Terms of Service
Carry Technologies, Inc.
Last Updated: July 20, 2021
By signing an Order Form (defined below) with Hightouch, Customer agrees to comply with and be bound by these Terms. These Terms, together with any Order Form(s), constitutes the entire agreement between Hightouch and Customer (the "Agreement").
"Affiliate." Any business entity controlling, controlled by or under common control with a Party hereunder. Customer will be responsible for all acts and omissions of its Affiliates, as if they were "Customer" hereunder.
"Confidential Information" means (i) the Agreement, (ii) with respect to Hightouch, non-public aspects of the Hightouch Technology, the Site, and additional services provided by Hightouch (and the operation thereof), and Hightouch's business, technical or financial information and data, (iii) with respect to Customer, Customer Data, and non-public aspects of Customer's technology, computer programs, and business, technical and financial information and data.
"Customer Data." Non-public data provided by Customer to Hightouch to enable the provision of the Site and other services, including protected health information, as defined in the Health Insurance Portability and Accountability Act of 1996 (as amended, "HIPAA").
"Cumulative Monthly Activated Records." An Activated Record is a record that Hightouch updates in a downstream tool, otherwise known as a destination. An Activated Record is associated with destinations. Activated records are not deduplicated between destinations. For example, if 1 user row is synced to 3 destinations, that equates to 3 Activated Records. Activated Records are only counted as they appear in the destination, not as they are pulled from the Customer's database. Activated Records account for only records that are updated with new information or created for the first time; if there is no updated information for that record in the downstream tool, it does not count as an Activated Record. Monthly Activated Records are computed as the total activated records during a given calendar month. Cumulative Monthly Activated Records is the addition of Monthly Activated Records from each calendar month of the Initial Term identified in an Order Form.
"Hightouch Technology." The computer hardware, software and other tangible equipment and intangible computer code necessary to deploy and make available the Site.
"Order Form." Any order form referencing and incorporating these Terms, which shall be in writing, signed by both Parties, and shall specify the products or services to be purchased or licensed by Customer from Hightouch.
"Service Term." The period of time indicated in an Order Form beginning upon an Order Effective Date and ending on the last day of the Service Term set forth in the Order Form.
"Users." The number of identifiable unique persons consisting of Customer's personnel and independent contractors who are authorized to access and use the Site, as specified in the applicable Order Form(s). Users include Customer's third party contractors, outsourcers, consultants and other service providers, solely to the extent providing services to Customer.
Access to Services. Subject to the terms and conditions hereof, during the Service Term set forth in the applicable Order Form, Hightouch hereby grants to Customer a non-exclusive, non-sublicensable right to access and use the Site for the number of Users set forth on the applicable Order Form and solely for Customer's internal business purposes.
Use Restrictions. Customer shall not, nor shall it permit or assist others to, (i) abuse or fraudulently use the Site; (ii) process or permit to be processed the data of any third party that is not expressly authorized herein to access and use the Site; (iii) attempt to copy, reverse-engineer, decompile, disassemble, create a derivative work from, or otherwise attempt to derive the source code of any part of the Site or the Hightouch Technology; (iv) access, alter, or destroy any information of any customer of Hightouch by any fraudulent means or device, or attempt to do so; or (v) use the Site in violation of any applicable law or regulation or any of its agreements with third parties, or otherwise outside of the scope expressly permitted herein. In the event of any breach by Customer of any of the foregoing, in addition to any other remedies available at law or in equity, Hightouch will have the right to immediately suspend Customer's access to the Site if deemed reasonably necessary by Hightouch to prevent any harm to Hightouch or its business. Hightouch will provide notice to Customer and an opportunity to cure, if practicable, depending on the nature of the breach. Once cured, Hightouch will promptly restore access to the Site.
Customer Responsibilities. Customer shall be solely responsible for (a) providing all Internet access, hardware, browsers, and other software necessary to access and login to the Site, and (b) acquiring and maintaining technology and procedures for maintaining the security of its link to the Internet, its account and passwords, and for all uses of Customer's account. Customer hereby grants to Hightouch a non-exclusive, worldwide, royalty-free right to process use, copy, store, transmit, modify, create derivative works of and display the Customer Data during the Service Term, solely to the extent necessary to provide the Site and any related services to Customer hereunder.
Site Security. Hightouch shall implement reasonable security procedures consistent with prevailing industry standards to protect Customer Data processed by the Site from unauthorized access. Hightouch reserves the right to internally monitor Customer's usage of the Site for the purposes of troubleshooting and maintaining and improving the Site. Customer Data provided pursuant to the Agreement shall at all times be processed and maintained in the United States.
Fees; Taxes. Customer shall pay to Hightouch the fees for access to the Site and other services provided hereunder in accordance with the applicable Order Form. Customer will pay invoices within thirty (30) days of the date of invoice, unless otherwise set forth in the Order Form. Any overdue amounts shall be subject to a late charge of one-half percent (0.5%) per month or the highest rate permitted by applicable law, whichever is lower, on such invoice until fully paid. Any amounts due hereunder are exclusive of, and Customer shall be responsible for, all sales taxes, value added taxes, duties, use taxes, withholdings and other governmental assessments, excluding taxes based on the net income of Hightouch, unless Customer provides to Hightouch a valid tax-exempt certificate.
Hightouch: Hightouch retains all right, title and interest in and to the Site, the Hightouch Technology, Hightouch's Confidential Information, and all improvements, enhancements or modifications thereto (including all intellectual property rights therein). Any deliverables, concepts or inventions created or developed before or while providing the Site or any professional services to Customer are not considered a work made for hire and shall be owned by Hightouch.
Customer: Customer retains all right, title and interest in and to the Customer Data and Customer's Confidential Information.
Feedback and Resultant Data: Customer may choose to provide Hightouch with suggestions, ideas, enhancement requests, feedback, recommendations or other information specifically relating to the Site ("Feedback") and if Customer does provide Hightouch with Feedback, Hightouch shall own all right, title and interest in such Feedback. In addition, as a result of Customer's use of the Site, Hightouch may derive (a) information by or through Customer's use of the Site; (b) that is de-identified so that the identification of any individual cannot be re-identified or derived; and (c) aggregated with other Hightouch customer usage information ("Resultant Data"). Hightouch shall retain all right, title, and interest in and to the Resultant Data.
Confidential Information: Each Party ("Owner") may disclose Confidential Information to the other Party ("Recipient") pursuant to this Agreement.
Restrictions on Use and Disclosure: Recipient may use Confidential Information of Owner only for the purposes of the Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case, using no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder only to its employees or contractors who have a need to know for purposes of this Agreement and who are bound by signed, written agreements to protect the received Confidential Information from unauthorized use and disclosure.
Exclusions: Confidential Information does not include information that: (i) is in the possession or control of Recipient without restriction at the time of its disclosure hereunder; (ii) is, or becomes, publicly known through no wrongful act of Recipient; (iii) is received by Recipient from a third party free to disclose it without obligation to Owner, or (iv) is independently developed by Recipient without reference, reliance or incorporation of the Owner's Confidential Information. The Recipient may disclose Confidential Information of Owner pursuant to the requirements of a governmental agency or by operation of law, provided that such Recipient gives Owner written notice thereof as soon as practicable and reasonably cooperates with Owner to contest such disclosure. In addition, either Party may confidentially disclose this Agreement to an actual or potential financing source or acquirer.
Retention and Destruction of Confidential Information: At any time upon Owner's request, and upon termination of the Agreement, Recipient shall delete Owner's Confidential Information. Hightouch shall delete Customer Data upon termination or expiration of the Agreement.
Representations and Warranties; Disclaimer
By Customer: Customer represents and warrants that it has sufficient authority to enter into this Agreement and that it has sufficient rights in the Customer Data to authorize Hightouch to process, distribute and display the Customer Data as contemplated by this Agreement, and that the Customer Data does not infringe the rights of any third party. Customer will promptly inform Hightouch if it has reason to believe that the former representations and warranties are no longer true.
By Hightouch: Hightouch warrants that it has sufficient authority to enter into this Agreement and that is has not entered into any other agreement, obligation or restriction which would prohibit the provision of services to Customer. Hightouch further warrants that the Site will conform to all material operational features as described in the documentation for the Site ("Product Warranty"). Customer's sole and exclusive remedy for breach of the Product Warranty shall be the prompt correction of non-conforming portions of the Site at Hightouch's sole expense.
Disclaimer: EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 9, HIGHTOUCH AND ITS AFFILIATES, SUBCONTRACTORS AND THIRD PARTY LICENSORS MAKE NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. CUSTOMER ACKNOWLEDGES THAT HIGHTOUCH SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER THIRD PARTY SYSTEMS OUTSIDE THE REASONABLE CONTROL OF HIGHTOUCH.
Term and Termination. The Agreement will commence on the Effective Date of an Order Form and continue in full force and effect for the Service Term indicated in such Order Form. Each Party may terminate this Agreement upon thirty (30) days prior written notice to the other Party if the other Party materially breaches this Agreement and fails to correct the breach within such notice period. In the event of any termination, all amounts due under an Order Form for services and access to the Site provided prior to the date of termination shall be paid within ten (10) days of such termination. All sections of this Agreement which by their nature should survive termination will survive termination, including but not limited to Sections 1 (Definitions), 3 (Use Restrictions), 5 (Site Security), 6 (Fees; Taxes), 7 (Ownership), 8 (Confidential Information), 9.3 (Disclaimer), 10 (Term and Termination), 11 (Indemnification), 12 (Limitations) and 13 (Miscellaneous).
Indemnification. Hightouch will indemnify, defend and hold harmless Customer and its Affiliates from and against any loss, damage or expense payable to a third party resulting from infringement by the Site (except for third party software, including without limitation open source software) of any U.S. intellectual property right; provided, however, that (i) Hightouch is notified in writing of such claim promptly after such claim is made upon Customer; and (ii) Hightouch shall have the right to control any defense and investigation of the claim. In no event shall Customer settle any such claim without Hightouch 's prior written approval. Hightouch shall have no liability or obligation if the claim arises from (i) any alteration or modification to the Site requested or implemented by or on behalf of Customer or its Affiliates, (ii) any combination of the Site by Customer with other technology or data not furnished by Hightouch, or (iii) any use by Customer of the Site not in accordance with this Agreement. If the Site becomes or Hightouch believes it may become the subject of a claim of intellectual property infringement, Hightouch, at its option and expense, may: (i) procure the right for Customer to continue to use the Site; (ii) replace or modify the Site so as to make it non-infringing; provided, however, that the Site continues to conform to the specifications provided in the applicable Order Form; or (iii) terminate this Agreement and refund to Customer the subscription fees paid in advance by Customer for the Site and not provided by Hightouch. This Section sets forth the entire liability of Hightouch to Customer for any infringement by the Site of any intellectual property right.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT FOR INDEMNITY OBLIGATIONS EXPRESSLY PROVIDED HEREIN, OR ANY BREACH OF CONFIDENTIALITY, IN NO EVENT SHALL HIGHTOUCH OR ITS LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY (A) FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE OR INCOME) ARISING FROM OR RELATED TO THESE TERMS OR THE USE OR INABILITY TO USE THE SITE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) FOR ANY AMOUNT, IN THE AGGREGATE, EXCEEDING THE FEES PAID AND PAYABLE IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY, WHETHER BASED ON BREACH OF WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
Co-Marketing. Customer agrees to participate in reasonable marketing activities that promote the benefits of the Services to other potential customers and to use of Customer's name and logo on the Hightouch web site and in Hightouch promotional materials. Customer agrees that Hightouch may disclose Customer as a customer of Hightouch
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules.
Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email or facsimile (provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt requested, in each case to the address set forth on the Order Form or at such other addresses as shall be designated in writing by either Party to the other in accordance with this Section. Such notice will be deemed to be given when received.
Injunctive Relief. You agree that a breach of Section 3 of these Terms will cause irreparable injury to Hightouch for which monetary damages would not be an adequate remedy and Hightouch shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
Assignment. This Agreement will inure to the benefit of and will be binding upon each Party's successors and assigns. The Agreement and the licenses granted hereunder may be assigned by Hightouch but may not be assigned by you without the prior express written consent of Hightouch. Any attempt by you to assign this Agreement without the written consent of Hightouch shall be null and void.
Independent Contractors. Nothing contained in this Agreement will be deemed to constitute either Party as the agent or representative of the other Party or both Parties as joint venturers or partners for any purpose.