Effective Date: March 12, 2021
These Terms of Service (the "Agreement" or “TOS”) describe the terms and conditions on which High Fidelity, Inc. ("High Fidelity," “we,” or “us”) offers you access to its interactive platform (the “Services”). By accessing, or otherwise using the Services, you agree to and accept all of the terms and conditions contained in this Terms of Service, and any other policies, terms and agreements referenced herein, which are hereby incorporated by reference. If you do not agree to the Terms of Service, you are prohibited from accessing or using the Services. The services are not available to persons who are not legally eligible to be bound by these terms of service.
You may be required to provide information about Yourself in order to register for and/or use certain Services. You agree that any such information shall be accurate. You may also be asked to choose a username and password. You are entirely responsible for maintaining the security of Your username and password and agree not to disclose such to any third party.
Use of the Services requires one or more compatible devices, Internet access, and compatible browser software, and may require obtaining updates or upgrades from time to time. Because use of the Services involves hardware, software, and Internet access, Your ability to access and use the Services may be affected by the performance of these factors. You acknowledge and agree that such system requirements, which may be changed from time to time, are Your responsibility.
You agree that You are solely responsible for the content ("Content") sent or transmitted by You or displayed or uploaded by You in using the Services and for compliance with all Laws pertaining to the Content, including, but not limited to, Laws requiring You to obtain the consent of a third party to use the Content and to provide appropriate notices of third party rights. You represent and warrant that You have the right to upload the Content to High Fidelity and that such use does not violate or infringe on any rights of any third party. Under no circumstances will High Fidelity be liable in any way for any (a) Content that is transmitted or viewed while using the Services, (b) errors or omissions in the Content, or (c) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Content. Although High Fidelity is not responsible for any Content, High Fidelity may delete any Content, at any time without notice to You, if High Fidelity becomes aware that it violates any provision of this Agreement, or any law. You retain copyright and any other rights You already hold in Content which You submit, post or display on or through, the Services.
You agree that You will not use, and will not permit any End User to use, the Services to: (i) modify, disassemble, decompile, prepare derivative works of, reverse engineer or otherwise attempt to gain access to the source code of the Services; (ii) knowingly or negligently use the Services in a way that abuses, interferes with, or disrupts High Fidelity’s networks, Your accounts, or the Services; (iii) engage in activity that is illegal, fraudulent, false, or misleading, (iv) transmit through the Services any material that may infringe the intellectual property or other rights of third parties; (v) build or benchmark a competitive product or service, or copy any features, functions or graphics of the Services; or (vi) use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation; (vii) upload or transmit any software, Content or code that does or is intended to harm, disable, destroy or adversely affect performance of the Services in any way or which does or is intended to harm or extract information or data from other hardware, software or networks of High Fidelity or other users of Services; (viii) engage in any activity or use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Services, or any servers or networks connected to the Services or High Fidelity's security systems. (ix) use the Services in violation of any High Fidelity policy or in a manner that violates applicable law, including but not limited to anti-spam, export control, privacy, and anti-terrorism laws and regulations and laws requiring the consent of subjects of audio and video recordings, and You agree that You are solely responsible for compliance with all such laws and regulations.
You may not reproduce, resell, or distribute the Services in a manner that is competitive with the Services. You may not use the Services for the development, production or marketing of a service or product substantially similar to the Services.
Depending on the Service option selected, High Fidelity may provide you with access to High Fidelity’s proprietary code to access the Services (together with any fixes, updates, and upgrades, the “High Fidelity Code”). Subject to the terms and conditions of this Agreement, High Fidelity hereby grants to you, during the Term, a non-exclusive, non-transferable, revocable right to access and use the High Fidelity Code solely for you own internal business purposes in accordance with the terms of this Agreement and any applicable Documentation. High Fidelity reserves any and all right, title and interest in and to the High Fidelity Code other than the limited rights expressly granted to you in this Agreement. High Fidelity Code may also be licensed under a permissive open source license, in which case the terms of the applicable license will control.
You may engage High Fidelity from time to time for development and professional services as may be outlined in an Order Form or Statement of Work, which will be subject to the terms outlined therein and the additional terms and conditions of this Agreement. The term “Services” as used in this Agreement, will include any professional services so engaged.
You may only use the Services pursuant to the terms of this Agreement. You are solely responsible for Your use of the Services and for any users whom you invite or who access or use the Services through your account (including You, each an “End User”) and shall abide by, and ensure compliance with, all Laws in connection with Your and each End User’s use of the Services, including but not limited to Laws related to recording, intellectual property, privacy and export control. Use of the Services is void where prohibited.
You affirm that You are at least 18 years of age and are otherwise fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. If you are at least thirteen (13) years of age and less than eighteen (18) years of age, then your parent or legal guardian must read and accept this Agreement on your behalf.
For Services associated with a Service Order and except as otherwise specified, High Fidelity will invoice you as provided in the Service Order, and you agree to pay all invoiced amounts within thirty (30) days of the invoice date.
All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated, that may be applicable to such amounts payable, excluding any taxes based solely on the income of either party. You are solely responsible for payment of any and all such taxes.
High Fidelity reserves the right to suspend your access to the Services with notice in the event of non-payment of Fees. Payments for Services are not refundable.
Term. The Agreement will be effective from the Effective Date and continue for the period for which Fees are paid or as identified on our Website or an applicable Service Order (the “Initial Term”). This Agreement will automatically renew for successive periods equal to the Initial Term (each a “Renewal Term”) until the Services are terminated as provided below. The Initial Term as extended by any Renewal Term is referred to as the “Term”.
Termination (trial customers). If You fail to comply with any provision of this Agreement, or otherwise at any time in the sole discretion of High Fidelity, High Fidelity may terminate this Agreement immediately and without notice. You may cancel the Services at any time, for any reason or no reason, at any time. If at any time You are not happy with the Services, your sole remedy is to cease using the Services and follow this termination process. Services include functionality to terminate your account.
Termination (paid customers). Either party may terminate a Service Order only upon thirty (30) days’ written notice to the other party prior to the expiration of the then current Term. If the other party that is in material breach, a party may terminate this Agreement immediately on written notice to the other party that it is in material breach; provided that if the breach is capable of cure (other than non-payment of Fees), the breaching party will have ten (10) days from the notice date to cure the breach to the non-breaching party’s reasonable satisfaction.
Effects of Termination. Upon termination or expiration of this Agreement (A) High Fidelity may disable your access to the Services and delete any and all related data, and (B) you shall immediately (i) cease your use of the Services and delete all access credentials, (ii) delete any High Fidelity Code in your possession or control, (iii) delete all of High Fidelity's Confidential Information in its possession or control, and (iv) pay High Fidelity any amounts owed under this Agreement through the date of termination or expiration. Upon request by High Fidelity, you will affirm to High Fidelity that you have complied with all of the foregoing. Sections 7 through 21, inclusive, shall survive any termination of this Agreement.
As used herein, “Confidential Information” means, any and all information, regardless of whether it is in tangible or intangible form, disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) that is either (i) marked as confidential or proprietary, (ii) identified in writing as confidential or proprietary within thirty (30) days of disclosure, or (iii) would be reasonably understood by the Receiving party as the Disclosing Party’s Confidential Information at the time of disclosure. Confidential Information includes, without limitation, the High Fidelity Code, the features and functionality of the Services (both current and planned) and any pricing information provided to you
Information shall not be deemed Confidential Information if such information: (x) is or becomes known to the Receiving Party without obligation of confidentiality, (y) becomes publicly available other than through a breach of this Agreement by the Receiving Party, or (z) is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information.
The Receiving Party shall use reasonable measures to protect and avoid disclosure and unauthorized use or reproduction of the other party’s Confidential Information. Confidential Information of the Disclosing Party may be disclosed by the Receiving Party only to: (i) such employees and agents of the Receiving Party as may have a need to know such information in the course of their duties; and (ii) legal or financial advisors or potential acquirers or financing sources of the Receiving Party on a need to know basis, provided, that, in each case, such recipients are bound by contractual or professional ethical duties or confidentiality obligations at least as restrictive as those set forth herein. Confidential Information of the Disclosing Party may also be disclosed by the Receiving Party if required by law or valid order of a court or other governmental authority; provided that the Receiving Party delivers reasonable notice to the Disclosing Party and uses commercially reasonable efforts to cooperate with Disclosing Party’s attempt to obtain a protective order. Upon written request of the Disclosing Party, the Receiving Party agrees to promptly return to Disclosing Party or destroy all Confidential Information of the Disclosing Party that is in the possession of the Receiving Party.
High Fidelity and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Services and in all trade names, trademarks, service marks, logos, and domain names ("High Fidelity Marks") associated or displayed with the Services. You may not frame or utilize framing techniques to enclose any High Fidelity Marks, or other proprietary information (including images, text, page layout, or form) of High Fidelity without express written consent. You may not use any meta tags or any other "hidden text" utilizing High Fidelity Marks without High Fidelity's express written consent.
You may not post, modify, distribute, or reproduce in any way copyrighted material, trademarks, rights of publicity or other proprietary rights, including the High Fidelity code, without obtaining the prior written consent of the owner of such proprietary rights. High Fidelity may deny access to the Services to any User who is alleged to infringe another party's copyright. Without limiting the foregoing, if You believe that Your copyright has been infringed, please notify High Fidelity as specified here.
You acknowledge that the Services, or portions thereof may be subject to the export control laws of the United States and other applicable country export control and trade sanctions laws (“Export Control and Sanctions Laws”). You and your End Users may not access, use, export, re-export, divert, transfer or disclose any portion of the Services or any related technical information or materials, directly or indirectly, in violation of any applicable export control or trade sanctions law or regulation. You represent and warrant that (i) You and your End Users are not citizens of, or located within, a country or territory that is subject to U.S. trade sanctions or other significant trade restrictions (including without limitation Cuba, Iran, North Korea, Syria, and the Crimea) and that you and your End Users will not access or use the Services, or export, re-export, divert, or transfer the Services, in or to such countries or territories; (ii) You and your End Users are not identified on any U.S. government restricted party lists (including without limitation the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons and Foreign Sanctions Evaders List, the U.S. Department of Commerce’s Denied Parties List, Entity List, and Unverified List, and the U.S. Department of State proliferation-related lists); and (iii) that no Content created or submitted by You or your End Users is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws. You are solely responsible for complying with the Export Control Laws and monitoring them for any modifications.
The Services are not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. The Services shall not be used for or in any HIGH RISK environment.
You acknowledge that any use of the Services contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to High Fidelity, and under such circumstances High Fidelity will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED "AS IS" AND HIGH FIDELITY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. HIGH FIDELITY MAKES NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT THE SERVICES OR THE HIGH FIDELITY CODE WILL MEET ANY USER'S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SERVICES IS AT YOUR SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE SERVICES. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES REMAINS WITH YOU. HIGH FIDELITY DOES NOT ASSUME ANY RESPONSIBILITY FOR RETENTION OF ANY USER INFORMATION OR COMMUNICATIONS BETWEEN USERS. HIGH FIDELITY CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICES. USE IS AT YOUR OWN RISK.
You agree to indemnify, defend and hold harmless High Fidelity, its affiliates, officers, directors, employees, consultants, agents, suppliers and resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys' fees) arising from Your use of the Services, Your violation of this Agreement or the infringement or violation by You or any other user of Your account, of any intellectual property or other right of any person or entity or applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL HIGH FIDELITY OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF HIGH FIDELITY, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, HIGH FIDELITY'S, ITS AFFILIATES', SUPPLIERS' AND RESELLERS' MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE GREATER OF (A) THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES (IF ANY) IN THE TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS, OR (B) FIVE HUNDRED DOLLARS ($500).
This Agreement shall be governed by and construed under the laws of the State of California, as applied to agreements entered into and to be performed in California by California residents. You and High Fidelity consent to the exclusive jurisdiction and venue of the state courts located in and serving San Francisco County, California and the federal courts in the Northern District of California.
Failure by either Party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
If You are located in the United States, You agree to resolve disputes only on an individual basis, through arbitration pursuant to the provisions set forth in this section. The parties expressly waive any right to bring any action, lawsuit, or proceeding as a class or collective action, private attorney general action, or any other proceeding in which any party acts or proposes to act in a representative capacity.
A dispute is any controversy between You and High Fidelity concerning the Services, any software related to the Services, the price of the Services, Your account, High Fidelity’s advertising, marketing, or communications, Your purchase transaction or billing, or any term of this Agreement, under any legal theory including contract, warranty, tort, statute, or regulation, except disputes relating to the enforcement or validity of Your or High Fidelity’s intellectual property rights. As part of the best efforts process to resolve disputes, and prior to initiating arbitration proceedings, each party agrees to provide notice of the dispute to the other party, including a description of the dispute, what efforts have been made to resolve it, and what the disputing party is requesting as resolution, to email@example.com
You may initiate an action in your local Small Claims Court if You meet the court’s requirements. However, if such a claim is transferred, removed or appealed to a different court, High Fidelity reserves the right to require arbitration.
Disputes not resolved pursuant to Section A or B shall be resolved through arbitration. The American Arbitration Association (“AAA”) will conduct any arbitration under its Commercial Arbitration Rules. For more information, see www.adr.org. Arbitration hearings will take place in the federal judicial district of Your primary business location. A single arbitrator will be appointed. The arbitrator must: (a) follow all applicable substantive Law; (b) follow applicable statutes of limitations; (c) honor valid claims of privilege; (d) issue a written decision including the reasons for the award. The arbitrator may award damages, declaratory or injunctive relief, and costs (including reasonable attorneys’ fees). Any arbitration award may be enforced (such as through a judgment) in any court with jurisdiction. Under AAA Rules, the arbitrator rules on his or her own jurisdiction, including the arbitrability of any claim; however, a court has exclusive authority to enforce the prohibition on arbitration on a class-wide basis or in a representative capacity.
The AAA rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses.
This Agreement governs if there is a conflict with the AAA’s Commercial Arbitration Rules.
Notwithstanding any other statute of limitations, a claim or dispute under this Agreement must be filed in Small Claims Court or noticed for arbitration within one year of when it could first be filed, or such claim will be permanently barred.
If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, then those parts will not be arbitrated but will be resolved in court, with the balance resolved through arbitration. If any provision of this section is found to be illegal or unenforceable, then that provision will be severed; however, the remaining provisions shall still apply and shall be interpreted to as nearly as possible achieve the original intent of this Exhibit, inclusive of the severed provision.
This Agreement embodies the entire understanding and agreement between the Parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the Parties respecting such subject matter, except that if You or Your company have executed a separate written agreement or you have signed a separate agreement governing your use of the Services, then such agreement shall control to the extent that any provision of this Agreement conflicts with the terms of such agreement. High Fidelity may elect to change or supplement the terms of this Agreement from time to time at its sole discretion, except to the extent Services are engaged with a binding Service Order, in which case changes shall not be effective until a renewal of the then current Term. High Fidelity will exercise commercially reasonable business efforts to provide notice to You of any material changes to this Agreement. Upon the posting of changes to this Agreement (or the date of notice, if such is provided), they will be binding on You. If You do not agree with the changes, You should discontinue using the Services. If You continue using the Services after such posting or notice, You will be deemed to have accepted the changes to the terms of this Agreement. In order to participate in certain Services, You may be notified that You are required to download software and/or agree to additional terms and conditions. Unless expressly set forth in such additional terms and conditions, those additional terms are hereby incorporated into this Agreement. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes.