Last Updated: July 13, 2022
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 14, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND HI MARLEY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 14).
DISCLAIMER: Hi Marley is not an insurance broker and does not act on behalf of any particular insurance provider or agent. We do not endorse any particular provider, offer advice regarding any insurance coverage, or guarantee in any way that our service will meet your particular needs. For questions about your insurance coverage, please contact your insurance provider or agent directly.
1. Hi Marley Service Overview. The Service is an interactive messaging platform allowing users to interact and manage their relationship with their insurance provider and/or agent. The messaging platform may be provided through SMS messaging, Facebook Messenger, Google Home, Alexa, and certain other third-party platforms. Hi Marley does not charge you for the Service, however, message and data use rates may apply from your mobile carrier. Your ability to use the Service is subject to compliance with the terms and conditions of your mobile carrier and any third-party platforms through which you access the service.
2. Eligibility. You must be at least 16 years old to use the Service (the “Minimum Age”). However, if law requires that you must be older in order for Hi Marley to lawfully provide the Services to you without parental consent (including using of your personal data) then the Minimum Age is such older age. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least the Minimum Age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3. Service Partners. To access certain features of the Service, you must be a current or prospective customer of one of our service partners (“Service Partners”). Your relationship with the Service Partner, including any matters relating to products or services sold by the Service Partner, and any support regarding those products and services (included support provided through the Services), is governed exclusively by the sales agreement, terms of service, insurance policy, or other agreement between you and that Service Partner. Hi Marley has no liability to you with respect to any products or services provided by, or conduct of, its Service Partners.
4.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Hi Marley grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service.
4.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
4.3 Feedback. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service, or if you provide any reviews or ratings of the Service, including in response to any survey sent by Hi Marley (collectively, “Feedback”), then you hereby grant Hi Marley an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
5. Ownership; Proprietary Rights. The Service is owned and operated by Hi Marley. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Hi Marley are protected by intellectual property and other laws. All Materials included in the Service are the property of Hi Marley or its third party licensors. Except as expressly authorized by Hi Marley, you may not make use of the Materials. Hi Marley reserves all rights to the Materials not granted expressly in these Terms.
6. Third-Party Terms
6.1 Third-Party Services and Linked Websites. Hi Marley may provide tools through the Service that enable you to export information, including User Content, to third party services. By using one of these tools, you agree that Hi Marley may transfer that information to the applicable third party service. Third party services are not under Hi Marley’s control, and, to the fullest extent permitted by law, Hi Marley is not responsible for any third party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under Hi Marley’s control, and Hi Marley is not responsible for their content.
6.2 Third Party Software. The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
7. User Content
7.1 User Content Generally. Certain features of the Service may permit users to upload content to or send content through the Service, including SMS messages, photos, video, images, folders, data, text, and other types of works (“User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you upload to the Service.
7.2 Responsibility to Update Account Information. You are solely responsible for the accuracy of contact information you provide to Hi Marley. If contact information, including your telephone number, becomes inaccurate or is no longer valid for any reason, you must update Hi Marley immediately to continue using the Services. In no event will Hi Marley be responsible for attempting to contact you based on information which is no longer accurate but you have not updated.
7.4 User Content Representations and Warranties. Hi Marley disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:
(a) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Hi Marley and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 7, in the manner contemplated by Hi Marley, applicable Service Partners, the Service, and these Terms;
(b) your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Hi Marley to violate any law or regulation; and
(c) your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
8.1 Text Messaging. You may receive SMS messaging in connection with the Service in accordance with our SMS Terms and Conditions at https://www.himarley.com/sms/.
8.2 Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when you are not in the app. You can turn off notifications by visiting your mobile device’s “settings” page.
8.3 Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
9. Prohibited Conduct. BY USING THE SERVICE, YOU AGREE NOT TO:
9.1 use the Service for any illegal purpose or in violation of any local, state, national, or international law;
9.2 interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
9.3 interfere with the operation of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; or (ii) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
9.4 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Service account without permission, or falsifying your age or date of birth;
9.5 sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 5) or any right or ability to view, access, or use any Materials; or
9.6 attempt to do any of the acts described in this Section 9 or assist or permit any person in engaging in any of the acts described in this Section 9.
10. Modification of these Terms. We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should remove your User Content and discontinue your use of the Service. Except as expressly permitted in this Section 10, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
11. Term, Termination, and Modification of the Service
11.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 11.2.
11.2 Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Hi Marley may, at its sole discretion, terminate these Terms or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate these Terms at any time by contacting customer service at [email protected], at which point you may no longer access or use the Service.
11.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access the Service; and (c) all Sections 4.3, 5, 11.3, 12, 13, 14, 15, 16, and 17 will survive.
11.4 Modification of the Service. Hi Marley reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Hi Marley will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
12. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Hi Marley and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Hi Marley Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
13. Disclaimers; No Warranties
13.1 THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. HI MARLEY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. HI MARLEY DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND HI MARLEY DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
13.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR HI MARLEY ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE HI MARLEY ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
13.3 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. HI MARLEY DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT HI MARLEY IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
14. Limitation of Liability
14.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE HI MARLEY ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY HI MARLEY ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
14.2 EXCEPT AS PROVIDED IN SECTIONS 15.5 AND 15.6 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE HI MARLEY ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO US $100.
14.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION 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 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
15. Dispute Resolution and Arbitration
15.1 Generally. Except to the extent prohibited by law and as described in Section 15.2 and 15.3, you and Hi Marley agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND HI MARLEY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
15.2 Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, provincial or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
15.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 15 within 30 days after the date that you agree to these Terms by sending a letter to Hi Marley, Inc., Attention: Legal Department – Arbitration Opt-Out, 10 Post Office Square, Boston, MA 02109 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Hi Marley receives your Opt-Out Notice, this Section 15 will be void and any action arising out of these Terms will be resolved as set forth in Section 16.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
15.4 Arbitrator. This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting Hi Marley.
15.5 Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Hi Marley’s address for Notice is: Hi Marley, Inc., 10 Post Office Square, Boston MA 02109. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Hi Marley may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Hi Marley will reimburse you for your payment of the filing fee, unless your claim is for more than US $10,000 or if the Company has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and the other party may seek reimbursement for any fees paid to AAA.
15.6 Arbitration Proceedings. Any arbitration hearing will take place in the county, province or state of your [residence/billing address] unless we agree otherwise or, if the claim is for US $10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your residence or billing address. During the arbitration, the amount of any settlement offer made by you or Hi Marley must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
15.7 Arbitration Relief. Except as provided in Section 15.8, the arbitrator can award any relief that would be available if the claims had been brough in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Hi Marley before an arbitrator was selected, Hi Marley will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US $10,000. The arbitrator’s award shall be final and binding on all parties. Judgment on the award may be entered in any court having jurisdiction.
15.8 No Class Actions. EXCEPT TO THE EXTENT PROHIBITED BY LAW, YOU AND HI MARLEY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Hi Marley agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
15.9 Modifications to this Arbitration Provision. If Hi Marley makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Hi Marley’s address for Notice of Arbitration, in which case your account with Hi Marley will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
15.10 Enforceability. If Section 15.8 or the entirety of this Section 15 is found to be unenforceable, or if Hi Marley receives an Opt-Out Notice from you, then the entirety of this Section 15 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 16.2 will govern any action arising out of or related to these Terms.
16.2 Governing Law. These Terms are governed by the laws of the Commonwealth of Massachusetts in the United States without regard to conflict of law principles. You and Hi Marley submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Boston, MA for resolution of any lawsuit or court proceeding permitted under these Terms.
16.4 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
16.6 Contact Information. The Service is offered by Hi Marley, Inc., located at 10 Post Office Square, Boston MA 02109. You may contact us by sending correspondence to that address or by emailing us at [email protected]. You can access a copy of these Terms by clicking here: www.himarley.com/terms-of-use.
16.7 No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
16.8 International Use. The Service is intended for users located within the United States and Canada. We make no representation that the Service is appropriate or available for use outside of the United States and Canada. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
16.9 Commercial Use. If you are an insurance carrier, insurance agent, broker, third party claims administrator or employee of the foregoing using the Service to provide services to end users, please note your use of the Service (including the app) is subject to the separate commercial agreement entered into between you and Hi Marley, and in the event of any conflict between these Terms of Service and that agreement, that agreement will control.
17. Notice Regarding Apple. This Section 17 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Hi Marley only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.