OF ITS WARRANTIES UNDER SECTION 7 (REPRESENTATIONS AND DISCLAIMERS OF WARRANTY); (C) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THESE TERMS; OR (D) A PARTY’S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
8.4 Independent Allocations of Risk. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY HI MARLEY TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 8 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE TERMS.
9. HI MARLEY INDEMNIFICATION
9.1 Defense. Hi Marley will, at its expense, either defend Subscriber from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Subscriber alleging that Subscriber’s use of Hi Marley Technology infringes or misappropriates any third party patent, copyright, trade secret, trademark, or other intellectual property right during the Term, if: (a) Subscriber gives Hi Marley prompt written notice of the Claim; (b) Subscriber grants Hi Marley full and complete control over the defense and settlement of the Claim, except that no such settlement shall include any admission of guilt or fault on the part of Subscriber without Subscriber’s prior written approval; (c) Subscriber provides assistance in connection with the defense and settlement of the Claim as Hi Marley may reasonably request; and (d) Subscriber complies with any settlement or court order made in connection with the Claim, provided that Hi Marley shall not settle any Claim in a manner that adversely affects the rights of Subscriber without Subscriber’s prior written consent. Subscriber will not defend or settle any Claim without Hi Marley’s prior written consent. Subscriber will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Hi Marley will have sole control over the defense and settlement of the Claim. Subscriber’s failure to perform any obligations under this Section 9.1 shall not relieve Hi Marley of its obligations except to the extent that Hi Marley can demonstrate that it has been materially prejudiced as a result of such failure.
9.2 Indemnification. Hi Marley will indemnify Subscriber from and pay: (a) all damages, costs, and attorneys’ fees finally awarded against Subscriber in any Claim under Section 9.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Subscriber in connection with the defense of a Claim under Section 9.1 (other than attorneys’ fees and costs incurred without Hi Marley’s consent after Hi Marley has accepted defense of the Claim); and (c) all amounts that Hi Marley agrees to pay to any third party to settle any Claim under Section 9.1.
9.3 Exclusions from Obligations. Hi Marley will have no obligation under this Section 9 to the extent that it arises out of or is based upon: (a) use of Hi Marley Technology in combination with other products or services not specified by Hi Marley if such infringement or misappropriation would not have arisen but for such combination; (b) any Third Party Technology; (c) use of any Hi Marley Technology by Subscriber for purposes not intended or outside the scope of the license granted to Subscriber; (d) Subscriber’s failure to use the Hi Marley Technology in accordance with instructions provided by Hi Marley, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Hi Marley Technology not made or authorized in writing by Hi Marley where such infringement or misappropriation would not have occurred absent such modification ((a) – (e) collectively, the “Non-Qualifying Claims”).
10. SUBSCRIBER INDEMNIFICATION
10.1 Defense. Subscriber will defend Hi Marley from any third party Claim arising out of or based upon: (a) Subscriber’s business relationship with its End Users, including failure to honor insurance claims, or any breach or alleged breach of any insurance agreement between Subscriber and End Users; (b) Subscriber’s breach of the representations and warranties in Section 7.3 or 7.4, or in connection with any claim or action from a third party that arises from the Messages Subscriber sends (or fails to send) using the Services; or (c) any Non-Qualifying Claims if: (i) Hi Marley gives Subscriber prompt written notice of the Claim; (ii) Hi Marley grants Subscriber full and complete control over the defense and settlement of the Claim; (iii) Hi Marley provides assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request; and (iv) Hi Marley complies with any settlement or court order made in connection with the Claim. Hi Marley will not defend or settle any Claim without Subscriber’s prior written consent. Hi Marley will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the Claim. Hi Marley’s failure to perform any obligations under this Section 10.1 shall not relieve Subscriber of its obligations except to the extent that Subscriber can demonstrate that it has been materially prejudiced as a result of such failure.
10.2 Indemnification. Subscriber will indemnify Hi Marley from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Hi Marley in any Claim under Section 10.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Hi Marley in connection with the defense of a Claim under Section 10.1 (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of the Claim); and, (c) all amounts that Subscriber agrees to pay to any third party to settle any Claim under Section 10.1
11.1 Definition. “Confidential Information” means any information disclosed by either Party to the other Party, directly or indirectly, in writing, orally, or by inspection of tangible objects (including documents, prototypes, samples, and equipment), that is designated by the disclosing Party as confidential or proprietary, that reasonably appears to be confidential due to the nature of the information or circumstances of disclosure, or that is customarily considered confidential between business parties, including customer, product, financial, and strategic information. “Confidential Information” may also include information disclosed to the disclosing Party by third parties. For clarity, Customer Data is the Confidential Information of Subscriber and Aggregate Data is the Confidential Information of Hi Marley. Confidential Information will not, however, include any information that: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the disclosing Party to the receiving Party through no action or inaction of the receiving Party; (iii) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party, as shown by the receiving Party’s files and records; (iv) is obtained by the receiving Party from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the receiving Party’s possession.
11.2 Non-Use and Non-Disclosure. Neither Party will use any Confidential Information of the other Party for any purpose except to exercise its rights and perform its obligations under these Terms. Neither Party will disclose any Confidential Information of the other Party to third parties or to that Party’s employees, except to those employees of the receiving Party with a need to know. Neither Party will reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects which embody the other Party’s Confidential Information and which are provided to the Party hereunder. A Party may disclose the other Party’s Confidential Information if required by law so long as the receiving Party gives the disclosing Party prompt written notice of the requirement prior to the disclosure and assistance in obtaining an order protecting the information from public disclosure.
11.3 Maintenance of Confidentiality. Each Party will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other Party. Without limiting the foregoing, each Party will take at least those measures that it takes to protect its own most highly confidential information and will ensure that its employees, agents and contractors who have access to Confidential Information of the other Party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to those employees, agents or contractors. Neither Party will make any copies of the Confidential Information of the other Party unless the same are authorized under these Terms or previously approved in writing by the other Party. Each Party will reproduce the other Party’s proprietary rights notices on any approved copies, in the same manner in which those notices were set forth in or on the original.
11.4 Return of Materials. Upon the termination of these Terms, each Party will return to the other Party or destroy and delete from its systems all of the other Party’s Confidential Information that it may have in its possession or control, except that Hi Marley will not be required to destroy or delete any Customer Data during the Transition Period. Notwithstanding the foregoing, each Party may retain such copies of Confidential Information (i) as reasonably necessary to comply with the Party’s obligations under applicable law, statute, or regulation or (ii) in accordance with the Party’s commercially reasonable document retention and backup policies; provided that such copies shall only be used for purposes of complying with such law, regulation or document retention policy and shall at all times be maintained as confidential pursuant to the terms set forth herein.
11.5 Remedies. Each Party acknowledges that any violation or threatened violation of these Terms may cause irreparable injury to the other Party, entitling the other Party to seek injunctive relief in addition to all legal remedies.
12.1 Insurance. Hi Marley agrees to obtain and maintain, at its own expense, commercially reasonable insurance coverage appropriate for the services provided under these Terms.
12.2 No Partnership, Joint Venture or Franchise. These Terms will not be construed as creating a partnership, joint venture, or agency relationship or as granting a franchise.
12.3 Notices. All notices in connection with these Terms will be deemed given (a) as of the day sent via e-mail or (b) as of the day they are received either by messenger, delivery service, or in the United States of America mail, postage prepaid, certified or registered, return receipt requested. Notices must be addressed to Subscriber or to Hi Marley at the addresses and/or e-mail addresses specified in the applicable Order Form, or to such other address as a Party may designate pursuant to this notice provision.
12.4 Governing Law. These Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware without reference to its choice of law rules that would result in the application of the laws of another jurisdiction. The Parties agree that any dispute arising from these Terms will be heard exclusively in the state or Federal courts located in the State of Delaware and irrevocably submit to that jurisdiction and venue.
12.5 Assignability. These Terms may not be assigned or otherwise transferred by either Party, in whole or in part, without the prior written consent of the other Party, except that either Party may assign these Terms in connection with a merger, acquisition, change of control, or sale of all or substantially all of that Party’s assets or stock. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns. Any assignment in violation of this Section 12.5 is null and void.
12.6 Waiver. The waiver by either Party of any breach of any provision of these Terms does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with these Terms will not be a waiver of that Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms.
12.7 Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond its reasonable control, so long as that Party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
12.8 Construction. If any part of these Terms are found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect. If any limitation or restriction on the grant of any license to Subscriber under these Terms are found to be illegal, unenforceable, or invalid, the license will immediately terminate. Failure by a Party to enforce any provision of these Terms will not be deemed a waiver of future enforcement of that or any other provision.
12.9 Updates to Terms. These terms may be updated at any time by Hi Marley, provided that the version of these Terms in effect at the time of execution of any Order Form will continue to apply to that Order Form. Execution of any new Order Forms will be subject to the revised Terms.
12.10 Entire Agreement. These Terms and its Exhibits, together with any applicable Order Form, are the final and complete expression of the agreement between the Parties regarding the subject matter of these Terms. These Terms supersede, and these Terms govern, all previous oral and written communications regarding these matters, all of which are merged into these Terms, except that these Terms do not supersede any prior nondisclosure or comparable agreement between the Parties executed prior to the Effective Date of these Terms. It will not be modified except by a written agreement dated subsequent to the Effective Date and signed on behalf of Subscriber and Hi Marley by their respective duly authorized representatives.
SERVICE LEVEL AGREEMENT
This Exhibit A is applicable following the completion of any Pilot Period. Hi Marley will host the Services in accordance with the performance standards in this Exhibit A. All capitalized terms not defined in this Exhibit A, will have the meanings that are defined in the Terms.
- Availability and Credits.
- Hi Marley will use reasonable efforts to provide the Services so that, other than set forth in Section 1(b) of this Exhibit A, the Services will be accessible in all material respects 99.9% of the time in any given calendar month (the “Uptime Guarantee”).
- Any outages caused by or attributable to the following reasons will not count against the Uptime Guarantee: (a) scheduled maintenance performed by Hi Marley occurring during the hours of 10pm and 5am Eastern Time where written notice has been provided to Subscriber at least 7 calendar days in advance; (b) internet outages, disruptions to broadband infrastructure, utility failures, or other technical failures outside of Hi Marley’s reasonable control; or (c) any failure of systems, networks, or equipment owned or controlled by Subscriber (collectively, “Permitted Downtime”).
- As Subscriber’s sole remedy for Hi Marley failing to meet the Uptime Guarantee in any given month (where any Permitted Downtime does not count against the total availability for the Uptime Guarantee calculation), Subscriber may request and Hi Marley may issue a service level credit in the amount of a percentage of fees attributable to one month’s use of the Services (“Service Credit”) in accordance with the below table:
|<99.9% and ≥ 99.0%||5%|
|<99.0% and ≥ 98.0%||10%|
|<98.0% and ≥ 95%||25%|
Subscriber must claim any Service Credit within 60 days of the outage giving rise to the Service Credit. For purposes of calculating any Service Credit, Hi Marley’s systems will be the systems of record for determining the length of any outage.For illustration, an availability of 97% would entitle Subscriber to a Service Credit calculated as: (Annual Services Fee / 12) * .25.
- Performance Issue Corrections. If Subscriber encounters any issue with the performance of the Services (“Performance Issue”), Hi Marley will use commercially reasonable efforts to correct the Performance Issue with a level of effort commensurate with the severity of the Performance Issue. Hi Marley and Subscriber will comply with the following resolution procedures for all Performance Issues reported by Subscriber:
- Notice of Performance Issue. If Subscriber encounters a Performance Issue, Subscriber must sufficiently define the Performance Issue in a written notice to Hi Marley. After receipt of written notice of a Performance Issue from Subscriber, Hi Marley will notify Subscriber if Hi Marley cannot identify the cause of the Performance Issue. If Hi Marley cannot identify the cause of the Performance Issue, Subscriber will provide additional information regarding the Performance Issue as Hi Marley may request in order to assist Hi Marley with identifying the cause of the Performance Issue. Subscriber will provide a separate written notice for each Performance Issue encountered by Subscriber.
- Performance Issue Classification. In its notice of a Performance Issue, Subscriber will reasonably classify for Hi Marley the initial priority of the Performance Issue. Subscriber will use the nature of the Performance Issue and Subscriber’s business situation to initially classify each Performance Issue. Subscriber will classify each Performance Issue in accordance with the severity classification table below. To the extent that Hi Marley disagrees with any Performance Issue classification provided by Subscriber, Hi Marley will promptly advise Subscriber of the revised classification of any Performance Issue.
- Response Time. Hi Marley will use reasonable efforts to respond to each of Subscriber’s written notices of Performance Issue within the period set forth in severity classification table below. Response time is the elapsed time between Subscriber’s first report of an identified Performance Issue and the provision of a plan for resolution by a Hi Marley technical contact. For purposes of this paragraph 2, the term “hour” means Hi Marley business hours, which are Monday to Friday 8am to 8pm Eastern Time, excluding US federal holidays.
|Severity Classification||Description of Performance Issue||Response Time|
|Class A: Emergency||Any Performance Issue that causes the Services to be completely inaccessible.||2 hours|
|Class B: Urgent||Any Performance Issue that causes a material degradation in the performance of the Services.||4 hours|
|Class C: Non-urgent||Any Performance Issue that causes a non-critical degradation in the performance of the Services.||40 hours (5 days)|
|Class D: Minor||Suggested changes.||At the discretion and prioritization of Hi Marley.|
- Subscriber Obligations
- Trained Contacts. Subscriber will appoint up to two individuals within Subscriber’s organization to serve as primary contacts between Subscriber and Hi Marley with regards to the Services. Subscriber must initiate all requests through these contacts.
- Reasonable Assistance. Subscriber will provide Hi Marley with reasonable access to all necessary personnel to answer questions regarding Performance Issues reported by Subscriber.
Capitalized terms not otherwise defined in this document have the meanings assigned to them in the Terms.
- Information Security Program – Generally. Hi Marley will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to (a) identify reasonably foreseeable and internal risks to security and unauthorized access to Hi Marley’s systems and network (the “Hi Marley Network”), (b) minimize security risks, including through risk assessment and regular testing; and (c) address information security, physical security, and business continuity management.
- Network Security.
- Vulnerability Identification. Hi Marley will use commercially reasonable efforts to monitor, on a regular basis, reputable sources of computer security vulnerability information and take appropriate measures to obtain, thoroughly test, and apply relevant service packs, patches, upgrades, and workarounds.
- Access Controls. The Hi Marley Network on which Customer Data is stored will be electronically accessible to employees, contractors and any other person only as necessary to provide the Services. Hi Marley will maintain access controls and policies to manage what access is allowed to the Hi Marley Network from each network connection and user.
- Secure Transmission. Hi Marley will ensure that all remote administrative access to production systems of the Hi Marley Network is performed over encrypted connections (e.g., SSH, SCP, SSL-enabled web-management interfaces, and VPN solutions).
- Penetration Testing. Hi Marley (or its service provider) will conduct penetration tests on an annual basis and provide to Subscriber a summary of the report detailing such tests as it applies to Customer Data, if requested by Subscriber. If such penetration tests expose vulnerabilities that Hi Marley believes could result in a breach of security, Hi Marley will implement an appropriate remedy in a timely manner.
- Log Maintenance. Hi Marley will maintain material event log files concerning activity on the Hi Marley Network related to: (a) user sessions established; (b) failed user authentication attempts and unauthorized attempts to access resources; and (c) events generated (e.g., commands issued) to make changes in security profiles, permission levels, application security configurations, and/or system resources.
- Encryption. Hi Marley will ensure that all Customer Data is protected by encryption while in use, at rest and during transmission. The Parties acknowledge transmission over SMS by nature cannot be encrypted by Hi Marley. Hi Marley will not unlock, reverse engineer, or otherwise linked to a known person, hashed, encrypted, or otherwise anonymized Customer Data.
- Intrusion Protection and Detection. Hi Marley will deploy multiple layers of defense on Hi Marley Network, including, but not limited to firewalls, network intrusion detection, and host-based intrusion detection systems. All security monitoring systems including, but not limited to, firewalls and intrusion detection systems will be monitored. Hi Marley will configure firewalls, network routers, switches, load balancers, name servers, mail servers, and other network components in accordance with commercially reasonable industry standards. Hi Marley will maintain corrective action and incident response plans to respond to potential security threats. Hi Marley will configure infrastructure platforms and services (operating systems, web servers, database servers, firewalls, routers, etc.) used to provide the Services under these Terms and authentication mechanisms according to reasonable industry standards.
- Data Handling. If data is required to be permanently removed from any storage media owned or operated by Hi Marley, industry media guidelines such as the NIST SP800-88 will be followed. Document attesting to the data destruction will be maintained and presented when requested.
- Coordination and Training. Hi Marley will ensure that one or more employees coordinate the information security program, and that applicable employees are regularly trained on how to comply with the information security program. All personnel having access to Customer Data will be informed of its restricted nature and their obligations with respect to protection and restricted use of Customer Data.
- Pre-Employment Screening. Hi Marley will conduct criminal background checks, as permitted by applicable law, as part of pre-employment screening practices for employees and contractors commensurate with the employee’s or contractor’s position and level of access to the Facilities (as defined below). Hi Marley will not permit an employee or contractor to have access to the non-public Customer Data if such employee or contractor has failed to pass such background check.
- Physical Security.
- Physical Access Controls. Physical barriers are used to prevent unauthorized entrance to Hi Marley locations (the “Facilities”) where Subscriber data is being handled by Hi Marley personnel. Passage through the physical barriers at the Facilities requires either electronic access control validation or validation by human security personnel. Visitors are required to sign-in with designated personnel, must show appropriate identification, are assigned a visitor ID badge that must be worn while the visitor is at any of the Facilities, and are continually escorted by authorized employees or contractors while visiting the Facilities.
- Employee and Contractor Access. Hi Marley provides access to the Facilities to those employees and contractors who have a legitimate business need for such access privileges. When an employee or contractor no longer has a business need for the access privileges assigned to him/her, the access privileges are promptly revoked, even if the employee or contractor continues to be an employee of Hi Marley or its affiliates. All physical access to the Facilities by employees and contractors is logged and routinely audited.
- Cloud Services. Hi Marley will use commercially reasonable efforts to ensure that any cloud service providers used to host Subscriber data meet industry security standards.
- Continued Evaluation. Hi Marley will conduct periodic reviews of the security of its Hi Marley Network and adequacy of its information security program as measured against industry security standards and its policies and procedures. Hi Marley will continually evaluate the security of its Hi Marley Network and Services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.
- Security Breach Notification. If Hi Marley discovers or is notified of a breach of the security measures described in these Hi Marley Security Standards that results in the unauthorized access to or disclosure to a third party of Customer Data, Hi Marley will (a) promptly notify Subscriber, and (b) take commercially reasonable measures to address the breach in a timely manner. Following such a breach of security, Hi Marley will keep Subscriber informed of the investigation on a reasonable basis.
DATA PRIVACY ADDENDUM
In furtherance of obligations under the California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100 to 1798.199) and its implementing regulations, as amended or superseded from time to time (“CCPA”), the Parties hereby adopt this CCPA Addendum (“Addendum”) with regard to Customer Data that Hi Marley receives in performing the services pursuant to the Terms. This Addendum prevails over any conflicting provisions of the Terms.
- Definitions. For the purposes of this Addendum–
1.1. The capitalized terms used in this Addendum and not otherwise defined in this Addendum shall have the definitions set forth in the CCPA.
- Roles and Scope.
2.1. This Addendum applies to Hi Marley’s Collection, retention, use, disclosure, and Sale of Customer Data, to the extent that such Customer Data constitutes or contains Personal Information (“Subscriber Personal Information”).
2.2. The Parties acknowledge and agree that Subscriber is a Business and appoints Hi Marley as a Service Provider to process Subscriber Personal Information on behalf of Subscriber.
3.1. Subscriber represents and warrants that it has provided notice that Subscriber Personal Information is being used or shared consistent with Cal. Civ. Code 1798.140(t)(2)(C)(i).
- Restrictions on Processing.
4.1. Except as otherwise permitted by the CCPA, Hi Marley is prohibited from (i) retaining, using, or disclosing Subscriber Personal Information for any purpose other than for the specific purpose of performing the services specified in the Terms for Subscriber, as set out in this Addendum and (ii) further Collecting, Selling, or using Subscriber Personal Information except as necessary to perform the services. Hi Marley certifies to Subscriber that it understands these restrictions and will comply with them.
- Sale of Information.
5.1. The Parties acknowledge and agree that the exchange of Personal Information between the Parties does not form part of any monetary or other valuable consideration exchanged between the Parties with respect to the Terms or this Addendum.
- Consumer Rights.
6.1. Hi Marley shall provide commercially reasonable assistance to Subscriber for the fulfillment of Subscriber’s obligations to respond to CCPA-related Consumer rights requests regarding Subscriber Personal Information.
7.1. To the extent Hi Marley provides any Subscriber Personal Information to its subcontractor, Hi Marley will obligate such subcontractor in writing to obligations at least as protective of Subscriber Personal Information as those set forth in this Addendum.
- CCPA Exemption.
8.1. Notwithstanding any provision to the contrary of the Terms or this Addendum, the terms of this Addendum shall not apply to Hi Marley’s processing of Subscriber Personal Information that is exempt from the CCPA, including under Cal. Civ. Code 1798.145(a).
9.1. To the extent that the Terms require Hi Marley to Collect, use, retain, disclose, or reidentify any Subscriber Personal Information as directed by Subscriber, Subscriber shall be solely liable and shall hold harmless and indemnify Hi Marley for any damages or reasonable costs, including attorneys’ fees and interest, arising from or related to the Collection, use, retention, disclosure, or reidentification of such Subscriber Personal Information by Hi Marley as directed by Subscriber.