Terms of Service

BY ACCEPTING THESE TERMS OF SERVICE, BY EITHER (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, OR (3) USING OUR FREE OR TRIAL SERVICES, YOU AGREE TO THESE TERMS. IF THE INDIVIDUAL ACCEPTING THESE TERMS IS ACCEPTING ON BEHALF OF A COMPANY, SUCH INDIVIDUAL REPRESENTS THAT THEY (A) ARE AT LEAST 18 YEARS OLD AND (B) HAVE THE AUTHORITY TO BIND THE COMPANY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO THE COMPANY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SERVICES.

A. Updates

At any time, we may update these Terms, as well as our Acceptable Use Policy and Privacy Policy (both of which are incorporated into these Terms). Significant updates to theTerms will be notified to an Administrator at least 15 days before they take effect, unless urgent legal or regulatory changes require immediate updates.  Your continued use of our services following such updates will indicate your consent to these changes, so please check back here periodically.

B. Definitions

• Administrator: Person(s) designated by you to create your account and manage your User IDs, passwords, and security credentials.
• Affiliate: means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
• Customer Data: Any data you provide directly to us through using our websites and services.
• Customer Portal: Our online platform that you use to manage your account and access our services and related analytics.
• Data Protection Laws: Laws, rules and regulations governing protection of Personal Data to the extent applicable to the processing of data under these Terms.
• Documentation: Guides, policies and instructions that we create related to our services.
• Effective Date: Date you accept these Terms or as set in a separately executed order.
• Fees: Amounts you are required to pay us for using our services.
• Order: Document specifying the services provided, fees, and additional terms.
• Personal Data: Information about an identifiable individual.
• Related Terms: Additional terms related to your use of our services, that are referred to in these Terms or in an Order.
• Services: Products and services that we provide, including access to our Customer Portal.
• Terms: This document, any Orders, and applicable Related Terms.
• User: Person authorized to use the services on your behalf.

C. Customer Responsibilities

• You agree to use our services solely for lawful purposes and in accordance with these Terms, our Acceptable Use Policies Acceptable Use Policies (which are incorporated into these Terms) and all applicable laws.

• You warrant that you own or have the legal right to use the phone numbers you provide to us for use in the service. You agree to provide us only phone numbers that are accurate and current.
• You must prevent unauthorized access to your account information and immediately notify us of any breaches via email at legal@hiya.com.
• You agree to cooperate with law enforcement and regulators upon our reasonable request.
• You acknowledge that our branded calling services are designed only to deliver a customized experience to end users and are not designed, nor may be used, to satisfy any legal requirement applicable to you.

You may not:

• Resell, lease, or make any of our services available to third parties.
• Reverse engineer or in any way copy our services (including our platform), or interfere with their normal operation.
• Use our services to misrepresent your identity, commit fraud, or engage in any illegal activities.

D. Hiya’s Responsibilities

• We will provide services per these Terms and use qualified personnel to provide the services to you.
• We may suspend or terminate all or a portion of the Services, at any time, if you breach these Terms, violate laws, threaten service security, provide false information, or if our distribution partners request that we do so. If the Services are terminated through no fault of your own, we will refund to you all prepaid but unused Fees.
• We may update our platform or services to enhance quality, comply with laws, or improve performance, with 30 days' notice for significant changes that will materially and detrimentally impact your use of the affected service or platform.

• We will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Customer Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by your Administrators and Users). The terms of the data processing addendum at https://www.hiya.com/legal/data-protection-agreement (“DPA”) posted as of the effective date of these Terms is hereby incorporated by reference to the extent that we process your Personal Data.

E. Certification and Account Creation

Certification. Prior to using the services, you must undergo a certification process to ensure that your business is valid and operating legitimately using our services. The fee for this certification is non-refundable even if you are ultimately denied access to use the services. You may be rejected as a customer in our sole discretion, including for the following reasons:

• You have provided an invalid Taxpayer Identification Number (TIN) or Employer Identification Number (EIN), or one which does not match the registered name of your company.
• The legal name that appears on your business license or formation documents is invalid, or cannot be corroborated.
• We have found legal action taken against you that may require us to evaluate whether you should have access to the services (e.g., consumer litigation regarding illegal calling practices).

Account Creation. Administrators. You must appoint one or more Administrators to manage user access and privileges. Administrators can create and manage User accounts and accept agreements on your behalf. Any User will be considered an Administrator if you give them access to the Customer Portal.

Responsibility for Accounts. Users must keep their credentials confidential. You are responsible for all activities under your account, including actions by users to whom you have provided access to your Account.

Account Correspondence and Marketing. By creating accounts, Administrators and Users expressly consent to receive communications about their use of the services and as well as other products and services that we offer.

F. Ownership

We own all rights to our platform, services, documentation, and any derived data (including data derived from Customer Data). You own your Confidential Information and Customer Data that you provide to us, which we may process as outlined.

G. Customer Data

You grant us the right to use, transfer to third parties, and otherwise process Customer Data to provide the services to you, to certify your business, to prevent fraud, and to improve our offerings.

H. Fees and Payments

Fees. You must pay fees as specified in your account or in Orders. Fees are non-refundable and may be adjusted with 60 days' notice before renewal. Notice may be provided via email or from within the platform.

Taxes. You are responsible for all taxes related to the use of our services under your account, except our income taxes.

Billing. By purchasing our services, you agree to pay all applicable fees and charges when due. Payments must be made using a valid credit card or another approved payment method. You authorize us to charge your payment method for all fees incurred under your account. We may charge late fees (including account collection and attorneys’ fees) for any overdue payments, and we may suspend services if unpaid. All fees are non-refundable unless required by law.

I. Confidentiality

Definition. “Confidential Information” means all information disclosed by a Party to the other Party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Hiya includes the Order Form, Documentation, and Aggregated Statistics. Confidential Information of the Company includes, but is not limited to, the Company Content. Confidential Information of each Party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party, (ii) was known to the receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the disclosing Party, (iii) is received from a third party without knowledge of any breach of any obligation owed to the disclosing Party, or (iv) was independently developed by the receiving Party without use of the other Party’s Confidential Information.

Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than these protections.

Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.

J. Mutual Indemnification

Indemnification by us. We will defend you and your Affiliates against any claim, demand, suit or proceeding made or brought against you by a third party alleging that any service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify you from any damages, attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a settlement approved by us in writing of, a Claim Against Customer; provided you (a) promptly give us written notice of the Claim Against Customer, (b) give us sole control of the defense and settlement of the Claim Against Customer (except that we may not settle any claim unless it unconditionally releases you of all liability), and (c) gives us all reasonable assistance, at our expense. If you receive information about an infringement or misappropriation claim related to our services, we may in our sole discretion and at no cost to you (i) modify the services so that they are no longer claimed to infringe, (ii) obtain a license for your continued use of the services, or (iii) terminate your access to the affected service upon 30 days’ written notice and refund any prepaid fees covering the remainder of the term. The above defense and indemnification obligations do not apply if (A) the allegation does not state with specificity that our services are the basis of the Claim Against Customer; or (B) a Claim Against Customer arises from the use or combination of the services with software, hardware, data, or processes not provided by us, if the Services or use thereof would not infringe without such combination.

Indemnification by you. You will defend us and our Affiliates against any claim, demand, suit or proceeding made or brought against us by a third party (a) alleging that the data provided by you and used with our service(s), infringe or misappropriate such third party’s intellectual property rights, or(b) arising from your use of the services in an unlawful manner or in violation of these Terms, the Documentation, or an Order (each a “Claim Against Hiya”), and will indemnify us from any damages, attorney fees and costs finally awarded against us as a result of, or for any amounts paid by us under a settlement approved by you in writing of, a Claim Against Hiya; provided that we (A) promptly give you written notice of the Claim Against Hiya, (B) give your sole control of the defense and settlement of the Claim Against Hiya (except that you may not settle any Claim Against Hiya unless it unconditionally releases us of all liability), and (C) give you all reasonable assistance, at your expense. The above defense and indemnification obligations do not apply if a Claim Against Hiya arises from our breach of these Terms, the Documentation or applicable Orders.

Exclusive Remedy. This “mutual indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.

K. Limitation of Liability

OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS OF SERVICE, NEITHER HIYA, INC. NOR ITS AFFILIATES OR SERVICE PROVIDERS (THE “PROVIDER ENTITIES”) MAKE ANY SPECIFIC PROMISES ABOUT THE SERVICES. FOR EXAMPLE, WE DON’T MAKE ANY COMMITMENTS ABOUT THE SPECIFIC FUNCTION OF THE SERVICES, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE PROVIDE THE SERVICES “AS IS”.

SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES.

EXCEPT WHERE PROHIBITED, HIYA AND THE PROVIDER ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF THE SERVICES. THESE EXCLUSIONS INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, COMPUTER FAILURE, OR THE VIOLATION OF YOUR RIGHTS BY ANY THIRD PARTY, EVEN IF WE OR THE PROVIDER ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED.

IN NO EVENT WILL THE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE AMOUNTS PAYABLE BY YOU FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY ACCRUED. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.

L. Term and Termination

Term. These Terms commence on the date you first accept it and continue until all Orders incorporating these terms have expired or have been terminated.  If no term is specified, the term shall be month-to-month, and either of us may terminate at any time, effective as of the end of the subscription month.

Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order. Except as otherwise specified in an Order, subscriptions will automatically renew for additional one-year terms, unless a party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order, renewal of promotional or one-time priced subscriptions will be at our applicable list price in effect at the time of the applicable renewal.

Termination. Either of us may terminate this Agreement for cause (i) upon 30 days written notice to the other of a material breach, if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

Refund or Payment upon Termination. If these Terms of Service or an Order is terminated by you pursuant to the “Termination” section above, we will refund you any prepaid fees covering the remainder of the term of all Orders after the effective date of termination. If these Terms of Service or an Order is terminated by us pursuant to the “Termination” section above, you will pay any unpaid fees covering the remainder of the term of all Orders to the extent permitted by applicable law. In no event will termination relieve you of your obligation to pay any fees for the time prior to the effective date of termination.

M. Arbitration and Class Action Waiver

Binding Arbitration. Any dispute, claim, or controversy arising out of or relating to these Terms of Service, including the determination of the scope or applicability of this agreement to arbitrate, shall be resolved by binding arbitration. The arbitration will be administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules. The arbitration will be conducted in Seattle, Washington, before a single arbitrator. The arbitrator shall apply the substantive law of the state of Washington, excluding its conflict or choice of law rules.

Waiver of Jury Trial and Class Actions. We agree to waive any rights to a jury trial for any dispute that is resolved by arbitration. All claims and disputes within the scope of this arbitration agreement must be arbitrated on an individual basis and not on a class or collective basis. Claims of more than one customer or user cannot be arbitrated or consolidated with those of any other customer or user. You and Hiya, Inc. agree to waive the right to participate in a class action or other representative proceeding.

Costs and Fees. Each party will be responsible for its own costs and fees associated with the arbitration, except as provided by the AAA rules.

Confidentiality. The arbitration proceedings, including any rulings, decisions, or awards by the arbitrator, shall be strictly confidential. We agree to maintain the confidentiality of these proceedings, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or as required by law.

Severability. If any part of this arbitration provision is found to be unenforceable, the remaining provisions shall remain in effect to the fullest extent possible.

N. General

No Waiver. Failure to enforce any provision is not a waiver. These Terms (including all referenced policies) are the complete agreement between us, and any conflicting terms, including those contained on a purchase order or like document, are void.

Assignment. You cannot assign these Terms, by operation of law or otherwise, without our prior written consent. However, we may assign these Terms of Service without your consent.

Relationship. We are each independent contractors. These Terms do not create an employment or partnership relationship between us.

Severability. If any part of these Terms is unenforceable, the rest remains in effect.

Notices. We may provide notices through email or the Customer Portal. We will consider a notice to have been received by you within 24 hours after we post it in the Customer Portal or email it to you. You should deliver all legal notices to legal@hiya.com. Electronic delivery is equivalent to physical delivery.

Force Majeure. Neither party is liable for performance failures hereunder due to uncontrollable events not caused, in whole or in part, by a party’s own negligence.

Entire Agreement. These Terms supersede all prior negotiations, agreements and representations between us.

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