Terms of Use

IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, CUSTOMER MUST NOT ACCESS OR USE THE SERVICE.

This Subscription Agreement, including any exhibits, annexes and appendixes incorporated herein by reference (collectively, the “Agreement”), is entered into by and between HiO AI, Inc., a Delaware corporation (“Company”) and the individual or entity that clicks to accept this Agreement, accesses or uses the Service (as defined below) (“Customer”) (each, a “Party” and collectively, the “Parties”). By clicking “accept,” “agree,” or a similar button or checkbox, or by accessing or using the Service, Customer acknowledges and represents that it has fully read and understood, and agrees to be bound by, the terms of this Agreement (the date of such occurrence being the “Effective Date”). If the individual accepting this Agreement is doing so on behalf of an entity, such individual represents that he or she has authority to bind such entity to this Agreement.

If Customer has purchased the license granted hereunder from a reseller, distributor or other channel partner authorized by Company (“Partner”), and any conflict exists between this Agreement and the agreement entered into between Customer and the Partner, including any purchase order, online ordering document or other ordering instrument thereunder (“Partner Order Form”), then, as between Customer and Company, this Agreement shall prevail. Any rights granted to Customer in such Partner Order Form which are not expressly contained in this Agreement shall apply only as between Customer and such Partner under the Partner Order Form, and not under this Agreement, and Company shall have no obligation, liability or warranty with regard to such undertakings.

1. Definitions

The following capitalized terms have the meanings set forth below:

“Affiliate” with respect to any entity, means any other entity controlling, controlled by or under common control with such entity, where “control” means direct or indirect ownership or voting control of fifty percent (50%) or more of the equity or voting securities of the entity in question or having the power, by commitment or otherwise, to elect a majority of the Board of Directors (or similar governing body) of the entity in question.
“Customer Data” means electronic data and content submitted to the Service by Customer and Users in connection with their use of the Service, including data from Customer’s Connected Channels (email accounts, social media accounts, messaging platforms, and other integrated third-party services), Customer’s website content, FAQs, customer interactions, and any other information provided or made accessible to Company through the Service, excluding Analytics Information and Aggregated Data.
“Deliverables” means any outputs, responses, insights, recommendations, suggested messages, business intelligence reports, analytics, content suggestions, or other materials generated by the Service for Customer, including any outputs produced by artificial intelligence or machine learning components of the Service.
“Subscription Plan” means the subscription package, service tier, and related commercial terms selected or accepted by Customer through the Service, Company’s website, a checkout flow, a registration flow, or other electronic or written means approved by Company.
“Subscription Scope” means the Service usage metrics, entitlements, limitations and restrictions applicable to Customer’s Subscription, as set forth in the applicable Subscription Plan, checkout page, Service interface, Documentation, or Partner Order Form (if purchased via Partner), which may include limitations on number of users, Connected Channels, message volume, interactions processed, or other usage parameters.
“Initial Subscription Term” means the initial Service subscription period selected or accepted by Customer when subscribing to the Service, as displayed in the applicable Subscription Plan, checkout flow, Service interface or Partner Order Form.
“Users” means Customer’s employees, contractors, or other authorized person who are authorized by Customer to access and use the Service on Customer’s behalf.
“Aggregated Data” means de-identified, anonymized, and aggregated data derived from Customer Data and Customer’s use of the Service that does not identify Customer or any individual.
“Analytics Information” means technical data and information about Customer’s use of the Service, including usage statistics, performance data, log data, feature usage, system diagnostics, and other technical metrics collected by Company in connection with the operation and provision of the Service.

2. Subscription

Access Right. Subject to the terms and conditions of this Agreement, Company hereby grants Customer a limited, worldwide, non-exclusive, non-sublicensable, non-transferable and revocable right to remotely access the Company’s software-as-a-service platform (the “Service”) during the Subscription Term (defined below), solely for Customer’s internal business purposes and external customer-facing communications, marketing, support, and engagement activities in connection with Customer’s business (collectively, the “Subscription”). The Service enables Customer to manage customer interactions across multiple communication channels, receive intelligent response suggestions, and obtain business insights. Unless otherwise indicated, the term “Service” also includes any manuals or documentation provided or made available to Customer in connection with the operation of the Service, as well as any mobile applications provided by Company (collectively, “Documentation”). Customer may use the Service subject to the Subscription Scope, other usage limitations or restrictions specified in this Agreement, and applicable laws and regulations.

Customer shall be solely responsible for providing all equipment, systems, assets, access, and ancillary goods and services needed to access and use the Service and for ensuring their compatibility with the Service.
Customer’s Responsibilities to End-Users. Customer represents, warrants and covenants that Customer is solely responsible and liable for: (a) all interactions, communications, and relationships between Customer and Customer’s own clients, end-users, contacts, and other third parties (“Customer’s End-Users”); (b) ensuring that Customer has obtained all necessary rights, permissions, consents, and authorizations from Customer’s End-Users to collect, use, process, and share their data with Company for the provision and use of the Service; (c) complying with any and all applicable laws and regulations governing Customer’s relationship with Customer’s End-Users and the use of the Service, including privacy laws, consumer protection laws, marketing and spam laws, and platform-specific terms of use and policies (e.g., social media channels); (d) providing all required notices and disclosures to Customer’s End-Users regarding Customer’s use of AI-powered tools and third-party service providers to provide the Services and the fact that the communications and promotions are or may be generated by artificial intelligence; (e) the accuracy, appropriateness, legality, and quality of all messages, communications, and/or content sent to Customer’s End-Users, whether drafted by Customer or generated by the Service; and (f) any claims, disputes, or liabilities arising from Customer’s relationship with or communications to Customer’s End-Users by using the Service. Customer shall indemnify, defend, and hold harmless Company from any claims brought by Customer’s End-Users arising from Customer’s use of the Service or any breach of Customer obligations under this Section.
Customer obligations. Channel Connections and Integrations. Customer Website Information.
1. To use the Service, Customer must connect and integrate Customer’s own third-party accounts and services, which may include email accounts (such as Gmail or Outlook), social media accounts, e-commerce platforms, messaging platforms, and other integrated third-party services and communication channels (collectively, “Connected Channels”). Customer acknowledges and agrees that when Customer connects email accounts or messaging channels to the Service, the Service will process the messages to the Connected Channels in order to provide the Service. Customer is solely responsible for: (a) selecting which Connected Channels to connect to the Service; (b) ensuring Customer has all necessary rights, permissions, and authorizations to connect such Connected Channels and share data or user details and/or accounts with Company; (c) complying with the terms of service (and any related policy and/or acceptable use policy) of all third-party providers of Connected Channels; (d) any data, content, or communications accessed, processed, or transmitted through such Connected Channels; and (e) its use of and integration with any Connected Channels. Company is not a party to any agreement between Customer and any provider of Connected Channels and has no liability or responsibility for Customer’s relationship with or use of any Connected Channels. Customer acknowledges that Company’s access to Connected Channels is limited to what Customer explicitly authorizes and connects, and Customer shall not connect any Connected Channels for which Customer lacks proper authorization.
2. As part of the onboarding process, Customer authorizes Company to access, collect and process publicly available content from Customer’s website, including FAQs, product information, policies, and other public-facing content, to better understand Customer’s business and provide more relevant and accurate Service Deliverables.
3. Customer acknowledges and agrees that the Service incorporates and relies upon artificial intelligence and other similar technologies to analyze Customer Data, generate Deliverables, provide recommendations, suggest responses, and deliver other features and functionality of the Service. Customer’s use of the Service constitutes Customer’s express authorization for Company to utilize such technologies to process Customer Data and generate Deliverables. Company utilizes such technologies, which may be provided by third-party technology providers. These third-party technologies are subject to the providers’ terms of service, privacy policies, and acceptable use policies.
4. Customer is solely responsible for: (a) reviewing, verifying, validating, and evaluating all Deliverables before relying upon, implementing, or distributing them; (b) exercising professional judgment and human oversight over all Deliverables; (c) determining the appropriateness, accuracy, completeness, and suitability of any Deliverables for customer's intended use; and (d) any decisions made, actions taken, or communications sent based on or incorporating Deliverables. Customer shall not rely solely on deliverables without independent human review, verification, and judgment. Any decision to use, implement, modify, or send any Deliverable (including suggested messages or responses to Customer’s customers or contacts) is made solely by customer in Customer’s discretion and responsibility.
Additional Purchases. Purchases of access to additional features and/or additional volume under the Subscription Scope (collectively, “Additional Purchases”) may be made through the Service, through a mutually agreed written or electronic addendum, or through any other ordering process made available by Company, in each case according to the pricing agreed or presented to Customer. If Customer makes any Additional Purchases during a Subscription Term, the applicable fees and Service term therefor may be prorated or otherwise adjusted by Company to align with Customer’s then-current Subscription Term.
Account Setup. In order to access the Service, Customer is required to set up an administrative account with Company, by submitting the information requested in the applicable Service interface (“Account”), and each User may need to set up a user account (each, a “User Account”, and references herein to the “Account” shall be deemed to include all such User Accounts if applicable). Customer warrants that all information submitted during the registration process is, and will thereafter remain, complete and accurate. Customer shall be responsible and liable for all activities that occur under or in the Account. Customer will require that all Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer shall be fully responsible and liable for any breach of this Agreement by a User. Any unauthorized access to or use of the Service must be immediately reported to the Company.

3. Support Services and Professional Services

Company shall provide support and maintenance services in accordance with Company’s then-current support policies as made available through the Service or Company's website (the “Support Policies”). The support and maintenance services may be performed by Company, a Partner and/or Company’s certified third party providers. Company shall be responsible for such service providers’ performance of the support and maintenance services. The term “Subscription” shall include the services provided under the Support Policies and any Professional Services (defined below). Customer acknowledges and agrees that Company may from time to time, during the Subscription Term, develop bug fixes and/or patches (“Updates”), which may remotely and automatically update and maintain the Service components. In addition, Company may from time to time, during the Subscription Term, develop enhancements, new releases, new features, new versions of and other changes to the Service (collectively, “Upgrades”), which may remotely and automatically upgrade the Service components. For clarity, such Updates and/or Upgrades do not include any generally-available release of the Service (typically including new features, functionality and/or enhancements) that is subject to the payment of separate fees. The availability of the Service shall be in accordance with Company’s applicable hosting provider’s then-current uptime commitments.
If Customer wishes to receive any additional services from Company that are not included in the Support Policies, such as installation, deployment, configuration, customization, integration, training, or other professional services (“Professional Services”), Customer shall request same from Company in writing, and, if Company agrees to perform such Professional Services, they shall be set out in one or more separate statements of work or other written or electronic ordering documents executed by both Parties (each, a “SOW”). Company will charge for Professional Services in accordance with the fees and payment terms specified in the applicable SOW. Each SOW is hereby deemed incorporated into this Agreement by reference. To the extent of any conflict between the main body of this Agreement and a SOW, the former shall prevail, unless and to the extent that the SOW expressly states otherwise.

4. Subscription Fees

Subscription Fees. If Customer has purchased the Subscription directly from Company, this Section ‎4.1 shall apply. Customer shall pay Company the subscription fees specified in the applicable Subscription Plan, online checkout flow, pricing page, Service interface, or other ordering method made available by Company (the “Subscription Fees”).
Other Fees. Customer shall pay Company any other fees or charges specified in the applicable Subscription Plan, online checkout flow, Service interface, SOW, or other ordering method made available by Company (“Other Fees”, and together with the Subscription Fees, the “Fees”).
General. Unless expressly stated otherwise in the applicable Subscription Plan, checkout flow, SOW or Partner Order Form: (a) all Fees are stated, and are to be paid, in U.S. Dollars; (b) all payments under this Agreement are non-refundable, and are without any right of set-off or cancellation; (c) all Fees are payable, and shall be invoiced or charged, in advance, and shall be paid within thirty (30) days of receipt of invoice or, if charged electronically, on the applicable billing date; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month and the highest amount permitted by applicable law.
Suspension. Company reserves the right to temporarily suspend provision of the Service: (a) if Customer is seven (7) days or more overdue on a payment; (b) if Company deems such suspension necessary as a result of Customer’s breach under Section ‎5 (Subscription Restrictions); (c) if Company reasonably determines suspension is necessary to avoid material harm to Company or its other customers, including if the Service’s cloud infrastructure is experiencing denial of service attacks or other attacks or disruptions outside of Company’s control, or (d) as required by law or at the request of governmental entities.
Taxes. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon Company’s net income. In the event that Customer is required by any law applicable to it to withhold or deduct taxes for any payment under this Agreement, then the amounts due to Company shall be increased by the amount necessary so that Company receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction. If Customer requires a purchase order (or purchase order number) in order for an invoice to be paid, then Customer shall promptly provide such purchase order (or number) to Company.
If Customer purchased the Subscription via a Partner, the Subscription is subject to the full payment of the applicable fees as set forth in the Partner Order Form between Customer and the respective Partner. All payments shall be made directly to Partner, as agreed between Customer and Partner. If Customer is entitled to a refund under the terms and conditions of this Agreement, then, unless Company specifies otherwise, Company will refund any applicable fees to the Partner, and the Partner alone will be responsible for refunding the appropriate amounts to Customer.

5. Subscription Restrictions

As a condition to the Subscription, and except as expressly permitted otherwise under this Agreement, Customer shall not do (or permit or encourage to be done) any of the following Subscription restrictions (in whole or in part): (a) copy, "frame" or "mirror" the Service; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Service to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Service; (d) modify, alter, adapt, arrange, or translate the Service; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Service; (f) remove, alter, or conceal any proprietary rights notices displayed on or in the Service; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Service; (h) make a derivative work of the Service, or use it to develop any service or product that is the same as, competes with (or substantially similar to) it; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Service; or (j) take any action that imposes or may impose (as determined in Company’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Service, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure (collectively, the “Subscription Restrictions”).

6. Personal Data

Company’s Data Processing Agreement (“DPA” is available at https://hio.ai/legal/dpa). The DPA governs the Parties’ respective rights and obligations with respect to the processing of personal data in connection with the Service, for the avoidance of doubt, Company is considered a data processor (or a service provider, as applicable). The Company’s privacy policy is available at https://hio.ai/legal/privacy-policy.

7. Mutual Warranties

Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law.

8. Intellectual Property Rights

Ownership. As between the Parties, Company is, and shall be, the sole and exclusive owner of all intellectual property rights in and to: (a) the Service and all related software, algorithms, models, technology, and intellectual property; (b) all Deliverables; (c) all Aggregated Data; and (d) any and all improvements, derivative works, and/or modifications of/to the foregoing, regardless of inventorship or authorship. Customer shall make, and hereby irrevocably makes, all assignments necessary or reasonably requested by Company to ensure and/or provide Company the ownership rights set forth in this paragraph. Company shall be entitled, from time to time, to modify and replace the features (but not material functionalities, unless it improves the material functionality) and user interface of the Service. Nothing herein constitutes a waiver of Company’s intellectual property rights under any law.
License to Deliverables. Subject to Customer’s compliance with this Agreement and payment of all applicable Fees, Company hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable (upon termination of this Agreement) license to use the Deliverables solely for Customer’s internal business operations and Customer’s external customer-facing communications, marketing, support, and engagement activities in connection with Customer’s business. Customer acknowledges that all Deliverables are generated outputs of the Service and remain Company’s intellectual property. Customer may not use Deliverables to: (i) develop, train, or improve any competing product or service; (ii) reverse engineer or attempt to discover any underlying algorithms, techniques, or methodologies used to generate the Deliverables; or (iii) remove or obscure any proprietary notices in the Deliverables.
Feedback. If Company receives any feedback (which may consist of questions, comments, suggestions or the like) regarding any of the Services (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback shall belong exclusively to Company and such shall be considered Company’s Confidential Information. Customer hereby irrevocably and unconditionally transfers and assigns to Company all intellectual property rights it has in such Feedback and waives any and all moral rights that Customer may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Company at its sole discretion, and that Company in no way shall be obliged to make use of the Feedback.
Analytics and Aggregated Data. Company may collect, generate, use, and retain Analytics Information and Aggregated Data for any lawful business purpose, including to: (a) provide, maintain, support, improve, and develop the Service and Company’s other products and services; (b) conduct research, analytics, benchmarking, and statistical analysis; (c) detect and prevent fraud, abuse, and security incidents; (d) comply with legal obligations; and (e) for any other legitimate business purpose. For clarity, Analytics Information and Aggregated Data are Company’s exclusive property.

9. Customer Data

While using the Service, Customer Data and information may be made available and/or accessible to Company or the Service. Customer hereby grants Company and its Affiliates a worldwide, non-exclusive, non-assignable (except as provided herein), non-sublicensable (except to Company’s subcontractors and service providers as necessary to provide the Service), non-transferable right and license to access, use, process, store, and transmit the Customer Data solely to: (a) provide, maintain, and support the Service; (b) generate Deliverables for Customer; (c) create Analytics Information and Aggregated Data; and (d) comply with applicable laws and legal obligations. As the exclusive owner of the Customer Data, Customer represents, warrants and covenants that: (i) Customer has obtained all necessary rights, permissions, authorizations, and consents to provide the Customer Data to Company and to authorize Company’s use as set forth in this Agreement; and (ii) the Customer Data, and Customer’s provision thereof to Company, does not and will not violate any applicable laws (including privacy and data protection laws), regulations, or third-party rights. Company may use or disclose the Customer Data to: (A) satisfy any applicable law, regulation, legal process, subpoena or governmental request; (B) enforce this Agreement or investigate potential violations; (C) detect, prevent or otherwise address fraud, security or technical issues; and (D) collect, store, transfer, and/or process the Customer Data through Company’s Affiliates, subcontractors, and third-party service providers and vendors, as reasonably necessary to provide the Service.

10. Third Party Services and Components

Third Party Services. The Service incorporates, integrates with, or relies upon certain third-party services, platforms, application programming interfaces (APIs), software, libraries, models, tools, datasets, infrastructure, and components, including hosting, cloud, communications, and other technology providers (collectively, “Third Party Services”). Customer acknowledges and agrees that: (a) Third Party Services are provided by third parties and are not under Company’s control; (b) the availability, functionality, performance, accuracy, and features of the Service may depend on Third Party Services; (c) Company may use, replace, add, remove, or modify Third Party Services at any time in its discretion; (d) Third Party Services may be subject to the applicable third-party providers’ terms, policies, and restrictions; and (e) Company makes no separate representations, warranties, indemnities, or support commitments with respect to any Third Party Services except as expressly set forth in this Agreement.
Third Party Open Source Software. The Service may use or include third-party open source software, files, libraries or components (collectively, “Third Party OSS”), that may be distributed to Customer and are subject to third-party license terms. A list of any Third Party OSS and related licenses will be provided by Company upon request. If there is a conflict between any third-party open source license and the terms of this Agreement, then the third-party license terms shall prevail, but solely in connection with the related Third Party OSS.

11. Confidentiality

“Confidential Information” means any information disclosed by or on behalf of one Party (“Discloser”) to the other Party (“Recipient”) pursuant to this Agreement that is marked as “confidential,” or in some other manner to indicate its confidential nature or which is confidential by its nature. Without limiting the foregoing, the Service is Company’s Confidential Information. Confidential Information does not include any information which: (i) is or becomes generally known and available to the public through no act of the Recipient; (ii) was already in the Recipient’s possession without a duty of confidentiality owed to the Discloser at the time of the Discloser’s disclosure; (iii) is lawfully obtained by the Recipient from a third party who has the express right to make such disclosure; or (iv) is independently developed by the Recipient without breach of an obligation owed to the Discloser. The Recipient may use the Discloser’s Confidential Information solely to perform its obligations under this Agreement. Except as set forth in the immediately following sentence, the Recipient will not disclose the Discloser’s Confidential Information to any third party except to its employees, consultants, affiliates, agents, and subcontractors having a need to know such information to perform its obligations under this Agreement who have signed a non-disclosure agreement with the Recipient containing terms at least as protective of the Discloser’s Confidential Information as those contained herein. The Recipient may disclose the Discloser’s Confidential Information to the extent that such disclosure is required by law or by the order of a court of similar judicial or administrative body, provided that it notifies the Discloser of such required disclosure to enable Discloser to seek a protective order or otherwise to prevent or restrict such disclosure. All right, title, and interest in and to Confidential Information are and will remain the sole and exclusive property of the Discloser. The Recipient will use no less than commercially reasonable efforts to protect the Discloser’s Confidential Information from unauthorized access, use, or disclosure. Notwithstanding anything to the contrary in this Agreement, Company’s obligations with respect to the protection of Customer Data are solely as set forth in Section ‎‎9 (Customer Data).

12. DISCLAIMER OF WARRANTIES

Company represents, warrants and covenants that, under normal, authorized use, the Service shall substantially perform in conformance with its Documentation. As Customer’s sole and exclusive remedy and Company’s sole liability for breach of this warranty, Company shall use commercially reasonable efforts to repair the Service. The warranty set forth herein shall not apply if the failure of the Service results from or is otherwise attributable to: (i) repair, maintenance or modification of the Service by persons other than Company or its authorized contractors; (ii) accident, negligence, abuse or misuse of the Service; (iii) use of the Service other than in accordance with the Documentation or this Agreement; (iv) the combination of the Service with equipment or software not authorized or provided by Company; or (v) any Third Party Services, Connected Channels, or third-party integrations. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE, DELIVERABLES, AND ALL RESULTS THEREOF ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY DOES NOT WARRANT THAT: (i) THE SERVICE OR DELIVERABLES WILL MEET CUSTOMER’S REQUIREMENTS OR BE ERROR-FREE; (ii) DELIVERABLES WILL BE ACCURATE, COMPLETE, RELIABLE, APPROPRIATE, OR OTHERWISE RELIABLE OR SUITABLE FOR CUSTOMER'S PURPOSES; OR (iii) THE SERVICE WILL BE UNINTERRUPTED OR SECURE. EXCEPT AS SET FORTH IN SECTION 7 (MUTUAL WARRANTIES) AND THIS SECTION 12, COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLADGES THAT THE DELIVERABLES GENERATED BY ADVANCED TECHNOLOGIES ARE PROBABILISTIC IN NATURE AND ARE AUTOMATICALLY PRODUCED WITHOUT HUMAN REVIEW PRIOR TO DELIVERY TO CUSTOMER. DELIVERABLES MAY NOT BE UNIQUE AND MAY BE SIMILAR OR IDENTICAL TO DELIVERABLES PROVIDED TO OTHER CUSTOMERS, CLIENTS OR USERS. COMPANY WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD PARTY SERVICES, CONNECTED CHANNELS, OR FOR ISSUES RELATED TO CLOUD INFRASTRUCTURE, HOSTING SERVICES, OR CUSTOMER’S SYSTEMS. COMPANY SHALL NOT BE RESPONSIBLE FOR ANY WARRANTIES AND REPRESENTATIONS MADE BY ANY PARTNER TO CUSTOMER. DELIVERABLES DO NOT CONSTITUTE AND SHALL NOT BE CONSTRUED AS PROFESSIONAL, LEGAL, FINANCIAL, MEDICAL, TAX, ACCOUNTING, OR OTHER SPECIALIZED ADVICE. CUSTOMER SHOULD CONSULT WITH APPROPRIATE QUALIFIED PROFESSIONALS BEFORE MAKING DECISIONS BASED ON DELIVERABLES.

13. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARTY BETWEEN THE PARTIES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, (A) NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, REPUTATION OR GOOD WILL, DATA, OR DATA USE, OR THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES, AND (B) NEITHER PARTY’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO COMPANY BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, OTHER THAN WITH REGARDS TO DIRECT LIABILITY RELATING TO (I) FRAUD, WILLFUL MISCONDUCT AND GROSS NEGLIGENCE WHICH SHALL BE UNCAPPED, AND (II) INDEMNIFICATION OBLIGATIONS, AND BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS HEREIN, WHICH SHALL BE CAPPED AT THREE (3) TIMES THE TOTAL AMOUNTS ACTUALLY PAID TO COMPANY BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. FOR CLARITY, THE LIMITATIONS IN THIS SECTION DO NOT APPLY TO PAYMENTS DUE TO COMPANY UNDER THIS AGREEMENT (INCLUDING ITS EXHIBITS). CUSTOMER ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 13 ARE ESSENTIAL ELEMENTS OF THE BARGAIN BETWEEN THE PARTIES AND THAT COMPANY WOULD NOT PROVIDE THE SERVICE WITHOUT SUCH LIMITATIONS.

14. Indemnification

Company agrees to defend, at its expense, any third party action or suit brought against Customer alleging that the Service (excluding any Third Party Services, Third Party OSS, Connected Channels, Customer Data, or any content, data, or technology provided by Customer or third parties), when used as permitted under this Agreement, infringes or misappropriates intellectual property rights of a third party (“IP Infringement Claim”); and Company will pay any damages finally awarded by a court of competent jurisdiction against Customer that are attributable to any such IP Infringement Claim, provided that Customer (i) promptly notifies Company in writing of such claim; and (ii) grants Company the sole authority to handle the defense or settlement of any such claim and provides Company with all reasonable information and assistance in connection therewith, at Company’s expense. Company will not be bound by any settlement that Customer enters into without Company's prior written consent.
If the Service becomes, or in Company’s opinion is likely to become, the subject of an IP Infringement Claim, then Company may, at its sole discretion: (a) procure for Customer the right to continue using the Service; (b) replace or modify the Service to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be accomplished despite Company’s reasonable efforts, then Company may terminate this Agreement upon written notice to Customer, and Customer shall be entitled to receive a pro-rated refund of any prepaid Subscription Fees based on the remaining period of the then-current Subscription Term.
Notwithstanding the foregoing, Company shall have no responsibility for IP Infringement Claims resulting from or based on: (i) Company’s compliance with Customer’s instructions or specifications; (ii) the combination or use of the Service with equipment, devices, software, content, or data not supplied by Company, including Customer Data, Connected Channels, and third-party integrations; (iii) use of the Service in a manner not authorized by this Agreement or the Documentation; (iv) any Third Party Services, Third Party OSS, or other third-party content, technology, or materials; or (v) any modifications to the Service not made by or on behalf of Company.
This Section ‎14 states Company’s entire liability, and Customer's exclusive remedy, for any IP Infringement Claim.

15. Term and Termination

Term. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue in full force and effect for the duration of the Initial Subscription Term or the initial subscription term specified in the Partner Order Form (as the case may be). Where Customer has purchased the Subscription directly from Company, unless otherwise specified in the applicable Subscription Plan, checkout flow, Service interface, or other ordering method made available by Company, following the Initial Subscription Term, the Subscription shall automatically renew for successive subscription terms of equal length (each, a “Renewal Subscription Term”, and together with the Initial Subscription Term, the “Subscription Term”), unless either Party notifies the other Party in writing, or Customer cancels through the Service where such functionality is made available by Company, of its intent not to renew prior to the next renewal date.
Termination for Breach. Each Party may terminate this Agreement immediately upon written notice to the other Party if the other Party commits a material breach under this Agreement and, if curable, fails to cure that breach within sixty (60) days after receipt of written notice specifying the material breach (except that for payment defaults, such cure period will be seven (7) days).
Termination for Bankruptcy. Each Party may terminate this Agreement upon written notice to the other Party upon the occurrence of any of the following events in respect of such other Party: (a) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (b) the other Party makes a general assignment for the benefit of its creditors; (c) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (d) the other Party is liquidating, dissolving or ceasing normal business operations.
Effect of Termination; Survival. Upon termination of this Agreement for any reason: (a) the Subscription shall automatically terminate; (b) Customer shall cease all access to and use of the Services; and (c) Customer shall (as directed) permanently erase and/or return all Customer Data in Customer’s possession or control. Following termination, all outstanding Fees and other charges that accrued as of termination shall become immediately due and payable, and if necessary Company shall issue a final invoice therefor. The provisions of this Agreement that, by their nature and content, must survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement (including limitation of liability) shall so survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.

16. Miscellaneous

Entire Agreement. This Agreement, including the data processing agreement (if applicable), and any exhibits attached or referred to herein, represents the entire agreement between the Parties concerning the subject matter hereof, replaces all prior and contemporaneous oral or written understandings and statements, and may be amended only as set forth herein. Any terms and conditions (whether printed, linked to or otherwise) within any purchase order or related correspondence that purport to modify or supplement the terms and conditions of this Agreement shall be void and of no effect, unless expressly agreed by Company in writing.
No Waiver. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach shall not be deemed a waiver by that Party as to subsequent enforcement or actions in the event of future breaches. Any waiver granted hereunder must be in writing.
Severity. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect, and such provision shall be reformed only to the extent necessary to make it enforceable.
Government Use. Any use of the Service by an agency, department, or other entity of the United States government shall be governed solely by the terms of this Agreement.
Publicity. Customer agrees that Company may use Customer’s name and logo to identify Customer as a customer of Company or user of the Service on Company’s website, presentations, and marketing materials, subject to any reasonable trademark usage guidelines provided by Customer. Any quote, testimonial, case study, or other more detailed public reference to Customer shall require Customer’s prior written approval, not to be unreasonably withheld, conditioned, or delayed. Following the termination of this Agreement, Customer may request Company to remove such customer reference, and Company shall do so within a reasonable period.
No Third Parties. Except as stated otherwise herein, this Agreement is for the sole benefit of the Parties hereto, and nothing herein, express or implied, shall give, or be construed to give, any rights hereunder to any other person.
Assignment. Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, this Agreement may be assigned by either Party in connection with a merger, consolidation, sale of all of the equity interests of such Party, or a sale of all or substantially all of the assets of the Party to which this Agreement relates. Without derogating from and subject to the abovementioned, this Agreement will bind and benefit each Party and its respective successors and assigns.
Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, United States, without regard to principles of conflicts of law. The Parties irrevocably consent to the exclusive jurisdiction and venue of the state and federal courts located in Wilmington, Delaware for any disputes, claims, or controversies arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof. Each Party irrevocably waives any objection to such venue on the grounds of inconvenient forum or otherwise. Notwithstanding the foregoing, either Party may seek preliminary or interim injunctive or other equitable relief in any court of competent jurisdiction to protect its intellectual property rights, Confidential Information, or to prevent irreparable harm. EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO TRIAL OF ANY DISPUTE BY JURY.
Amendments. To the extent permitted by applicable law, Company may modify this Agreement from time to time by posting an updated version through the Service or on its website at www.hio.ai. Unless otherwise stated by Company, such modifications shall become effective upon the earlier of: (a) Customer’s acceptance of the updated Agreement; (b) Customer’s continued access to or use of the Service after being notified of such updated Agreement; or (c) renewal of Customer’s then-current Subscription Term. Notwithstanding the foregoing, any material adverse change to Customer’s rights or obligations during a current paid Subscription Term (excluding changes required by law) shall require Customer’s affirmative acceptance or shall become effective only upon renewal. Customer’s continued use of the Service following notice of any amendment constitutes Customer’s acceptance of such amendment.
No Agency. This Agreement does not, and shall not be construed to, create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party.
Force Majeure. Company will not be liable for any delay or failure to provide the Services resulting from circumstances or causes beyond the reasonable control of Company, including, but not limited to on account of strikes, shortages, riots, insurrection, fires, flood, storms, explosions, acts of God, war, government or quasi-governmental authorities actions, riot, acts of terrorism, earthquakes, explosions, power outages, pandemic or epidemic (or similar regional health crisis), or any other cause that is beyond the reasonable control of Company.
Export control. Customer shall not access, use, export, re-export, transfer, or make available the Service in violation of any applicable export control, sanctions, or import laws or regulations of the United States or any other applicable jurisdiction. Without limiting the foregoing, Customer represents and warrants that Customer is not located in, organized under the laws of, or ordinarily resident in any country or territory subject to comprehensive U.S. sanctions, and is not identified on any applicable government restricted-party list.
Notices. Notices to Customer may be provided by electronic mail to the email address associated with Customer’s account, through the Service, or by other electronic means. Notices to Company shall be sent to the contact details designated by Company on its website or within the Service. Notices shall be deemed given: (a) four (4) business days after being mailed by airmail, postage prepaid; (b) the same business day, if dispatched by facsimile or electronic mail before 13:00 hour (local time for the receiving Party) and sender receives acknowledgment of receipt; or (c) the next business day, if dispatched by facsimile or electronic mail after 13:00 hour (local time for the receiving Party) and sender receives acknowledgment of receipt.