Home Hub Pro Terms for Service: 18 November 2018
IMPORTANT NOTICE: THESE TERMS REQUIRE BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM RELATING TO THESE TERMS, THE SERVICE OR ANY RELATIONSHIP BETWEEN US. ANY SUCH DISPUTE OR CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR ARBITRATION. THESE TERMS ALSO CONTAIN A DISCLAIMER OF WARRANTIES AND A DISCLAIMER OF LIABILITY, AS WELL AS A RELEASE AND INDEMNIFICATION BY YOU. PLEASE READ THEM CAREFULLY.
Children. The Service is not directed to children under 13, and MHH does not knowingly collect or store any personally identifiable information about anyone under the age of 13. If MHH learns that it has collected personally identifiable information of anyone under 13, MHH will make commercially reasonable efforts to delete such information from the Service and its files. If you are under the age of 13, PLEASE DO NOT USE, AND DO NOT SUBMIT ANY PERSONAL INFORMATION THROUGH, THE SERVICE.
Automatic Renewal Notice About Your Subscription
> Membership starts on the date that the Subscriber (you) subscribes to the Service, and continues for  months.
> The amount of subscription fees is disclosed in the subscription process.
> Unless you opt out of renewal at least [three (3)] business day[s] before the current term of your subscription ends, your subscription will automatically renew for another 12-month period and MHH will charge the annual subscription fee to the credit card on file in your subscription account.
> If subscription fees change, MHH will notify you beforehand.
> To opt out of automatic renewal, you must cancel the automatic renewal through the Service account settings in your subscription account (if available) or send an email with your name and a request to cancel to firstname.lastname@example.org at least [three (3)] business day[s] before the current term of your subscription ends.
(a) “Authorized User” means (i) an individual Subscriber or (ii) the individual partners, members, employees, temporary employees, and independent contractors of a Subscriber organization (whether a subscribing Professional, Client or a Vendor) who have been added as users accessing and using the Service under the authorization of the Subscriber by any authorized administrator for the Subscriber’s account . In the case of a Client, an Authorized User in addition to the Subscriber also may be a co-owner or co-purchaser of the real estate to which the Subscriber’s subscription relates. In the case of a Professional, an Authorized User in addition to the person administering the subscription for the Subscriber also may include but is not limited to personnel from the brokerage company and/or brokerage office with which the Professional is associated, including transaction coordinators, assistants and other office users.
(b) “Client” means a type of Subscriber who registers for the Services offered by MHH after referral and invitation from a Professional representing such Client in a real estate transaction.
(c) “Content” means any information a Subscriber or Authorized User uploads or posts to the Service or otherwise provides to MHH in connection with the Service, including, without limitation, information about your Authorized Users or Clients.
(d) “Professional” means a type of Subscriber that brokers or is an agent for real estate transactions, and who represents parties in such transactions some of whom such Professionals refer to MHH to become Clients (defined above) and Subscribers of the Service.
(e) “Service” means any online software and digital technology service owned and provided by MHH primarily on a subscription basis, including but not limited to Home Hub Pro and EZ Home Hub, and accessible to Subscribers and their Authorized Users from MHH through any online means including but not limited to by web browsers on any device such as a desktop computer, laptop computer or mobile device or any mobile device-based application (e.g., IOS, Android).
(f) “Subscriber” means the party agreeing with MHH under these Terms to subscribe to the Service. There are three specific types of Subscriber further defined under this Section 1 of the Terms, a Professional, a Client and a Vendor. Each Subscriber who initiated the subscription to the Services by registering with MHH and accepting the Terms is assumed by MHH to have the sole authority to administer the Subscription including but not limited to designating additional Authorized Users, and to commit to and to be responsible for its Authorized Users’ compliance with the Terms.
(g) “Security Emergency” means a violation by Subscriber of the Terms that (a) could disrupt (i) MHH’s provision of the Service; (ii) the business of other subscribers to the Service; or (iii) the network or servers used to provide the Service; or (b) provides unauthorized third party access to the Service.
(i) “Vendor” means a type of Subscriber who registers for Vendor-specific features and functionality in the Service offered by MHH, including but not limited to referral from any Professional.
- Authorized Use of the Service; Prohibited Uses
2.1 Subscriber is granted a non-exclusive, non-transferable, limited authorization for it and its Authorized Users to access and use the Service in accordance with the Terms. Each Subscriber is jointly and severally responsible for the compliance with the obligations and restrictions in the Terms directed to the Authorized Users of each such Subscriber.
2.2 MHH does not review or pre-screen the Content and MHH claims no intellectual property rights with respect to the Content.
2.3 Except for the non-exclusive authorization pursuant to the Terms, Subscribers and their respective Authorized Users acknowledge and agree that all ownership, license, intellectual property and other rights and interests in and to the Service and any materials or APIs related to the Service shall remain solely with MHH.
2.4 Subscribers who configure the Service to share or make available certain Content to others, acknowledge and agree to such access to the Content (“Published Content”). It is the responsibility of the Subscriber to determine if the Published Content is appropriate for any persons who are provide authorized access to the Published Content. MHH reserves the right, at any time, in its sole discretion, to take any action deemed necessary with respect to Published Content that violates any part of the Terms, including, but not limited to, removal of such Published Content.
2.5 MHH reserves the right at any time to modify or discontinue, temporarily or permanently, the Service or any feature associated with the Service, with or without notice, except that MHH in its sole and absolute discretion may provide Subscriber with reasonable notice of any modification that substantially limits the functionality or complete discontinuance of the Service. Continued use of the Service following any modification constitutes Subscriber’s acceptance of the modification. Any notice from MHH referred to in the Terms shall be provided to Subscribers and Authorized Users by notification within the Service, email, direct message, text or other notification method deemed appropriate by MHH.
2.6 MHH reserves the right to temporarily suspend access to the Service for operational purposes, including, but not limited to, maintenance, repairs or installation of upgrades, and will endeavor in good faith to provide no less than one business days’ notice prior to any such suspension. Such notice shall be provided to you in advance through notification within the Service, email or other notification method deemed appropriate by MHH. Further, MHH shall endeavor in good faith to confine planned operational suspensions to minimize disruption to the Subscriber, but reserves the ability to temporarily suspend operation of the Service without notice at any time to complete necessary repairs. In the event of a temporary suspension, MHH will use the same notification methods listed in this section to provide updates as to the nature and duration of any temporary suspension.
2.7 MHH stores all Content on redundant storage servers. The Subscriber may also elect to replicate all Content associated with the subscription on its own storage device or the storage device of a third party vendor of Subscriber. Subject to the limitations, disclaimers and exclusions described later in the Terms, MHH’s managed backup services (“Managed Backup”) is intended to facilitate restoration of Content to the server or device from which the Content originated in the event the primary data is lost or corrupted; MHH shall endeavor in good faith to achieve recovery of lost or corrupted Content at no cost to the Subscriber. Following any cancellation or termination of Service for any reason, Subscriber shall have no more than forty-five (45) days to retrieve its Content, except to the extent applicable law requires a different time period.
2.8 Subscriber grants to MHH a non-exclusive, royalty-free right to use the Content for the sole purpose of performing, and for as long as MHH believes it is necessary to perform, any of MHH’ obligations under the Terms. Regardless, MHH may generate, use, reproduce, sell, publish or otherwise exploit aggregated and anonymized data derived from user information and Content input into or collected for the Service to the maximum extent permitted by applicable law , and nothing in these Terms or otherwise shall restrict MHH from doing so.
2.9 MHH uses one code-base for all jurisdictions. Professionals are required, using available settings in the Service, to configure the Service for any regulations required by any applicable jurisdiction and to verify that the settings meet the Subscriber’s requirements. Subscriber and Authorized Users agree to use good faith and reasonable efforts to provide Feedback to MHH regarding any particular requirements of the Subscriber’s or Authorized User’s jurisdictions the compliance with which the Subscriber believes the Service does not entirely satisfy, and MHH while under no obligations to do so, will consider in good faith implementing such Feedback.
2.10 MHH provides the reasonable Managed Backup intended to facilitate restoration of Content to the server or device from which the Content originated in the event the primary data is lost or corrupted. However, and subject to the limitations, disclaimers and exclusions described later in the Terms, MHH is under no obligations other than any imposed by applicable law or otherwise using good faith efforts to recover lost or corrupted Content. Following any cancellation or termination of Service for any reason, MHH is under no obligation to deliver data to Subscriber, and Subscriber shall have no more than forty-five (45) days to retrieve its Content, except to the extent applicable law requires a different time period.
2.11 Prohibited Access, Use, and Conduct. Subscribers and their respective Authorized Users agree they shall not engage in any of the following prohibited conduct in accessing or using the Service.
(a) Subscribers and their respective Authorized Users agree not to themselves, or assist others to, engage in any of the following:
(i) reproduce, duplicate, copy, sell, resell or exploit access to the Service, use of the Service, or any portion of the Service, including, but not limited to the HTML, Cascading Style Sheet (“CSS”) or any visual design elements without the express written permission from MHH;
(ii) frame any part of the Service or otherwise access, use, or attempt to use the Service through any means not explicitly and intentionally made available by or on behalf of MHH, provided by or on behalf of MHH or intended with respect to the Service (including attempting to gain unauthorized access to any portion of the Service, or any other systems connected to the Service); or
(iii) use or access the Service in any manner that could damage, disable, overburden, or impair the Service or that could interfere with the rights of or otherwise harm MHH, its service providers or suppliers, any other subscribers and their users or any other person.
(b) Subscribers and their respective Authorized Users agree not access, download, monitor, or copy any data or content contained on or in the Service through automated or artificial means (including screen and database scraping, spiders, robots, crawlers, deep-link, or any similar or equivalent automatic or manual process), or in any way obtain or attempt to obtain any data or content through any means that MHH does not intentionally make available through the Service. However, general purpose Internet search engines and non-commercial public archives that use tools to gather information for the sole purpose of displaying hyperlinks to the Service are granted a limited exception from the foregoing exclusion, provided that they do so from a stable IP address or range of IP addresses using an easily-identifiable agent that adheres to all limitations set forth in any applicable robots.txt file. Neither Subscribers nor their Authorized Users may harvest any information about other subscribers or users of the Service for any illegal or unauthorized purpose.
(c) Subscribers and their respective Authorized Users agree not to modify, reverse engineer, adapt or otherwise tamper with the Service or modify another website to falsely imply that it is associated with the Service, MHH, or any other software or service provided by MHH.
(d) Subscribers and their respective Authorized Users agree that they will not knowingly use the Service in any manner that is illegal or harms the legally protected interests of others, including but not limited to any of the following:
(i) any manner that may infringe copyright or other intellectual property rights or individual privacy rights in any way or that is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, harassing, abusive, threatening, or racist or otherwise in violation of the Terms; or
(ii) any manner that facilitates gambling, gaming, raffles, lotteries, sweepstakes, and/or any other activity featuring the award of a prize.
(e) Subscribers and their respective Authorized Users agree that they will not knowingly use the Service to upload, post, host, or transmit unsolicited bulk email “Spam”, short message service “SMS” messages, viruses, self-replicating computer programs “Worms” or any code of a destructive or malicious nature.
(f) Subscribers and their respective Authorized Users agree that they will not perform or publish any performance or benchmark tests or analyses relating to the Service or any use thereof not, and will not access or permit others to access the Service to build a competing product or service, or perform or publish any performance, or benchmark test or analysis relating to the Service
- Access to the Service
3.1 Authorized Users are only permitted to access and use the Service if he/she is acting on behalf of a Subscriber. Authorized Users are required to provide a valid email address and any other information reasonably requested by the Service.
3.2 Each Authorized User’s email address will serve as the Authorized User’s unique identifier (“Username”), and with a password will permits access and use the Service. The Username and password shall only be used by the Authorized User to whom both are is assigned, and shall not be shared with, or used by any other person, including other Authorized Users.
3.3 The Subscriber shall be the party with administrative rights over the Subscription and the Subscriber and user accounts under the subscription, with authority to administer the subscription and designate its Authorized Users. Each subscription may designate a reasonable number of Authorized Users based on the kind of Subscriber (e.g., Professional, Client or Vendor). Any Subscriber shall be deemed to have the authority to manage the subscription and any Authorized Users. The Subscriber will deactivate an active Username and associated password of any of its Authorized Users if the Subscriber wishes to terminate access to the Service for any such Authorized User or such Authorized User no longer performs services for or has a relationship with the Subscriber.
3.4 Subscribers are responsible for all use of the Service by Authorized Users on the list of active Authorized Users associated with their subscription to the Service in full compliance with the Terms.
3.5 As between MHH and the Subscriber, any Content uploaded or posted to the Service remains the property of the Subscriber. MHH will use commercially reasonable efforts to restrict any of its personnel (including officers or members) from misusing any Content for any personal purposes or for purposes that are unrelated to providing general access to and use of the Service consistent with the Terms. Upon Cancellation or Termination of Service as discussed in Section 10 below, MHH shall only be responsible for the return of Content directly to the Subscriber or a designated Authorized User if the Subscriber is unable to be reached.
3.6 Communicating by SMS (text messaging) related to the Service is or may become a feature of the Service. Subscribers and their respective Authorized Users may incur additional charges from their individual mobile service provider for such use with Service and MHH is not responsible for any such SMS-related charges. MHH also is not responsible or liable for any errors, delays, or missed, deleted or late-received messages by SMS.
If you receive non-public and confidential information from MHH or any other Subscriber or Authorized User (“Confidential Information”), until such information is no longer confidential, you agree not to use it or disclose it to any third party except as necessary to perform your obligations and exercise your rights related to the Service pursuant to the Terms. MHH’s Confidential Information includes but is not limited to information concerning MHH’s fees, performance of the Service, pricing schedules, Service development plans, proprietary technology, research information, policies and practices, trade secrets, and any and all other information that is not generally known to the public.
- Security and Access
5.1 MHH provides a basic method of secure authentication and accessing its Service. MHH will provide mechanisms that:
(a) allow for user password management
(b) transmit passwords in a secure format
(c) protect passwords entered for purposes of gaining access to the Service by utilizing code that follows password management best practices.
5.2 Subscriber will be responsible for protecting the security of Usernames and passwords, or any other codes associated to the Service, and for the accuracy and adequacy of personal information provided to the Service.
5.3 Subscriber will implement policies and procedures to prevent unauthorized use of Usernames and passwords, and will promptly notify MHH upon suspicion that a Username and password has been lost, stolen, compromised, or misused.
5.4 MHH, and any third party vendors and hosting partners it utilizes to provide the Service, will provide security for the Service in accordance with any applicable laws and otherwise in good faith; however, neither MHH nor its vendors can or will guaranty the security of the Service and any Content or Confidential Information uploaded to the Service.
5.5 MHH shall comply with applicable laws requiring that it report to Subscriber, with any specific details (except those which could prejudice the security of data uploaded by other customers), of any event that MHH reasonably believes represents unauthorized access to, disclosure of, use of, or damage to Content (a “Security Breach”). MHH will use good faith efforts to make any such report within 72 hours (or a lesser time required by applicable law) after learning of the Security Breach. In accordance with applicable law with respect to a Security Breach, MHH will in good faith cooperate with and assist Subscriber (a) to identify the cause of the breach and to identify any affected Content; (b) in investigating and preventing the recurrence of the Security Breach; (c) in any proceeding or investigation against third parties that Subscriber undertakes to protect the security and integrity of Content; and (d) use good faith efforts to mitigate any harmful effect of the Security Breach.
- Privacy Statement (Beta Service v.1)
Each Subscriber and Authorized User authorizes MHH to use and share with other Subscribers as necessary to provide the Service any information collected from the Subscriber either through inputting directly or by automated collection from use of the Service, including information that alone or in combination with other readily accessible information, identifies an Authorized User. By way of examples and not limitation, and even though the Service typically prompts a Client to decide whether to share Client’s information with a Vendor, each Client authorizes MHH through its providing the Service to share the Client’s information with a Professional or a Vendor. Each Subscriber and its Authorized Users also authorizes MHH to use aggregated and anonymized information gathered from use of the Service by Subscribers and Authorized Users to further develop and maintain the Service.
- Legal Compliance, Copyright and Use of Subscriber Name
7.1 Legally Compelled Disclosures.
(a) MHH maintains that its primary duty is to protect the Content to the extent of applicable law. MHH reserves the right to provide Confidential Information to third parties as required and permitted by applicable law (such as in response to a subpoena or court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter.
(b) If MHH is required by law to make any disclosure of Confidential Information that is prohibited or otherwise constrained by the Terms, then MHH will provide Subscriber with prompt written notice (to the extent permitted by law) by electronic communication from within the Service or by email or instant message prior to such disclosure so that the Subscriber may seek a protective order or other appropriate relief. Subject to the foregoing sentence, MHH may furnish that portion (and only that portion) of the Confidential Information that it is legally compelled or otherwise legally required to disclose.
7.2 Claims of Copyright Infringement. If you believe that your work has been reproduced in connection with the Service in a manner that constitutes copyright infringement, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by sending a written notification to MHH at the address below, with the following information: (i) a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest, (ii) identification of the copyrighted work claimed to have been infringed, (iii) a description of where the material that you claim is infringing is located within the Service, (iv) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an e-mail address, (v) a signed statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law, and (vi) a signed statement that the information in the notification is accurate, and under penalty of perjury, that you are the copyright owner or you are authorized to act on behalf of the owner.
Notification pursuant to the DMCA should be submitted to:
My Home Hub, LLC
12409 203rd Avenue NE
Woodinville, WA 98077-5625
7.3 Use of Subscriber Professional or Vendor Name and Logo. Regardless of anything in the Terms to the contrary, each Professional and Vendor Subscriber hereby grants to MHH the right to use such Subscriber’s name and logo on Service and on MHH’s email campaigns, and any other marketing materials and media. Subscriber agrees that any such use by MHH does not infringe on any trademark, service mark, copyright, moral or other rights and that Subscriber will not assert such rights in respect to such use. Should any Subscriber no longer wish to grant the rights to MHH in this paragraph, Subscriber will provide notice to MHH by e-mail at the following address: email@example.com. After receipt of such notice, MHH’s sole obligation will be to within a commercially reasonable time period remove Subscriber’s name and logo from the Service and cease including the name and logo in any future MHH marketing materials and media. This does, however, require Provider to cease such use on MHH materials and media that have already been substantially prepared or published within a commercially reasonable time period after MHH receives such notice.
8.1 Any ideas, suggestions, or comments that any Subscriber (including its Authorized Users) provides to MHH related to the Service (in production or Beta) is “Feedback”. If Subscriber (including its Authorized Users) provide any Feedback to MHH, Subscriber and its Authorized Users grant MHH a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, create derivative works from, reproduce, distribute, display, publish, perform any Feedback and to make, have made, sell, offer to sell, and import any products or materials that include or incorporate any Feedback, including but not limited to any MHH Service, software, other service or any materials in connection with MHH’s business. Subject to the limited rights expressly authorized in the Terms, MHH reserves all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to Subscriber or its Authorized Users hereunder other than as expressly set forth in the Terms.
8.2 If Subscriber and its Authorized Users access and use the Service in any “Beta” or other pre-release version, Subscriber and its Authorized Users will use reasonable efforts to provide Feedback requested by MHH.
- Payment, Refunds, and Subscription Changes
9.1 Subscribers with paid subscriptions will provide MHH with a valid credit card for payment of the applicable subscription fees. All subscription fees are exclusive of all federal, state, provincial, municipal or other taxes which Subscribers agree to pay based on where the Subscriber is primarily domiciled. (In addition to any fees, the Subscriber acknowledges that it may still incur charges incidental to using the Service, for example, charges for Internet access, data roaming, and other data transmission charges.)
9.2 Subscribers with monthly paying subscriptions will be charged upon the expiration of any applicable free trial period. Subscriptions cancelled prior to the expiration of any trial period, will not be charged. Monthly Subscribers will thereafter be charged in advance each 30 days. Annual Subscribers will thereafter be charged annually on the anniversary date of the initial subscription charge. All charges are final and non-refundable, including payments made by Annual Subscribers, setup fees, and other professional services charges.
9.3 No refunds or credits will be issued for partial periods of service, upgrade/downgrade refunds, or refunds for periods unused with an active subscription, including, but not limited to, instances involving the removal of a Subscriber.
9.4 There are no charges for cancelling a subscription and paying subscriptions cancelled prior to the end of their current billing cycle will not be charged again in the following cycle.
9.5 The amount charged on the next billing cycle will be automatically updated to reflect any changes to the subscription, including upgrades or downgrades, and including the addition or removal of discounts included for the purchase of combinations of features and functionality in the Service. Adding Authorized User subscriptions or subscription upgrades may trigger prorated charges in the current billing cycle as described on MHH’s website or in price information MHH provides to Subscriber. Subscriber authorizes MHH to apply updated charge amounts. Subscription changes, including downgrades, may result in loss of access to Content, features, or an increase or reduction in the amount of available capacity for Content provided by the Service.
9.6 All prices are subject to change upon notice. Such notice shall be provided to you in advance through notification within the Service, email or other notification method deemed appropriate by MHH.
9.7 Subscriber is responsible for paying all taxes associated with the subscription to the Service. If MHH has the legal obligation to pay or collect taxes for which Subscriber is responsible under this section, the appropriate amount shall be charged to and paid by Subscriber, unless Subscriber provides MHH with a valid tax exemption certificate authorized by the appropriate taxing authority.
9.8 Any and all payments by or on account of the compensation payable under the Terms shall be made free and clear of and without deduction or withholding for any taxes. If the Subscriber is required to deduct or withhold any taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, MHH receives an amount equal to the sum it would have received had no such deduction or withholding been made.
- Cancellation and Termination
10.1 Subscribers are solely responsible for canceling subscriptions. A Subscriber may cancel their subscription at any time by accessing the Service and visiting https://homehubpro.com/ as applicable. For security reasons, cancellations shall only be performed by a Subscriber using https://homehubpro.com/login.html. The Subscriber also may be directed, within the Service, to call support to complete the cancellation. Cancellations shall not be accepted by any other means.
10.2 MHH in its sole discretion has the right to suspend or discontinue providing the Service to any Subscriber without notice for actions that are (a) in material violation of the Terms and (b) create a Security Emergency.
10.3 If (i) Authorized Users use the Service to materially violate the Terms in a way that does not create a Security Emergency; (ii) MHH provides Subscriber with commercially reasonable notice of this violation; (iii) MHH uses commercially reasonable efforts to discuss and resolve the violation with Subscriber; and (iv) despite the foregoing, the violation is not resolved to MHH’s reasonable satisfaction within thirty (30) days of such notice, then MHH reserves the right to suspend access to the Service.
10.4 As required by Section 2.7 above (“Managed Backup and Archiving”), upon cancellation or termination of a subscription, Content is made available to the Subscriber or a designated Authorized User. Following a period of no less than forty-five (45) days from the cancellation or termination of a subscription, all Content associated with such subscription may be irrevocably deleted from the Service.
10.5 In the event of any cancellation or termination of the Terms, the following sections of the Terms shall survive any such cancellation or termination: 1, 2.3, 2.4, 2.8, 2.11, 4, 5.4, 7, 8, 9.3, 9.7, 9.8, 10.4, and 11 through 15.
- Limitations on Claims, Damages and Liability
11.1 To the extent permitted by applicable law, MHH shall not be liable for and Subscriber and its Authorized Users waive the right to claim any loss, injury, claim, liability or damage of any kind resulting in any way from the Service provided to Subscriber by MHH.
11.2 Limitation of Liability
(i) In no event will MHH be liable to any Subscriber, Authorized User, or any other third party for any cost of cover, lost profits or direct, indirect, incidental, special, punitive, or consequential damages whatsoever arising out of, based on, or resulting from the Service, by access, use or otherwise, including without limitation any Subscriber’s and/or its Authorized Users’ interactions with other Subscribers and/or their Authorized Users or any third parties in connection with the Service, whether based on warranty, contract, tort, negligence or any other legal theory, whether or not such damages are foreseeable and whether or not MHH is advised of the possibility of such damages. The foregoing limitation of liability shall apply to the fullest extent permitted by applicable law in the applicable jurisdiction.
(ii) In no event will the collective liability of MHH to any Subscriber and/or its Authorized Users or any other third party arising out of or in connection with the Terms or the Service or both, exceed (a) the amount the applicable Subscriber paid to MHH for use of the applicable Service in the 6-month period preceding the event giving rise to the asserted liability or (b) if Subscriber or an Authorized User (as applicable) have not had any payment obligations to MHH, then one hundred dollars.
(iii) Any claims relating to the Service or the Terms must be brought within one (1) year from the date the cause of action arose. Claims brought after such period will be VOID.
(iv) This allocation of risk and liability is reflected in the pricing or other consideration and benefits offered by MHH to Subscriber (and its Authorized Users) and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable from and independent of all other provisions of this agreement.
(v) Subscriber on its own behalf and on behalf of its Authorized Users agrees that they bear all risk and, in consideration of the Service provided by MHH, hereby release MHH, its affiliates, and their respective officers, directors, members, employees, contractors, shareholders, agents, representatives, licensors, licensees, vendors and suppliers (collectively, the "MHH Parties") from all claims, demands, liabilities and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, now and in the future, arising out of or in any way connected with your use of the Service. Subscriber and any of its Authorized Users further waive any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver, and waives and relinquishes all rights and benefits which they have or may have under Section 1542 of the civil code of the state of California or any similar provision of the statutory or non-statutory law of any other jurisdiction to the full extent that they may lawfully waive all such rights and benefits.
11.3 Subscriber will solely be responsible for any damage and/or loss of Content contained in Subscriber’s technology which occurs as a result of Subscriber’s electronic equipment and/or Subscriber’s computer system.
- Disclaimer of Warranties
12.1 MHH HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND IN RELATION TO THE SERVICE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO ANY SERVICE PROVIDED BY MHH.
12.2 MHH MAKES NO WARRANTY THAT ITS SERVICE WHEN PROVIDED TO SUBSCRIBER IN DIGITAL OR ELECTRONIC FORMAT WILL BE COMPATIBLE WITH SUBSCRIBER COMPUTER AND/OR OTHER EQUIPMENT, OR THAT THESE SERVICE WILL BE SECURE (INCLUDING BUT NOT LIMITED WITH RESPECT TO ANY CONTENT) OR OTHERWISE ERROR FREE. NOR DOES MHH MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE. Nothing in this Section 12.2 shall modify MHH’s rights or obligations under Section 4 above (“Confidentiality”) or Section 5 above (“Security and Access”) or Section 13 of the Terms (“Indemnification”).
12.3 MHH hereby disclaims all warranties of any kind related to Subscriber’s hardware or software beyond the warranties provided by the manufacturer of Subscriber’s hardware or software.
Knowingly submitting false names or contact information, or not keeping contact information updated is inefficient, wastes time, and could result in harm to others (including violations of privacy) and significant legal and regulatory liability, damages, penalties and costs for MHH and our other Subscribers, Authorized Users and partners. Accordingly, if Subscriber or its Authorized User(s) knowingly input false information including any name, email address, telephone number or other contact information that is not yours (whether it’s someone else’s or just made up), or if you fail to keep the information in your Subscriber account current and correct, you agree to fully indemnify and be liable to MHH or other party (e.g., other Subscribers or Authorized Users) who directly or indirectly relies on information in connection with the Service, for any losses, liabilities, damages (direct, punitive, consequential or other), fines, penalties, and costs and expenses (including reasonable attorneys’ fees) incurred by the affected parties in connection with the false or incorrect information. MHH has the exclusive right to choose counsel, at your expense, to defend any such claims.
In addition to your indemnification obligations with respect to false or incorrect information (described above), Subscriber agrees to indemnify, defend and hold harmless MHH from and against any claims, disputes, demands, losses, obligations, liabilities, expenses, damages and costs (including attorneys’ fees) due to or arising out of (2) Subscriber’s or any of its Authorized Users’ transactions with other Subscribers or Authorized Users, or other third parties in connection with the Service, or (3) any violation by Subscriber (including its Authorized Users) of any of the Terms or applicable laws. MHH reserves the right, at its own cost and sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with MHH in asserting any available defenses.
14.1 Technical support for the Service is available by contacting
425-985-0337 during M-F 9AM-5PM PST.
14.2 Subscriber acknowledges and agrees that MHH may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service, and any personal information of the Subscriber or its Authorized Users are provided to the same as “Service Providers” or the like under any applicable privacy or data protection laws.
14.3 MHH may provide the ability to integrate the Service with third party products and services that Subscriber may use at Subscriber’s option and risk. Access to and use of any third party products and services are subject to the separate terms and conditions required by the providers of the third party products and services. Subscriber agrees that MHH has no liability arising from Subscriber’s use of any integrations or arising from the third party products and services. MHH can modify or cancel the integrations at any time without notice
14.4 Subscriber acknowledges the risk that information and the Content stored and transmitted electronically through the Service may be accessed or intercepted by third parties without authorization. Subscriber agrees to accept that risk and will not hold MHH liable for any loss, damage, or injury resulting from the access to or interception of information.
14.5 The failure of either party to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it later.
14.6 The Terms constitutes the entire agreement between Subscribers and their respective Authorized Users and MHH, and the Terms govern Subscribers’ and Authorized Users’ use of the Service, superseding any prior agreements between Subscribers and Authorized Users and MHH (including, but not limited to, any prior versions of this agreement).
14.7 MHH reserves the right to modify, change, or amend the Terms on reasonable notice. Any notice from MHH referred to in the Terms shall be provided to Subscribers and Authorized Users by notification within the Service, email, direct message, text or other notification method deemed appropriate by MHH. Continued use of the Service by the Subscriber after reasonable notice will be considered acceptance of any new terms.
14.8 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Terms in its entirety without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the terms of the Terms. Any attempt by a party to assign its rights or obligations under the Terms in breach of this Section shall be void and of no effect.
(i) Binding Arbitration. Each Subscriber and its Authorized Users agree that any dispute or claim arising out of or relating in any way to the Terms, each Subscriber and its Authorized Users access to or use of the Service and any relationship between us, including the validity, applicability or interpretation of the Terms (any of these, a “Dispute”) will be resolved by binding arbitration rather than in court. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
(ii) The arbitration will be conducted by the American Arbitration Association (AAA) under its then-applicable rules, including (as appropriate) its Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that the hearing will be conducted in King County, Washington. Without limiting the jurisdiction of any other court, you admit and further irrevocably agree to submit to the personal jurisdiction of the courts located within King County, Washington for the purpose of entering judgments on arbitral awards.
(iii) Class Action Waiver. Any Dispute will be conducted only on an individual basis and not in a class, consolidated or representative action or arbitration or as a named or unnamed member in a class, consolidated, representative or private attorney general legal action. Your access and continued use of the Service signifies your explicit consent to this waiver.
(iv) Venue. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial and agree that such claim shall be brought only in courts of competent jurisdiction located in King County, Washington. You hereby submit to the personal jurisdiction and venue of such courts and waive any objection on the grounds of venue, forum non conveniens or any similar grounds with respect to any such proceeding.
(v) Notwithstanding anything to the contrary, you and MHH may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect intellectual property rights, whether in aid of, pending or independently of the resolution of any Dispute pursuant to the arbitration procedures set forth above.
(vi) Governing Law. You agree that the Terms and any Dispute will be governed solely by United States and Washington state law, without regard to conflict of law provisions.
14.10. Export and Embargo Compliance. The Subscriber and any of its Authorized Users represent and warrant that (i) he/she is not 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; (ii) he/she is not listed on any U.S. Government list of prohibited or restricted parties. Subscriber and any of its Authorized Users further agree not to (iii) permit any third party to access or use the Service in violation of any U.S. law or regulation; or (iv) export any software provided by MHH or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations.
- Apple Mobile Device (IOS) Application Related Terms.This Section 15 relates to Subscribers and their respective Authorized Users access and use of the Apple IOS or other mobile device application included as a part of the Service (the “IOS Service App”).
15.1. Acknowledgement: MHH and Subscriber and any of its Authorized Users acknowledge and agree that the Terms are between MHH and Subscriber and any of its Authorized Users, and that neither Apple Inc. or any of its subsidiary or affiliated companies (collectively, “Apple”) are a party to or in any way subject to the Terms, other than pursuant to Section 15.10 below. Accordingly, MHH, not Apple, is entirely responsible for the IOS Service App under the Terms.
15.2. Scope of License: The license granted to the IOS Service App is limited to a non-transferable license to use the IOS Service App on any Apple-branded products that the Subscriber or its Authorized Users own or control and as permitted by the Usage Rules set forth in the Apple App Store Terms of Service, except that such IOS Service App may be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing.
15.3. Maintenance and Support: MHH is solely responsible for maintaining and supporting IOS Service App to the extent provide in the Terms, or as required under applicable law. Subscriber and any of its Authorized Users acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the IOS Service App.
15.4. Warranty: MHH, not Apple, is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed related to the Service including the IOS Service App. Under these Terms or any other applicable Terms, Apple’s sole remedy for any failure of the IOS Service App to perform in accordance with the Terms is, conditioned on prior notice, to refund the purchase price for the IOS Service App to that Subscriber and any of its Authorized Users; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the IOS Service App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty are the sole responsibility of MHH, not Apple.
15.5. Product Claims: MHH and the Subscriber and any of its Authorized Users must acknowledge that MHH, not Apple, are responsible for addressing any claims of the Subscriber and any of its Authorized Users or any third party relating to the IOS Service App or the possession and/or use of that IOS Service App, including, but not limited to: (i) product liability claims; (ii) any claim that the IOS Service App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the IOS Service App’s use of the HealthKit and HomeKit frameworks. The Terms may not limit MHH’s liability, however, beyond what is permitted by applicable law.
15.6. Intellectual Property Rights: MHH and the Subscriber and any of its Authorized Users acknowledge that, in the event of any third party claim that the IOS Service App or the Subscriber and any of its Authorized User’s possession and use of that IOS Service App infringes that third party’s intellectual property rights, that MHH, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
15.7. Contact: The Terms provide means to contact MHH in relation to the Service including the IOS Service App.
15.8. Third Party Terms of Agreement: Each of Subscriber and any of its Authorized Users agrees to comply with applicable third party terms of agreement when using the IOS Service App, e.g., if You have a VoIP application, then the Subscriber and any of its Authorized Users must not violate their wireless data service agreement when using the IOS Service App.
15.9. Third Party Beneficiary: MHH and Subscriber and any of its Authorized Users acknowledge and agree that Apple (including affiliates and subsidiaries of Apple Inc.) are intended third party beneficiaries of the Terms, and that, upon the Subscriber and any of its Authorized User’s acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against the Subscriber and any of its Authorized Users as a third party beneficiary thereof.