Terms of Service
Last Updated: December 20, 2024
These HOAi Terms of Service ("Terms") govern the relationship between Quick Power, Inc., a Delaware corporation ("HOAi", "we", "us") and the customer ("Customer", "you, " "your") using or accessing HOAi’s service offerings ("Services"). Please carefully read these Terms, as the terms refer to and incorporate written order forms executed by you and HOAi ("Order Forms"). Together with the Terms, the Privacy Policy and Order Forms form a single binding agreement between you and HOAi (the ("Agreement").
In consideration of the mutual promises contained herein, the parties hereby agree to the following:
Background. HOAi has developed the HOAi platform, which it provides as part of its Services (as defined below). Customer wishes to utilize the Services, and HOAi desires to make the Services available to Customer, subject to the following terms and conditions. You agree that by accessing the Services, you have read, understood, and agree to be bound by all of these Terms. These Terms may be updated from time to time. All changes will be effective as of the “Last Updated” date stated at the top of this page. Continued use of the Services constitutes acceptance of the updated terms. If you do not agree with this Agreement, please stop using or accessing the Services.
Definitions. Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
"Access Protocols" means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Services.
"Aggregated Data" means data and information related to Customer Content and/or Customer's use of the Services that is used by HOAi in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
"Applicable Privacy Laws" means data protection and privacy laws and regulations applicable to the Services, including, but not limited to, where applicable, the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. ("CCPA"), the General Data Protection Regulation ("GDPR"), and the e-Privacy Directive (Directive 2002/58/EC).
"Authorized User" means any individual who is an employee or independent contractor of Customer, or such other individual, as may be authorized by the Customer to access the Services pursuant to Customer's rights under these Terms.
"Customer Content" means, other than Aggregated Data, (a) information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the use of the Platform or Services, and (b) content that is created by or on behalf of Customer or Authorized Users through the Platform or Services.
"Documentation" means HOAi-provided user documentation, in all forms, relating to the Services and Platform in hard copy or electronic form (e.g., user manuals and online help files).
"Error" means a reproducible failure of the Platform to substantially conform to the Documentation.
"HOAi IP" means the Platform, Services, Documentation, and all other technology, including software and other works of authorship or co-authorship, graphical user interfaces, workflows, products, processes and algorithms, data, know-how and trade secrets, designs, techniques, inventions and other tangible or intangible technical material or information provided by or on behalf of HOAi in connection with the foregoing, whether created, developed, or reduced to practice as part of the provision of the Services or otherwise, and all improvements, enhancements, modifications, and derivative works of any of the foregoing, in each case, together with all intellectual property rights therein. For the avoidance of doubt, HOAi IP does not include Customer Data.
"Intellectual Property Rights" means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
"Order" or "Order Form" means an ordering document that is signed by both parties identifying the services to be made available by HOAi pursuant to these Terms. The initial Order is set forth on Exhibit A.
"Order Term" means the term length specified in the applicable Order Form.
"Personal Data" has the meaning given in the Applicable Privacy Laws.
"Platform" means HOAi's cloud-hosted HOA automation platform. "Platform" includes all new versions updates, revisions, improvements and any associated user interfaces and related technology that HOAi makes available pursuant to these Terms.
"Processing" (including "Process", "Processes", "Processed", and other variants of the term) means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, collation, recording, organization, storage, adaptation or alteration, retrieval, consultation, analysis, interpretation, compilation, aggregation, use, disclosure by transmission, dissemination, viewing, copying, deleting, or otherwise making available, alignment or combination, blocking or erasure, or destruction.
"Services" means HOAi's provision of: (a) the Platform and (b) any other services set forth in the applicable Order Form.
PROVISION OF SERVICES.
Order Forms. Each Order Form is governed by, and hereby incorporated into, these Terms. If there is a conflict between these Terms and an Order Form, these Terms will control unless the Order Form expressly states that a specific provision of these Terms will be superseded by a specific provision of the Order Form.
License to Platform. Subject to and conditioned on Customer's payment of Fees and compliance with all the terms and conditions of these Terms, HOAi grants to Customer a non-exclusive, non-transferable license during the term, solely for use by Authorized Users in accordance with the terms and conditions herein, (a) to access and use the features and functions of the Platform as required for use of the Services and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer's use of the Services. Such use is limited to Customer's internal business use.
Platform and Content Hosting. HOAi shall, at its own expense, provide for the hosting of the Platform which is accessible as part of the Services, provided that nothing herein shall be construed to require HOAi to provide for, or bear any responsibility with respect to any telecommunications or computer network hardware required by Customer or any Authorized User to provide access from the Internet to the Services.
Support Services. Subject to the terms and conditions of these Terms, HOAi shall use commercially reasonable efforts to make the Services available in accordance with its then-current standard support ("Support Services").
Personal Data. Before providing to HOAi or enabling HOAi to Process any Personal Data, Customer will (i) obtain necessary consents for processing of personal data by the Services and process such personal data in accordance with applicable data protection laws and (ii) if processing "personal data" or "personal information" as defined under applicable data protection laws, execute HOAi’s Data Processing Addendum ("DPA"). If Customer has not entered into a DPA, Customer represents, warrants and covenants that no Personal Data Processed by HOAi under these Terms is subject to Applicable Privacy Laws. Any Personal Data that is subject to Applicable Privacy Laws shall be governed by the DPA and shall not be Confidential Information (defined herein). In the event of a conflict between any provision of the DPA and these Terms, the provision providing the higher level of privacy or data protection shall govern.
Artificial Intelligence Tools. Subject to these Terms, HOAi makes available to Customer certain artificial intelligence tools in connection with Customer's use of the Platform (collectively, the "HOAi Tools"). Except where expressly specified otherwise in these Terms, the HOAi Tools constitute a "Service" for the purposes of the Terms and the Terms shall apply in full to Customer's use of the HOAi Tools. The HOAi Tools leverage third party large language models and artificial intelligence algorithms and platforms ("Third-Party Services") to generate suggested text, information, results, images, and other materials (collectively, the "Output") in response to the Customer's prompts ("Prompts"). HOAi does not make any representations with respect to Third-Party Services or any Output provided in connection therewith. Such Third-Party Services are not under the control of HOAi and do not form part of the Platform. HOAi is not responsible for any Third-Party Services or Output generated thereby and Customer uses such Third-Party Services and Output at its own risk. As between the parties, each of the Prompts and Output are considered Customer Content for the purposes of the Terms, provided that such Prompts may be provided to Third-Party Services in order for Customer to access the HOAi Tools but are expressly prohibited from training their algorithmic models.
Fair Use. Customer agrees to use HOAi Tools in a reasonable manner consistent with the intended purpose of the Services and in accordance with all applicable laws and regulations. HOAi may implement and enforce reasonable usage limits, including but not limited to, (a) number of API calls per minute, hour, or day, (b) data storage volume, (c) computing resources consumed, (d) number of concurrent users or session, (e) and total bandwidth consumption.
CUSTOMER RESTRICTIONS AND RESPONSIBILITIES.
Restrictions. Except as may be expressly permitted by applicable law, Customer agrees that it will not, and will not permit any Authorized User or other party to: (a) permit any party to access the Platform or Documentation or use the Services, other than the Authorized Users authorized under these Terms; (b) modify, adapt, alter or translate the Platform or Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Platform or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Platform; (e) use or copy the Platform or Documentation except as expressly allowed under this subsection; or (f) disclose or transmit any data contained in the Platform to any individual other than an Authorized User, except as expressly allowed herein. Notwithstanding the foregoing, decompiling the Platform is permitted to the extent the laws of Customer's jurisdiction require HOAi to give Customer the right to do so to obtain information necessary to render the Platform interoperable with other software; provided, however, that Customer must first request such information from HOAi and HOAi may, in its discretion, either provide such information to Customer or impose reasonable conditions, including a reasonable fee, on such use of the source code for the Platform to ensure that HOAi's and its suppliers' proprietary rights in the source code for the Platform are protected. Customer acknowledges and agrees that the Services, Platform, and Documentation will not be used, and are not licensed for use, in connection with any of Customer's time-critical or mission-critical functions. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Services, Platform, Documentation, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Platform.
Setup Responsibilities. Customer shall be responsible for obtaining and maintaining, at Customer's expense, all of the necessary telecommunications, computer hardware, mobile devices, software, services and Internet connectivity required by Customer or any Authorized User to access the Services from the Internet. In the event that HOAi assists or advises Customer with any Services setup, configuration or support, in no event shall such assistance or advice be construed as legal advice.
Authorized Users Access to Services. Customer may permit any Authorized Users to access and use the features and functions of the Services as contemplated by these Terms. User IDs cannot be shared or used by more than one Authorized User at a time. Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify HOAi promptly of any such unauthorized use known to Customer.
Customer Responsibility for Data and Security. Customer and its Authorized Users shall have access to the Customer Content and shall be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order to access the Services. Customer shall have the ability to export Customer Content out of the Services and is encouraged to make its own back-ups of the Customer Content. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. In the ordinary course of its business, HOAi performs back-ups of Customer Content; however, HOAi is not responsible for performing, and is not liable for any failure to perform, any back-up of any Customer Content.
Customer shall always comply with all international and domestic laws, ordinances, regulations, mobile carrier policies, industry rules, and statutes that are applicable to its purchase and use of the Platform, Documentation, or Services hereunder, including but not limited to telemarketing laws.
Responsible Use of HOAi Tools. Customer shall comply with all obligations and commitments in the Terms in connection with Customer's use of the HOAi Tools. Customer is solely responsible for the Prompts, its Outputs and its use thereof. Without limiting the disclaimers in Section 7 below, Customer is responsible for reviewing any Output prior to its use and exercising its own business and legal judgement as to its suitability for use. Without limiting the foregoing and Customer's representations and warranties under the Terms, Customer shall not use any Prompts or Output that, to Customer's knowledge: (a) infringes or misappropriates any third party's intellectual property rights or other proprietary rights; (b) is deceptive, discriminatory, biased, unethical, defamatory, obscene, pornographic or illegal; (c) contains any viruses, worms or other malicious computer programming codes that may damage the Platform; (d) contains any Personal Data, such as financial, medical or other sensitive Personal Data such as government IDs, passport numbers or social security numbers; or (e) violates the Third-Party Terms. HOAi reserves the right to suspend or terminate Customer's access to the HOAi Tools for any failure by Customer or an Authorized User to comply with this Section. In addition to the foregoing, Customer's obligations under the Terms with respect to use of the Services, its representations and warranties and indemnification obligations, shall apply in full with respect to Customer's use of the HOAi Tools. Customer acknowledges and agrees that, notwithstanding the automated suggestions provided by the HOAi Tools, it remains solely responsible for the content, legality, accuracy, and completeness of the Outputs, and any use thereof.
Intellectual Property and Related Policies.
HOAi Intellectual Property. The HOAi IP and all worldwide Intellectual Property Rights in the foregoing, are the exclusive property of HOAi and its suppliers. All rights in and to the Services, Platform and Documentation not expressly granted to Customer in these Terms are reserved by HOAi and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Platform, Documentation, and Services or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Platform.
Customer Content. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third-party licenses, consents and permissions needed for HOAi to use the Customer Content to provide the Services. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for HOAi to use the Customer Content submitted by or on behalf of Customer for the purposes set forth in these Terms. Customer grants HOAi a non-exclusive, worldwide, royalty-free and fully paid license during the Order Term to use the Customer Content as necessary for purposes of providing and/or improving the Services. The Customer Content hosted by HOAi as part of the Services, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to HOAi in these Terms are reserved by Customer.
Third-Party Provider Policies. The Platform may include access to services provided by OpenAI, in which event Customer may not use the Platform in a manner that violates OpenAI's Sharing and Publication Policy (located at https://openai.com/policies/sharing-publication-policy/) or OpenAI's Usage Policies (located at https://openai.com/policies/usage-policies/) or Anthropic’s Acceptable Use Policies (located at https://www.anthropic.com/legal/aup).
Aggregated Data. Notwithstanding anything to the contrary in these Terms, HOAi may monitor Customer's use of the Services and collect and compile Aggregated Data. As between HOAi and Customer, all right, title, and interest in Aggregated Data, and all Intellectual Property Rights therein, belong to and are retained solely by HOAi. Customer acknowledges that HOAi may compile Aggregated Data based on Customer Content and may use all Aggregated Data to improve its machine learning model and artificial intelligence algorithms (collectively, "Models"). All right, title, and interest in and to the Models are retained by HOAi. Customer agrees that HOAi may (a) make Aggregated Data publicly available in compliance with applicable law, and (b) use Aggregated Data to the extent and in the manner permitted under applicable law; provided that such Aggregated Data does not identify Customer or Customer's Confidential Information.
Feedback. Upon request by HOAi, you and Authorized Users will report to HOAi, and reasonably assist HOAi in connection with correcting any errors, problems, or defects in the Services you discover. In addition, if you or any Authorized Users send or transmit any communications or materials to HOAi by mail, email, telephone, or otherwise, suggesting or recommending changes to the HOAi IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or similar feedback (collectively with any error, problem or defect reports submitted by you and Authorized Users in accordance hereto,, "Feedback"), HOAi is free to use such Feedback irrespective of any other obligation or limitation governing such Feedback. You hereby assigns to HOAi, on behalf of itself and its employees, contractors and agents, all right, title, and interest in, and HOAi is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever. For the avoidance of doubt, HOAi is not required to use any Feedback. All such Feedback is deemed to be HOAi’s Confidential Information.
Fees and Expenses; Payments.
Fees and Expenses. Customer shall pay to HOAi, without offset or deduction, the fees and expenses as determined under any Order Forms and these Terms. HOAi reserves the right to increase the fees under each Order following the Initial Order Term, and each Renewal Order Term thereafter, but must provide notification of such increases at least thirty (30) days prior to the end of the Initial Order Term or then-current Renewal Order Term. Unless otherwise provided in the Order Form, all such fees shall be due and payable within ten (10) days after an invoice is issued by HOAi.
Taxes. The fees and other amounts payable by Customer to HOAi do not include any taxes of any jurisdiction that may be assessed or imposed upon the Proprietary Items, or otherwise, including sales, use, excise, value added, personal property, export, import and withholding taxes, excluding only taxes based upon HOAi's net income. Customer shall directly pay any such taxes assessed. Customer shall promptly reimburse HOAi for any taxes payable or collectable by HOAi (other than taxes based upon HOAi's net income). If Customer has provided HOAi with proof of its tax exempt status, then, in the event that Customer's tax exempt status should become altered, Customer shall be obligated to notify HOAi immediately of any such modification and Customer shall become liable for all taxes as set forth above. In the event Customer fails to notify HOAi of any such change, Customer shall be liable for payment of any tax related penalties or interest assessed against HOAi or Customer as a result of such Customer failure.
Payment Terms. HOAi may accept and process payment (including renewals) from Customer by wire transfer, or check, as mutually agreed on the applicable Order. If any Customer payment is more than thirty (30) days past due, interest at the rate of one percent (1%) per month (or, if lower, the maximum rate permitted by applicable law) shall accrue. Unless otherwise specified in these Terms, all fees and other amounts paid by Customer under these Terms are non-refundable. All dollar amounts referred to in these Terms are in United States Dollars.
Suspension. We reserve the right to temporarily suspend your access and any Authorized User’s access to any portion or all of the Services if, in our sole discretion, we reasonably determine that: (i) there is a threat or attack on any HOAi IP; (ii) your use or any of your Authorized User’s use of the HOAi IP disrupts or poses a security risk to HOAi IP or to any other HOAi customer or vendor; (iii) you or your Authorized Users are using the HOAi IP for fraudulent or illegal activities; (iv) you have ceased to continue business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (v) you are more than thirty (30) days past due on payment for use of the Services.
Warranties and Disclaimers.
Mutual Warranties. Each party represents and warrants to the other that: (a) these Terms has been duly executed and delivered and constitutes a binding agreement enforceable against the executing party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of these Terms by the executing party; and (c) the execution, delivery, and performance of these Terms by the executing party do not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
Limited Warranty. HOAi represents and warrants to Customer during the Order Term the Platform will operate free from Errors. HOAi's sole liability and Customer's sole remedy in the event of a breach of the foregoing warranty is the provision of support in accordance with Section 3. This warranty gives Customer specific legal rights, and Customer may also have other rights which vary from jurisdiction to jurisdiction. THE FOREGOING WARRANTY DOES NOT APPLY, AND HOAi STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY SERVICES.
EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION, HOAi MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE PLATFORM, DOCUMENTATION, AGGREGATED DATA, SERVICES OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE PLATFORM, DOCUMENTATION AND SERVICES ARE PROVIDED "AS IS." HOAi DOES NOT WARRANT THAT THE PLATFORM, DOCUMENTATION, OR SERVICES WILL SATISFY CUSTOMER'S REQUIREMENTS, ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES. THIS SECTION WILL APPLY TO CUSTOMER SOLELY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
HOAi Tools. THE HOAi TOOLS ARE INTENDED AS OUTPUT GENERATION TOOLS ONLY AND DO NOT CONSTITUTE MEDICAL, LEGAL, ACCOUNTING, OR OTHER ADVICE OF A CERTIFIED OR QUALIFIED PROFESSIONAL AND HOAi MAKES NO WARRANTY OR GUARANTY THAT THE OUTPUT WILL PROVIDE ACCURATE, TAILORED OR INFORMATIVE RESULTS OR BE FIT FOR THE PARTICULAR PURPOSE OR USE CASE. HOAi DOES NOT REPRESENT OR WARRANT THAT THE CUSTOMER IS THE LEGAL OWNER OF THE OUTPUT, OR THAT THE INPUT OR OUTPUT ARE PROTECTABLE BY ANY INTELLECTUAL PROPERTY RIGHTS, OR THAT THE OUTPUT DOES NOT INCORPORATE, INFRINGE OR MISAPPROPRIATE THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY. CUSTOMER ACKNOWLEDGES THAT THE HOAi TOOLS LEVERAGE THIRD-PARTY SERVICES AND THAT HOAi IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD HOAi LIABLE, FOR THIRD-PARTY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD-PARTY SERVICES RESTS ENTIRELY WITH CUSTOMER. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR CUSTOMER'S USE OF THE HOAi TOOLS AND ANY OUTPUT RESULTING THEREFROM. CUSTOMER SHOULD EVALUATE THE FITNESS OF ANY OUTPUT AS APPROPRIATE FOR CUSTOMER'S SPECIFIC USE CASE.
Customer Warranty. Customer represents and warrants to HOAi that: (a) Customer owns the Customer Content, or has the necessary licenses, rights, consents, and permissions to authorize HOAi to use the Customer Content in accordance with these Terms; (b) Customer Content and the use of Customer Content as contemplated by these Terms does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any Intellectual Property Right; (ii) slander, defame, libel, or invade the right of privacy, publicity, or other property rights of any other person; or (iii) violate, or cause HOAi to violate, any law or regulation; (iv) be deceptive, obscene, pornographic or unlawful; or (v) contain any viruses, worms or other malicious computer programming codes intended to damage HOAi's system or data; and (c) Customer will use the Service and Platform in compliance with the Documentation. HOAi may monitor Customer's use of the Service and may prohibit any use of the Services or Platform it believes may be in violation of the foregoing warranties or applicable law.
Limitation of Liability.
Exclusion of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
Amount of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) AND STRICT LIABILITY, EXCEED THE TOTAL AMOUNTS PAID TO HOAI UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Basis of the Bargain. The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Terms entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
Confidentiality.
Confidential Information. During the term of these Terms, each party (the "Disclosing Party") may provide the other party (the "Receiving Party") with certain information regarding the Disclosing Party's business, technology, products, or services or other confidential or proprietary information (collectively, "Confidential Information"). The Disclosing Party will mark all Confidential Information in tangible form as "confidential" or "proprietary" or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the Platform, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of HOAi.
Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under these Terms. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees or subcontractors who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to HOAi). In addition, the Receiving Party will protect the Disclosing Party's Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party's request or upon termination of these Terms, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under these Terms, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.
Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under these Terms or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
Indemnification.
By HOAi. HOAi shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, including, without limitation, patents, copyrights, or trade secrets, provided, that Customer (i) promptly notifies HOAi in writing of such Third Party Claim; (ii) cooperates with HOAi in connection with such Third Party Claim; and (iii) allows HOAi sole authority to control the defense and any settlement of such Third Party Claim. If such a Third-Party Claim is made or appears possible, Customer agrees to permit HOAi, at HOAi’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make the Services, or such component or part, as applicable, non-infringing; or (B) obtain the right for Customer to continue use of the Services, or component or part thereof, as applicable. If HOAi determines that neither alternative is reasonably available, HOAi may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 9 will not apply, and HOAi shall have no obligation, with respect to any Third-Party Claim arising from or relating to: (1) compliance with Customer specifications; (2) use of the Services in combination with data, software, hardware, equipment, technology or other products or services not supplied or expressly authorized in writing by HOAi; (3) any adaptation or modification of the Services other than by HOAi; (4) Customer’s failure to follow instructions provided by HOAi which would have cured the cause of action; (5) use of the Services in a manner not authorized by this Agreement; (6) Customer’s continued use of a version of the Services other than the most recently released version; or (7) Customer Data.
By Customer. Customer shall indemnify, hold harmless, and, at HOAi’s option, defend HOAi from and against any Losses resulting from any Third-Party Claim (i) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights; and (ii) based on Customer’s or any Authorized User’s (A) negligence or willful misconduct; (B) use of the Services in a manner not authorized by this Agreement; (C) use of the Services in combination with data, software, hardware, equipment, technology or other products or services not supplied or expressly authorized in writing by HOAi; or (D) any adaptation or modification of the Services other than by HOAi, provided, that Customer may not settle any Third-Party Claim against HOAi unless HOAi consents to such settlement, and provided, further, that HOAi will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND HOAI’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Term And Termination.
The term of this Agreement will commence on the Effective Date of the Order Form and continue in effect for the duration stated in the Order Form, unless terminated earlier as set forth in this section.
Termination. Either party may terminate the Agreement upon written notice if: (a) the other party materially breaches this Agreement and such breach is either incapable of cure, or if capable or cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party written notice; or (b) the other party becomes insolvent, ceases to do business, makes an assignment for the benefit of creditors, files a petition in bankruptcy, or appoints a receiver, trustee, custodian, or similar agent to take charge of or sell any material portion of its property or business.
Termination if No Outstanding Orders. If there are no outstanding Order Forms, either party may terminate these Terms for any reason upon 30 days' prior written notice to the other. Neither party may terminate an Order once it has been executed, other than by mutual consent or termination of these Terms for material breach as set forth below.
Effect of Termination. Expiration or termination of these Terms will automatically terminate all active Orders, but termination of a single Order will not result in termination of these Terms or any other Orders. Upon the expiration or termination of these Terms or an Order all rights and licenses granted by HOAi to Customer under these Terms or the applicable Order will terminate. Either party's termination of these Terms is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating these Terms in accordance with its terms.
Post-Termination Obligations. Unless Customer terminates these Terms for material breach, if these Terms expires or is terminated: (a) HOAi will not refund Customer any Fees paid in advance of such expiration or termination, including pre-paid Fees; and (b) within ten days after such expiration or termination, Customer shall pay HOAi all remaining Fees set forth under any terminated Order Forms so that HOAi is paid the full annual amount agreed to at the commencement of such Order Term (as if the Order Term had run its full course). The sections and subsections titled Definitions, Customer Restrictions and Responsibilities, Warranties and Disclaimers, Limitation of Liability, Confidentiality, Indemnification, Effect of Termination, Post-Termination Obligations and Miscellaneous will survive expiration or termination of these Terms for any reason.
Miscellaneous.
Governing Law and Venue. These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The parties hereby expressly consent to personal jurisdiction and venue in the federal courts of the United States or the courts of the State of California, in each case located in the city of San Mateo County, California, for any lawsuit filed arising from or related to these Terms. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from HOAi, or any products utilizing such data, in violation of the United States export laws or regulations. Without limiting the generality of the foregoing, Subscriber agrees that the section titled Limitation of Liability will remain in effect notwithstanding the unenforceability of any provision in the subsection titled Limited Warranty.
If any provision of these Terms or a portion of a provision is held to be invalid, illegal, or unenforceable, the rest of these Terms will remain enforceable.
Waiver. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Except as provided in the subsection and section titled Limited Warranty and Indemnification, the parties' rights and remedies under these Terms are cumulative. Customer acknowledges that the Services, Platform, and Documentation contain valuable trade secrets and proprietary information of HOAi, that any actual or threatened breach of the sections titled Ownership or Confidentiality or any other breach by Customer of its obligations with respect to Intellectual Property Rights of HOAi will constitute immediate, irreparable harm to HOAi for which monetary damages would be an inadequate remedy. In such case, HOAi will be entitled to immediate injunctive relief or other equitable relief without the requirement of posting bond, including an order that any Platform, Documentation, or any portions thereof, that Customer attempts to import into any country or territory be seized, impounded and destroyed by customs officials. If any legal action is brought to enforce these Terms, the prevailing party will be entitled to receive its attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive.
No Assignment. Neither party shall assign, subcontract, delegate, or otherwise transfer these Terms, or its rights and obligations herein, without obtaining the prior written consent of HOAi, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign these Terms to an affiliate or in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. These Terms shall inure to the benefit of each party's permitted successors and assigns.
Publicity. HOAi may publicly list Customer as a customer of HOAi and, subject to Customer's brand guidelines, use Customer's trademark, trade name, and logo solely for marketing or promotional purposes.
Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of these Terms if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, epidemic, quarantine, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
Relationship of the Parties. Customer's relationship to HOAi is that of an independent contractor, and neither party is an agent or partner of the other. A party will not have, and will not represent to any third party that it has, any authority to act on behalf of the other party.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the applicable party.
Counterparts. These Terms may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. A signed copy of the Order Form, with these Terms incorporated by reference, delivered by email, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of these Terms.
Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Entire Terms. These Terms (including the DPA and any Order Forms) is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of the Terms.
Modifications. HOAi may modify these Terms from time to time and any such modification will be effective when posted to HOAi’s website at https://www.myhoai.com/terms. Customer’s continued use of the Platform and Services will indicate acceptance of the modifications.