Legal
This Digital Platform Services Agreement ("Agreement") constitutes a binding agreement between Estimated Inc. d/b/a Hang ("Hang," "we," or "us") and you, the Customer entering into this Agreement as identified in an order document that references this Agreement (an "Order Form") or who accepts the terms and conditions herein via click-through acceptance ("Customer" or "you"). This Agreement governs your use of the Services as provided by us.
BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO BE BOUND BY THIS AGREEMENT.
Any capitalized terms used in this Agreement but not defined herein have the meanings set forth in the Terms. In the event of a conflict between this Agreement and the Terms, this Agreement shall prevail.
IF YOU AGREE TO THIS AGREEMENT OR ANY ORDER FORM ON BEHALF OF A LEGAL ENTITY
such as a customer, corporation, or partnership, you represent and warrant that you have the power and authority to bind the entity to this Agreement. In such case, the terms "Customer," "you" and "your" refer to the entity. If, however, you are unwilling to agree to this Agreement (including the Terms) or do not have the power and authority to act on behalf of and bind the entity, you have no right to and must not access or otherwise use the Services.
Subject to Customer's compliance with the terms and conditions of this Agreement, Hang grants to Customer a limited, revocable, non-exclusive, non-transferable or assignable license to access or use Hang's platform, designed to allow Customer to provide users benefits, and/or as otherwise described in an applicable Order Form solely as outlined herein.
The Services are licensed not sold, and all rights not expressly granted to Customer are reserved by Hang. The limited license granted in this Agreement does not give Customer any ownership of, or any other intellectual property interest in, the Services. Customer shall be solely responsible to and liable to Hang for Customer's unauthorized use of the Services, including any unauthorized, out of scope or illegal access or use by Customer employees, contractors, vendors, subcontractors, agents, successors, assigns and affiliates, as well as violation of copyright, trademark, privacy, publicity, communications, and other laws.
You agree that you will NOT do any of the following:
As between Customer and Hang, Customer retains all rights, title, and interest in and to the Customer Materials. "Customer Materials" means the information, data, materials, logos, trademarks, assets, presentations, videos, or other content provided by or on behalf of Customer in connection with the Services. Customer grants Hang a worldwide, non-exclusive, royalty-free, limited license to use, reproduce, store, perform, display, stream, transmit, translate, and prepare derivative works of the Customer Materials in and in connection with the Services and Customer's use thereof. Customer is solely responsible for the Customer Materials.
If a final judgment is made by a court of competent jurisdiction that the Services as delivered by Hang infringe the rights of a third party, Customer's sole and exclusive remedy and Hang's entire liability and obligation with regards to remedy such infringement shall be, at Hang's sole option and expense, to (i) modify the Services so that they are non-infringing, (ii) obtain for Customer a license to continue using the Services, or (iii) terminate this Agreement and the license granted hereunder and refund a pro rata portion of the Fees (defined below) that Hang received under this Agreement provided that Customer immediately ceases of the use of the Services. Hang shall have no indemnification obligation, and Customer shall indemnify Hang pursuant to this Agreement, in addition to the indemnification obligations set forth in the Terms, for claims arising from any infringement arising from the combination of the Services with any of Customer's products, services, materials, hardware, or business process(s).
Customer acknowledges and agrees that Hang may integrate into the Services specific third party AI tools (collectively, the "AI Tools"), which may be operated and used pursuant to certain agreements and terms from the third-party providers of such AI Tools ("AI Terms"). Customer hereby acknowledges that its use of the AI Tools in the Services may be governed by such AI Terms.
Customer's use of the Services is conditioned on Customer's timely payment of the Fees set forth in the Order Form. Unless otherwise agreed in any Order Form, Customer will pay Fees within thirty (30) days from Hang's applicable invoice date. Hang reserves the right to modify its Fees and charges and introduce new charges with at least thirty (30) days' prior written notice. Customer shall be responsible for any applicable sales, use, excise or other taxes attributable to the services provided or the amounts charged under this Agreement and shall hold Hang harmless from all claims and liabilities arising out of Customer's failure to report or pay any such taxes, duties, and assessments.
If Customer fails to timely pay any Fees, in addition to any other rights or remedies Hang may have under the Agreement, Hang may charge Customer interest in the amount of one and one-half percent (1.5%) per month, for payments that are sixty (60) days overdue.
Customer agrees to comply with the technical or other specifications provided by Hang in connection with the Services. Customer will not, and will prohibit its users from, using the Services or uploading material to the Services in violation of any law or rights of any party. Customer agrees to promptly remove any infringing material from the Services if Customer or Hang receive a qualifying notice under the Digital Millennium Copyright Act. Customer will promptly report any suspected misuse of or unauthorized access to the Services, or any other violation of this Agreement.
Customer shall ensure that each of Customer's End-Users is legally bound by Customer's terms of use, terms of service or such other legally binding agreement between Customer and each such End-User in a manner that prohibits End-Users from infringing or otherwise violating third-party rights including, without limitation, third-party intellectual property rights. Customer is solely responsible for all acts, omissions and activities of Permitted Users and End-Users, including their compliance with this Agreement.
Customer shall provide and make available to End-Users a privacy notice that describes the collection, use, and disclosure of End-Users' "personal data" or "personal information," as such terms are defined under applicable privacy laws (collectively, "Personal Information") in connection with Customer's use of the Services, including without limitation, such collection, use and disclosure contemplated by this Agreement. If Customer is subject to the GDPR or ePrivacy Directive or other Laws requiring Customer to give notice of, or obtain consent to, the use of cookies or similar technologies on Customer's websites or other online services, then Customer shall give such notices and obtain such consents with respect to any Hang cookies or similar technologies utilized on Customer's websites or other online services.
Customer shall ensure that the content, data, and other information that Customer submits to the Services through its use thereof, including, without limitation, such information as Customer may collect through the Services from End-Users, does not include (i) protected health information regulated by the Health Insurance Portability and Accountability Act ("HIPAA") or medical information governed by state healthcare privacy laws, (ii) Social Security numbers, driver's license numbers or other government-issued identification numbers, (iii) financial information, banking account numbers or passwords, or information regulated by the Gramm Leach-Bliley Act, (iv) payment card data regulated by the Payment Card Industry Data Security Standards; (v) biometric data regulated by biometric privacy laws, (vi) online account passwords, login credentials or related information (vii) criminal history, (viii) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation or other information that constitutes "special categories of data" regulated by the GDPR or (ix) Personal Information of children under sixteen (16) years of age regulated by COPPA, the GDPR or under the age of consent for purposes of applicable privacy laws. Notwithstanding anything in the Agreement to the contrary, Hang shall have no liability or responsibility with respect to such information.
Customer shall not send any unsolicited, commercial communications to End-Users or use the Services in a manner that violates generally recognized industry guidelines, including, without limitation:
Customer acknowledges that Customer is solely responsible for all content of any messages sent to End-Users created by or on behalf of Customer and for Customer's compliance with all laws in connection with Customer's use of the Services to send End-Users any messages. By using the Services to send any messages to End-Users, Customer agrees to make End-Users aware of their right to opt out of any future messages, as required by law. Customer is responsible for honoring all opt-out requests from End-Users.
As between Customer and Hang, Customer is solely responsible for all customer service, order fulfillment, and returns, and payment of taxes or charges associated with any products or services that Customer sells or markets. Customer acknowledges that the Services are provided by Hang to Customer on a business-to-business basis, and that Hang does not have a direct relationship with any End-User as a result of providing the Services to Customer hereunder.
This Agreement shall become effective on the date Customer accepts the terms and conditions herein executes an Order Form ("Effective Date"), and shall remain in full force and effect for the period of set forth in the initial Order Form ("Initial Term"). Following the Initial Term, this Agreement will renew automatically for additional, successive two (2)-year period(s) (each, a "Renewal Term") unless a party provides written notice of non-renewal at least sixty (60) days prior to the end of the Initial Term or applicable Renewal Term, or if either party terminates the Agreement in accordance with this section. Collectively the Initial Term and any Renewal Term will constitute the "Term."
In addition to any remedies provided to Hang in the Terms, each party shall have the right to terminate this Agreement effective immediately upon written notice to the other party if: (i) the other party commits a material breach of any obligation under this Agreement and such breach is not corrected or remedied within thirty (30) days after written notice thereof, or (ii) a party becomes or is declared insolvent or bankrupt, or shall commence or have commenced against it a bankruptcy, insolvency, receivership or similar proceeding. Hang shall have a further right to terminate this Agreement if Customer fails to pay any amounts when due, and continues to be delinquent for a period of thirty (30) days after written notice by Hang of such non-payment.
Upon any termination or expiration of the Agreement: (i) all rights and licenses to the Services granted to Customer by Hang will immediately terminate, and (ii) Customer will pay any Fees due and payable. Unless otherwise agreed by the parties in a written amendment referencing this Agreement or as provided in this section, the Fees paid or payable are non-refundable. Hang will not refund any prepaid Fees to Customer in connection with any termination or expiration of this Agreement, except for termination of the Agreement for Hang's breach pursuant to the above. In no event will termination relieve Customer of Customer's obligation to pay any Fees owed to Hang. All provisions that by their nature are intended to survive after this Agreement ends will survive any termination or expiration of this Agreement.
Each party (the "Receiving Party") may, during the course of this Agreement, have access to or acquire knowledge regarding the other party (the "Disclosing Party") and to materials, data, systems, procedures and other information of or with respect to the Disclosing Party, which may not be accessible or known to the general public, including information concerning its or their hardware, software, designs, drawings, specifications, techniques, processes, procedures, data, research, development, future projects, products or services, projects, products or services under consideration, content under development, business plans or opportunities, business strategies, finances, costs, vendors, employees or customers and third party proprietary or confidential information that the Disclosing Party treats as confidential ("Confidential Information"). Neither party shall disclose the Confidential Information of the other party to any third party. Each party shall further protect and treat Confidential Information with the same degree of care as it uses to protect its own confidential information, but in no event less than reasonable care, and shall implement industry standard administrative, technical, and physical measures to protect Confidential Information. Except for the rightful execution of its rights under this Agreement, the Receiving Party shall not use, make, or have made any copies of the Disclosing Party's Confidential Information without the express prior written authorization of the Disclosing Party. The Receiving Party shall only disclose Confidential Information to its employees on a need-to-know basis for the purposes of this Agreement, and who are under a duty of confidentiality at least as protective as this Agreement. For the avoidance of doubt, Feedback shall not be considered the Confidential Information of Customer.
Hang provides the Services "as is." EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, HANG MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND IN CONNECTION WITH THE SERVICES, INCLUDING THE THIRD PARTY SERVICES AND ANY INFORMATION OR MATERIALS PROVIDED OR MADE AVAILABLE BY HANG. THE SERVICES ARE PROVIDED "AS IS." NEITHER HANG NOR ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE MEMBERS, STOCKHOLDERS, EMPLOYEES, CONSULTANTS, OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS (COLLECTIVELY, "HANG PARTIES") REPRESENT OR WARRANT THAT (I) THE USE OF ANY OF THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, WILL BE AVAILABLE WHEN YOU DESIRE TO UTILIZE THE SERVICES, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (II) ANY STORED DATA WILL BE ACCURATE, SECURE, OR RELIABLE, OR (III) ERRORS OR DEFECTS WILL BE CORRECTED. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE HANG PARTIES DISCLAIM ALL REPRESENTATIONS, WARRANTIES, PROMISES, OR GUARANTEES OF ANY KIND WHATSOEVER AS TO THE SERVICES OR THIRD PARTY SERVICES, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ANY HANG PARTY BE LIABLE TO YOU FOR ANY LOSS, DAMAGE, OR INJURY OF ANY KIND INCLUDING, WITHOUT LIMITATION, ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS, OR GOOD-WILL OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE SERVICES. UNDER NO CIRCUMSTANCES SHALL ANY HANG PARTY BE REQUIRED TO MAKE SPECIFIC PERFORMANCE, OR ANY OTHER REMEDY.
THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THESE TERMS HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY AND WHETHER OR NOT THE HANG PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND LIABILITIES PROVIDED IN THIS SECTION, SO SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT APPLICABLE LAW DOES NOT PERMIT HANG PARTIES TO DISCLAIM CERTAIN WARRANTIES OR LIMIT CERTAIN LIABILITIES, THE EXTENT OF HANG PARTIES' LIABILITY AND THE SCOPE OF ANY SUCH WARRANTIES WILL BE AS PERMITTED UNDER APPLICABLE LAW.
You will indemnify Hang and its affiliates for your use of the Services. To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless Hang and the Hang Parties from and against all actual or alleged claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys' fees and expenses), and costs (including, without limitation, court costs, costs of settlement, and costs of or associated with pursuing indemnification and insurance), of every kind and nature whatsoever arising out of or related to these Terms or your use of the Services, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, "Claims") that are caused by, arise out of, or are related to: (i) your use or misuse of the Services, including any information, data, materials, logos, trademarks, assets, presentations, videos, or other content provided by or on behalf of you in connection with the Services; (ii) your violation of these Terms or applicable law; (iii) any breach or non-performance of any representation, warranty, covenant, or agreement made by you; and (iv) your failure to notify Hang if you change your telephone number.
In the event of a claim, dispute or controversy between the parties arising out of or relating to this Agreement (each, a "Dispute"), the parties shall meet, prior to the commencement of any arbitration or judicial proceeding hereunder and in any case within 30 days of notice of such Dispute, to attempt to resolve the Dispute in good faith. Thereafter, the parties agree to arbitrate such Dispute in the following manner:
This Agreement and performance hereunder are governed by the laws of the State of New York without regard to conflicts of laws.
Either party may use the other party's name or trademark(s) in advertising, written sales promotion, press release(s) and/or other publicity matters, in a truthful and non-derogatory manner. Hang may disclose that Customer is a client of Hang.
The relationship of the parties is that of independent contractors, and nothing in this Agreement shall be construed to make the parties partners, joint ventures, principals, agents, or employees.
In addition to any remedies provided to Hang in the Terms, Hang may suspend Customer's access to the Services with twenty-four (24) hours' notice without liability if (i) Hang reasonably believes that the Services are being used in violation of the Agreement, (ii) Customer does not cooperate with Hang's reasonable investigation of any suspected violation of the Agreement, or (iii) immediately if required by law. If Customer's invoice payments are delinquent for more than thirty (30) days, Hang may, without liability and notice, suspend Customer's access to Services.
Neither Hang nor Customer shall be liable for any failure or delay in its performance under this Agreement including any delays, errors, failures to perform, interruptions or disruptions in the use of Services due to causes that are beyond its reasonable control (a "Force Majeure Event"). The affected party shall notify the other party of such Force Majeure Event promptly, and both Hang and Customer agree to work together to resolve any issues related to such an event in order to facilitate the resumption of use of Services.
All notices, requests, consents, and other communications under this Agreement shall be in writing and shall be deemed to have been received on the earlier of the date of actual receipt or the third business day after being sent by first class mail. Hang may give notice to Customer by means of a general notice through the Services interface, electronic mail to Customer's e-mail address on record in Hang's account information, or by written communication sent by postal mail or nationally recognized overnight delivery service to Customer's address on record in Hang's account information. Customer may give notice to Hang by electronic mail or by written communication sent by postal mail or nationally recognized overnight delivery service addressed to Estimated Inc, d/b/a Hang, 401 Broadway, Ste. 1703, New York, NY, 10013.
This Agreement and all agreements and orders referenced herein, including without limitation the Terms and Order Form, and any amendments to such agreements and terms, form the entire agreement between the parties with respect to use of the Services and supersedes any prior agreements between the parties in connection therewith. Hang expressly rejects all terms contained in Customer's purchase order documents, or in electronic communications between the parties, and such terms form no part of this Agreement.
The parties agree that electronic signatures, whether digital or encrypted, or Customer's click-through acceptance of this Agreement, or any amendment of this Agreement, give rise to a valid and enforceable agreement.
No amendment to, or change, waiver or discharge of, any provision of this Agreement shall be valid unless in writing and signed by an authorized representative of each of the parties. Hang may amend this Agreement and Customer accepts the revised version of this Agreement by execution of an Order Form incorporating the revised version, or continued use of the Services for 30 days following the earliest notice of such revised version provided to an Authorized User at the Services log-in prompt.
a. Hang guarantees that the loyalty and gift card services provided to Customer will maintain an uptime of at least 99.5% during business hours, defined as 8:00 AM to 11:00 PM Eastern Time, each calendar month.
a. Calculation of Uptime Percentage: Uptime is calculated monthly by comparing the total number of business hours in the month to the total amount of downtime during those hours. Uptime percentage represents the proportion of business hours during which the services are fully operational and accessible to Customer.
b. Definition of Downtime: "Downtime" refers to any period during business hours when the core services are unavailable due to issues within Hang's control and does not include service provider downtime. This excludes scheduled maintenance and events beyond Hang's reasonable control, such as natural disasters.
a. If Hang fails to meet the 99.5% uptime commitment in any given month, Hang will credit Customer an amount equal to the entire fixed SaaS fees for that month for the service(s) affected.
L1 Support is handled by Customer. Issues that are forwarded to Hang are L2 issues and are handled by Hang's Support team. These issues can be classified by follows: