1. Acceptance of Terms
Hiya, Inc. (“Hiya,” “we,” or “us”) provides the Services subject to the following terms and conditions.
When services from other mobile applications and/or Web Sites are made available through the Services (e.g., by logging into a Service using a social media username and password), you agree to be legally bound by the terms and conditions and privacy policies of those other applications and/or Web sites.
Certain features of the Services may be subject to additional guidelines, terms or rules, which will be posted in or on the Services in connection with such features. All such additional terms, guidelines and rules are incorporated by reference into this Agreement.
2. Requirements to Use the Services
Here are some of the promises you make to us in this Agreement:
2.1. Minimum Age for Eligibility
You must be the Minimum Age to use our Services.
You must be thirteen (13) years or older (the “Minimum Age”) to use the Services. If you are between the ages of thirteen (13) and eighteen (18), you must have parental consent to use the Services.
If law requires you to be older in order for Hiya to provide the Services to you, including the collection, storage, and use of your contact information, then the Minimum Age is the legally required older age. The Services are not for use by anyone under the age of 13 years.
2.2. Restrictions on Use of Data
You promise to only use our data for your own personal, lawful use.
As part of the Services, Hiya provides you with the ability to identify individuals and businesses. Without in any way limiting any other restrictions in this Agreement, you agree that you will use all such information (the “Caller ID Data”) for your own personal (i.e., non-commercial use) in a strictly lawful manner. Among other limitations, you may not:
- Use any Caller ID Data for marketing purposes, including, but not limited to, making telemarketing calls, transmitting unsolicited paper mail, facsimile messages, text messages, email messages, or any other type of messages;
- Compile the Caller ID Data in a database (other than your device’s address book) and store such data for any future use;
- Use any Caller ID Data for tortuous purposes, including to stalk, harass, or threaten any individual;
- Publish, transmit, distribute, or resell any Caller ID Data; or
- Store Caller ID Data via physical media, or data mine or otherwise aggregate information or data made available through any Services for any purpose outside the scope of this Agreement, or any other applicable agreement between Hiya and you.
2.3. Account Creation
You may need to create an account in order to use some of the Services. You agree that the information you provide to us is accurate, current, and complete, and that Hiya may contact you to confirm this information or to provide you with other notices.
In order to access certain Services, you may be asked to create a Hiya user account (an “Account”) using your phone, e-mail or social media account (as further described in Section 3.3 – Third Party Log-In). To create an Account, you must provide certain information about yourself, such as name, email address, or phone number (such information, “Registration Data”), and answer all inquiries marked “required.”
(i) that the Registration Data you provide to us will be true, accurate, current, and complete at the time you provide it;
(ii) to maintain and update your Registration Data to keep it true, accurate, current and complete; and
(iii) that we may contact you using your Registration Data to confirm your Registration Data before you may use certain Services or to deliver notices or advertisements related to the Services.
We reserve the right to terminate your license to use the Services and to refuse to provide you with current or future access to the Services if we believe any of your Registration Data is, or appears to be, untrue, inaccurate, not current, or incomplete. In the event you change or deactivate the mobile telephone number you used to create an Account, you agree to update your Registration Data within 48 hours to ensure that your information is not attributed to the person who acquires your old number.
2.4. Account Security
You should keep your Account credentials confidential. You are responsible for all activity on your Account.
You are responsible for maintaining the confidentiality of your account credentials and for all activities, charges and/or liabilities that occur from your Account, whether or not authorized by you. You must immediately notify Hiya of any unauthorized use of your Account credentials or any other breach of security of which you become aware. We will not be liable for any loss or damage arising from your failure to comply with this section.
2.5. Sending Messages
You grant Hiya the rights necessary to deliver the messages you send through the Services, and understand that cellular carriers may charge you or your recipient a fee to do so. You promise to send only personal, non-spam, and lawful messages.
We do not charge for any Send a Message Service, but if the message is sent or received via a mobile phone, the cellular carriers’ normal messaging, data, and other rates and fees may apply to you and/or your recipient. The Send a Message Service limits email messages to 500 characters and text messages to 160 characters (if your text message is too long, it may be broken into multiple text messages).
In connection with your use of a Send a Message Service, you specifically agree and understand that:
- The Send a Message Service is limited to your own personal, non-commercial use.
- You will not use the Send a Message Service for any purpose that is unlawful, misleading, defamatory, malicious, discriminatory, or prohibited herein.
- You will not use the Send a Message Service to transmit any text, graphics or material to any individual that you know or have reason to know is under the age of 18 years old.
- You are solely responsible for the content of any messages sent through your Account.
3. Handling of Information in the Services
3.1. Add or Edit Personal Listings
To add a personal listing, or edit one already contained in the Services, you will need to create an account using your phone number, email address and/or social media account credentials. You have the right to edit or suppress certain information.
This section applies to your use, if any, of a Service that allows you to create or modify a personal listing, and allows other users to contact you through our services (without the need to publish or disclose your email address) (a “Listing Service”). By using a Listing Service, you understand and agree that you may receive unsolicited email, phone calls, and/or text messages from other users of the Services, which may cause you to incur messaging, data, and other rates and fees per your cellular service plan. You should check with your carrier to find out what rates and fees may apply.
In connection with your use of a Listing Service, you specifically represent and warrant the following:
- you are at least eighteen (18) years old; and
- you have the right to add the content that you add to your directory listing.
3.2. Content You Provide or Transmit
You also agree that we may collect and use technical information such as your IP address, device ID and other information, including, but not limited to, technical data about your mobile device and system software and peripherals, to facilitate the provision of software updates, product support and other services to you related to the Services.
3.3. Third Party Log-In
If you log in using a third-party service or social media account, you agree that Hiya may access and use certain information from those accounts to provide better services to you.
3.4. No Obligation to Monitor
Hiya is not required to monitor the Services, but we can choose to do so and we have the right to perform certain actions in response to that monitoring.
We have no obligation to monitor content you provide and submit through the Services, including, but not limited to, the Send a Message Services and Listing Services. Therefore, you accept that you, via the Services, may be exposed to information that is erroneous or otherwise objectionable.
Even though we are not obligated to monitor content, we do reserve the right to monitor and review any content that you provide, submit or transmit while using the Services, for the purpose of operating the Services, to ensure your compliance with this Agreement, or to comply with applicable law or the requirement of a court, administrative agency or other governmental body.
We may edit or refuse to send or post any content you add to your directory listing, in whole or in part, or remove any content, in whole or in part, in our sole discretion. In the event that you lose rights to any content you provided, added, or transmitted to or through our database (whether or not you kept it private) for any reason (including porting your cell phone number), you hereby agree that you will use the relevant Listing Service to remove such content.
You understand and agree that Hiya will not be liable for any content publicly posted or privately transmitted through the Services. You understand and agree that we cannot guarantee the identity, statements or representations of any other users with whom you may interact in the course of using the Services. Additionally, we cannot guarantee that any content, obtained from our users or otherwise, is accurate, complete, authentic, current or reliable.
4. License & Termination
We own or control the Services and are allowing you to use them. We may, however, stop you from using the Services at any time, for any reason, and we can discontinue the Services for any or no reason.
Unless otherwise indicated, the Services, and all content and other materials available on or through the Services, including, without limitation, directory listing data (collectively, the “Materials”), are proprietary to Hiya or its affiliates or licensors, and are protected by U.S. and international intellectual property laws. Subject to your compliance with the terms and conditions of this Agreement, and in consideration of your promises reflected herein (and with respect to any services requiring payment of fees, your payment of such fees), we grant to you a personal, non-exclusive, limited license for your own personal, non-commercial use (except where explicitly provided otherwise), to (i) access and use the Services, (ii) cause the Materials to be displayed from a single computer or mobile device, and (iii) use the Materials, solely as permitted under this Agreement (the “License”). The license does not allow you to use Hiya’s name or trademarks. All rights and licenses not expressly granted to you in this Agreement are retained by Hiya.
Hiya may revoke or terminate the License granted above in its sole discretion, at any time. Without limiting the generality of the foregoing, we may revoke or terminate the License if you: (i) breach any obligation in this Agreement or in any other agreement between you and us, (ii) violate any policy or guideline applicable to the Services or Materials, or (iii) use the Services or the Materials other than as specifically authorized in this Agreement, without our prior written permission.
Hiya may discontinue, terminate, suspend or shut down the Services at any time, for any or no reason. We may give notice of such discontinuation, termination, suspension or shut-down through any means, including, but not limited to, making such notice available on or through the Services or otherwise publicly announcing such discontinuation, termination, suspension or shut-down. Upon any such action by Hiya, your License shall automatically terminate with respect to the affected Services and you must immediately stop using all affected Services.
5. General Obligations and Restrictions
5.1. You agree that you will do the following:
- You will comply with all laws, including without limitation, U.S. export control laws, applicable to your use of the Services and Materials.
5.2. You agree that you will not do the following:
- Engage in any unauthorized use of the Services or Materials (including, without limitation, political campaigning, advertising, marketing, solicitations, promotions, resale or any commercial uses);
- Transmit or otherwise make available any content that: (i) you do not have the right to transmit using the Services, (ii) may expose Hiya or its affiliates, licensors, or users, to any harm or liability, or (iii) is unlawful;
- Transmit or otherwise make available any content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- Post, publish, or transmit any text, graphics, or material that: (i) is false or misleading; (ii) is defamatory; (iii) invades another’s privacy; (iv) is obscene, pornographic, or offensive; (v) promotes bigotry, racism, hatred, or harm against any individual or group; (vi) infringes another’s rights, including any intellectual property rights; or (vii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
- Copy any portion of the Services or Materials or any underlying content or source code;
- Reverse engineer, disassemble, decipher or decompile any portion of the Services or Materials, or otherwise attempt to discover or re-create the source code to any software;
- Distribute the software or source code behind the Services or Materials to any third party;
- Except as otherwise expressly permitted by Hiya, make any modification, adaptation, improvement, enhancement, translation or derivative work of or to any portion of the Services or Materials;
- Remove, alter, or obscure any copyright or other proprietary notices of Hiya or its affiliates or licensors in any portion of the Services or Materials;
- Violate the intellectual property rights of others, including patents, trademarks, trade secrets, copyrights or other proprietary rights;
- Obscure or disable any advertisements that may appear on or through the Services;
- Use any type of automated means to utilize the Services or Materials;
- Access without authorization any networks, systems, or databases used in providing the Services, or any accounts associated with Services, or access or use any information contained therein for any purpose;
- Attempt to probe, test, hack, or otherwise circumvent any security measures;
- Violate any requirements, policies, procedures or regulations of any network connected to the Services;
- Use any of the Services in any manner that could damage, disable, overburden, or otherwise impair the Services (or the networks connected to the Services);
- Interfere with or disrupt the use and enjoyment by others of the Services or the Materials;
- Falsely state, impersonate, or otherwise misrepresent your identity or your affiliation with any person or entity;
- Use the Services or Materials to send unsolicited email, “spam,” or promotions or advertisements for products or services;
- Use the Services or Materials in any manner to stalk, harass, invade the privacy of, or otherwise cause harm to, any person;
- Use the Services or Materials in any manner that exposes Hiya to any harm or liability of any nature;
- Use the Services or Materials in violation of any federal, state, or local law, rule, or regulation, whether now existing or enacted in the future;
- Copy (except in the course of loading or installing) or modify any Services, including but not limited to adding new features or otherwise making adaptations that alter the functioning of the Services;
- Transfer, sublicense, lease, lend, rent or otherwise distribute the Services to any third party;
- Make the functionality of the Services available to multiple users through any means, including but not limited to by uploading one of our apps to a network;
- Engage in “framing,” “mirroring” or otherwise simulating the appearance or function of the Services;
- Use manual or automated software, devices, scripts robots, other means or processes to access, scrape, or crawl, the Services or any related data or information;
- Monitor the Services’ availability, performance or functionality for any competitive purpose.
Hiya has the right to investigate and bring claims for violations of any of the above to the fullest extent of the law. We may, but are not required to, provide notice of such violations beforehand. We may involve and cooperate with law enforcement authorities in prosecuting Users who violate certain terms of this Agreement.
6. Certain Apple and Android Applications
The following sections apply to certain specific products and services of Hiya. These terms (also known as“Special Terms”) add to the other terms in this Agreement, but if any of the Special Terms conflict with terms in other sections of the Agreement, the Special Terms here will control.
This section only applies to your use, if any, of the Services that are available either through the Apple App Store or the Google Play store, including the Hiya ID application for iPhone®, iPod® touch, and iPad® devices (the “Hiya iOS Application”), the Hiya Premium ID application for iPhone®, iPod® touch, and iPad® devices (the “Hiya Premium iOS Application”), the Hiya ID application for Android devices (the “Hiya Android Application”), and the Mr. Number for Android application (“Mr. Number”).
6.1. Hiya Mobile iOS Application and Hiya Premium iOS Application.
We grant you a non-transferable license to download and use the Hiya iOS Application and Hiya Premium iOS Application (subject to the paid subscription terms below) on any iPhone®, iPod® touch, and/or iPad® device(s) that you own or control, as permitted by the usage rules set forth in the Apple App Store Terms of Service. If you use the Hiya iOS Application or Hiya Premium iOS Application, you acknowledge that we may access and use your mobile device’s Unique Device Identifier (“UDID”) via the application for the following purposes: (i) identification of users and authorization for account access; (ii) tracking and reporting of anonymous usage statistics; and (iii) to enable third parties to deliver targeted advertising and/or track the performance of their advertising.
Further, if you use the Hiya iOS Application or Hiya Premium iOS Application, you acknowledge that Apple, Inc. (“Apple”) has no obligation to furnish any maintenance and support services in connection with the Hiya iOS Application or Hiya Premium iOS Application. In the event of any failure of the Hiya iOS Application or Hiya Premium iOS Application to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price (if any) to you. Beyond such refund, Apple will have no other warranty obligations with respect to the Hiya iOS Application or Hiya Premium iOS Application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty (for which we are deemed responsible) will be our sole responsibility. You further acknowledge that Hiya, and not Apple, is responsible for addressing any claims relating to the Hiya iOS Application or Hiya Premium iOS Application or your possession and/or use of the Hiya iOS Application or Hiya Premium iOS Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Hiya iOS Application or Hiya Premium iOS Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You also acknowledge that in the event of a third party claim that the Hiya iOS Application or Hiya Premium iOS Application or your possession and use of the Hiya iOS Application or Hiya Premium iOS Application infringes a third party’s intellectual property rights, Hiya, and not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such claim. You represent and warrant that you are not (i) located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that Apple and its subsidiaries are third party beneficiaries of this paragraph, and that Apple will have the right, and will be deemed to have the right, to enforce this paragraph.
Any questions, complaints or claims regarding the Hiya iOS Application or Hiya Premium iOS Application should be directed to: Hiya, Inc., Hiya iOS Application Team, 1301 Fifth Avenue, Suite 1600, Seattle, WA 98101; or firstname.lastname@example.org.
6.2 Hiya Premium iOS Application Paid Subscriptions; Auto-Renewal
Continued access to the services provided through the Hiya Premium iOS Application require payment through your iTunes account before you can access them (a “Paid Subscription”). We may offer trials of Paid Subscriptions for a specified period without payment or at a reduced rate (a “Trial”). Hiya reserves the right, in its absolute discretion, to determine your eligibility for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the law.
YOU AGREE TO PAY ALL RECURRING CHARGES FOR YOUR PAID SUBSCRIPTION USING THE PAYMENT METHOD ASSOCIATED WITH YOUR ITUNES ACCOUNT UNTIL YOU CANCEL YOUR PAID SUBSCRIPTION. IF YOU DO NOT CANCEL YOUR PAID SUBSCRIPTION BY TURNING OFF AUTO-RENEWAL THROUGH YOUR ITUNES ACCOUNT PRIOR TO THE END OF A TRIAL, THEN WITHIN 24 HOURS AFTER THE END OF THE TRIAL, YOUR ITUNES ACCOUNT WILL BE CHARGED THE APPLICABLE AMOUNT FOR THE PAID SUBSCRIPTION YOU HAVE SELECTED (EITHER A MONTHLY OR ANNUAL SUBSCRIPTION). YOUR ITUNES ACCOUNT WILL CONTINUE TO BE CHARGED INDEFINITELY THEREAFTER, ON A RECURRING MONTHLY OR ANNUAL BASIS, UNLESS YOU CANCEL YOUR PAID SUBSCRIPTION BY TURNING OFF AUTO-RENEWAL THROUGH YOUR ITUNES ACCOUNT AT LEAST 24 HOURS PRIOR TO THE END OF THE THEN-CURRENT SUBSCRIPTION TERM. FOR EXAMPLE, IF YOU HAVE SELECTED A MONTHLY SUBSCRIPTION, YOU MUST CANCEL YOUR PAID SUBSCRIPTION BY TURNING OFF AUTO-RENEWAL THROUGH YOUR ITUNES ACCOUNT AT LEAST 24 HOURS PRIOR TO MIDNIGHT OF THE LAST DAY OF THE MONTH.
IF YOU CANCEL YOUR PAID SUBSCRIPTION BY TURNING OFF AUTO-RENEWAL THROUGH YOUR ITUNES ACCOUNT, THE CANCELLATION WILL BECOME EFFECTIVE IMMEDIATELY FOLLOWING THE END OF LAST DAY OF YOUR THEN-CURRENT SUBSCRIPTION TERM. PAID SUBSCRIPTIONS CANNOT BE TERMINATED EFFECTIVE BEFORE THE END OF THE SUBSCRIPTION PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, HIYA WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID. IF YOU HAVE PREPAID FEES FOR A PAID SUBSCRIPTION AND HIYA PERMANENTLY DISCONTINUES THE SERVICES FOR WHICH YOUR PAID SUBSCRIPTION APPLIES PRIOR TO THE END OF THE SUBSCRIPTION TERM, HIYA WILL REFUND YOU THE PREPAID FEES APPLICABLE TO THE PERIOD AFTER SUCH DISCONTINUATION.
If you believe you are entitled to receive a refund of any monies paid to Hiya, please contact Hiya at: Hiya, Inc., Hiya iOS Application Team, 1301 Fifth Avenue, Suite 1600, Seattle, WA 98101; or email@example.com.
6.3 Hiya ID and Mr. Number Application
If you use Hiya ID or Mr. Number Application, you acknowledge that you must contact Hiya, not Google, concerning any defects or performance issues in applications download and installed from Google Play. Hiya is solely responsible for, and Google will have no responsibility to undertake or handle support and maintenance of any Services and any complaint about our Services.
7. Special Provisions
7.1. Special Provision Applicable to Software
You agree that upgrades or updates to the Services may be downloaded and installed.
If you download or use certain Services, such as an app or a browser plug-in, you agree that from time to time, the software may download and install upgrades, updates and additional features from us in order to improve, enhance, and further develop the Services.
7.2. Special Provision Applicable to Users Outside the U.S.
You agree that your personal data may be transferred and processed outside the country where you live. You agree not to use Hiya if you are prohibited from receiving U.S. products, services or software.
The following provisions apply to users and non-users who interact with Hiya outside the United States:
- You understand and agree that your personal data may be transferred to and processed outside of the country in which you live.
- You will not use the Services if you are prohibited from receiving products, services or software originating from the United States.
Hiya makes no representation that the Services are available for use in any particular location. To the extent you choose to access and/or use the Services, you are responsible for compliance with any applicable laws, including, but not limited to, applicable local laws.
8. Disclaimer, Limitation on Liability, and Indemnification
8.1. Disclaimer of Warranty
This is our disclaimer of legal liability for the Services.
THE SERVICES AND THE MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU EXPRESSLY AGREE THAT USE OF THE SERVICES AND MATERIALS IS AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE SERVICES OR MATERIALS AND FOR ANY DISCLOSURE OF INFORMATION THAT YOU UNDERTAKE WHILE USING THE SERVICES OR MATERIALS.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, HIYA AND ITS AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT AND IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES OR MATERIALS.
WITHOUT LIMITING THE FOREGOING, NEITHER HIYA NOR ANY OF ITS AFFILIATES OR LICENSORS, NOR THE RESPECTIVE OFFICERS, DIRECTORS, LICENSORS, EMPLOYEES OR REPRESENTATIVES OF SUCH PARTIES (COLLECTIVELY, THE “HIYA PROVIDERS”) REPRESENT OR WARRANT (I) THAT THE SERVICES OR MATERIALS WILL MEET YOUR REQUIREMENTS OR BE ACCURATE, COMPLETE, RELIABLE OR ERROR FREE; (II) THAT THE SERVICES OR MATERIALS WILL ALWAYS BE AVAILABLE OR WILL BE UNINTERRUPTED, ACCESSIBLE, TIMELY, RESPONSIVE OR SECURE; (III) THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR MATERIALS WILL BE FREE FROM VIRUSES, “WORMS,” “TROJAN HORSES” OR OTHER HARMFUL PROPERTIES; (IV) THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF ANY MATERIALS AVAILABLE ON OR THROUGH ANY SERVICES; (V) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; OR (VI) THAT THE SERVICES OR MATERIALS ARE NON-INFRINGING.
Some jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above limitations and exclusions may not apply to you.
8.2. Limitation of Liability
These are the limits of our legal liability.
IN NO EVENT SHALL ANY OF THE HIYA PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE ARISING OUT OF OR IN ANY WAY CONNECTED WITH: (I) USE OF THE SERVICES OR MATERIALS, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE CAUSED BY ANY RELIANCE ON, OR ANY DELAYS, INACCURACIES, ERRORS OR OMISSIONS IN, ANY OF THE SERVICES OR MATERIALS, (II) ANY INABILITY TO USE THE SERVICES OR MATERIALS FOR WHATEVER REASON, OR (III) ANY GOODS OR SERVICES DISCUSSED, PURCHASED OR OBTAINED, DIRECTLY OR INDIRECTLY, THROUGH ANY SERVICES, IN EACH CASE EVEN IF THE HIYA PROVIDERS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE HIYA PROVIDERS ARISING OUT OF OR RELATING TO THE USE OF THE SERVICES OR MATERIALS EXCEED ONE HUNDRED UNITED STATES DOLLARS.
Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and exclusions may not apply to you.
8.3. Indemnification Obligations
We are not liable for any wrongs related to your use of the Services.
You agree to hold harmless, defend and indemnify the Hiya Providers from all liabilities, claims, demands and expenses, (including, but not limited to, reasonable attorneys’ fees), that are due to, arise from or otherwise relate to your conduct or your use or misuse of any of the Services or Materials, including, without limitation, any actual or threatened suit, demand or claim made against any Hiya Provider that arises out of or relates to: (i) any intellectual property rights or other proprietary rights of any third party, (ii) your breach of this Agreement; (iii) your use of any of the Services or Materials; or (iv) any content that you store on or transmit through the Services. Hiya may assume exclusive control of any defense of any matter subject to indemnification by you, and you agree to cooperate with Hiya in such event.
9. Dispute Resolution; Class Action Waiver
If we are not able to resolve a legal dispute by negotiation, you agree it will be resolved by binding arbitration or in small claims court.
ANY DISPUTE, CLAIM OR CONTROVERSY BETWEEN YOU AND HIYA RELATING IN ANY WAY TO THIS AGREEMENT OR YOUR ACCESS TO OR USE OF THE SERVICES, WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT (INCLUDING, WITHOUT LIMITATION, FRAUD, MISREPRESENTATION, FRAUDULENT INDUCEMENT, OR NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY (“DISPUTE”), WILL BE RESOLVED BY BINDING ARBITRATION IF IT CANNOT BE RESOLVED THROUGH NEGOTIATION AS SET FORTH IN THIS SECTION 9. ARBITRATION MEANS THAT THE DISPUTE WILL BE RESOLVED BY A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY.
NOTWITHSTANDING THE FOREGOING, YOU AND WHITEPAGES AGREE THAT (A) ANY DISPUTE THAT MAY BE BROUGHT IN SMALL CLAIMS COURT MAY BE INSTITUTED IN SMALL CLAIMS COURT IN YOUR COUNTY OF RESIDENCE OR KING COUNTY, WASHINGTON INSTEAD OF BEING RESOLVED THROUGH ARBITRATION, AND (B) EITHER PARTY MAY SEEK INJUNCTIVE RELIEF IN ANY COURT OF COMPETENT JURISDICTION TO (I) ENJOIN INFRINGEMENT OR VIOLATION OF ANY DATA USE RESTRICTIONS CONTAINED IN THIS AGREEMENT, OR (II) ENJOIN SCRAPING, WEB CRAWLING OR UNAUTHORIZED ACCESS TO EITHER PARTY’S WEB SITES OR SERVICES.
We must try to negotiate resolution of a legal dispute for at least 30 days.
If you have a Dispute with Hiya, you must send written notice describing the Dispute to Hiya to allow Hiya an opportunity to resolve the Dispute informally through negotiation. Your notice must be sent to the following address: Hiya, Inc., Attn: Legal Department, 1301 Fifth Ave, Suite 1600, Seattle, WA 98101. If we have a Dispute with you, we will send written notice (email or letter) describing the Dispute to you. The parties agree to negotiate resolution of a Dispute in good faith for no fewer than 30 days after notice of a Dispute has been provided. If the Dispute is not resolved within 30 days from receipt of notice of the Dispute, you or Hiya may proceed to have the Dispute resolved through arbitration as each party’s exclusive Dispute resolution process (except for the limited exceptions set forth above).
Thereafter, disputes will be resolved by arbitration.
Any arbitration, if required, will be conducted by JAMS under its Streamlined Arbitration Rules and Procedures, which are located at http://www.jamsadr.com/rules-streamlined-arbitration, and these rules will govern the payment of all filing, administration, and arbitrator fees, unless this Section 9 expressly provides otherwise. If the amount of any claim in an arbitration is US\$10,000 or less, Hiya will pay all filing, administration and arbitrator fees associated with the arbitration, so long as (i) you make a written request for such payment of fees and submit it to the JAMS with your Demand for Arbitration, and (ii) your claim is not determined by the arbitrator to be frivolous. In such case, we will make arrangements to pay all necessary fees directly to the JAMS. If the amount of the claim exceeds US\$10,000 and you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, hiya will pay as much of the filing, administration, and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to litigation. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous, you agree to reimburse Hiya for all fees associated with the arbitration paid by Hiya on your behalf, which you otherwise would be obligated to pay under the JAMS’s rules.
The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is US\$10,000 or less, either of us may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on us subject to the arbitrator’s discretion to require an in-person hearing. Attendance at any in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise.
Neither party may bring a class action lawsuit to resolve a dispute.
YOU AND HIYA EACH WAIVE ALL RIGHTS TO CONDUCT DISPUTE RESOLUTION PROCEEDINGS IN A CLASS ACTION OR CONSOLIDATED ACTION. YOU AND HIYA EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS, WITH THE SOLE EXCEPTION OF REPRESENTATIVE SUITS THAT ARE PERMITTED BY, AND DEEMED UNWAIVABLE UNDER, STATE LAW. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
If any clause within this Section 9 (other than the class action waiver clause above) is determined to be illegal or unenforceable, that clause will be severed from this Section 9, and the remainder of this Section 9 will be given full effect. If the class action waiver clause is determined to be illegal or unenforceable, this entire Section 9 will be unenforceable, and the Dispute will be decided by the courts of the state of Washington, King County, or the United States District Court for the Western District of Washington, and the parties irrevocably submit to the exclusive jurisdiction of such courts.
The Federal Arbitration Act, applicable federal law, and the laws of the state of Washington, without regard to principles of conflict of laws, will govern this Agreement and any Dispute that might arise between Whitepages and you.
10.1. Third-Party Links
Hiya is not responsible or liable for the links to third-party Web sites or applications that we make available for your convenience.
Hiya may, as a convenience to its users, make links to third-party Web sites or applications (“Third Party Applications”) available on or through the Services. In addition, certain Services may access your accounts for third-party services. Hiya does not make any representation, warranty or guarantee regarding any Third Party Applications. Hiya is not responsible or liable for: (i) the availability, functionality, or accuracy of such Third Party Applications; (ii) the information, content, products, or services on or available therefrom; or (iii) any damages or loss caused or alleged to be caused by or in connection with the use of or reliance on such Third Party Applications or the information, content, products, or services on or available therefrom. Access to such Third Party Applications does not imply any endorsement by Hiya. You acknowledge sole responsibility for and assume all risk arising from your use of any Third Party Applications, as well as all responsibility and risk related to any terms and conditions or other agreements which govern such Third Party Applications.
10.2. Time Limitation on Claims
You must file any claim or cause of action within one year.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement or your use of the Services or Materials must be filed within one year after such claim or cause of action arose. Any claim not filed within the foregoing one year period will be forever barred.
10.3. General Terms
Some important details about how to read this Agreement, and how Hiya can change this Agreement at any time.
If any part of this Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
Hiya reserves the right to revise this Agreement at any time by posting a revised Agreement on this Web site or otherwise making such revised Agreement available through the Services. If we make material revisions to this Agreement, we will use the date at the top of this Agreement to indicate the date it was last revised. The revised Agreement will be effective immediately upon its being posted on this Web site or being made available through the Services. Your use of the Services following the posting of any such revisions will constitute your acceptance of any such revisions. We encourage you to review this Agreement each time you use the Services to make sure that you understand the applicable terms. If you do not agree to all the terms and conditions in this Agreement, you must immediately terminate your use of the Services or Materials.
If we do not enforce a breach of this Agreement, that does not mean that we have waived our right to enforce this Agreement against your or others. You may not assign or transfer this Agreement (or your membership or use of Services) to anyone without our consent. However, you agree that Hiya may assign this Agreement without consent. There are no third party beneficiaries to this Agreement, other than as explicitly provided herein.
Whitepages operates the Services from its offices in Washington, USA, and Whitepages makes no representation that the Services are appropriate or available for use in other locations.
10.4. Governing Law; Venue
You can only bring a suit or action in King County, WA and your use of the Services is governed by the law of Washington State.
YOUR USE OF THE SERVICES AND MATERIALS SHALL BE GOVERNED BY, AND THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WASHINGTON, USA, AS THEY APPLY TO AGREEMENTS MADE AND SOLELY PERFORMED THEREIN. YOU IRREVOCABLY CONSENT AND WAIVE ALL OBJECTIONS TO PERSONAL JURISDICTION AND VENUE IN THE STATE AND FEDERAL COURTS LOCATED IN KING COUNTY, WASHINGTON, USA.
AS THE EXCLUSIVE VENUE FOR ANY LAWSUIT THAT ARISES OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, OR MATERIALS, AND THAT MAY BE BROUGHT IN COURT UNDER SECTION 9 SHALL BE KING COUNTY, WASHINGTON (IF THE CLAIM ARISES UNDER STATE LAW) AND THE WESTERN DISTRICT OF WASHINGTON (IF THE CLAIM ARISES UNDER FEDERAL LAW). THE VENUE FOR ANY CLAIM THAT MUST BE BROUGHT IN AN ARBITRATION FORUM SHALL BE AS SET FORTH IN SECTION 9.
10.5. Additional Terms
Many of our Services are available globally. Additional terms of service may apply to users in certain jurisdictions and will, in such cases, be made available in appendices to this Agreement.
10.6. Relations to Other Agreements
Hiya may work with third parties and those third parties may operate under different user agreements from this one. If a Service has a different terms of service and user agreement from this one, that Service’s terms of service and user agreement trump this one to the extent they conflict.
Hiya may operate, individually or jointly with third parties, other applications or Web sites that incorporate the Services or Materials. Also, Hiya may provide its Services on Web sites operated and owned by third parties. These other Web sites, products, or services may operate under a different user agreement than the Services (the terms and conditions of other such user agreements are not affected in any way by this Agreement nor is this Agreement affected by such other user agreements). We encourage you to review applicable policies and agreements when you use any product or service, including this Web site.
In the event that a Service is governed by its own terms of service and user agreement, that terms of service and user agreement shall supersede this Agreement to the extent that they are inconsistent.
11. Contents © 2016-2018, Hiya, Inc. All Rights Reserved.
We own or control everything on this Web site, as well as our Services. The Services are governed by other agreements like this.
All content included on our applications and Web sites, including, but not limited to, any text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of Hiya or its content suppliers and protected by United States and international copyright laws.
Any rights not expressly granted herein are reserved by Hiya.
HIYA, MRNUMBER, LOCALICIOUS, NUMBERCOP, and related graphics, logos, page headers, buttons, icons, scripts, and service names are trademarks, registered trademarks, or trade dress of Hiya or its affiliates in the U.S. and/or other countries. Hiya’s trademarks and trade dress may not be used in connection with any product or service that is not Hiya’s in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Hiya. All other registered trademarks and service marks are used for reference purposes only, and remain the property of their respective owners.
12. How to Report Claims of Intellectual Property Infringement
Hiya respects the intellectual property rights of others. If you believe your copyright is being infringed on any of our Services, please contact us.
Hiya strives to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act and other applicable intellectual property laws, which may include removing or disabling access to material claimed to be the subject of infringing activity. If you believe that any of the Materials available on or through the Services infringes upon any copyright you own or control, or that any link made available on or through the Services directs users to another application or Web site that contains material that you own or control, please send us a notice of infringement (an “Infringement Notice”) by following the steps provided here.