Terms of Service

LAST UPDATED: JULY 10, 2018

LICENSED APPLICATION END USER LICENSE AGREEMENT

PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THIS SERVICE AS THEY CONTAIN IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS.

These terms of service constitute a legally binding agreement between you and AffinityClick Inc. (“Company” or “Hushed” or “we” or “us” or “our” or other similar pronouns). The following terms of service (together with any documents referred to in them) (collectively, the “Terms”) apply to your use of our services, including any content, functionality and services offered on or through our websites, and to any mobile, tablet and other smart device applications, and application program interfaces, including the calling and text messages services (collectively, the “Services”) we offer users with mobile devices (“You”).

The Services are transacted through a licensed application (“Licensed Application”) for mobile devices. Our Licensed Application is licensed, not sold, to You for use only under the terms of this license, unless a product or service is accompanied by a separate license agreement, in which case the terms of that separate license agreement will govern, subject to Your prior acceptance of that separate license agreement. We reserve all rights not expressly granted to You.

Your access to and use of the Services is conditioned upon your acceptance of and compliance with these Terms. These Terms apply to all visitors, users, and others who wish to access or use the Services. If you are accessing and/or using the Services on behalf of another individual, or as a consultant or agent of a third party, you represent and warrant that you have the authority to act on behalf of and bind such individual or third party principal to these Terms.

IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICE.


1. Scope of License

1.1 The Company hereby grants to You a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable and revocable license to use the Service and Licensed Application on any mobile device that You own or control and as permitted by the Usage Rules set forth in our Terms and Conditions (the “Usage Rules”). This license does not allow You to use the Licensed Application on any mobile device that You do not own or control, and You may not distribute or make the Licensed Application available over a network where it could be used by multiple mobile devices at the same time.

1.2 The Company or its licensors own all rights, title and interest (inclusive of all intellectual property rights) in and to the Services and Licensed Application and any and all software, content, methodologies, technology, designs, graphics, illustrations, logos and marks used by us to provide the Service or in connection therewith (“Company IP”). You do not have any rights to, and may not, rent, lease, lend, sell, copy, transfer, reproduce, distribute, redistribute, sublicense, display, adapt or modify the Licensed Application or any Company IP. All rights not expressly granted to You are retained by the Company.

1.3 The terms of the license will govern any upgrades provided by us that replace and/or supplement our Services, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.

2. Restrictions

2.1 You agree not to misuse the Services. Your use of the Service is subject to these Terms, including without limitation Sections 1, 3 and 4, and the following restrictions and limitations. You shall not:

(a) copy (except as expressly permitted by this license and the Usage Rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof, or any Company IP (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Licensed Application);

(b) interfere with or disrupt any user, host, or network forming any part of the Service;

(c) access or search the Service by any means other than the supported interfaces made available to you;

(d) exploit the Services in any unauthorized way whatsoever, including but not limited to, trespass or burdening network capacity;

(e) engage in unusually high usage of the Services from individual accounts that may impair our ability to provide the service to other customers and/or indicate misuse of the service;

(f) perform unusual calling patterns inconsistent with normal, individual use, where normal use is for example, regular calls of short duration or calls to multiple numbers in a short period of time; or

(g) on Unlimited Subscription plans, use the Services for call­-in lines, call centers, conference calling, trunking (to a PBX or otherwise), “spamming”, sending junk or bulk messages, or any other high volume multi­person calling or messaging purposes.

2.2 Any attempt to do any of the foregoing is a violation of our rights. If You breach this restriction, You may be subject to prosecution and damages and we may, at our sole discretion, terminate your license and bar you from accessing the Services.

3. Compliance

3.1 To the extent You choose to access our Services, You do so at Your own risk and initiative. You may use the Service for lawful purposes only and only in accordance with these Terms. You are solely responsible for obtaining and maintaining all necessary consents required for you to use the Services and provide any material or other information in relation thereto, and for complying with any and all laws, rules, regulations and other obligations that may apply to your use of the Service, including any and all applicable privacy laws. Without limiting the foregoing you agree not to use the Services as follows:

(a) for pornographic, indecent, obscene, defamatory or other unlawful purposes;

(b) to engage in any Internet activities that would violate the privacy rights of others, including to copy, store, access or use personally identifiable information about another registered user in a way that is inconsistent with the Company’s Privacy Policy, found at www.hushed.com/privacy-policy/ or these Terms;

(c) to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by the Company in its discretion, may harm the Company or users of the Services or expose them to liability;

(d) to send harassing and/or threatening messages to others or to abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other person; or

(e) to discriminate against or harass anyone on the basis of race, national origin, religion, gender, sexual orientation, disability, medical condition, marital status, age or gender identity, or otherwise engage in abusive or disruptive behavior.

3.2 You agree to accept responsibility for any and all activities or actions that occur under your account, name and/or password. You understand and acknowledge that you are responsible for how you use of the Services, and you, not the Company, have full responsibility for such use, including legality and appropriateness, including for any content you post or information you provide (including personal information). You agree to notify the Company immediately upon becoming aware of any security breaches or unauthorized use. You are liable for any and all activities conducted through your account.

3.3 In the course of using the Licensed Application and/or the Services You may encounter content that may be deemed offensive, indecent, or objectionable. Nevertheless, You agree to use our Services at Your sole risk and we shall not have any liability to You for content that may be found to be offensive, indecent, or objectionable. You acknowledge and agree that the Company is not in any way responsible for any use by You of the Services, including without limitation any use in violation of Sections 2 and 3 of this Agreement, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that You may receive as a result of using our Services.

3.4 You acknowledge that the Company has no obligation to monitor access to or use of the Services, but it has the right to do so if it chooses in order to secure and improve the Services, for fraud prevention, risk assessment, investigation, customer support and to ensure compliance with these Terms, or as it otherwise sees fit. The Company reserves the right to refuse service, terminate accounts, disable any user identification code or password, remove or edit content, revoke your license, and otherwise terminate your right to use the Services at any time in its sole discretion, for any or no reason, including, if in the Company’s opinion you have failed to comply with any provision of these Terms or for any illegal or criminal behavior.

4. Privacy and Use of Data

4.1 You agree that we may collect, use and disclose personal information, pursuant to our Privacy Policy, which is incorporated into these terms by reference (and which can be found at www.hushed.com/privacy-policy/. This includes the collection of technical data and related information, including but not limited to technical information about You, Your mobile device, Your system and application software, and peripherals, that are gathered periodically to facilitate the provision of the Services, software updates, product support and other services related to the Licensed Application.

4.2 You agree that you are responsible for any and all information you provide or input or post via the Services and you acknowledge and agree that if you provide personal information for yourself or any third party you are authorized to do so and accept full responsibility in relation thereto, including without limitation with respect to the accuracy of such information.

4.3 If you, for any reason, collect, store or process personal information when using the Services, you must comply with all applicable privacy and data protection laws, taking into account the nature of the information to be processed. You agree and warrant that you are solely responsible when using the Services for complying with applicable data protection, security and privacy laws and regulations (including, where applicable the EU General Data Protection Regulation (“GDPR”) and the EU e-Privacy Directive/Regulation), including any consent and notice requirements.

4.4 You acknowledge and agree that if you act on behalf of an entity or organization established in the EU or which does business in the EU, then we provide you with a platform only and in relation to your use of the Services and any collection, use or disclosure of information by you related thereto, you, and not the Company, are a data Controller, as such term is defined in the GDPR and you are solely responsible to comply with any and all obligations related thereto. This includes without limitation the collection and processing by you of any personal data, when you use the Services or Services provided by third parties in conjunction with your use of the Services to collect personal information from individuals or other parties, send marketing and other electronic communications to individuals and when using cookies and similar technologies in conjunction with the Services.

4.5 You represent and warrant to the Company: (i) that in respect of your use of the Services, you acknowledge and agree that you are solely responsible for any and all compliance with the GDPR and all applicable privacy laws; (ii) that in respect of your use of the Services, you, and not the Company, are a Controller (as such term is defined in the GDPR) for the information you collect and use for the purposes of your business and/or related to your use of the Services; and (iii) that you have conducted, and will at all times conduct, your business and your use of the Services, in compliance with all applicable privacy laws, including but not limited to the GDPR.

4.6 You shall defend, indemnify and hold harmless the Company and its affiliates, officers, employees, agents, successors and assigns (a “Company Party”), from and against any and all fines, suits, actions, proceedings, claims, demands, debts, obligations, settlements, losses, damages, liabilities, costs and expenses (including reasonable legal and professional fees and costs) arising from or in any way connected to: (i) any breach of this Section 4, including but not limited to any failure to comply with the GDPR or other applicable privacy laws; and (ii) any claim against Company or a Company Party by any third party to the extent caused by, relating to or arising in connection with any act or omission of or by you or a party related to you in the performance of this Section 4, and/or compliance with the GDPR or other applicable privacy laws.

5. Termination

5.1 The license is effective until terminated by You or us. The Company may, at its sole discretion, terminate or suspend your license and bar access to the Services immediately, without prior notice or liability, for any of the following: 1) a breach of these Terms, the Company’s policies, applicable laws or regulations, or third party rights; 2) if the Company believes in good faith that such action is reasonably necessary to protect the personal safety or property of the Company or third parties, or for fraud prevention, risk assessment or security purposes. Upon termination of the license, You shall cease all use of the Licensed Application and destroy all copies, full or partial, of the Licensed Application and any Company IP.

6. NO WARRANTY

6.1 COMPANY’S SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS OR SMS MESSAGES TO ANY EMERGENCY SERVICES (E.G. 911). NEITHER COMPANY NOR ITS REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND CUSTOMER WILL HOLD COMPANY HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE OUR SERVICES TO CONTACT EMERGENCY SERVICES.

6.2 YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WE DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION AND SERVICES OR THAT THE LICENSED APPLICATION AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES CAUSE ANY DEFECTS, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

7. Limitation of Liability

7.1 TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL THE COMPANY NOR ITS DIRECTORS, OFFICERS, EMPLOYEES, PARTNERS, AGENTS, SUPPLIERS, OR AFFILIATES BE LIABLE FOR PERSONAL INJURY OR FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, SERVICE INTERRUPTION, MOBILE DEVICE DAMAGE, SYSTEM FAILURE OR OTHER INTANGIBLE LOSSES, OR FOR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES OR FOR DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION AND/OR SERVICES OR YOUR ACCESS TO AND USE OF THE SERVICES AND ANY CONTENT, INCLUDING THIRD PARTY CONTENT, AVAILABLE ON OR THROUGH THE SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall our total liability to you for all damages (other than as may be required by applicable law) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals And Blocked Persons List or the U.S. Department of Commerce Denied Person’s List or Unverified List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.

7.2 THE FOREGOING LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH ARE FUNDAMENTAL AND FORM THE BASIS OF THE BARGAIN BETWEEN THE COMPANY AND YOU.

8. Proprietary Rights

8.1 The Licensed Application and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.

9. Indemnification

9.1 You agree to release, defend, indemnify and hold harmless the Company, its affiliates and its licensees and licensors, and their respective employees, contractors, agents, officers, directors, and suppliers, to the greatest extent allowed by law, from and against any and all claims, damages, obligations, losses, liabilities, judgements, awards, costs and expenses (including but not limited to reasonable legal fees), resulting from or arising out of (a) improper use of and access to the Services, by you or any person using your account; (b) a breach of these Terms and/or Company policies; (c) any claim or allegation that your use of the Services infringes the intellectual property or other proprietary rights of the Company or any third party; or (d) your breach of any laws, regulations or third party rights.

10. Availability, Errors and Inaccuracies

10.1 The Company reserves the right, at its sole discretion, to withdraw or amend the Services and any service or material it provides in connection thereto without notice. The Company will not be liable if for any reason all or part of the Services are unavailable at any time or for any period of time.

10.2 The Company is constantly updating product and service offerings and may experience delays in updating information on the website and application and in its advertising on other websites. The information found in such places may contain errors or inaccuracies and may not be complete or current. Services may be mispriced, described inaccurately, or unavailable and the Company cannot guarantee the accuracy or completeness of any information.

10.3 Due to the nature of the Internet, the Company does not guarantee continuous and uninterrupted availability and accessibility of the Services. The Company may also restrict the availability of the Services if it deems it to be necessary for any reason, in its sole discretion, including for the security of its servers, or to carry out maintenance of the Services. The Company reserves the right to change or update information and to correct errors, inaccuracies, or omissions or to improve, enhance and modify the Services and introduce new Services from time to time, at any time, without prior notice or liability.

10.4 We make no representation that our Services are available for use in any particular location. We reserve the right to change, suspend, remove, or disable access to our Services at any time without notice. In no event will we be liable for the removal of or disabling of access to our Services. We may also impose limits on the use of or access to our Services, in any case and without notice or liability.

11. Jurisdiction

11.1 The laws of the Province of Ontario, excluding its conflicts of law rules, govern this license and your use of the Licensed Application. You expressly agree that the courts in the Province of Ontario, have exclusive jurisdiction over any claim or dispute with Hushed or relating in any way to your use of the Licensed Application. Your use of the Licensed Application may also be subject to other local, state, national, or international laws.

12. Waiver and Severability

12.1 The Company’s failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is held to be invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of these Terms will remain and continue in full force and effect.

13. Assignment

13.1 You may not assign, transfer or delegate this Agreement and your rights and obligations hereunder without the Company’s written consent. The Company may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder at its sole discretion by providing you with notice of the assignment.

14. Notices

14.1 Unless specified otherwise, any notices or communications required under this Agreement will be in writing and sent via e-mail, and/or the Services’ messaging and notifications platform.

15. Changes to Terms

15.1 The Company reserves the right, at its sole discretion, to modify or replace these Terms at any time, including without limitation, any information, names, text, software, images, pictures, logos, trade-marks, functionalities, Services and any other material displayed on, offered through or contained on the website, Services or Licensed Application from time to time.

15.2 If a revision is material, which is to be determined by the Company at its sole discretion, the Company will provide at least 30 days’ notice on the website or application prior to any new terms taking effect. Your continued access to or use of the Services after any revisions become effective, will mean that you accept and agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use the Services and should refrain from doing so.

16. Other Content

16.1 The Services may contain links to or permit the use of third party websites or third party content. The Company does not endorse and is not responsible or liable for such third party content’s availability, accuracy, or related products or services. You are solely responsible for your use of any such websites or third party content and compliance with any applicable third party terms and conditions.

Contact Us

If you have any questions about these Terms, please contact the Company by Email at support@hushed.com

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