Terms of Service
Last Updated 11/24/2020
SERVICES AND SUPPORT
1.1 High Yield Technologies, Inc. (“High Yield,” “we,” “us,” or “our”) provides its mobile and application software (collectively “Services”) to you (“Customer”) pursuant to these Terms of Service (this “Agreement”). By entering into a Services order form (or other ordering document, engagement letter, or quote referencing this Agreement) (each an “Order Form”) with High Yield or otherwise registering for, accessing, or using the Services, Customer unconditionally accepts and agrees to all of the terms of this Agreement. By entering into this agreement on behalf of a company or other legal entity, Customer represents that it has the authority to bind such entity and its affiliates to the terms of this Agreement, and, accordingly, the terms “Customer” shall refer to such entity and its affiliates. If Customer does not have such authority or Customer does not agree to all of the terms of this Agreement, Customer may not use the Services. Subject to the terms of this Agreement, High Yield shall provide Customer (a) the Services in accordance with the terms and limitations of each Order Form and hereby grants Customer a non-exclusive right to access and use the Services during the Term. Customer also agrees to any additional terms specific to Services used (“Additional Terms”), such as those listed below, which become part of the agreement (collectively, the “Terms”).
1.2 High Yield reserves the right to change or modify portions of this Agreement at any time. If High Yield does so, it will post the changes on this page and will indicate the date this Agreement was last revised. High Yield will also notify Customer, either through the Services user interface, in an email notification, or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after being posted, except that changes addressing new functions of the Services or changes made for legal reasons may become effective immediately. Customer’s continued use of the Services after the date any such changes become effective constitutes acceptance of the new Agreement.
1.3 To the extent Customer has purchased any hardware pursuant to an applicable Order Form (“Hardware”), Customer agrees and acknowledges that High Yield’ standard Hardware Warranty and Return Policy available at applies to Customer’s purchase of such Hardware.
1.4 High Yield does not provide support or guidance related to any third party software, data, information or other materials, including but not limited to state regulatory software and databases.
1.5 High Yield provides support including but not limited to troubleshooting its software applications no older than two versions behind the current production version of the application or 60 days after the release of the current production version of the application, whichever comes first. High Yield provides support including but not limited to troubleshooting for Beta versions of its software application up until 30 days after the release of the current production version of the application.
RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will only use the Services and Hardware as expressly permitted herein and in the applicable Order Form and agrees that it will not: (i) directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (ii) modify, translate, or create derivative works based on the Services or any Software; (iii) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (iv) remove any proprietary notices or labels; (v) use the Services and Hardware at any location other than that set forth in the applicable Order Form; or (vi) modify, adapt or hack the Services, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks, in each case, except to the extent expressly permitted by High Yield or authorized within the Services. Customer shall not use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with High Yield’ provision of the Services.
2.2 Customer represents, covenants, and warrants that Customer will only use the Services and Hardware in compliance with (i) all applicable laws and regulations (including, without limitation, those relevant to privacy, spam, and intellectual property rights); (ii) all applicable social networking sites’ terms and conditions associated with its procurement and use of Customer Content (defined herein); and (iii) all cannabis or marijuana laws and regulations applicable to Customer’s jurisdiction and use of the Services. Although High Yield has no obligation to monitor Customer’s use of the Services and Hardware, High Yield may do so and may prohibit any use of the Services (or disable content or data) it believes may be (or alleged to be) in violation of the foregoing or any other term of this Agreement. Upon reasonable request, Customer shall provide to High Yield any permits, business licenses, or other related information for High Yield to verify Customer’s compliance with legal and regulatory requirements.
2.3 High Yield does not provide any legal or regulatory advice. The Services and related information and materials made available by High Yield are for informational purposes only, and is not intended to provide, and should not be relied on for legal or regulatory advice. Customer acknowledges and agrees that it will consult its own legal or regulatory advisors before engaging in any transaction.
2.4 High Yield does not interpret state reporting errors or provide inventory management guidance. Customer is solely responsible for and will contact and work directly with their local regulatory agency to resolve matters related to reporting and/or inventory management.
2.5 Customer shall be responsible for obtaining and maintaining any other equipment and ancillary services needed to connect to, access or otherwise use the Services and Hardware, including, without limitation, modems, hardware, server, software, operating system, networking, web servers and the like (collectively, “Equipment”), and to ensure that the Equipment complies with the required specifications outlined in High Yield’ published documentation. Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business and technology (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of High Yield includes, without limitation, all Software and other non-public information and documentation regarding features, functionality and performance of the Services. The Receiving Party agrees: (i) to take at least reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without the use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2. As between the parties, Customer Content (as defined below) will be owned by Customer. Customer will be solely responsible for the accuracy, quality, integrity and legality of Customer Content. Customer hereby grants to High Yield a limited, non-exclusive, worldwide license to use Customer Content solely to provide the Services to Customer. “Customer Content” means any data, information, and other material provided or uploaded directly to High Yield by Customer or Customer’s end-users in the course of receiving or using Services.
3.3 Notwithstanding anything to the contrary, High Yield shall have the right to collect and analyze data and other information relating to the use and performance of various aspects of the Services and related systems and technologies and High Yield will be free to (i) use such information and data (during and after the term hereof) to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other High Yield offerings, and (ii) use and disclose such data in aggregated or de-identified form for marketing purposes and otherwise in connection with its business.
3.4 High Yield shall own and retain all right, title and interest in and to (a) the Services and Software, and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services, Hardware, or support, and (c) all intellectual property rights related to any of the foregoing.
PAYMENT OF FEES
4.1 Unless High Yield chooses to bill through an invoice, Customer will be required to provide High Yield (or its payment processor) with information regarding its credit card or other payment instrument. Customer represents and warrants that such information is true and that it is authorized to use the payment instrument. Customer will promptly update its account information with any changes that may occur. Customer will pay High Yield the fees described in the applicable Order Form(s) for the Services and Hardware in accordance with the terms therein (the “Fees”), and Customer hereby authorizes High Yield to bill its payment instrument on a recurring basis as set forth in such Order Form for such Fees. If High Yield chooses to bill through an invoice, full payment for invoices issued in any given month must be received by High Yield thirty (30) days after the mailing date of the invoice.
4.2 If Customer’s use of the Services exceeds any applicable limits set forth on the Order Form, Customer upgrades its service offering or otherwise changes its usage in a manner that requires the payment of additional fees (per the terms of this Agreement and/or the Order Form), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. High Yield, reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Term (defined herein) or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that High Yield has billed Customer incorrectly, Customer must contact High Yield no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to High Yield’ customer support department.
4.3 Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of the Services.
4.4 Customer shall be responsible for determining and paying any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason for your use of the Services, other than U.S. taxes based on High Yield’ net income. Customer is solely responsible for collecting, withholding, reporting, and remitting correct taxes to the appropriate tax authority.
4.5 No refunds for subscription services. All annual and monthly fees will be non-refundable once paid to High Yield (including upon any termination or suspension of services).
5.1 Subject to earlier termination as provided below, this Agreement shall continue for the initial term specified in the Order Form, and shall automatically renew for successive one (1) year terms unless either party provides the other party with written intention to not renew at least thirty (30) days’ before the end of the then-current term (the initial term and each renewal term, collectively, the “Term”).
5.2 Upon termination, Customer’s right to use the Services shall immediately terminate, all outstanding Fees due for the Services for the entire Services Term shall immediately become due and payable, and each party shall return to the other all Proprietary Information.
WARRANTY AND DISCLAIMERS
6.1 High Yield shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall provide support to Customer in accordance with its standard Service Level Agreement. The remedies set forth in such Service Level Agreement shall be High Yield’ entire liability and Customer’s sole remedy related to the performance of the Services.
6.2 CUSTOMER ACKNOWLEDGES THAT NEITHER High Yield NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. High Yield IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES AND HARDWARE ARE PROVIDED “AS IS” AND High Yield AND ITS THIRD PARTY VENDORS AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY, High Yield DISCLAIMS ALL WARRANTIES, LIABILITIES, LOSSES AND OTHER ISSUES THAT ARISE FROM USE OF HARDWARE NOT PURCHASED FROM OR EXPRESSLY AUTHORIZED BY High Yield. High Yield, IN ITS SOLE DISCRETION, MAY PROVIDE SUPPORT FOR SUCH HARDWARE, BUT DOES NOT HAVE ANY OBLIGATION TO DO SO.
6.4 Customer represents and warrants that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register and use the Services and have the right, power, and ability to enter into and perform under these Terms; (c) any information you provide in connection with the Services, including your business name, accurately and truthfully represents your business or personal identity under which you sell goods and services; (d) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you and/or your business, including the Health Insurance Portability and Accountability Act (“HIPAA”); (e) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; and (f) your use of the Services will be in compliance with these Terms.
7.1 Customer will indemnify, defend, and hold High Yield (and our respective employees, directors, agents, affiliates, and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of Customer representations, warranties, or obligations set forth in these Terms; (b) Customer’s wrongful or improper use of the Services; (c) Customer’s violation of any third-party right, including without limitation any right of privacy, publicity rights, or Intellectual Property Rights; (d) Customer’s violation of any law, rule or regulation of any state; and (e) any other party’s access and/or use of the Services with Customer’s unique name, password or other appropriate security code.
7.2 Notwithstanding the foregoing, High Yield will have no obligation under this section or otherwise with respect to any infringement claim to the extent based upon (i) breach of this Agreement by Customer, (ii) any combination of the Services with other products, equipment, software, uses or data not supplied by High Yield, (iii) any modification of the Services by any person other than High Yield or its authorized agents or contractors or (iv) any activity after High Yield has provided Customer with a work around or modification that would have avoided such issue without materially adversely affecting the functionality or availability of the Services. If High Yield reasonably believes that all or any portion of the Services, or the use thereof, is likely to become the subject of any infringement claim, suit or proceeding, High Yield may procure, at High Yield’ expense, for Customer the right to continue using the Services in accordance with the terms hereof, replace or modify the allegedly infringing Service to make it non-infringing, or, in the event that neither of the foregoing options are commercially practicable, High Yield may, in its sole discretion, terminate this Agreement upon written notice to Customer and refund to Customer any prepaid amounts for unused Services.
LIMITATION OF LIABILITY
EXCEPT FOR A BREACH OF THE CONFIDENTIALITY PROVISIONS, OR CUSTOMER’S BREACH OF SECTION 2.1 OR 2.2, IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE SUPPLIERS BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER RELATING TO THIS AGREEMENT, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR (A) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS); (B) ANY OTHER DAMAGES IN EXCESS OF THE TOTAL AMOUNT PAID (AND PAYABLE) TO High Yield IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE; (C) FOR ERRORS OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; OR (D) FOR ANY MATTER BEYOND High Yield’ REASONABLE CONTROL.
8.1 “Disputes” are defined as any claim, controversy, or dispute between Customer and High Yield, its processors, suppliers, or licensors (or their respective affiliates, agents, directors or employees), including any claims relating in any way to these Terms or the Services, or any other aspect of our relationship.
8.2 Customer and High Yield agree that any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. Customer and High Yield are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and High Yield otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding.
8.3 Arbitration Rules & Governing Law: The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Dispute Resolution section (the AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879). The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
8.4 Arbitration Process: A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. If needed, the AAA provides a form Demand for Arbitration and additional forms at adr.org. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state where the arbitration will be conducted and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
8.5 Arbitration Location & Procedure: Unless Customer and High Yield otherwise agree, the arbitration will be conducted in the county where Customer resides. If Customer’s claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents Customer and High Yield submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If Customer’s claim exceeds $10,000, Customer’s right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
8.6 Arbitrator’s Decision: The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The prevailing party in arbitration will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
8.7 Fees: Customer’s responsibility to pay any AAA filing, administrative, and arbitrator fees will be solely as set forth in the AAA Rules.
8.8 Limitation on Time to Initiate a Dispute: Any action or proceeding by Customer relating to any Dispute must commence within one year after the cause of action accrues.
Customer may not remove or export from the United States or allow the export or re-export of the Services, Hardware, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by either party, except with the other party’s prior written consent. Notwithstanding the foregoing, either party may transfer and assign any of its rights and obligations under this Agreement without consent to a successor to, or acquirer of, all or substantially all of the assets of the business to which this Agreement relates. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and Customer does not have any authority of any kind to bind High Yield in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Montana without regard to its conflict of laws provisions.