Privacy Policy
Privacy Policy
How CoSell Inc. (DBA Hifive) collects, uses, and protects your data.
Introduction
Cosell, Inc., a Delaware corporation, doing business as “hifive” (“Company” or “we”), respect your privacy and are committed to protecting it through our compliance with this Privacy Policy. This Privacy Policy describes the types of information we may collect from you or that you may provide when you visit the website https://hf.app (our “Website”) and our practices for collecting, using, maintaining, protecting, and disclosing that information.
This policy applies to information we collect: On our Website. In email, text, and other electronic messages between you and our Website. Through mobile and desktop applications you download from our Website, which provide dedicated interaction between you and our Website or any of the services that we offer.When you interact with our advertising and applications on third-party websites and services, if those applications or advertising include links to this policy. It does not apply to information collected by: Us offline or through any other means, including on any other website operated by Company or any third party (including our affiliates and subsidiaries); or Any third party (including our affiliates and subsidiaries), including through any application or content (including advertising) that may link to or be accessible from or on our Website.Please read this Privacy Policy carefully to understand our policies and practices regarding your information and how we will treat it. If you do not agree with our policies and practices, your choice is not to use our Website. By accessing or using our Website, you agree to this Privacy Policy. This Privacy Policy may change from time to time (see Changes to Our Privacy Policy). Your continued use of our Website after we make changes is deemed to be acceptance of those changes, so please check the policy periodically for updates.
Children Under the Age of 18
Our Website is not intended for children under 18 years of age. No one under age 18 may provide any personal information to or on our Website. We do not knowingly collect personal information from children under 18. If you are under 18, do not use or provide any information on our Website or through any of its features, register on our Website, make any purchases through our Website, use any of the interactive or public comment features of our Website, or provide any information about yourself to us, including your name, address, telephone number, email address, or any screen name or username you may use. If we learn we have collected or received personal information from a child under 18 without verification of parental consent, we will delete that information. If you believe we might have any information from or about a child under 18, please contact us at support@hf.app or write us at 201 W 5th St, Suite 1100, Austin, TX 78701. California residents under 18 years of age may have additional rights regarding the collection and sale of their personal information. Please see Your State Privacy Rights for more information.
Information We Collect About You and How We Collect It
We collect several types of information from and about users of our Website, including information:By which you may be personally identified, such as name, postal address, e-mail address, telephone number, or any other identifier by which you may be contacted online or offline (“personal information”);That is about you but individually does not identify you; About your internet connection, the equipment you use to access our Website, and usage details; and/orAbout your mobile device (e.g. your device’s operating system, mobile carrier, mobile number, emails or email address, user name, financial information, photos, and passwords) if you access our Website through a mobile device. We collect this information:Directly from you when you provide it to us.Automatically as you navigate through our Website. Information collected automatically may include usage details, IP addresses, and information collected through cookies, web beacons, and other tracking technologies. From third parties, for example, our business partners.
Information You Provide to Us
The information we collect on or through our Website may include:Information that you provide by filling in forms on our Website. This includes information provided at the time of registering to use our Website, subscribing to our service, posting material, or requesting further services. We may also ask you for information when you enter a contest or promotion sponsored by us, and when you report a problem with our Website.Records and copies of your correspondence (including email addresses), if you contact us.Your responses to surveys that we might ask you to complete for research purposes.Details of transactions you carry out through our Website.Your search queries on our Website.You also may provide information to be published or displayed (hereinafter, “posted”) on public areas of our Website, or transmitted to other users of our Website or third parties (collectively, “User Contributions”). Your User Contributions are posted on and transmitted to others at your own risk. Although we limit access to certain pages or you may set certain privacy settings for such information by logging into your account profile, please be aware that no security measures are perfect or impenetrable. Additionally, we cannot control the actions of other users of our Website with whom you may choose to share your User Contributions. Therefore, we cannot and do not guarantee that your User Contributions will not be viewed by unauthorized persons.
Information We Collect Through Automatic Data Collection Technologies
As you navigate through and interact with our Website, we may use automatic data collection technologies to collect certain information about your equipment, browsing actions, and patterns, including: Details of your visits to our Website, including traffic data, location data, logs, and other communication data and the resources that you access and use on the Website.Information about your computer and internet connection, including your IP address, operating system, and browser type.We also may use these technologies to collect information about your online activities over time and across third-party websites or other online services (behavioral tracking). See Choices About How We Use and Disclose Your Information for information on how you can opt out of behavioral tracking on this website and how we respond to web browser signals and other mechanisms that enable consumers to exercise choice about behavioral tracking.The information we collect automatically may include personal information, or we may maintain it or associate it with personal information we collect in other ways or receive from third parties. It helps us to improve our Website and to deliver a better and more personalized service, including by enabling us to:Store information about your preferences, allowing us to customize our Website according to your individual interests.Speed up your searches.Recognize you when you return to our Website.The technologies we use for this automatic data collection may include:
Cookies (or browser cookies). A cookie is a small file placed on the hard drive of your computer. You may refuse to accept browser cookies by activating the appropriate setting on your browser. However, if you select this setting you may be unable to access certain parts of our Website. Unless you have adjusted your browser setting so that it will refuse cookies, our system will issue cookies when you direct your browser to our Website.
Flash Cookies. Certain features of our Website may use local stored objects (or Flash cookies) to collect and store information about your preferences and navigation to, from, and on our Website. Flash cookies are not managed by the same browser settings as are used for browser cookies. For information about managing your privacy and security settings for Flash cookies, see Choices About How We Use and Disclose Your Information.
Web Beacons. Pages of our Website and our e-mails may contain small electronic files known as web beacons (also referred to as clear gifs, pixel tags, and single-pixel gifs) that permit the Company, for example, to count users who have visited those pages or opened an email and for other related website statistics (for example, recording the popularity of certain website content and verifying system and server integrity).
Third-Party Use of Cookies and Other Tracking Technologies
Some content or applications, including advertisements, on our Website are served by third-parties, including advertisers, ad networks and servers, content providers, and application providers. These third parties may use cookies alone or in conjunction with web beacons or other tracking technologies to collect information about you when you use our website. The information they collect may be associated with your personal information or they may collect information, including personal information, about your online activities over time and across different websites and other online services. They may use this information to provide you with interest-based (behavioral) advertising or other targeted content. We do not control these third parties’ tracking technologies or how they may be used. If you have any questions about an advertisement or other targeted content, you should contact the responsible provider directly. For information about how you can opt out of receiving targeted advertising from many providers, see Choices About How We Use and Disclose Your Information.
How We Use Your Information
We use information that we collect about you or that you provide to us, including any personal information:To present our Website and its contents to you.To provide you with information, products, or services that you request from us.To fulfill any other purpose for which you provide it.To provide you with notices about your account or use of our Website.To carry out our obligations and enforce our rights arising from any contracts entered into between you and us, including for billing and collection.To notify you about changes to our Website or any products or services we offer or provide though it.To analyze how you interact with our Website.To allow you to participate in interactive features on our Website.To develop new products and services.To verify your identity, such as conducting identity verification when you apply for our products or services, authenticating your login credentials, verifying your location to allow access to your accounts, and storing security questions for subsequent verification online or over the phone.For advertising and marketing, such as sending you offers for special products and services via mail, email, or text message, displaying online advertising, targeting our offers or promotions, conducting market research, and evaluating or improving the effectiveness of our marketing efforts.Using aggregated and de-identified information, such as using or modifying the information described in this Privacy Policy in a manner that does not allow us to reasonably identify you. For example, we may compile aggregated statistics to understand trends or to research the percentage of users accessing a specific Website feature. Information that has been aggregated and de-identified is no longer subject to this Privacy Policy.To comply with legal obligations and legal process and to protect our rights, privacy, safety, or property, and/or that of our affiliates, you, or other third parties.To prevent fraud, criminal activity, or misuses of our Website, and to ensure the security of our IT systems, architecture, and networks.In any other way we may describe when you provide the information.For any other purpose with your consent.We may also use your information to contact you about our own and third-parties' goods and services that may be of interest to you. If you do not want us to use your information in this way, please send us an email with your request to support@hf.app. For more information, see Choices About How We Use and Disclose Your Information.We may use the information we have collected from you to enable us to display advertisements to our advertisers' target audiences. Even though we do not disclose your personal information for these purposes without your consent, if you click on or otherwise interact with an advertisement, the advertiser may assume that you meet its target criteria.
Disclosure of Your InformationWe may disclose aggregated information about our users, and information that does not identify any individual, without restriction.
We may disclose personal information that we collect or you provide as described in this Privacy Policy:To our subsidiaries and affiliates.To contractors, vendors, service providers, business partners and other third parties we use to support our business.To a buyer or other successor in the event of a merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of Company’s assets, whether as a going concern or as part of bankruptcy, liquidation, or similar proceeding, in which personal information held by Company about our Website users is among the assets transferred.To third parties to market their products or services to you if you have not opted out of these disclosures. For more information, see Choices About How We Use and Disclose Your Information.To fulfill the purpose for which you provide it. Recipients of aggregated and de-identified information.Third parties with whom you authorize or direct us to share your information.For any other purpose disclosed by us when you provide the information.With your consent.We may also disclose your personal information:To comply with any court order, law, or legal process, including to respond to any government or regulatory request.To enforce or apply our Terms of Use and other agreements, including for billing and collection purposes.If we believe disclosure is necessary or appropriate to protect the rights, property, or safety of Company our customers, or others. This includes exchanging information with other companies and organizations for the purposes of fraud protection and credit risk reduction.The categories of personal information we may disclose include:Professional Profile Information: Job title, company name, industry, professional experience, and skills.Connection Information: Connection's name, title, company, mutual connections.Educational Background: Degrees obtained, schools attended, years of graduation.Recommendations and Endorsements: Received and given recommendations, skill endorsements.Group Memberships and Interests: Professional groups joined, followed companies, interests.Contact Information: Professional email address, phone number (if publicly shared).
Choices About How We Use and Disclose Your Information
We strive to provide you with choices regarding the personal information you provide to us. We have created mechanisms to provide you with the following control over your information:
Tracking Technologies and Advertising.
You can set your browser to refuse all or some browser cookies, or to alert you when cookies are being sent. If you disable or refuse cookies, please note that some parts of this site may then be inaccessible or not function properly.
Disclosure of Your Information for Third-Party Advertising. If you do not want us to share your personal information with unaffiliated or non-agent third parties for promotional purposes, you can opt-out by sending us an email with your request to suppoort@hf.app.
Promotional Offers from the Company. If you do not wish to have your contact information used by the Company to promote our own or third parties' products or services, you can opt-out by sending us an email stating your request to support@hf.app. If we have sent you a promotional email, you may send us a return email asking to be omitted from future email distributions. This opt out does not apply to information provided to the Company as a result of a product purchase, warranty registration, product service experience or other transactions.
Targeted Advertising. If you do not want us to use information that we collect or that you provide to us to deliver advertisements according to our advertisers' target-audience preferences, you can opt-out by sending us an email stating your request to support@hf.app.
Do Not Track Signals. Our Website currently does not respond to “Do Not Track” (“DNT”) signals and operates as described in this Privacy Policy whether or not a DNT signal is received. If we do respond to DNT signals in the future, we will update this Privacy Policy to describe how we do so.We do not control third parties’ collection or use of your information to serve interest-based advertising. However these third parties may provide you with ways to choose not to have your information collected or used in this way. You can opt out of receiving targeted ads from members of the Network Advertising Initiative (“NAI”) on the NAI’s website and from members of the Digital Advertising Alliance (“DAA”) on the DAA website.Residents of certain states, such as California, Nevada, Colorado, Virginia, and Utah may have additional personal information rights and choices. Please see Your State Privacy Rights for more information. California residents may have additional personal information rights and choices.
Accessing and Correcting Your InformationYou may send us an email at support@hf.app to request access to, correct or delete any personal information that you have provided to us. We cannot delete your personal information except by also deleting your user account. We may not accommodate a request to change information if we believe the change would violate any law or legal requirement or cause the information to be incorrect.If you delete your User Contributions from our Website, copies of your User Contributions may remain viewable in cached and archived pages, or might have been copied or stored by other Website users. Proper access and use of information provided on our Website, including User Contributions, is governed by our Terms of Use.Residents of certain states, such as California, Nevada, Colorado, Virginia, and Utah may have additional personal information rights and choices. Please see Your State Privacy Rights for more information. California residents may have additional personal information rights and choices.
Your State Privacy RightsIf you are a California resident, California law may provide you with additional rights regarding our use of your personal information. To learn more about your California privacy rights, visit our California Consumer Privacy Act Disclosure which applies to certain information we collect about California residents.California's “Shine the Light” law (Civil Code Section § 1798.83) permits users of our Website that are California residents to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes. To make such a request, please send an email to support@hf.app or write us at. Colorado, Connecticut, Virginia, and Utah each provide their state residents with rights to:Confirm whether we process their personal information.Access and delete certain personal information.Data portability. Opt-out of personal data processing for targeted advertising and sales.Colorado, Connecticut, and Virginia also provide their state residents with rights to:Correct inaccuracies in their personal information, taking into account the information's nature processing purpose.Opt-out of profiling in furtherance of decisions that produce legal or similarly significant effects. To exercise any of these rights, please submit a request by sending an email to support@hf.app with the subject line "Privacy Rights Request" or by physical mail to the Company’s mailing address provided below. Please include your full name, address, and the specific right you are seeking to exercise in the body of the email.To appeal a decision regarding a consumer rights request, you may send a written appeal, detailing the reason for the appeal and including any relevant documentation, to support@hf.app or the Company’s mailing address below.
Data Security
We have implemented reasonable measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, and disclosure. All information you provide to us is stored on our secure servers behind firewalls.The safety and security of your information also depends on you. Where we have given you (or where you have chosen) a password for access to certain parts of our Website, you are responsible for keeping this password confidential. We ask you not to share your password with anyone. We urge you to be careful about giving out information in public areas of the Website like message boards. The information you share in public areas may be viewed by any user of the Website.Unfortunately, the transmission of information via the internet is not completely secure. Although we do our best to protect your personal information, we cannot guarantee the security of your personal information transmitted to our Website. Any transmission of personal information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures contained on our Website.
Changes to Our Privacy Policy
It is our policy to post any changes we make to this Privacy Policy on this page. If we make material changes to how we treat our users’ personal information, we will notify you through a notice on the Website home page. The date the Privacy Policy was last revised is identified at the top of the page. You are responsible for ensuring we have an up-to-date active and deliverable email address for you, and for periodically visiting our Website and this Privacy Policy to check for any changes.
Contact InformationTo ask questions or comment about this Privacy Policy and our privacy practices, contact us at:
Address: 201 W 5th St, Suite 1100, Austin, TX 78701
Last updated: March 4th, 2025
The Agreement governs the provision by Hifive to the Customer of access to the web-based service described at hf.app, as it may be updated from time to time at Hifive's sole discretion (the “Service”).
1. Hifive Service.
1.1 Subscriptions. Company and Customer may enter into one or more order forms (“Order Forms”) referencing this Agreement, according to which Customer may purchase a subscription to access and use the Service, subject to this Agreement (a “Subscription”). Each Order Form is deemed incorporated into this Agreement. Hifive will use commercially reasonable efforts to ensure the Service is fully available in all material respects on a 24/7 basis (subject to downtime for scheduled maintenance, emergency maintenance, and matters beyond Hifive’s reasonable control).
1.2 Access to the Service. During the term of a Subscription and subject to Customer’s compliance with the terms and conditions of this Agreement, Hifive shall provide Customer with non-exclusive access to the Service and grants Customer the right to access and use the Service solely for its business purposes.
1.3 Users. Access to the Service is made on an organization-wide basis, with no limit on the number of users (a “User”) which Customer may permit to access Customer’s account on the Service. Each User shall have unique log-in credentials, and Customer will ensure that Users maintain the confidentiality of their log-in credentials. Customer will be responsible for the acts and omissions of each User concerning the Service.
1.4 Professional Services. If applicable, Hifive and Customer may additionally agree upon the provision by Hifive of professional services relating to the implementation or other support of Customer’s use of the Service, as set forth in a Statement of Work referencing and governed by this Agreement (“Professional Services”).
2. Billing and Payments.
2.1 Pricing Structure. The pricing model for the Service has the following components: (i) an annual subscription fee (the “Subscription Fee”); and (ii) if applicable, fees for Professional Services (“Professional Service Fees” and together with Subscription Fees, “Fees”). Fees charged are as-described on the applicable Order Form and are not refundable.
2.2 Modifying Customer’s Subscription. Any changes to the Customer’s subscription shall be evidenced by a new Order Form executed by Hifive and Customer. There are no refunds or credits for plan downgrades or modifications during the subscription term outlined in an Order Form.
2.3 Late Charges. Late payments are subject to interest charges of 1% per month, or if lower, the maximum amount allowed by law.
2.4 Taxes. The customer is solely responsible for paying any taxes resulting from using the Service. Suppose any such taxes are required to be withheld. In that case, the Customer shall pay an amount to Hifive such that the net amount payable to Hifive after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement.
2.5 Billing Disputes. Customer agrees that it shall notify Hifive within 60 days of receipt of an invoice from Hifive if it intends to dispute the amounts owed under such invoice, and that after 60 days, all undisputed invoices will be deemed to have been accepted.
3. Intellectual Property
3.1 Rights in the Hifive Service. Hifive shall retain all intellectual property rights in the Service, including any derivatives, changes, and improvements thereof. Customer agrees that it obtains no intellectual property rights or licenses by this Agreement except those expressly granted herein.
3.2 Feedback. Customer hereby grants Hifive a nonexclusive, perpetual, irrevocable, royalty-free, fully paid-up license to any ideas, suggestions, feedback, gift ideas or categories, or service improvements given by Customer pertaining to the Service
3.3 Restrictions. Customer shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Service; (ii) not represent that it possesses any proprietary interest in the Service; (iii) not directly or indirectly take any action to contest Hifive's intellectual property rights or infringe them in any way; and (iv) except as specifically permitted hereunder, not use the name, trademarks, trade-names, and logos of Hifive.
4. Customer Content.
4.1 Ownership. All data, information, files, or other materials and content that Customer makes available to Hifive to utilize the Service (“Customer Content”) shall remain the sole property of Customer.
4.2 License to Hifive. Customer hereby grants Hifive a worldwide, non-exclusive, royalty-free license to use, copy, reproduce, distribute, prepare derivative works of, display and perform any Customer Content, (i) to the extent required to perform the Service, and (ii) to the extent such Customer Content has been aggregated and anonymized such that no identification of Customer or any User is possible, for any business purpose (and Hifive will, notwithstanding Section 5.1, have the right to retain and use such information after the termination of this Agreement).
5. Confidentiality.
5.1 Nondisclosure. Each party (each, a “Receiving Party”) agrees that it shall use and reproduce the Confidential Information of the other party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes and shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a need to know and who are bound by obligations of confidentiality and nonuse at least as protective of such information as this Agreement and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The Receiving Party shall satisfy the foregoing obligations through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. Notwithstanding the foregoing, it shall not be a breach of this Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure. “Confidential Information” means all information of a party disclosed to the other party, regardless of the form of disclosure, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation and without the need to designate as confidential, the terms and conditions of this Agreement. On termination of this Agreement, the Receiving Party will return to the Disclosing Party (or, at the Disclosing Party’s request, destroy) all of the Disclosing Party’s Confidential Information.
5.2 Exceptions. Notwithstanding anything to the contrary herein, neither party shall be liable for using or disclosing information that such party can prove: (i) was publicly known at the time it was disclosed or has become publicly known through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this Agreement.
5.3 Data Privacy. Except as described in this Agreement and in Hifive's Privacy Policy, available at hf.app/p/privacy (the “Privacy Policy”), or as otherwise required by applicable law, Hifive will not disclose Customer’s Confidential Information to any third party.
5.4 EU Privacy Laws. Customer agrees that any transfer by Customer to Hifive of any “personal data”, as defined in the European Union General Data Protection Regulation (“GDPR”) is subject to Hifive's Data Processing Addendum, available upon request.
5.5 California Consumer Privacy Act. Customer acknowledges and agrees that Hifive's California Data Privacy Addendum, available upon request.
6. Representations and Warranties.
6.1 Warranties.6.1.1 Each party represents and warrants that (a) this Agreement constitutes a legal, valid, and binding obligation, enforceable against it in accordance with the terms and conditions of this Agreement, and (b) its execution and delivery of this Agreement and its performance hereunder will not violate any applicable law, rule or regulation.
6.1.2 Hifive additionally represents and warrants that (a) the Service will comply with all laws and regulations and will not infringe any third party’s intellectual property rights, and (b) the Service will comply in all material respects with any Hifive-provided documentation.
6.1.3 Customer additionally represents and warrants that (a) the Customer Content does not infringe upon any third party's proprietary rights, including intellectual property rights (b) Customer will use the Service in compliance with all applicable laws and regulations.
6.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, Hifive PROVIDES THE USAGE OF THE SERVICE TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, AND FITNESS FOR PARTICULAR PURPOSE WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, Hifive DOES NOT WARRANT THAT (I) THE SERVICE OR ANY SERVICES RELATED THERETO WILL BE DELIVERED OR PERFORMED WITHOUT MISTAKE OR INTERRUPTION OR (II) THAT CUSTOMER WILL ACHIEVE ANY PARTICULAR BUSINESS RESULTS BY USE OF THE SERVICE.
7. Indemnification.
7.1 Customer's Indemnities. Customer shall defend, indemnify and hold harmless Hifive and its officers, directors, consultants, employees, successors, and permitted assigns from and against any third party claim, suit, or proceeding and all resulting damages, costs, losses, awards, and reasonable attorneys’ fees (collectively, a “Claim”), arising out of or relating to (a) the use or display of any Customer Content; or (b) Customer’s use of the Service in any manner that violates this Agreement or applicable laws, rules or regulations.
7.2 Hifive's Indemnities. Hifive shall defend, indemnify and hold harmless Customer and its officers, directors, consultants, employees, successors, and permitted assigns from and against any Claim arising out of or relating to (a) an allegation that the Service infringes any intellectual property right of a third party, (b) Hifive's violation of any laws or regulations, or (c) Hifive's gross negligence or willful misconduct.
7.3 Procedures. Each party’s indemnitee obligations are contingent on the indemnity providing it with prompt written notice of all claims and threats thereof, sole control of all defense and settlement activities, and all reasonably requested assistance.
8. Limitation of Liability.
8.1 EXCLUSION OF DAMAGES. EXCEPT FOR A BREACH OF CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 MAXIMUM AGGREGATE LIABILITY. EXCEPT FOR A BREACH OF CONFIDENTIALITY, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO Hifive DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES. WITH RESPECT TO A PARTY’S INDEMNITY OBLIGATIONS, THE CAP IN THIS SECTION 8.2 WILL BE INCREASED BY FOUR TIMES (4x).
9. Term; Termination.
9.1 Term. This Agreement shall commence on the Effective Date and will terminate as set forth below (the “Term”). Each Order Form will have the term set forth thereon. Unless otherwise specified in the Order Form, each Order Form will automatically renew for successive 12 month terms unless notice of non-renewal is given by either party at least 30 days prior to the end of the then-current term of the Order Form.
9.2 Term. Either party may terminate this Agreement on ten (10) days’ notice if there are no Order Forms in effect. In addition, either party may terminate this Agreement (i) for the other party’s material breach, if the breaching party does not cure such breach within 30 days after receipt of written notice specifying in detail the nature of the breach, effective upon the expiration of such 30 day period, or (ii) upon notice if the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party or any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
9.3 Effect of Termination. Upon termination or expiration of this Agreement, Customer will immediately cease use of the Service and this Agreement shall terminate and be of no further force or effect, provided that the following provisions shall survive any expiration or termination of this Agreement: (i) the obligation of Customer to pay fees incurred prior to termination; (ii) Section 3 (Hifive Intellectual Property Rights & Restrictions), (iii) Section 4 (Customer Content),(iv) Section 5 (Confidentiality); (v) Section 6.2 (Disclaimer of Warranties); (vi) Section 7 (Indemnification); (vii) Section 8 (Limitation of Liability); and (viii) Section 10 (General).
10. General.10.1 Entire Agreement; Amendments. The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior communications and agreements. This Agreement may only be amended or otherwise modified by mutual written agreement of the parties.
10.2 Governing law. This Agreement is governed by the laws of the State of California, without regards to its conflict of laws principles, and any dispute arising from this Agreement shall be brought exclusively before the state and federal courts in San Francisco, California, and each party irrevocably submits to the jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
10.3 Assignment. Neither party may transfer or assign its rights or obligations under this Agreement to any third party without the prior written approval of the other party, except for an assignment to an affiliated company or to a successor in connection with a merger, acquisition, reorganization or sale of substantially all of its assets or voting securities. Any purported assignment contrary to this section shall be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
10.4 Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when sent by email to the email address set forth above (a party may update its email address upon notice).
10.5 Relationship of Parties. The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party. Neither party shall hold itself out as an agent of the other party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.
10.6 Severability. If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.
10.7 Force Majeure. Except for payment obligations under this Agreement, neither party hereto shall be liable for any loss, damage, or penalty resulting from such party's failure to perform its obligations hereunder when such failure is due to events beyond its reasonable control, such as, without limitation, flood, earthquake, fire, acts of God, military insurrection, civil riot, or labor strikes.
10.8 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
10.9 Publicity. Either party may issue publicity or general marketing communications concerning its involvement with the other party, subject to such other party’s prior written/verbal approval, which shall not be unreasonably withheld or denied; provided, that Customer hereby approves the display by Hifive of Customer’s name and logo on its website and in marketing materials, subject to Customer’s right to revoke such approval upon written notice to Hifive.