TERMS OF SERVICE AGREEMENT
2019 version 1
THIS TERMS OF SERVICE CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST COMPANY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
1. Acceptance of Terms
1.1 Hyndman Industries (“Company”) provides its Service(s) (as defined below) to you and the company or other legal entity you represent (collectively “Customer”, “you”, “your”), subject to this Hyndman Industries Services Agreement (“Agreement”). By accepting this Agreement or by accessing or using the Services, you acknowledge that you have read, understood, and agree to be bound by this Agreement, and you represent and warrant that you have the authority to bind the company or other legal entity you represent to this Agreement. If you do not have such authority, or if Customer does not agree to all of the terms of this Agreement, you must not accept this Agreement and must not use the Services. If Customer registers for a free trial for our Services, this Agreement will also govern that free trial. The “Service(s)” mean (a) Company’s Hyndman Industries Visitor Registration System or Deliveries and related website and technologies, and (b) any software, data, reports, materials or content (“Software”) made available in connection with any of the foregoing. Any new features added to or augmenting the Service are also subject to this Agreement.
1.2 Company may change this Agreement from time to time. If we do this, we will post the changes to this Agreement on this page and will indicate at the top of this page the date these terms were last revised. We will also notify Customer, either through the Service user interface, in an email notification or through other reasonable 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 Services or changes made for legal reasons will be effective immediately. Customer’s continued use of the Services after the date any such changes become effective constitutes Customer’s acceptance of the new Agreement.
2. Hyndman Industries Services
2.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Subject to the terms hereof, Company will endeavor to provide Customer with reasonable support services and implementations assistance, through electronic mail or another reasonable mechanism, in accordance with Company’s standard practice.
2.2 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any Software; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party (unless expressly permitted by Company); or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on a Customer premises device, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software solely as embedded on such device only in connection with the Services during the Term.
2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with all applicable laws and regulations (including policies and laws related to spam, privacy, consumer and child protection and the like). Without limiting the foregoing, to the extent Customer collects, processes, uses or discloses any personal or other information regarding individuals in connection with the Services, Customer hereby represents and warrants that it has and will have all necessary permissions and consents to do so. Customer shall indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to access or use the Services, including, without limitation, iPads, internet access services, related equipment and the like (collectively, “Equipment”). Further, any example language or agreements offered in connection with the Services (e.g., example confidentiality agreements or terms for visitors) are provided solely as examples for informational purposes; Customer is solely responsible for ensuring that any language or agreement it deploys in connection with the Service is appropriately customized and fit for Customer’s purposes. Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords and files. For every email sent in connection with the Services, Customer acknowledges and agrees that the Services may add a source identifier for the Service (e.g., a small logo, a “powered by” tag line or the like).
3. Payment of Fees
3.1 Customer will pay Company all applicable Services fees (as described in the Services or otherwise designated by Company from time to time) (the “Fees”). If Customer’s use of the Services exceeds the applicable service capacity (as described in the Services or otherwise designated by Company from time to time) or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Services term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the date on the relevant billing statement, in order to receive an adjustment or credit.
3.2 Prior to the commencement of paid Services, Customer shall provide Company all relevant information regarding Customer’s credit card or other payment instrument. Customer represents and warrants to Company that such information is true and that Customer is authorized to use such payment instrument. Customer will promptly update its account information with any changes (for example, a change in Customer billing address or credit card expiration date) that may occur. Customer hereby authorizes Company to bill Customer’s payment instrument in advance on a periodic basis in accordance with the terms described in the Service, and Customer further agrees to pay any charges so incurred. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
4. Intellectual Property Rights
You acknowledge and agree that the Services may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Company, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Service Content, in whole or in part. In connection with your use of the Services you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Company from accessing the Services (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Services or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Services or distributed in connection therewith are the property of Company, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Company.
The Company name and logos are trademarks and service marks of Company (collectively the “Company Trademarks”). Other company, product, and service names and logos used and displayed via the Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Company. Nothing in this Agreement or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Company Trademarks displayed on the Services, without our prior written permission in each instance. All goodwill generated from the use of Company Trademarks will inure to our exclusive benefit.
This Site and all Site design, including but not limited to text, content, photographs, video, audio, interfaces, graphics and the selection and the arrangement thereof are protected by patents, copyrights, trademarks, service marks, international treaties and/or other proprietary rights and laws of the US and other countries. Hyndman Industries’ service is also protected as a collective work or compilation under US copyright and other laws and treaties. All individual articles of information, policies and other elements making up the Service are also copyrighted works.
5.1 Subject to earlier termination as provided herein, this Agreement is for the initial Services term as specified in connection with the sign-up process for the Services, and shall be automatically renewed for additional periods of the same duration as the initial Services term, unless either party requests termination at least thirty (30) days prior to the end of the then-current term (collectively, the “Term”).
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon five (5) days’ notice (or without notice in the case of nonpayment or violation of Sections 2.2 or 2.3), if the other party materially breaches any of term of this Agreement. Either party may also terminate this Agreement for any reason upon thirty (30) days’ prior written notice. Customer will pay in full for the Services up to and including the last day on which the Services are provided, and any pre-paid Fees are non-refundable (except for early termination by Company for convenience if undelivered Services were prepaid). Upon Customer’s request made within 30 days after the effective date of termination or expiration of this Agreement, Company will make Customer Data available for export or download. After that 30-day period, Company will have no obligation to maintain or provide Customer Data. Sections 2.2, 3, 4.2 and 5-10 shall survive termination of this Agreement.
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 (“Proprietary Information”). Proprietary Information of Customer includes data and information regarding visitors to Customer’s premises that is collected and stored using the Service (“Customer Data”). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Services and any Software. 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 that the Receiving Party can document (a) is or becomes generally available to the public without fault of the Receiving Party, (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, (d) was independently developed or obtained without use of any Proprietary Information of the Disclosing Party or (e) is required by law to be disclosed. Notwithstanding the foregoing, Company shall have the right collect and analyze data and other information relating to the use and performance of the Services and related technologies, and Company will be free to use such information to improve the Services and disclose it solely in aggregate or de-identified forms in connection with its business.
7. Warranty; Disclaimer
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
8. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS, REPRESENTATIVES AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (B) FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF REVENUE OR PROFIT) OR FOR LOSS OR CORRUPTION OF DATA; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE 6 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF YOU AND COMPANY HAVE ENTERED INTO ANY DATA PROCESSING AGREEMENT THAT IS BASED UPON, INCLUDES AND/OR OTHERWISE INCORPORATES ANY STANDARD CONTRACTUAL CLAUSES FOR DATA TRANSFERS TO NON-EU COUNTRIES APPROVED BY THE EUROPEAN COMMISSION (EACH, A “DATA TRANSFER AGREEMENT”), YOU ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL COMPANY AND/OR ITS SUPPLIERS, REPRESENTATIVES AND EMPLOYEES BE LIABLE UNDER SUCH DATA TRANSFER AGREEMENT EXCEED $1,000,000.
9. Dispute Resolution by Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
9.1 Agreement to Arbitrate. This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Company, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Company are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
9.2 Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND COMPANY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND COMPANY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
9.3 Pre-Arbitration Dispute Resolution. Company is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support athi@*Insert Company Name*.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Company should be sent to *Insert Company Name*, Inc., 410 Townsend St, Suite 410, San Francisco, CA 94107, Attention: Legal Operations (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Company and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Company or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Company is entitled.
9.4 Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Company and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Company agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
9.5 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Company will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Company will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Company will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
9.6 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
9.7 Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms of Service will continue to apply.
9.8 Future Changes to Arbitration Agreement. Notwithstanding any provision in this Terms of Service to the contrary, Company agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Company written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
10. Government Matters
Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States or any foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(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.
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 not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company shall have the right to factually list Customer as a customer of the Services on its website and marketing materials using Customer’s logo. Neither party may assign this Agreement without the other party’s consent, except to a successor to all or substantially all of such party’s assets or business. 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 all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company 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. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
If you have any questions or comments about our Terms of Service as outlined above, you can contact us at