HIYA CONNECT - TRIAL - SERVICES AGREEMENT

LAST UPDATED: October 24th, 2019

Hello and thanks for using the Hiya Connect service. We want you to have a great experience with our service, but first, it's important that you understand the terms and conditions that apply to your use of this service. Please take a few minutes to read & accept this HiyaConnectTerms - Trial - Services Agreement (the "Agreement").

This Agreement is made and entered into between Hiya and You ("Customer") and is effective as of the first day that the Trial Services are activated for Customer's use ("Trial Service Activation Date"). By using any of the Services that contain or link to this Agreement, you agree to be legally bound by the terms and conditions of this Agreement and our Privacy Policy, which is incorporated by this reference.

Customer acknowledges that Hiya is acting as an authorized sales and billing agent solely for the limited purpose of delivering Customer Data through either wireless telephone services or mobile device client software. Hiya is an agent for AT&T, Samsung Electronics. "AT&T" means AT&T Services, Inc., a Delaware corporation, on behalf of itself and its Affiliates. "Samsung Electronics" means Samsung Electronics Co., Ltd., a Korean company with principal offices at 129 Samsung-ro, Yeongtong-gu, Suwon-si, Gyeonggi-do, 443-772 Republic of Korea.

The individual accepting this Agreement represents and warrants that he or she has the legal power and authority to enter into this Agreement and to legally bind the Customer to its terms. Certain features of the Services may be subject to additional guidelines, terms or rules, which will be posted in or on the Services in connection with such features. All such additional terms, guidelines and rules are incorporated by reference into this Agreement.

1. Definitions.

The following terms have the following meanings:

"Content"
means the audio and visual information, documents, software, products and services contained in or made available via the Trial Services, other than Customer Data.
"Customer" or "you"
means the business entity identified as the "Customer" in the signatures to this Agreement.
"Customer Data"
means any data, information or material that Customer or Customer's Users, subscribers or partners may disclose or submit to Hiya or the Trial Services in the course of using the Trial Services.
"Deliverables"
means any copyrightable works, products, discoveries, developments, designs, work product, deliverables, improvements, inventions, processes, techniques and know-how made, conceived, reduced to practice or learned by Hiya (either alone or jointly with Customer or others) that result from professional services (if any) provided in connection with the Trial Services.
"Hiya", "we", or "us"
means and includes Hiya, Inc. and all third parties providing services or products on behalf of Hiya as part of the Trial Services.
"Hiya Technology"
means all of Hiya's proprietary technology (including Sample Data, software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Hiya in providing the Trial Services.
"Intellectual Property Rights"
means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world, whether registered or unregistered.
"Order Form(s)"
means a form evidencing the initial subscription order for Subscription Services and any subsequent Order Forms submitted online or in written form, specifying, among other things, the Subscription Services contracted for, the applicable fees, the billing period, and other charges as agreed to between the Hiya and Customer.
"Sample Data"
means any pre-populated data provided by Hiya in the Trial Services to enable Customer to use the Trial Services without entering its own Customer Data.
"Trial Period"
means the period described in Section 5.
"Trial Service(s)"
means the designated Hiya Connect services provided to Customer pursuant to this Agreement for evaluation purposes during the Trial Period.
"Subscription Services"
means the Hiya Connect services provided pursuant to one or more Order Forms.
"User(s)"
means Customer's employees, representatives, consultants, contractors, customers or agents who are authorized to use the Trial Services.

2. Description of the Hiya Connect Solution.

Hiya Connect is an online web service where a business can register its business phone numbers and control how its phone numbers, its corporate logo/image, and outbound call reason (e.g., "Calling about your recent purchase") appear on Hiya's caller identification network. Additionally, Hiya Connect solution provides access to the Hiya Connect web portal where a business may access data analytics associated with its registered phone numbers.

3. License Grant; Limitations

Subject to the terms and conditions of this Agreement, Hiya grants Customer a non-exclusive, non-transferable, non-assignable, limited license to use the Trial Services during the Trial Period solely for Customer's own business purposes and strictly for purposes of its own internal evaluation of the Hiya Connect solution, and not for any commercial or competitive purpose. The license granted to Customer is limited to registration of up to 5,000 phone numbers. In addition, and to the extent the Trial Services include use of any materials that work with Hiya consumer facing applications, Customer agrees that such use shall also be governed by the terms found at https://hiya.com/hiya-terms-of-service. All rights not expressly granted to Customer are reserved by Hiya and its licensors. Hiya reserves the right to make changes, modifications, reductions in features and functionality, and enhancements to the Trial Services at any time, and from time to time, without prior notice.

4. Restrictions on Use

In connection with its use of the Trial Services, Customer may not:

  1. (a) access the Trial Services for the purpose of building a competitive product or service;
  2. (b) monitor the Trial Services' availability, performance or functionality for any benchmarking or competitive purpose, or release to any third party the results of any evaluation of the Trial Services performed by or on behalf of Customer for such purposes;
  3. (c) reverse engineer, disassemble, decipher or decompile any portion of the Trial Services or Hiya Technology, or otherwise attempt to discover or re-create the source code to any software;
  4. (d) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Trial Services or the Content in any way;
  5. (e) copy, modify, or make derivative works based upon the Trial Services or the Content;
  6. (f) send spam or otherwise duplicative or unsolicited messages/phone calls in violation of applicable laws;
  7. (g) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights;
  8. (h) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
  9. (i) interfere with or disrupt the integrity or performance of the Trial Services or the data contained therein;
  10. (j) attempt to gain unauthorized access to the Trial Services, the Hiya Technology, or their related systems or networks;
  11. (k) engage in any unauthorized use of the Trial Services or Content;
  12. (l) transmit or otherwise make available any content that: (i) you do not have the right to transmit using the Trial Services, (ii) may expose Hiya or its affiliates, licensors, or users, to any harm or liability, or (iii) is unlawful;
  13. (m) transmit or otherwise make available any content that contains software viruses, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
  14. (n) post, publish, or transmit any text, graphics, or material that: (i) is false or misleading; (ii) is defamatory; (iii) invades another's privacy; (iv) is obscene, pornographic, or offensive; (v) promotes bigotry, racism, hatred, or harm against any individual or group; (vi) infringes another's rights, including any intellectual property rights; or (vii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
  15. (o) remove, alter, or obscure any copyright or other proprietary notices of Hiya or its affiliates or licensors in any portion of the Trial Services or Content;
  16. (p) use the Trial Services in any manner which would violate the intellectual property rights of any third party, including patents, trademarks, trade secrets, copyrights or other proprietary rights;
  17. (q) use manual or automated software, devices, scripts robots, other means or processes to access, scrape, or crawl, the Services or any related data or information;
  18. (r) access without authorization any networks, systems, or databases used in providing the Trial Services, or any accounts associated with the Trial Services, or access or use without authorization any information contained therein for any purpose;
  19. (s) attempt to probe, test, hack, or otherwise circumvent any security measures of the Trial Services;
  20. (t) violate any requirements, policies, procedures or regulations of any network connected to the Trial Services;
  21. (u) use any of the Trial Services in any manner that could damage, disable, overburden, or otherwise impair the Trial Services (or the networks connected to the Services);
  22. (v) interfere with or disrupt the use and enjoyment by others of the Trial Services;
  23. (w) falsely state, impersonate, or otherwise misrepresent your identity or your affiliation with any person or entity;
  24. (x) use the Trial Services in any manner to stalk, harass, invade the privacy of, or otherwise cause harm to, any person;
  25. (y) use the Trial Services or Content in any manner that exposes Hiya to any harm or liability of any nature;
  26. (z) use the Trial Services or Content in violation of any federal, state, or local law, rule, or regulation, whether now existing or enacted in the future; or
  27. (aa) engage in "framing," "mirroring" or otherwise simulating the appearance or function of the Trial Services.

Hiya has the right to investigate and bring claims for violations of any of the above to the fullest extent of the law. We may, but are not required to, provide notice of such violations beforehand. We may involve and cooperate with law enforcement authorities in prosecuting Users who violate certain terms of this Agreement.

5. Trial Period and Requirements to Convert to a full Subscription License

The Trial Period for the Trial Services will begin on the Trial Services Activation Date set forth below, and continue for a period of thirty (30) days from the Trial Services Activation Date, unless: (a) Hiya agrees in writing to provide a Trial Period of a different length; (b) The Trial Period is extended by mutual Agreement of the parties; or (c) this Agreement is terminated as provided herein. Customer acknowledges and agrees that, at the end of the Trial Period, Customer's access to the Trial Services will be AUTOMATICALLY terminated, with or without notice, unless Customer elects to license Subscription Services on a paid subscription basis. Customer must contact Hiya at least two (2) business days prior to the end of the Trial Period if Customer wishes to continue using the Hiya Connect solution beyond the Trial Period. In the event Customer wishes to enter into a full production, paid subscription license for the use of the Hiya Connect solution, Customer will be required to: (a) agree to a separate Master Subscription Services Agreement by contacting Chris Sorensen, Director of Business Development - Hiya at csorensen@hiya.com ("Post Trial Agreement"), and (b) execute an Order Form, detailing the features of the Subscription Services, duration and pricing applicable to the use of the Subscription Services.

6. Accounts; Customer's Responsibilities

Customer is responsible for the completeness, security, confidentiality and accuracy of the account information Customer provides to Hiya. Customer will promptly notify Hiya of any unauthorized access to or use of its log-in credentials or account. Customer is responsible for all activity occurring under Customer's designated User accounts and shall comply with all applicable laws and regulations in connection with Customer's use of the Trial Services, including but not limited to those related to data privacy, international communications, the transmission of technical or personal data, and export control laws and regulations.

7. Customer Data

The Trial Services permit Customer to submit a limited amount of Customer Data, including Customer's preferred registered phone/business name, corporate logo/image and call reason. To the extent Customer enters any Customer Data into the Trial Services, Customer, not Hiya, shall have sole responsibility for the accuracy, quality, integrity, legality, and intellectual property ownership or right to use such Customer Data, and Hiya shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of such Customer Data. Hiya's use of Customer Data shall be limited to the purpose of providing the Trial Services to the Customer. To the extent Customer enters Customer Data into the Services, Customer agrees and acknowledges that Hiya is not obligated to retain any Customer Data after termination or expiration of the Trial Period, and (ii) Hiya may delete Customer Data upon termination or expiration of the Trial Period, without any obligation or liability to the Customer.

8. Intellectual Property Ownership

Hiya alone (and its licensors, where applicable) owns all right, title and interest, including all related Intellectual Property Rights, in and to the Hiya Technology, the Content and the Trial Services and Deliverables (if any), including to any and all enhancements, enhancement requests, suggestions, modifications, extensions and/or derivative works thereof. This Agreement is not a sale of the Trial Services or Content, and does not convey to Customer any rights of ownership in or related to the Trial Services, to any Deliverable, Content, Hiya Technology, or the Intellectual Property Rights owned by Hiya. The Hiya name, the Hiya logo, and the product names associated with the Trial Services are trademarks of Hiya or third parties, and no right or license is granted to use them.

9. Suspension and Termination

Hiya reserves the right to suspend or terminate this Agreement and the Trial Services, with or without cause, at any time, with or without notice. Customer may terminate the Trial Services, with or without cause, at any time, by providing a written notice to Hiya at csorensen@Hiya.com.

10. Disclaimer of Warranties

THE TRIAL SERVICES AND THE CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. YOU EXPRESSLY AGREE THAT USE OF THE TRIAL SERVICES AND CONTENT IS AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE TRIAL SERVICES OR CONTENT AND FOR ANY DISCLOSURE OF INFORMATION THAT YOU UNDERTAKE WHILE USING THE TRIAL SERVICES OR CONTENT.

TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, HIYA AND ITS AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT TO THE SERVICES OR MATERIALS.

WITHOUT LIMITING THE FOREGOING, NEITHER HIYA NOR ANY OF ITS AFFILIATES OR LICENSORS, NOR THE RESPECTIVE OFFICERS, DIRECTORS, LICENSORS, EMPLOYEES OR REPRESENTATIVES OF SUCH PARTIES (COLLECTIVELY, THE "HIYA PROVIDERS") REPRESENT OR WARRANT (I) THAT THE TRIAL SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE ACCURATE, COMPLETE, RELIABLE OR ERROR FREE; (II) THAT THE TRIAL SERVICES OR CONTENT WILL ALWAYS BE AVAILABLE OR WILL BE UNINTERRUPTED, ACCESSIBLE, TIMELY, RESPONSIVE OR SECURE; (III) THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE TRIAL SERVICES OR CONTENT WILL BE FREE FROM VIRUSES, "WORMS," "TROJAN HORSES" OR OTHER HARMFUL PROPERTIES; OR (IV) THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF ANY CONTENT AVAILABLE ON OR THROUGH THE TRIAL SERVICES.

11. Limitation of Liability

IN NO EVENT SHALL THE HIYA PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE ARISING OUT OF OR IN ANY WAY CONNECTED WITH: (I) USE OF THE TRIAL SERVICES OR CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE CAUSED BY ANY RELIANCE ON, OR ANY DELAYS, INACCURACIES, ERRORS OR OMISSIONS IN, ANY OF THE TRIAL SERVICES OR CONTENT, OR (II) ANY INABILITY TO USE THE TRIAL SERVICES OR CONTENT FOR WHATEVER REASON, IN EACH CASE EVEN IF THE HIYA PROVIDERS, OR ANY OF THEM, ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE HIYA PROVIDERS ARISING OUT OF OR RELATING TO THE USE OF THE TRIAL SERVICES OR CONTENT EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100.00).

Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and exclusions may not apply to you.

12. Indemnification

You agree to hold harmless, defend ,and indemnify the Hiya Providers from all liabilities, claims, demands and expenses, (including, but not limited to, reasonable attorneys' fees), that are due to, arise from or otherwise relate to your conduct or your use or misuse of any of the Services and Content, including, without limitation, any actual or threatened suit, demand or claim made against any Hiya Provider that arises out of or relates to: (i) any intellectual property rights or other proprietary rights of any third party, (ii) your breach of this Agreement; and (iii) Customer Data. Hiya may assume exclusive control of any defense of any matter subject to indemnification by you, and you agree to cooperate with Hiya in such event.

13. Assignment

Customer may not assign this Agreement or any of Customer's rights or obligations under this Agreement, to any third party except upon Hiya's prior written consent. Any purported assignment in violation of this Section 13 shall be void. This Agreement and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.

14. Confidentiality

Each party (as a "Receiving Party" hereunder) shall not disclose to any third party, any Confidential Information of the other party (as a "Disclosing Party" hereunder) provided to such Receiving Party in anticipation of, or in connection with the performance of this Agreement or the Post Trial Agreement.  For the avoidance of doubt, this includes Confidential Information provided to the Receiving Party prior to the Effective Date of this Agreement. As used herein, the term "Confidential Information" refers to any and all financial, technical, commercial, or other information concerning the business and affairs of the Disclosing Party, including, without limitation, any cost or pricing information, contractual terms and conditions, marketing or distribution data, business methods or plans.  If Confidential Information is (a) provided as information fixed in tangible form or in writing (e.g., paper, disk or electronic mail), such shall be conspicuously designated as "Confidential" (or with some other similar legend) or (b) provided orally, such shall be identified as confidential at the time of disclosure and confirmed in writing within thirty (30) days of disclosure, unless a reasonable person would understand such information to be confidential based on its content. Notwithstanding the above, Hiya Confidential Information shall include the Hiya Technology and all pricing terms offered to Customer under any Order Form, and Customer Confidential Information shall include Customer Data. Confidential Information does not include information which (i) becomes generally available to the public other than as a result of a disclosure by the Receiving party, (ii) was available to a party on a non-confidential basis prior to its disclosure by the other party or in connection with the performance by such party of its obligations under this Agreement, or (iii) becomes lawfully available to a party on a non-confidential basis from an independent third party.  The Receiving Party will not use Confidential Information for any purpose other than carrying out its obligations as set forth in this Agreement or, if applicable, the Post Trial Agreement, and shall not disclose Confidential Information to any third party, without the prior written consent of the Disclosing Party and an agreement in writing from the third party that it will adhere to the confidentiality obligations imposed herein. Third parties shall not include agents of the Receiving Party, employees or affiliates of the Receiving Party, attorneys, accountants, and other professional advisors of the Receiving Party, in each case such person must have a legitimate reason to have access to such Confidential Information and must be under a duty to protect such Confidential information which duty is substantially equivalent to the obligations contained herein. Each Receiving Party's confidentiality obligations with respect to such Confidential Information, shall remain in effect for the term of this Agreement and Post Trial Agreement and for a period of three (3) years after the termination or expiration of this Agreement and, if applicable, the Post Trial Agreement.

15. General/Notices

This Agreement shall be governed by Washington law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Trial Services shall be subject to the exclusive jurisdiction of the state and federal courts located in Seattle, Washington. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Customer and Hiya as a result of this Agreement or use of the Trial Services. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. This Agreement, including any other documents referenced therein, comprises the entire agreement between Customer and Hiya regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. All notices from Customer to Hiya may be made by emailing csorensen@Hiya.com, and Hiya may give notice by emailing Customer's contact as specified on the registration form found at business.hiya.com.  Customer agrees that "Hiya" or similar marks may appear in forms, smart phone screen, web pages and other outputs of the Trial Services.