Commitment to Privacy
Hyphenate is committed to providing high quality services along with the highest level of integrity in dealing with our Customers. Hyphenate strives to collect, use and disclose personal information in a manner consistent with the laws of the countries in which it does business. Hyphenate complies with the U.S.-EU Safe Harbor Framework and the U.S.-Swiss Safe Harbor Framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of personal information from European Union member countries and Switzerland. Hyphenate has certified that it adheres to the Safe Harbor Privacy Principles of notice, choice, onward transfer, security, data integrity, access, and enforcement. To learn more about the Safe Harbor program, and to view Hyphenate’s certification, please visit http://www.export.gov/safeharbor/.
1) Aggregate Information: The Service may automatically collect the IP address (but not the email address) of all End Users. The Service also tracks the pages within our Service that you view, the date and time you view those pages, certain End User Data, and various other statistics. This information does not identify you personally.
2) Personal Information: We may collect personal information, such as your name, email, Customer password, and other information including but not limited to credit card information in connection with services and products available or described on the Service when you choose to provide such information. In addition, we may obtain detailed personal information, including but not limited to company name, email, phone number, app name and description and product name. We do not obtain Customers’ Customer personal information.
By providing personal information, you grant us permission to use such information for our business purposes. Further, we may contact you about selected products, services, companies that we think may interest you or to contact you regarding your requests, questions, comments or other information you have provided. If you later decide you do not want your information to be used in these ways, please let us know through the opt-out procedures described below. Please also see the section below entitled “Electronic Communications.”
By providing the personal information of a person other than yourself or that of an entity of which you have authority to bind, you are solely responsible for obtaining from such person or entity any and all required rights, releases, consents, clearances, licenses, and other authorizations necessary to exploit and otherwise use their information (“the “Clearances”). By submitting such information, you represent and warrant to Hyphenate that all required Clearances have been obtained and Hyphenate is entitled to rely on the same.
3) Cookies: We may track your visit to our Service by giving you HTML “cookies” when you enter. Cookies are pieces of information transferred to your device’s hard drive or shared with your device’s temporary memory for record-keeping purposes. Our cookies do not store personal information. Cookies allow us to save preferences for you to make visiting our Service easier. Cookies also help us to collect anonymous clock-stream data for tracking visitor trends and patterns. Most browsers are initially set up to accept cookies. If you prefer, you can reset your browser either to notify you when you have received a cookie or to refuse to accept cookies. You should understand that certain areas of our Service may not function properly if you set your computer, smartphone or other relevant device to not accept cookies.
4) Server Logs: At our sole discretion, we may store certain End User Data on our servers for a select period of time. This End User Data stored on our server does not identify you personally.
How We Disclose Information Collected
How We Protect Your Information
Your account is protected by a password for your privacy and security. If you access the Service via a third party site or service, you may have additional or different sign-on protections via that third party site or service. You must prevent unauthorized access to your account and Personal Information by selecting and protecting your password and/or other sign-on mechanism appropriately and limiting access to your computer or device and browser by signing off after you have finished accessing your account.
Information Security: Although Hyphenate cannot and does not warrant the security of your information, we take reasonable measures and utilize sophisticated third party services to safeguard the confidentiality of personal information we collect from unauthorized access or disclosure and accidental loss, alteration or destruction.
Evaluation of Information Protection Practices: Periodically, our operations and business practices are reviewed for compliance with corporate policies and procedures governing the security, confidentiality and quality of information.
Employee Access to Your Information: In general, our business practices limit employee access to personal information and limit the use and disclosure of such information to authorized persons, processes and transactions.
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register on the Service or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at legal@Hyphenate.com.
Choice/Opt-out – Information Uses
Electronic Communication from Hyphenate
You will be given the opportunity to specifically consent and request to receive from Hyphenate and/or its third party service providers, by electronic delivery, (which includes but is not limited to email (“Electronic Communications”) promotion and marketing information and materials, documents, and any other communications which you may have requested from Hyphenate. Your consent is your specific agreement that Electronic Communications provided by Hyphenate are reasonable and proper notice, for the purpose of any and all laws, rules, and regulations, and you agree that such Electronic Communications fully satisfy any requirement that such communications be provided to you in writing or in a form that you may keep. By providing your consent, you acknowledge that, for your records, you are able to access and retain Electronic Communications and this Agreement by printing and/or downloading and saving each to a computer. You acknowledge and agree that you are under no obligation to consent to (i) receive Electronic Communications, or (ii) receive Electronic Communications as a condition of purchasing any property, goods or services from Hyphenate.
Your current valid email address or is required in order for you to receive Electronic Communications from Hyphenate. It is your responsibility to ensure the accuracy of your contact information, including, but not limited to, email address and cell phone number. You may request a paper version of an Electronic Communication or any agreement to which your electronic signature applies. You acknowledge that Hyphenate reserves the right to charge you a reasonable fee for the production and mailing of paper versions of Electronic Communications or this Agreement. To request a paper copy of an Electronic Communication, please contact us at email@example.com
You have the right to withdraw your consent to receive Electronic Communications from Hyphenate. You acknowledge and agree that Hyphenate has the right to restrict or terminate your access to certain aspects of the Service if you withdraw your consent to receive Electronic Communications. If you wish to withdraw your consent, please contact us at firstname.lastname@example.org
Hyphenate routinely retains electronic messages and uses third party services to safeguard such, but Hyphenate cannot completely ensure the security and privacy of electronic messaging communications to and from Hyphenate. These communications could be intercepted without your knowledge and permission. If you are concerned about your privacy, we suggest that you do not use electronic messaging to provide information to us that you consider sensitive or confidential.
Release and Limitations
By using the Service, you release Hyphenate from and agree that Hyphenate is not responsible for: (i) any disclosure of personal information made by you to a third party through your use of the Service; (ii) any disclosure of personal information obtained illegally from us; (iii) any accidental disclosure of personal information made by us or (iv) release of information is necessary to comply with the law.
Privacy Policies of Other Websites
Terms and Conditions
Welcome to Hyphenate!
As a user of Hyphenate products and services, you agree to the following terms and conditions (“Terms” or “Agreement”) before using Hyphenate (“Service”) in any matter. These Terms may be amended at any time.
Your access to and use of the Service is subject to Hyphenate’s current policies relating to the Service. You are responsible for compliance with these Terms and all other policies applicable to the access and use of the Service. If you using the Service on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to the Terms. The Terms and Conditions can be viewed at www.hyphenate.io/terms/
Below we will refer to all services provided by Hyphenate as the “Service”. The following Terms apply when you view or use the Service on our website, server and app, in any manner. Please review the following Terms carefully. Again, by accessing or using the Service in any manner, you signify your agreement to these Terms. If you do not agree to these Terms, you simply may not access or use the Service.
In this Agreement, we refer to Hyphenate Inc. as “Hyphenate,” the “Company,” “We,” or “Us.”
“Customer” means any company, developer or organization that has directly viewed or used the Service within the Service Period, including but not limited to companies, developers or organizations that integrate the Hyphenate Service to their own product or service to serve their customers.
“Customers’ Customer” or “End User” means anyone who uses Hyphenate’s Customers’ product or service (“Customer Platform”) to connect to the Hyphenate Service.
“Customer Platform” means any websites, applications, or other portals accessible to Customers’ Customers.
“Customer Data” means any data or information of any Customer that is provided to or obtained by viewing or using the Service.
“Effective Date” means the first date that you view or use the Service.
“End User Data” means any data, history or information that is provided to Hyphenate or generated while using the Service.
“Intellectual Property Rights” means all (i) copyrights (including, without limitation, the right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights (including, without limitation, registrations and applications), patent rights, trade names, mask-work rights, trade secrets, moral rights, author’s rights, privacy rights, publicity rights, algorithms, rights in packaging, goodwill and other proprietary rights, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or any other state, country or jurisdiction; (ii) intangible legal rights or interests evidenced by or embodied in any idea, design, concept, technique, invention, discovery, enhancement or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; and (iii) all derivatives of any of the foregoing.
“Message” means data originating from or destined for delivery to an End User participating in a stream of communication such as (but not limited to) a conversation, chat room or comment thread that is sent or received through the Hyphenate Services.
“Service Period” means a calendar month.
“Services Documentation” means collectively, written guides and guidelines that describe the Hyphenate Services, the operating instructions, getting started guides, user manuals, and help files, in written or electronic form, made available to Customer by download or on Hyphenate’s website, and that are intended for use in connection with the Hyphenate Services.
“Trademarks” means all common law or registered trademark, service mark, trade name and trade dress rights and similar or related rights arising under any of the laws of the United States or any other country or jurisdiction, whether now existing or hereafter adopted or acquired.
ABOUT THE SERVICE
The Service provides an embedded mobile instant messaging platform for mobile apps (iOS and Android). A broad suite of messaging and file sharing functions can be easily integrated by using the Service. End Users will have access to peer-to-peer chat, group chat, audio messages, picture-sharing, location-sharing, and real-time voice and video chat. The Service fully supports several device platforms, including Android, iOS and Web. The Service allows users to optimize their data traffic, power consumption, TCP long connection, voice, positioning and security.
REGISTRATION; RULES FOR CUSTOMER CONDUCT AND USE OF THE SERVICE
Customers need to be at least 13 years old to register for and use the Service.
When you sign up for the Service, a personalized account will be created. You agree to notify us immediately of any unauthorized use of your password and/or account. The Company will not be responsible for any liabilities, losses, or damages arising out of the unauthorized use of your member name, password and/or account.
The Company is not responsible for any Customers’ Customer’s use of the Service. The Customer shall be required to provide Customers’ Customers with the Terms such that all End Users are fully compliant with the Terms, including but not limited to the fact that no one under the age of 13 shall use the Service. In the event any Customers’ Customer breach the Terms, the Customer shall assume the resulting liability.
Your permission to use the Service is conditioned upon the following Use Restrictions and Conduct Restrictions: You agree that you will not under any circumstances:
- Post any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable and offensive;
- Use the Service for any unlawful purpose or for the promotion of illegal activities;
- Attempt to, or harass, abuse or harm another person or group;
- Use another account without permission;
- Provide false or inaccurate information when registering an account;
- Interfere or attempt to interfere with the proper functioning of the Service;
- Make any automated use of the system, or take any action that we deem to impose or to potentially impose an unreasonable or disproportionately large load on our servers or network infrastructure;
- Bypass any robot exclusion headers or other measures we take to restrict access to the Service or use any software, technology, or device to scrape, spider, or crawl the Service or harvest or manipulate data; or
- Publish or link to malicious content intended to damage or disrupt another browser or computer.
POSTING AND CONDUCT RESTRICTIONS
When you create your own personalized account, you may be able to provide Customer Data. You are solely responsible for the Customer Data that Customer or Customer’s Customers post, upload, link to or otherwise make available via the Service. You agree that we are only acting as a passive conduit for Customers’ Customers’ online distribution and publication of any information. The Company, however, reserves the right to remove any End User Data from the Service at its discretion.
The following rules pertain to End User Data. By transmitting and submitting any End User Data while using the Service, Customers agree as follows:
- You are solely responsible for your account and the activity that occurs while signed in to or while using your account, including any End User use;
- You will not post or allow to be posted any information that is malicious, false or inaccurate;
- You will not submit or allow to be submitted any content that is copyrighted or subject to third party proprietary rights, including privacy, publicity, trade secret, etc., unless you are the owner of such rights or have the appropriate permission from their rightful owner to specifically submit such content; and
- You hereby affirm we have the right to determine whether any of your End User Data submissions are appropriate and comply with these Terms of Service, remove any and/or all of your submissions, and terminate your account with or without prior notice.
You understand and agree that any liability, loss or damage that occurs as a result of the use of any End User Data that you make available or access through your use of the Service is solely your responsibility. The Company is not responsible for any public display or misuse of your End User Data. The Company does not, and cannot, pre-screen or monitor all End User Data. However, at our discretion, we, or technology we employ, may monitor and/or record your interactions with the Service.
ONLINE CONTENT DISCLAIMER
Opinions, advice, statements, offers, or other information or content made available through the Service, but not directly by the Company, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. The Company does not guarantee the accuracy, completeness, or usefulness of any information on the Service and neither does the Company adopt nor endorse, nor is the Company responsible for, the accuracy or reliability of any opinion, advice, or statement made by parties other than the Company. The Company takes no responsibility and assumes no liability for any End User Data that you or any other user or third party posts or sends over the Service. Under no circumstances will the Company be responsible for any loss or damage resulting from anyone’s reliance on information or other content posted on the Service, or transmitted to users.
Though the Company strives to enforce these Terms, you may be exposed to End User Data that is inaccurate or objectionable. The Company reserves the right, but has no obligation, to monitor the materials posted in the public areas of the service or to limit or deny a user’s access to the Service or take other appropriate action if a user violates these Terms or engages in any activity that violates the rights of any person or entity or which we deem unlawful, offensive, abusive, harmful or malicious. Messages sent between users of the Service that are not readily accessible to the public will be treated by us as private to the extent required by applicable law. The Company shall have the right to remove any such material that in its sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, or that might violate the rights, harm, or threaten the safety of users or others. Unauthorized use may result in criminal and/or civil prosecution under Federal, State and local law. If you become aware of misuse of our Service, please contact us at email@example.com
LINKS TO OTHER SITES AND/OR MATERIALS
As part of the Service, the Company may provide you with convenient links to third party website(s) (“Third Party Sites”) as well as content or items belonging to or originating from third parties (the “Third Party Applications, Software or Content”). These links are provided as a courtesy to Service subscribers. The Company has no control over Third Party Sites and Third Party Applications, Software or Content or the promotions, materials, information, goods or services available on these Third Party Sites or Third Party Applications, Software or Content. Such Third Party Sites and Third Party Applications, Software or Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by the Company, and the Company is not responsible for any Third Party Sites accessed through the Site or any Third Party Applications, Software or Content posted on, available through or installed from the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Applications, Software or Content. Inclusion of, linking to or permitting the use or installation of any Third Party Site or any Third Party Applications, Software or Content does not imply approval or endorsement thereof by the Company. If you decide to leave the Site and access the Third Party Sites or to use or install any Third Party Applications, Software or Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site or relating to any applications you use or install from the site.
You acknowledge and agree that we and our licensors retain ownership of all Intellectual Property Rights of any kind related to the Service, including applicable copyrights, trademarks and other proprietary rights. Other product and company names that are mentioned on the Service may be trademarks of their respective owners. We reserve all rights that are not expressly granted to you under this Agreement, including but not limited in all right, title and interest in and to the Hyphenate intellectual property and any derivatives, modifications or improvements of the foregoing. Nothing contained in this Agreement shall be construed as conferring upon Customer by implication, operation of law, estoppel, or otherwise, any other license or right except for the rights and licenses expressly granted to Customer in this Agreement.
Hyphenate is a mark owned by Hyphenate, Inc. and may not be used without the express written permission of Hyphenate. There are other trademarks, service marks, trade names and trade dress on the Service owned by Hyphenate. You may not use any Hyphenate trademarks, service marks, trade names or trade dress without the express written permission of Hyphenate. Hyphenate may use trademarks, service marks, logos, graphics, designs, names, and the like from third parties for display on the Service. Such posting is done with the permission of these third parties, and such material is to be considered the exclusive property of the respective third parties.
All software and content included on the Service, including all text, graphics, logos and images, is owned by Hyphenate or third parties and is protected by United States and international copyright laws. You may view and use the content of the Service in connection with your use of the Service. Any other use, including the reproduction, copying, distribution, transmission, republication, display or creation of works derivative of the content of the Service is strictly prohibited, except as otherwise specifically set forth herein. You do not acquire ownership rights to any content or other materials viewed on or through the Service. The posting of information or materials on the Service does not constitute a waiver of any rights therein. You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract any source code of the Service or any part thereof, unless this is expressly permitted or required by law, or unless you have been granted written permission to do so by an authorized representative of Hyphenate.
Customer License to Hyphenate: By posting any End User Data via the Service, Customers expressly grant, and represent and warrant that Customer and Customers’ Customers have a right to grant, and hereby grant, to the Company a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such Customer Data and End User Data, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service. Hyphenate shall distribute such data publicly only in aggregate, non-personally identifiable form that cannot be used to identify End Users.
Hyphenate license to Customer: Subject to the Terms, Hyphenate grants to Customer and Customer accepts from Hyphenate a non-exclusive, non-transferable limited license and right to access the Service for the transmission of, and data relating to, Messages as described in the Services Documentation. Except as specifically provided herein, Hyphenate’s license grant to Customer does not permit Customer, directly or indirectly, in whole or in part, to:
- Access, use, or copy any portion of the Service to directly or indirectly develop, promote or support any product or service that is competitive with the Service;
- Interfere with or disrupt the integrity or performance of the Service or third-party data contained therein;
- Use, reproduce, distribute, or permit others to use, reproduce, or distribute any Hyphenate intellectual property for any purpose other than as specified in these Terms;
- Remove any identification, patent, trademark, copyright, or other notice from the Service;
- Reverse engineer or attempt to derive the source code from or create derivative works of the Service, or any portion thereof;
- Sublicense or distribute the Services or rent, electronically distribute, timeshare, or market Hyphenate intellectual property; or
- Attempt to gain unauthorized access to the Service, including access to other Hyphenate user data.
Confidential Information means any data or information, oral or written, treated as confidential that relates to either party’s (or, if either party is bound to protect the confidentiality of any third party’s information, such third party’s) past, present, or future research, development or business activities, including any unannounced products and services, any information relating to services, developments, inventions, processes, plans, financial information, revenue, transaction volume, forecasts, projections, and the financial terms of this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information if: (i) it was already known to the receiving party prior to the Effective Date of this Agreement, as established by documentary evidence; (ii) it is in or has entered the public domain through no breach of this Agreement or other wrongful act of the receiving party; (iii) it has been rightfully received by the receiving party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; (iv) it has been approved for release by written authorization of the owner of the Confidential Information; or, (v) it has been independently developed by a party without access to or use of the Confidential Information of the other party.
Each Party acknowledges and agrees that, from time to time, it may receive Confidential Information from the other Party. The Party that receives Confidential Information (the Receiving Party) hereby agrees (i) to hold the other Party’s (the Disclosing Party) Confidential Information in strict confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (ii) not to divulge any such Confidential Information or any information derived therefrom to any third person; (iii) not to make any use whatsoever at any time of such Confidential Information except as contemplated hereunder, (iv) not to copy or reverse engineer any such Confidential Information, and (v) that any employee, subcontractor, or agent given access to any such Confidential Information must have a legitimate need to know and shall be bound in writing to comply with confidentiality obligations at least as restrictive as the Receiving Party’s confidentiality obligations in this Agreement.
COPYRIGHT COMPLAINTS AND COPYRIGHT AGENT
(a) Termination of Repeat Infringer Accounts. The Company respects the intellectual property rights of others and requests that the users do the same. Pursuant to 17 U.S.C. 512(i) of the United States Copyright Act, the Company has adopted and implemented a policy that provides for the termination in appropriate circumstances of users of the Service who are repeat infringers. The Company may terminate access for participants or users who are found repeatedly to provide or post protected third party content without necessary rights and permissions.
(b) DMCA Take-Down Notices. If you are a copyright owner or an agent thereof and believe, in good faith, that any materials provided on the Service infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (see 17 U.S.C 512) (“DMCA”) by sending the following information in writing to the Company’s designated copyright agent at Hyphenate, Inc., 1633 Bayshore Highway, Suite 280, Burlingame, CA 94010:
1.The date of your notification;
2.A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
3.A description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
4.A description of the material that is claimed to be infringing or to be the subject of infringing activity and information sufficient to enable us to locate such work;
5.Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and/or email address;
6.A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
7.A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(c) Counter-Notices. If you believe that your End User Data that has been removed from the Site is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your End User Data, you may send a counter-notice containing the following information to our copyright agent using the contact information set forth above:
1.Your physical or electronic signature;
2.A description of the content that has been removed and the location at which the content appeared before it was removed;
3.A statement that you have a good faith belief that the content was removed as a result of mistake or a misidentification of the content; and
4.Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the court in the county of San Francisco, California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Company copyright agent, the Company may send a copy of the counter-notice to the original complaining party informing such person that it may reinstate the removed content in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may (in the Company’s discretion) be reinstated on the Site in 10 to 14 business days or more after receipt of the counter-notice.
EMAIL MAY NOT BE USED TO PROVIDE NOTICE
Communications made through the Service’s e-mail and messaging system, will not constitute legal notice to the Company or any of its officers, employees, agents or representatives in any situation where notice to the Company is required by contract or any law or regulation.
CUSTOMER CONSENT TO RECEIVE COMMUNICATIONS IN ELECTRONIC FORM
We may also use your email address, to send you other messages, including information about the Company and special offers. You may opt out of such email by changing your account settings or sending an email to firstname.lastname@example.org or mail to the following postal address:
Legal Department, Hyphenate, Inc., 1633 Bayshore Highway, Suite 280, Burlingame, CA 94010
Opting out may prevent you from receiving messages regarding the Company or special offers.
THE SERVICE, IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICE INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, THE COMPANY MAKES NO WARRANTY OR REPRESENTATION THAT ACCESS TO OR OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF FILES, INFORMATION, CONTENT OR OTHER MATERIAL OBTAINED FROM THE SERVICE. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF WARRANTY, SO THIS PROVISION MAY NOT APPLY TO YOU.
LIMITATIONS OF LIABILITY
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY, ITS AFFILIATES, DIRECTORS, OR EMPLOYEES, OR ITS LICENSORS OR PARTNERS, BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, USE, OR DATA, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, HOWEVER ARISING, THAT RESULT FROM (A) THE USE, DISCLOSURE, OR DISPLAY OF YOUR END USER DATA; (B) YOUR USE OR INABILITY TO USE THE SERVICE; (C) THE SERVICE GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE THE SERVICE AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH THE COMPANY OR ANY OTHER CUSTOMER OF THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF LIABILITY, SO THIS PROVISION MAY NOT APPLY TO YOU.
If you have a dispute with one or more users, a restaurant or a merchant of a product or service that you review using the Service, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
Customer will defend Hyphenate, its officers, directors, employees, and the successors and assigns of the foregoing from and against any and all claims by an unaffiliated third party directly or indirectly arising from or related to (i) facts that, if true would constitute a breach of this Agreement by Customer, (ii) Customer’s access to, use, misuse or illegal use of the Service, or (iii) the violation or infringement by the Customer of any third party’s Intellectual Property Rights. Hyphenate reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case Customer agrees to cooperate with any reasonable requests to assist Hyphenate’s defense of such matter.
Hyphenate Fees. As compensation for its services under this Agreement, Customer shall pay to Hyphenate the amounts set forth on the Hyphenate website unless otherwise agreed to in writing. Customer agrees to pay the applicable fees. There will be no refunds or credits for partial months of service, upgrades, downgrades, or unused months. Fees listed do not include any applicable sales, use, excise or VAT taxes. Customer shall be responsible for payment of all such taxes (excluding taxes based on Hyphenate’s net income), fees, duties and charges, and any related penalties and interest, arising from the payment of such fees or the delivery or use of the Hyphenate Services.
Upgrades, Downgrades, Cancellations. Prepaid package upgrades, downgrades, or cancellations must be processed directly with Hyphenate. To ensure upgrades, downgrades, or cancellations are processed for an upcoming Service Period, requests must be submitted before the end of the current month (using Pacific Standard Time) to avoid billing of fees for the next month.
Payment by Credit Card or ACH. Customer must maintain a payment method on file with Hyphenate. Customer authorizes Hyphenate to charge Customer’s payment method on file for all Services purchased. Customer authorizes Hyphenate to use a third party to process payments and consents to the disclosure of your payment information to such third party.
Modification of Fees. Hyphenate has the right to modify the Hyphenate Fees and other charges upon written notice to Customer, which will be provided no less than thirty (30) days prior to the new charges going into effect.
Billing Correspondence. Hyphenate will send billing correspondence to the email address entered as billing contact by Customer on Hyphenate Service.
Payment Disputes. In the event of a good faith dispute as to the calculation of a charge, Customer shall promptly give written notice to Hyphenate stating the details of any such dispute and shall promptly pay any undisputed amount. The acceptance by Hyphenate of such partial payment shall not constitute a waiver of payment in full by Hyphenate of the disputed amount. Customer agrees to pay all costs and expenses of whatever nature, including reasonable attorneys’ fees, incurred by or on behalf of Hyphenate in connection with the collection of any unpaid amounts due to Hyphenate hereunder.
Timely Payment; Suspension of Service. Any undisputed amount due to Hyphenate under this Agreement and not paid within 30 days of invoice due date may be subject to a finance charge payable by Customer which is equal to one and one-half percent (1.5%) or the highest rate allowable by law, whichever is less, determined and compounded daily from the date such amount is due until the date such amount is paid. Notwithstanding anything to the contrary contained in this Agreement, failure to make timely payments of undisputed amounts shall constitute a default hereunder and shall entitle Hyphenate to suspend Customer access to the Services without notice at Hyphenate’s sole discretion.
TERM AND TERMINATION
This Agreement shall commence on the Effective Date and shall continue on a month-to-month basis until terminated as set forth herein. Hyphenate may terminate this Agreement, without cause, upon providing Customer with thirty (30) days prior written notice. Notwithstanding the foregoing, Hyphenate reserves the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any free, trial, or beta versions with or without notice. Also, Hyphenate reserves the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently any Customer who breaches the Terms. Upon expiration or termination of this Agreement, all licenses granted to the Service shall expire. Hyphenate shall discontinue the Service, and Customer shall immediately pay any outstanding invoices for services rendered through the date of termination.
ENTIRE AGREEMENT; SEVERABILITY
This Agreement, and any other references, appendices, exhibits or attachments, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all written or oral prior agreements and understandings between the parties concerning such subject matter. Except as provided in these Terms, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment, or waiver is to be asserted. Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing that Customer may provide to Hyphenate or use in connection with the procurement of the Services will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of Hyphenate to object to such terms, provisions or conditions. In the event of any conflict or inconsistency among the following documents, the order of preference shall be: (1) the purchase order; (2) this Agreement, (3) the pricing on the site. If any one or more of the provisions of the Agreement shall for any reason be held to be invalid, illegal or unenforceable, the same shall not affect any of the other portions of this Agreement.
The waiver by either Party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right.
Compliance with Export Controls and OFAC Regulations
The Service is subject to the trade laws and regulations of the United States and other countries, including the Export Administration Regulations (EAR, 15 CFR Part 730 et seq.) and the sanctions programs administered by the Office of Foreign Assets Control (OFAC, 31 CFR Part 500). Customer agrees that it will not import, export, re-export, transfer or otherwise use the Service in violation of these laws and regulations, including by engaging in any unauthorized dealing involving (i) a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan and Syria), (ii) a party included on any restricted person list, such as the OFAC Specially Designated Nationals List, or the Commerce Department’s Denied Persons List or Entity List, or (iii) the design, development, manufacture, or production of nuclear, missile, or chemical or biological weapons. By using the Service, Customer represents and warrants that Customer is not located in any such country or on any such list. Customer will not engage in activity that would cause Hyphenate to be violation of these laws and regulations, and will indemnify Hyphenate for any fines, penalties or other liabilities incurred by Hyphenate for Customer’s failure to comply with this provision. Customer is responsible for all Customers’ Customers’ use of the Service, including but not limited to Customers’ Customers’ compliance with OFAC Regulations.
Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement, including, without limitation, all provisions with respect to confidentiality, Intellectual Property, limitation of liabilities, and indemnification shall survive any termination or expiration of this Agreement and continue in full force and effect in perpetuity.
If any part of this Agreement is held invalid or unenforceable, that portion of the Agreement will be construed consistent with applicable law. The remaining portions will remain in full force and effect. Any failure on the part of the Company to enforce any provision of this Agreement will not be considered a waiver of our right to enforce such provision. Our rights under this Agreement will survive any termination of this Agreement.
You agree that any cause of action related to or arising out of your relationship with the Company must commence within ONE year after the cause of action accrues. Otherwise, such cause of action is permanently barred.