Hiya Connect

HIYA CONNECT

TERMS OF SERVICE AGREEMENT

LAST UPDATED: July 13, 2020

Hello and thanks for your interest in 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 this Hiya Connect Terms of Service Agreement (the “Agreement”). By executing an Order Form referencing 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.

For the limited purpose of delivering Customer Data (business name, logo, call reason) through either wireless telephone services or mobile device client software, Hiya certifies, and Customer acknowledges, that Hiya is acting as the authorized agent for AT&T (to provide the Service for AT&T Call Protect Subscribers) and Samsung Electronics (to provide the Service for Samsung Smartcall users) solely for the purposes of selling and invoicing. Customer acknowledges that this Agreement and any Order Form referencing this Agreement are exclusively between Hiya and the Customer. “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 Service may be subject to additional guidelines, terms or rules, which will be posted in or on the Service in connection with such features or on an Order Form. All such additional terms, guidelines and rules are incorporated by reference into this Agreement.

Definitions

The following terms have the following meanings:

“Activation Date” means the first date on which Service is activated for Customer’s use, as indicated on an Order Form.

“Affiliate” means any entity, individual, firm, or corporation, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with Customer.

“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, an Affiliate or their respective Users, subscribers or partners may disclose or submit to Hiya or the Service in the course of using the Service.

“Effective Date” means the date on which an Order Form is executed by Hiya and Customer.

“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 Service.

“Hiya Content” means the audio and visual information, documents, software, products and service contained in or made available via the Service, other than Customer Data.

“Hiya Technology” means all of Hiya’s proprietary technology (including without limitation software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) used by Hiya in connection with provision of the Service.

“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 Customer’s order for Service.

“Service” means the designated Hiya Connect service provided to Customer as indicated on an Order Form.

“Subscription Term” means the period during which Hiya has agreed to provide the Services to you, beginning on the Activation Date and continuing for the period indicated on the Order Form (and any renewals thereto).

“User(s)” means Customer’s (or Affiliate’s, where applicable) employees, representatives, consultants, contractors, customers or agents who are authorized to use the Service.

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, the Hiya Connect solution provides access to the Hiya Connect web portal where a business may access data analytics associated with its registered phone numbers.

License Grant; Limitations

Subject to the terms and conditions of this Agreement, Hiya grants Customer and its Affiliates a non-exclusive, non-transferable, non-assignable, limited license to access and use the Service during the Subscription Term. 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 Service at any time, and from time to time, without prior notice to you; provided that if Hiya makes any changes to the Service that would reduce the features or functionality to the Service, Hiya will provide Customer with advance notice of such changes and Customer may terminate the Service and this Agreement by written notice to Hiya if Customer does not agree to such changes. Customer shall be liable for all actions of its Affiliates under this Agreement.

Restrictions on Use

In connection with its use of the Service, Customer and Affiliates may not:

access the Service for the purpose of building a competitive product or service;
monitor the Service availability, performance or functionality for any benchmarking or competitive purpose, or release to any third party the results of any evaluation of the Service performed by or on behalf of Customer or Affiliates for such purposes;
reverse engineer, disassemble, decipher or decompile any portion of the Service or Hiya Technology, or otherwise attempt to discover or re-create the source code to any software;
license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Hiya Content in any way;
copy, modify, or make derivative works based upon the Service or the Hiya Content;
engage in any unauthorized use of the Service or Hiya Content;
transmit or otherwise make available any content that: (i) you do not have the right to transmit using the Service, (ii) may expose Hiya or its affiliates, licensors, or users, to any harm or liability, or (iii) is unlawful;
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;
use the Service in any manner which would violate the intellectual property rights of any third party, including patents, trademarks, trade secrets, copyrights or other proprietary rights;
use manual or automated software, devices, scripts robots, other means or processes to access, scrape, or crawl the Service or any related data or information;
attempt to probe, test, hack, or otherwise circumvent any security measures of the Service;
falsely state, impersonate, or otherwise misrepresent your identity or your affiliation with any person or entity;
use the Service or Hiya Content in violation of any federal, state, or local law, rule, or regulation, whether now existing or enacted in the future; or
engage in “framing,” “mirroring” or otherwise simulating the appearance or function of the Service.

Hiya may investigate and bring claims for violations of any of the above to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting Users who violate terms of this Agreement.

Service

Provision of Service. Hiya will make the Service available to Customer pursuant to this Agreement, the Documentation and the relevant Order Form during the Subscription Term. Subsequent updates, upgrades, enhancements to the Service made generally available to all subscribing customers will be made available to Customer at no additional charge, but the purchase of Service is not contingent on the delivery of any future functionality or features. New features, functionality or enhancements to the Service may be marketed separately by Hiya and may require the payment of additional fees. Hiya will determine, in its sole discretion, whether access to such new features, functionality or enhancements will require an additional fee.
Fees; Taxes. In consideration of the Service, Customer will pay the fees and other charges specified in the applicable Order Form (“ Fees”), plus any applicable Taxes. All Fees are nonrefundable once paid, except as expressly otherwise provided in this Agreement or the applicable Order Form. All amounts payable by Customer under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Unless otherwise stated, Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes, except those assessable against Hiya measured by its net income. Hiya will invoice Customer for such Taxes if Hiya has a legal obligation to do so, and Customer agrees to pay such Taxes if so invoiced.
Invoicing; Payment. If Customer uses a credit card to make payment hereunder, Customer authorizes Hiya to charge such credit card on a recurring basis during the Subscription Term for all applicable Fees and Taxes. All amounts are payable in U.S. dollars net thirty (30) days from the date of the invoice unless otherwise specified in the applicable Order Form. Customer must notify Hiya in writing of any disputes regarding invoiced or charged amounts within thirty (30) days after Customer’s receipt of the applicable invoice or the charge has been made. Customer’s notice must include an explanation detailing the basis of Customer’s dispute of the invoiced amount. If only a portion of an invoice is disputed, Customer will pay the non-disputed portion as required hereunder. Hiya may suspend access to the Service if Customer fails to pay undisputed amounts owed under an issued invoice when due. If the parties are unable to come to an agreement with respect to disputed amounts, either party may seek appropriate legal or equitable remedies, all of which are reserved. Except as prohibited by law, Hiya may charge a late fee of one and one-half percent (1.5%) per month on past due amounts, or the maximum rate permitted by law, whichever is less, from the date such amounts were due until the date paid; provided that Hiya will not exercise this right if the past due amounts are under reasonable and good faith dispute, initiated by a written notification as set forth above, and Customer is cooperating diligently to resolve the dispute.

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 and Affiliates’ use of the Service, 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.

Customer Data

The Service permit Customer and/or Affiliates to submit a limited amount of Customer Data, including preferred registered phone/business name, corporate logo/image and call reason. To the extent Customer or an Affiliate enters any Customer Data into the Service, Customer or Affiliate (as applicable), 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 Service to the Customer. To the extent Customer or an Affiliate enters Customer Data into the Service, Customer agrees and acknowledges that Hiya is not obligated to retain any Customer Data after termination or expiration of the Subscription Term, and (ii) Hiya may delete Customer Data upon termination or expiration of the Subscription Term, without any obligation or liability to the Customer or Affiliate.

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 Hiya Content and the Service, including to any and all enhancements, enhancement requests, suggestions, modifications, extensions and/or derivative works thereof. This Agreement is not a sale of the Service or Hiya Content, and does not convey to Customer or Affiliates any rights of ownership in or related to the Service, Hiya Content, Hiya Technology, or the Intellectual Property Rights owned by Hiya. The Hiya name, the Hiya logo, and the product names associated with the Service are trademarks of Hiya or third parties, and no right or license is granted to use them.

Disclaimer of Warranties

EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HIYA MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE, AND HIYA HEREBY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY WITH RESPECT TO THE QUALITY, PERFORMANCE, ACCURACY OR FUNCTIONALITY OF THE SERVICE OR THAT THE SERVICE IS OR WILL BE ERROR FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.

Limitations of Liability

NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
OTHER THAN EACH PARTY’S OBLIGATIONS SET FORTH IN SECTION 11 (INDEMNIFICATION), NEITHER PARTY’S TOTAL AGGREGATE LIABILITY FOR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER FOR THE SERVICE GIVING RISE TO SUCH CLAIM UNDER THE APPLICABLE ORDER FORM IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY.

Indemnification

Hiya shall indemnify, defend and hold Customer harmless from and against any judgments, settlements, costs and fees reasonably incurred (including reasonable attorney’s fees) resulting from any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Service hereunder infringes or misappropriates the valid intellectual property rights of a third party (a “Claim Against Customer”). In the event of a Claim Against Customer, or if Hiya reasonably believes the Service may infringe or misappropriate, Hiya may in Hiya’s sole discretion and at no cost to Customer (i) modify the Service so that they no longer infringe or misappropriate, (ii) obtain a license for Customer’s continued use of Service in accordance with this Agreement, or (iii) terminate Customer’s for such Service and refund to Customer any prepaid Fees covering the remainder of the term of such after the effective date of termination. Notwithstanding the foregoing, Hiya shall have no obligation to indemnify, defend, or hold Customer harmless from any Claim Against Customer to the extent it arises from: (i) Customer Data, (ii) use by Customer after notice by Hiya to discontinue use of all or a portion of the Service, (iii) or Customer’s breach of this Agreement.
Customer shall indemnify, defend and hold Hiya harmless from and against any judgments, settlements, costs and fees reasonably incurred (including reasonable attorney’s fees) resulting from any claim, demand, suit or proceeding made or brought against Hiya by a third party alleging that Customer Data violates applicable law or a third party’s rights (a “Claim Against Hiya”).
A party seeking indemnification shall (a) promptly give the indemnifying party written notice of the claims for which indemnification is sought; (b) give the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle any claim unless the settlement unconditionally releases the indemnified party of all liability); and (c) provide to the indemnifying party all reasonable assistance, at indemnifying party’s expense. An indemnified party may participate in the defense of any claim against it with counsel of its choosing at its sole cost.
This Section 11 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.

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. 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” means any and all non-public 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. 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, 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. Notwithstanding the foregoing, Receiving Party may disclose Confidential Information to its agents, employees, attorneys, accountants, and other professional advisors of the Receiving Party, have a legitimate reason to have access to such Confidential Information and are 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 for a period of three (3) years after the termination or expiration of this Agreement.

Term and Termination

Term of Agreement. This Agreement commences on the Effective Date and shall remain in effect for the duration of the Subscription Term, unless earlier terminated in accordance with the terms of this Agreement.
Auto-Renewal. Except as otherwise specified in the applicable Order Form, the Subscription Term shall automatically renew for successive periods equal in duration to the Subscription Term indicated on the Order Form, unless and until terminated by either party in accordance herewith.
Termination. A party may terminate this Agreement and applicable Order Form for convenience (for any reason or no reason) by providing the other party with written notice of termination at least fifteen (15) calendar days prior to the end of the then-current Subscription Term, and such termination will become effective upon the end of the then-current Subscription Term. A party may terminate this Agreement and applicable Order Form for cause (i) upon 7 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such same 7 day period, or (ii) immediately upon written notice if the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon termination of an Order Form for cause by Customer and upon Customer’s written request, Hiya shall refund, on a pro-rata basis, any Fees paid thereunder that cover the remainder of the applicable Subscription Term after the effective date of termination. Upon termination of an Order Form for cause by Hiya, all amounts owed by Customer thereunder shall become due and payable. In no event shall any termination relieve Customer of the obligation to pay all Fees payable to Hiya for the period prior to the effective date of termination.
Survival. Sections 1, 4, 6 through 12, 13.4 and 14 and any other rights and obligations of the parties hereunder that by their nature are reasonably intended to survive termination or expiration, shall survive any termination or expiration of this Agreement.

General/Notices

Neither party may assign its rights and obligations under this Agreement, either in whole or in part, whether by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
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 Service 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 Service.
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 the Order Form and any other documents referenced and incorporated herein, comprises the entire agreement between Customer and Hiya regarding the subject matter of this Agreement and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter.
All notices required or permitted hereunder shall be sent to a party at the party’s email address set forth on the Order Form.
Customer agrees that “Hiya” or similar marks may appear in forms, smart phone screen, web pages and other outputs of the Service.