Hi Marley Terms of Service
Last Updated: September 28, 2017
Welcome, and thank you for your interest in Hi Marley, Inc. (“Hi Marley,” “we,” or “us”) and our website at www.HiMarley.com, along with our related websites, networks, applications, mobile applications, SMS, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Hi Marley regarding your use of the Service.
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. 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 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. 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, or publicly perform 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 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 to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
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.
7.3 License Grant to Hi Marley. By providing User Content to or via the Service, you grant Hi Marley a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, process, transfer, reproduce, modify for the purpose of formatting, and distribute your User Content, in whole or in part, for purposes of providing the Services.
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, 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. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
a. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
b. 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;
c. 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;
d. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission;
e. 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
f. attempt to do any of the acts described in this Section 8 or assist or permit any person in engaging in any of the acts described in this Section 8.
9. Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication.
10. Term, Termination and Modification of the Service
10.1 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 10.2.
10.2 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 support@HiMarley.com, at which point you may no longer access or use the Service.
10.3 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, 10.3, 11, 12, 13, 14 and 15 will survive.
10.4 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.
11. 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.
12. Disclaimers; No Warranties
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.
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.
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.
13. Limitation of Liability
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.
EXCEPT AS PROVIDED IN SECTION 14.4(ii) 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 $100.
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 13 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14. Dispute Resolution and Arbitration
14.1 Generally. In the interest of resolving disputes between you and Hi Marley in the most expedient and cost effective manner, and except as described in Section 14.2, you and Hi Marley agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, 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. 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.
14.2 Exceptions. Despite the provisions of Section 14.1, 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, 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.
14.3 Arbitrator. Any arbitration between you and Hi Marley will be settled under the Federal Arbitration Act and 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. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
14.4 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. 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., 745 Atlantic Ave., Boston, MA 02111. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) 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. 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. If the arbitrator awards you an amount higher than the last written settlement amount offered by Hi Marley in settlement of the dispute prior to the award, Hi Marley will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) your attorneys’ fees.
14.5 Fees. 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 $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Boston, MA, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your 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. In that case, you agree to reimburse Hi Marley for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. 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. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
14.6 No Class Actions. 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.
14.7 Modifications to this Arbitration Provision. If Hi Marley makes any future change to this arbitration provision, other than a change to Hi Marley's address for Notice of Arbitration, 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 access to the Service will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
14.8 Enforceability. If Section 14.6 is found to be unenforceable or if the entirety of this Section 14 is found to be unenforceable, then the entirety of this Section 14 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 15.1 will govern any action arising out of or related to these Terms.
15.1 Governing Law. These Terms are governed by the laws of the Commonwealth of Massachusetts 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. We operate the Service from our offices in Massachusetts, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
15.3 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.
15.5 Contact Information. The Service is offered by Hi Marley, Inc., located at 77 Franklin Street, Boston, MA 02110. You may contact us by sending correspondence to that address or by emailing us at support@HiMarley.com. You can access a copy of these Terms by clicking here: www.himarley.com/terms .
15.6 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
15.7 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.
15.8 International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
*Mailing address updated 8/5/2019