Highfive End User Terms of ServiceLast modified October 5th, 2014
Thank you for using Highfive! These Terms of Service (the “Terms”) govern your use of Highfive Technologies, Inc.’s (“Highfive,” “we,” our”) website and video services (“Service”). By using the Service you agree to be bound by these Terms. If you are entering into these Terms on behalf of a company or business entity, you must have the authority to bind such entity to these Terms, in which case the terms “you” or “your” will refer to such entity. You may use the Service only in compliance with these Terms.
We may change or modify portions of these Terms from time to time. If we do so, we will post the changes on this page. Any changes will be effective 14 days after they are posted, except that changes addressing new functionality or made for legal reasons are effective immediately. By continuing to use the Service after any changes, you are accepting such changes. We may stop, suspend, or modify the Service at any time without prior notice. The Service is not intended for use by you if you are under 18 years of age. By agreeing to these Terms, you are representing to us that you are over 18 years of age.
Use of the Service
You may use the Service (including the hardware and software provided as part of the Service) for lawful purposes and in compliance with these Terms. Certain uses of our Service requires you to download a client software package (“Software”). Highfive hereby grants you a limited, nonexclusive, nontransferable, revocable license to use the Software solely to access the Service. You must not sell, copy, modify, reverse engineer or decompile the Software, attempt to do so, or assist anyone else to do so. You will also comply with any codes of conduct or other notices Highfive provides in connection with the Service.
You may not use the Service to:
Stream or otherwise transmit content that: (i) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; (ii) you do not have a right to transmit under any law or under contractual or fiduciary relationships; (iii) poses or creates a privacy or security risk to any person; or (iv) infringes any intellectual property or other proprietary rights of any party;
Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
Exploit or solicit personal information from anyone under the age of 18 years old;
Violate any applicable local, state, national or international law, or any regulations having the force of law;
Interfere with or disrupt the Service, servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or Obtain or otherwise attempt to access any materials or information through any means not intentionally made available or provided for through the Service.
You are solely responsible for your actions on the Service and for anything you stream or transmit through the Service (“Your Content”). You grant us rights to use Your Content in order to provide you the Service. We are not responsible for the accuracy, completeness, appropriateness, security or legality of any of Your Content or other content you may be able to access using the Service. You are responsible for safeguarding the password that you use to access the Service and you agree not to disclose your password to any third party. You are responsible for any activity using your account, whether or not you authorized that activity. You should immediately notify us of any unauthorized use of your account. We may also monitor or remove any Content at any time for any reason.
Terms Required by Apple
Highfive offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
Highfive and you acknowledge that these Terms of Service are concluded between Highfive and you only, and not with Apple, and that as between Highfive and Apple, Highfive, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Highfive’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
Highfive and you acknowledge that Highfive, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Highfive and Apple, Highfive, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Highfive as follows:
500 Arguello Street, Suite 300, Redwood City, CA 94063
Highfive and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
We and our licensors own all rights to the Service and we reserve all rights not expressly granted in these Terms. We appreciate all user feedback, but please be aware that we may use any feedback, comments, or suggestions you provide us without any obligation to you. The Service is protected by copyright, trademark, and other laws of both the United States and foreign countries. You do not have any rights to use our trademarks, logos, domain names, or other brand features.
Although we would much rather you stay, you have the right to stop using the Service at any time. We reserve the right to suspend or end the Service at any time, with or without cause, and with or without notice. We will try to contact you to warn you prior to suspension or termination of your account. All of Your Content on the Service (if any) may be permanently deleted by Highfive upon any termination of your account in its sole discretion.
Paid Accounts and Fees
Highfive offers you additional features of the Service for a fee. If you choose this option, your account will be converted to a Paid Account For Paid Accounts, you agree to pay such fees as detailed in the pricing terms at www.highfive.com/pricing or as otherwise provided on our website or Service. You will provide us accurate payment information and update such information as necessary. All fees are nonrefundable once paid.
DISCLAIMER OF WARRANTIES.
THE SERVICE IS PROVIDED “AS IS”, AT YOUR OWN RISK, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. We will have no responsibility for any harm to your computer system, loss or corruption of data, or other harm that results from your access to or use of the Service. Some states do not allow the types of disclaimers in this paragraph, so they may not apply to you.
LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL HIGHFIVE, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT HIGHFIVE HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; (B) MORE THAN THE GREATER OF $20 OR THE AMOUNTS PAID BY YOU TO HIGHFIVE FOR THE PAST THREE MONTHS OF THE SERVICE IN QUESTION. Some states do not allow the types of limitations in this paragraph, so they may not apply to you.
Disputes and Arbitration
(a) Contact Highfive First. If a dispute arises between you and Highfive, our goal is to learn about and address your concerns. You agree that you will notify Highfive about any dispute you have with Highfive regarding these Terms & Conditions by contacting Highfive at 844-GO-HIGH5 (844-464-4445) or at firstname.lastname@example.org.
(b) Binding Arbitration. You and Highfive agree, subject to clause 7(g) (Protection of Confidentiality and Intellectual Property Rights), to submit any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms & Conditions or your use of the Devices to binding arbitration rather than by filing any lawsuit in any forum other than set forth in this section. Further you agree arbitration is final and binding and subject to only very limited review by a court. You also waive your right to any form of appeal, review or recourse to any court or other judicial authority, insofar as such waiver may be validly made. This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of or relating to your use of the Devices. Subject to clause 7(g) (Protection of Confidentiality and Intellectual Property Rights), any dispute or claim made by you against us or us against you arising out of or relating to these Terms & Conditions or your use of the Devices (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration except that you may take claims to small claims court if they qualify for hearing by such a court.
(c) Arbitration Procedures. You must first present any claim or dispute to Highfive by contacting us at email@example.com to allow us an opportunity to resolve the dispute. You may request arbitration if your claim or dispute cannot be resolved within 60 days after presenting the claim or dispute to Highfive. Highfive may request arbitration against you at any time after it has notified you of a claim or dispute in accordance with these Terms and Conditions. The arbitration of any dispute or claim shall be conducted in accordance with the then current and applicable rules of the American Arbitration Association as modified by this agreement. The place of any arbitration will be Palo Alto, California, USA, and will be conducted in the English language. Claims will be heard by a single arbitrator. The arbitrator may not award relief in excess of or contrary to what this agreement provides, order consolidation or arbitration on a class wide or representative basis, award punitive or consequential damages or any other damages aside from the prevailing party’s actual damages, or order injunctive or declaratory relief, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration shall be confidential, and neither you, nor Highfive nor the arbitrator may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement or appeal of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.
(d) No Class Actions. There shall be no right or authority for any claims subject to this arbitration clause to be arbitrated on a class action or consolidated basis or on bases involving claims brought in a purported representative capacity on behalf of the general public (including, but not limited to, as a private attorney general).
(e) Fees and Expenses. All administrative fees and expenses of arbitration will be divided equally between you and Highfive. Each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration hearing.
(f) YOU MUST CONTACT HIGHFIVE WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS, OR DISPUTE.
g) Protection of Confidentiality and Intellectual Property Rights. Notwithstanding the foregoing, Highfive may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
If Highfive changes this ‘Arbitration’ section after the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service ), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Date of Last Revision” date above or in the date of Highfive’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any dispute between you and Highfive in accordance with the provisions of this section as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
This arbitration clause shall survive termination of these Terms & Conditions.
THESE TERMS OF SERVICE WILL BE GOVERNED BY CALIFORNIA LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES. WITH RESPECT TO ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICE OR SOFTWARE NOT SUBJECT TO ARBITRATION, AS DESCRIBED ABOVE, YOU AND HIGHFIVE AGREE SUCH CLAIMS WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SAN FRANCISCO COUNTY, CALIFORNIA, AND BOTH PARTIES CONSENT TO VENUE AND PERSONAL JURISDICTION THERE. These Terms of Service constitute the entire and exclusive agreement between you and Highfive with respect to the Service, and supersede and replace any other agreements, terms and conditions applicable to the Service. These Terms of Service create no third party beneficiary rights. Our failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable the remaining provisions of the Agreement will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights in these Terms, and any such attempt is void, but we may assign our rights to any of our affiliates or subsidiaries, or to any successor in interest of any business associated with the Service. Highfive and you are not legal partners or agents; instead, our relationship is that of independent contractors.
Business AgreementLast modified October 5, 2014
1 Acceptance of Agreement.
1.1 Highfive Technologies, Inc. (“Highfive”) provides its Service (as defined below) and its web site located at http://www.highfive.com (the “Site”), subject to this Highfive Business Agreement (“Agreement”). By accepting this Agreement or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by this Agreement. If you are entering into this Agreement on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority and are using the Service as an “End User” then you agree to the Terms of Service www.highfive.com/terms. If you do not agree with this Agreement, you must not accept this Agreement and may not use the Service.
1.2 Highfive may change or modify portions of this Agreement at any time. Highfive will post changes on this page and will indicate at the top of this page the date these terms were last revised. Highfive will also use commercially reasonable efforts to notify you of changes, either through the Service user interface, in an email notification, or other means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Service or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Agreement.
1.3 During the pilot or evaluation period (“Pilot Period”), the Service will be provided to you free of charge until the date it becomes generally commercially available. During the Pilot Period, the Service is provided entirely “as-is” and Highfive expressly disclaims all warranties, express or implied, including without limitation the warranties in Section 6. During the Pilot Period, you or Highfive may terminate your use of the Service at any time.
2 Description of Service.
The “Service” includes (a) the Site, (b) Highfive’s video applications and related technologies, (c) Highfive’s video hardware boxes (“Boxes”), (d) all Software (as defined below); and (e) any data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Content”). Any new features added to or augmenting the Service are also subject to this Agreement.
3 General Conditions/ Access and Use of the Service.
3.1 Subject to the terms and conditions of this Agreement, you may purchase, access and use the Service only for lawful purposes. All rights, title and interest in and to the Service and its components (excluding the hardware portions of the Boxes you have purchased) will remain with and belong exclusively to Highfive. You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; (b) use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, or (c) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks. You shall comply with any codes of conduct, policies or other notices Highfive provides you or publishes in connection with the Service, and you shall promptly notify Highfive if you learn of a security breach related to the Service.
3.2 Any software that may be made available by Highfive in connection with the Service, including without limitation software contained on Boxes (collectively, “Software”), contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this Agreement, Highfive hereby grants you a personal, non-transferable, non-sublicensable and non-exclusive right and license to use the Box and object code of any Software solely in connection with the Service, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software; or remove any proprietary notices or labels. You agree not to access the Service by any means other than through the interface that is provided by Highfive for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Highfive or any third party is granted to you in connection with the Service.
3.3 You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you stream, deliver, provide or otherwise transmit or store (hereafter “transmit(ting)”) in connection with or relating to the Service (“Your Content”). You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. Highfive may access your account in order to respond to your requests for technical support. By transmitting Your Content on or through the Service, you grant Highfive the perpetual right to use your Content free of charge in connection with the Service. Highfive has the right, but not the obligation, to monitor the Service, Content, or Your Content. You further agree that Highfive may remove or disable any Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all. 3.4 You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Highfive’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. Highfive will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
3.5 You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service.
4.1 To the extent the Service or any portion thereof is made available for any fee, you may be required to select a payment plan and provide Company information regarding your credit card or other payment instrument. You shall be responsible for all taxes associated with Service other than U.S. taxes based on Highfive’s net income. If you provide Highfive with information regarding your credit card or other payment instrument, you represent and warrant to Highfive that such information is true and that you are authorized to use such payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You hereby authorize Highfive to bill your payment instrument upon purchase of a Box and in advance on a periodic basis in accordance with the terms agreed upon by you and Highfive, and you further agrees to pay any charge so incurred. Your purchase of a Box will be governed by the Terms & Conditions of Sale, available at http://highfive.com/legal or any other applicable agreement between you and Highfive. Highfive may also bill you through an invoice. All invoices must be paid within thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business, which may include personally identifying information of individuals (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Highfive includes non-public information regarding features, functionality and performance of the Service. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required by law.
6 Representations and Warranties; Disclaimer.
6.1 You represent and warrant to Highfive that (i) you have full power and authority to enter into this Agreement; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your transmitting and other activities (and allow Highfive to perform its obligations) in connection with the Service without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and Highfive’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; (iv) you are eighteen (18) years of age or older; and (v) you will use the Service only in compliance with all applicable laws and regulations.
6.2 Highfive warrants that the Boxes, when provided to you by Highfive, will conform in all material respects to the applicable specifications provided by Highfive to you. Such warranty does not apply to units that have been damaged, mishandled, mistreated or used or maintained or stored other than in conformity with such specifications and Highfive’s instructions. EXCEPT FOR BODILY INJURY, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE FOREGOING WARRANTY SHALL BE THE REPAIR OR REPLACEMENT OF OR (AT HIGHFIVE’S OPTION OR IF REPAIR OR REPLACEMENT IS IMPRACTICAL) REFUND FOR RETURNED NON-CONFORMING UNITS FOR WHICH FULL DOCUMENTATION AND PROOF OF NON-CONFORMITY IS PROVIDED TO HIGHFIVE WITHIN ONE YEAR IN THE CASE OF HARDWARE COMPONENT, OR THIRTY DAYS IN THE CASE OF SOFTWARE (WHETHER OR NOT EMBEDDED), AFTER THE ORIGINAL NON-CONFORMING UNITS (BUT NOT REPLACEMENTS) ARE SHIPPED BY HIGHFIVE.
6.3 Highfive warrants that it shall use reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions in the Service. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Highfive or by third-party providers, or because of other causes beyond Highfive’s reasonable control, but Highfive shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, HIGHFIVE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE BOXES OR THE SERVICE. 6.4 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE, INCLUDING THE BOXES, SITE AND CONTENT, AND ANY SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND HIGHFIVE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT HIGHFIVE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM HIGHFIVE OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
7.1 You have the right to terminate your account at any time in accordance with the procedures set forth on the Site. Highfive reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any and all current and future use of the Service, suspend or terminate your account (any part thereof) or use of the Service and remove and discard any of Your Content in the Service if Highfive reasonably believes that you have violated this Agreement. Highfive shall not be liable to you or any third party for any modification, suspension or discontinuation of the Service. Highfive will use good faith efforts to contact you to warn you prior to suspension or termination of your account by Highfive. All of Your Content on the Service (if any) may be permanently deleted by Highfive upon any termination of your account in its sole discretion.
8 LIMITATION OF LIABILITY.
8.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL HIGHFIVE BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION, (B) ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE to YOUR CLAIM; (C) ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (D) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES; OR (E) ANY MATTER BEYOND ITS REASONABLE CONTROL. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
8.2 Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, HIGHFIVE’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You shall defend, indemnify, and hold harmless Highfive from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this Agreement, any of Your Content, or your other access, contribution to, use or misuse of the Service. Highfive shall provide notice to you of any such claim, suit or demand. Highfive reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Highfive’s defense of such matter.
10 Government Matters.
You may not remove or export from the United States or allow the export or re-export of the Boxes, Service, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
You may not assign this Agreement without the prior written consent of Highfive, but Highfive may assign or transfer this Agreement, in whole or in part, without restriction.
12 Governing Law.
This Agreement shall be governed by the laws of the State of California without regard to the principles of conflicts of law. Unless otherwise elected by Highfive in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California for the purpose of resolving any dispute relating to your access to or use of the Service.
Please visit http://www.highfive.com/privacy to understand how Highfive collects and uses personal information.
Highfive may use your name and/or company name as a reference for marketing or promotional purposes on Highfive’s website and in other communication with existing or potential Highfive customers, subject to any reasonable trademark guidelines you may provide.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Highfive in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. The failure of Highfive to exercise or enforce any right or provision of this Agreement shall not be a waiver of that right.
Information We Collect:
How We Use Your Personal Data:
Our Disclosure of Your Personal Data and Other Information:
You can visit the Site without providing any Personal Data. If you choose not to provide any Personal Data, you may not be able to use certain Services.
Our Policy Toward Children:
Links to Other Web Sites:
We take reasonable steps to protect the Personal Data provided via the Services from loss, misuse, and unauthorized access, disclosure, alteration, or destruction. However, no Internet or email transmission is ever fully secure or error free. In particular, email sent to or from the Services may not be secure. Therefore, you should take special care in deciding what information you send to us via email. Please keep this in mind when disclosing any Personal Data to us via the Internet.
Your access to and use of the Services is subject to the Terms of Service at www.highfive.com/terms.
Terms of SaleThis Terms of Sales was last updated as of October 5, 2014
Welcome to the online store (the “Store”) provided by Highfive Technologies, Inc. (“Highfive”). Your purchase of Highfive videoconferencing boxes (“Devices”) constitutes your agreement to be bound by these Terms & Conditions of Sale (“Terms & Conditions”) and the terms of the version of the Limited Warranty included with a Device. We reserve the right to change these Terms & Conditions at any time, so please review the Terms & Conditions each time prior to making a purchase from the Store. Every time you order Devices from Highfive, the Terms & Conditions in force at that time will apply between you and Highfive. If you have any questions regarding these Terms & Conditions, you can contact Highfive at firstname.lastname@example.org.
BY PLACING AN ORDER FOR DEVICES, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS & CONDITIONS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE PURCHASE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS & CONDITIONS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO PURCHASE AND USE DEVICES AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS & CONDITIONS, YOU MAY NOT PURCHASE THE DEVICES.
When you place an order for a Device from Highfive, Highfive will request information regarding your credit card or other payment instrument. By placing an order for a Device, you make an offer to Highfive to purchase the Device subject to these Terms & Conditions and authorize Highfive to bill your payment instrument.
You may cancel your offer to purchase Devices at any time prior to shipment and you will not be charged. You will receive an email approximately one week prior to the shipment of reserved Devices in which you will have an option to cancel your offer and you will not be charged. Highfive reserves the right to cancel or refuse any order for any reason at any time prior to shipment, including after an order has been submitted, whether or not the order has been confirmed. We may attempt to contact you if all or a portion of your order is cancelled, or if additional information is needed to complete and accept your order.
3. Availability; Pricing; Taxes.
Prices for the Devices are set forth in the Store and are subject to change without notice at any time. All Devices offered on the Store are subject to availability. Depending on the order, Highfive calculates and charges sales tax in accordance with applicable laws.
4. Resale and Title Transfer.
Purchases made on the Store are intended for end users only, and are not authorized for resale. Title for Devices purchased from the Store passes to the purchaser at the time of delivery by Highfive to the freight carrier, but Highfive and/or the freight carrier will be responsible for any Device loss or damage that occurs when the Device is in transit to you.
5. Shipping and Delivery.
Prices for the Devices do not include shipping costs. Our delivery charges and shipping options are as quoted on the Store website from time to time. The estimated arrival or delivery date is not a guaranteed delivery date for your order. Refused deliveries will be returned to our warehouse. It may take up to 45 days for the returned items to be identified as refused and processed for a refund.
The Devices available on the Store have been designed, marketed and sold for use by residents of the United States. All safety warnings, information, instructions, packaging, in-box materials, mobile apps, and support services are provided only in English (U.S.). The Devices available on the Store are not intended for use outside of the United States and may only be purchased by residents of the United States.
If, for any reason, you’re not completely satisfied with the Device you purchased from the Store, you can return the Device within 30 days of purchase for a full refund. To initiate a refund, and to arrange for the return of the Device, you can contact Highfive at 844-GO-HIGH5 (844-464-4445) or at email@example.com. You will receive a full refund of the price you paid for the Device. We will use reasonable efforts to process the refund due to you as soon as possible and within 30 days from the date of receipt of the returned Device by Highfive.
Please note that you are solely responsible for determining the compatibility of the Devices with other equipment in your home, and you accept that lack of compatibility is not a valid claim under the limited warranty provided with your Devices and does not otherwise constitute a basis for receiving a refund after the 30 day refund policy described above.
8. Warranties and Disclaimers.
As far as permitted by applicable law, All Devices are provided on an “as-is” basis, without warranties or conditions of any kind, either express or implied, including, without limitation, warranties of title or implied warranties of merchantability or fitness for a particular purpose, unless otherwise noted in the Limited Warranty included with a Device.
As far as permitted by applicable law, the Store, and all content available on the Store, is provided on an “as-is” basis without warranties or conditions of any kind, either express or implied, including, without limitation, warranties of title or implied warranties of merchantability or fitness for a particular purpose.
You use a Device at your own discretion and risk. You will be solely responsible for (and Highfive disclaims) any and all loss, liability or damages resulting from your use of a Device, including without limitation any damage or loss to your equipment or systems, home, office, Device, other peripherals connected to the Device, computer, mobile device, and all other items. Please note that you are solely responsible for determining the compatibility of the Devices with other equipment in your home, and you accept that lack of compatibility is not a valid claim under the warranty provided with your Devices and does not otherwise constitute a basis for receiving a refund after the 30 day refund policy described above.
You are communicating with Highfive electronically when you use the Store or send email to Highfive. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. Any use of the Device is governed by the Business Agreement or any other applicable agreement entered into between you and Highfive.