Terms of ServiceLast Updated: March 7, 2019
These Terms of Service (these “Terms of Service”) are between HG Insights, Inc., a Delaware corporation (“HG Insights”), having its principal place of business at 1 North Calle Cesar Chavez, Suite 100, Santa Barbara, CA 93103, and the individual or entity entering into these Terms of Service (“Customer”). These Terms of Service and any Order Form that references these Terms of Service shall be collectively referred to as the “Agreement.” The Agreement constitutes a legal agreement that governs Customer’s access to and use of the Content and Services (as defined below).
CUSTOMER MAY ACCEPT THE TERMS OF THIS AGREEMENT BY CLICKING A BOX INDICATING ACCEPTANCE, BY EXECUTING AN ORDER FORM REFERENCING THIS AGREEMENT, OR BY USING ANY FREE SERVICE OFFERED BY HG INSIGHTS. IF CUSTOMER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, CUSTOMER MAY NOT USE THE CONTENT OR SERVICES.
ANY INDIVIDUAL ACCEPTING THE TERMS OF THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY MUST HAVE THE AUTHORITY TO BIND THAT ENTITY AND ITS AFFILIATES TO THIS AGREEMENT. IF THE INDIVIDUAL DOES NOT HAVE SUCH AUTHORITY, THE INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT.
If Customer is a direct competitor of HG Insights offering similar products and services, Customer may not access the Content or Services for any purpose, except with HG Insights’ prior written consent.
This Agreement is effective between HG Insights and Customer as of the date of Customer accepts this Agreement (the “Effective Date”).
“Browser Extension(s)” means any software plug-in or application that HG Insights develops that extends the functionality of a web browser in order to support the delivery of the Services.
“Content” means information produced by HG Insights, or obtained by HG Insights from publicly available sources or third party content providers, and made available to Customer pursuant to the Services. Content includes, but is not limited to, Technology Data.
“Delivery Methods” means delivery of the Services via any of HG Insights’ Websites, application programming interfaces (APIs), Browser Extensions, or Marketplace, as well as via electronic files, printed documents, or other formats specified in an Order Form.
“Marketplace” means any online directory, catalog or marketplace of applications that interoperate with the Services, including, but not limited to, Salesforce AppExchange located at: http://www.salesforce.com/appexchange, and any successor websites.
“Order Form” means an online order or ordering document referencing this Agreement specifying the Services or Content that HG Insights will provide to Customer, including any addenda and supplements.
“Services” means the services purchased by Customer online through a link, or through an Order Form, or provided to Customer free of charge, or through a free trial, and made available to Customer via any Delivery Method, in order to access the Content.
“Subscription Term” means the period during which Customer has agreed to subscribe to the Services and Content, as specified in the applicable Order Form. If no period is specified, the Subscription Term shall be one (1) month.
“Taxes” means any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholdings taxes assessable by any local, state, provincial or foreign jurisdiction.
“Technology Data” means information regarding which specific technology products are in use by specific companies, company firmographic attributes, industry spending estimates and estimated contract renewal dates.
“User(s)” means an individual accepting this Agreement on his or her behalf or on behalf of a company or other legal entity, an individual authorized by Customer to use the Services, for whom Customer has provisioned the Services. Users may include Customer’s employees, consultants, contractors, agents, and third parties acting on Customer’s behalf and that have access to the Services.
“Website(s)” means any website available online that is owned or controlled by HG Insights, including but not limited to the website located at http://www.hginsights.com, and any of its web pages, as well as any successor websites.
2. SERVICES AND CONTENT
2.1 Ownership. The Services and Content are the exclusive property of HG Insights. All rights, title and interest (including patent, copyright, trade secret rights, trademarks, logos and all other intellectual property rights with respect to the Content) are and will always be and remain the property of HG Insights, including any future Services or Content developed as a result of any Customer feedback or suggestions.
2.2 Subscriptions. The Services and Content are available as subscriptions, and may be used during the Subscription Term only.
2.3 HG Insights Responsibilities. HG Insights will make the Services and Content available to Customer pursuant to this Agreement, and HG Insights will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except during planned downtime for upgrades and maintenance to the Services or for any unavailability caused by circumstances beyond HG Insights’ reasonable control. The Services and Content that are made available to Customer via a Marketplace are subject to the terms and conditions and availability of such Marketplace, and HG Insights is not responsible for any unavailability caused by such Marketplace and/or related applications that may be required for such Marketplace to function.
2.5 Usage Restrictions. The Services and Content may only be used by Customer for its internal use during the Subscription Term. Customer may not sell, resell, license, sublicense, rent, publish, distribute, or make the Services or Content available to any third party. Customer may not reverse engineer, decompile or otherwise attempt to access any code in connection with the Services or any other aspect of HG Insights’ technology. Customer may not extract, scrape or otherwise attempt to access or download the Content in any manner not contemplated by this Agreement. Customer may not use the Content to enable the creation of any audience segment in a third party application including, but not limited to, data management platforms (DMPs) or demand-side platforms (DSPs) or social media platforms for the purpose of delivering targeted programmatic display or social advertising campaigns. Customer may not duplicate, or generate modified versions of, the Services or Content for the purpose of retaining the Services or Content beyond the Subscription Term.
3. FEES AND PAYMENT
3.1 Fees. Fees are based on the Services and Content subscriptions purchased and not on actual usage. Customer will pay all fees specified in the applicable Order Form. Payment of fees is non-cancellable and non-refundable, and quantities purchased cannot be decreased during the relevant Subscription Term. Unless otherwise specified, a quantity in the Order Form refers to Users and the Services and Content may not be accessed by more than that number of Users. Should the total number of Users change during existing active subscriptions, subscriptions can be added at the same price as the underlying active subscription pricing, prorated for the portion of the Subscription Term remaining at the time when the subscriptions are added. Any added subscriptions will expire on the same date as the underlying active subscriptions and HG Insights reserves the right to update pricing upon renewal.
3.2 Payment. Customer will provide HG Insights with an Order Form or other document acceptable to HG Insights. If Customer is providing credit card information to HG Insights, Customer authorizes HG Insights to charge such credit card for all Services purchased through an Order Form or online. If the payment method specified in the Order Form is not by credit card, HG Insights will issue an invoice to Customer in advance in accordance with the terms of the Order Form. Any charges specified in such invoice are due within 30 days from the invoice date, unless otherwise specified in the Order Form. Without limiting its right or remedies, HG Insights reserves the right to suspend the Services to Customer if outstanding late payments are 5 days or more overdue.
3.3 Taxes. Fees payable in connection with this Agreement do not include any Taxes and Customer is responsible for paying Taxes, unless HG Insights has a legal obligation to do so, in which case HG Insights will invoice Customer for such Taxes and Customer agrees to pay such Taxes if so invoiced.
4. TERM AND TERMINATION
4.1 Term of Agreement. This Agreement begins on the Effective Date and continues until all underlying subscriptions have expired or have been terminated.
4.2 Subscription Term. The Subscription Term shall be as specified in the applicable Order Form. Except as otherwise specified, subscriptions will automatically renew for additional periods equal to the expiring Subscription Term, unless written notice is given by either party at least 30 days prior to the expiration of the active Subscription Term.
4.3 Termination. A party may terminate this Agreement for cause upon 30 days’ written notice to the other party of a material breach if such breach remains uncured after 30 days from the delivery of such notice.
Each party acknowledges that during the term of this Agreement, it shall have access to the confidential information and trade secrets of the other party consisting of, but not limited to, information concerning each other’s methods of operations, systems, products, customer lists, agent lists, and other such proprietary business information. Each party agrees not to use or disclose the confidential information (“Confidential Information”) of the other party. Unless expressly authorized in writing by the other party, neither party shall publicly disclose any nonpublic information or materials provided by the other party under this Agreement and reasonably understood to be Confidential Information, or use such Confidential Information in any manner other than to perform its obligations under this Agreement. The foregoing restrictions do not apply to any information that (i) is in or becomes available in the public domain by no action of the receiving party hereunder, (ii) is already lawfully in the receiving party’s possession, (iii) was known to the receiving party prior to the date of disclosure, (iv) becomes known to the receiving party from a third party having an apparent bona fide right to disclose the information, or (v) Confidential Information that the receiving party is obligated to produce pursuant to an order of a court of competent jurisdiction or a valid administrative subpoena, providing receiving party provides disclosing party timely notice of such court order or subpoena. Furthermore, Customer will keep in strict confidence all passwords and other access information to the Services. Each party retains ownership of its confidential information.
Subject to Customer’s compliance with the terms and conditions of this Agreement, HG Insights will, at customer’s request, defend or settle any action brought against Customer to the extent that it is based upon a claim that the Services, as used within the scope of this Agreement, infringe any United States patent or any copyright or misappropriate any trade secret, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer, provided that Customer: (a) promptly notifies HG Insights in writing of the claim; (b) grants HG Insights sole control of the defense and settlement of the claim; and (c) provides HG Insights, at HG Insights’ expense, with all assistance, information and authority reasonably required for the defense or settlement of the claim.
Each party hereby represents and warrants to the other party that it has all necessary authority to enter into this Agreement.
8. DISCLAIMER OF WARRANTIES
CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT THE SERVICES AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S ACCESS TO AND/OR USE OF THE SERVICES AND CONTENT IS AT CUSTOMER’S SOLE RISK. HG INSIGHTS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. HG INSIGHTS MAKES NO WARRANTY THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, NOR DOES HG INSIGHTS MAKE ANY WARRANTY THAT THE CONTENT IS ACCURATE OR CURRENT, OR THAT ANY DEFECTS IN THE SERVICES OR CONTENT WILL BE CORRECTED. CUSTOMER UNDERSTANDS AND AGREES THAT ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT CUSTOMER’S SOLE RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEM OR CORRUPTION OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH CONTENT OR MATERIAL. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM HG INSIGHTS SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THIS AGREEMENT.
9. LIMITATIONS OF LIABILITY
WITH THE EXCEPTION OF A BREACH OF SECTION 5 (CONFIDENTIAL INFORMATION), EACH PARTY’S MAXIMUM LIABILITY FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT OR IN TORT, SHALL BE LIMITED TO THE TOTAL AMOUNT PAID OR PAYABLE (IF ANY) BY CUSTOMER TO HG INSIGHTS IN THE 6 MONTHS PRIOR TO THE OCCURRENCE OF SUCH CLAIM FOR THE SPECIFIC SERVICE WHICH CAUSED SUCH DAMAGE. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
10. GENERAL TERMS
10.1 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
10.2 Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules.
10.3 Survival. Sections 2.5 (Usage Restrictions), 4 (Term and Termination), 5 (Confidentiality), 8 (Disclaimer of Warranties), 9 (Limitations of Liability), and 10 (General Terms) shall survive any expiration or termination of this Agreement.
10.4 Assignment. Neither party may assign any of its rights or obligations hereunder without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement, together with all rights and obligations hereunder, without consent of the other party, in connection with a merger, acquisition, sale of assets or similar change of control transaction, not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.5 Force Majeure. HG Insights will not be responsible for any delay, interruption or other failure to perform under this Agreement due to acts beyond HG Insights’ reasonable control.
10.6 Publicity. Unless specified otherwise on the Order Form, HG Insights may identify Customer as a business partner and release publications, announcements and/or press releases relating to this Agreement. Customer may not use HG Insights’ trademarks or logos or any other name, logo, icon or identifying any Services or Content without HG Insights’ prior written permission.
10.7 No Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
10.8 Notices. All notices under this Agreement shall be in writing and shall be given by personal delivery, by certified mail (return receipt requested), or by overnight courier. Notices to HG Insights shall be addressed to the attention of its Chief Financial Officer.
10.9 Entire Agreement. This Agreement constitutes the entire agreement between Customer and HG Insights regarding Customer’s use of the Services and Content and supersedes all prior or current oral or written agreements concerning its subject matter. No modification, variation or amendment of this Agreement shall be effective unless made in writing and signed by the parties.