Terms of Service
Last updated: January 9, 2023
These Terms of Service (“Terms of Service” or “Terms”), together with an Order Form, govern a customer’s use of https://hightouch.com (the “Site”) owned and operated by Carry Technologies, Inc. dba Hightouch, (“Hightouch”, “our”, “us” or “we”). “You”, “your”or “Customer” means the entity that uses the Site. Customer and Hightouch may be referred to in these Terms as a “Party” and collectively as the “Parties.”
By signing an Order Form (defined below) with Hightouch, Customer agrees to comply with and be bound by these Terms. These Terms, together with any Order Form(s), constitutes the entire agreement between Hightouch and Customer (the “Agreement”).
1.1.“Affiliate.” Any business entity controlling, controlled by or under common control with a Party hereunder. Customer will be responsible for all acts and omissions of its Affiliates, as if they were “Customer” hereunder.
1.2.“Confidential Information” means (i) the Agreement, (ii) with respect to Hightouch, non-public aspects of the Hightouch Technology, the Site, and additional services provided by Hightouch (and the operation thereof), and Hightouch’s business, technical or financial information and data, (iii) with respect to Customer, Customer Data, and non-public aspects of Customer’s technology, computer programs, and business, technical and financial information and data.
1.3.“Customer Data.” Non-public data provided by Customer to Hightouch to enable the provision of the Site and other services, including protected health information, as defined in the Health Insurance Portability and Accountability Act of 1996 (as amended, “HIPAA”).
1.4.“Destination.” A type of application connected to the Site by Customer to which the Site sends data. Multiple instances of one destination count as one Destination. For example, if Customer connects two Salesforce accounts, Customer is only billed for one Destination.
1.5.“Standard Destination.” A Destination listed as Standard on the Site.
1.6.“Premium Destination.” A Destination listed as Premium on the Site.
1.7.“Paid Destination.” A Destination listed as Standard or Premium on the Site.
1.8.“Free Destination.” A Destination listed as Free on the Site.
1.9.“Event.” A record that the Site queries in a Source via a Sync and inserts (but does not update) in the Destination.
1.10.“Hightouch Technology.” The computer hardware, software and other tangible equipment and intangible computer code necessary to deploy and make available the Site.
1.11.“Monthly Queried Records” or “MQR.” The number of unique Records to be queried in a Source in a month.
1.12.“Object.” A record that the Site queries in a Source via a Sync and is then updates in a Destination.
1.13.“Operation.” An operation is one of an addition, deletion, or modification executed by the Site to a Destination. An addition, deletion, or modification typically consists of one or more application programming interfaces (API) calls made from the Site to a Destination.
1.14.“Order Form.” Any order form referencing and incorporating these Terms, which shall be in writing, signed by both Parties, and shall specify the products or services to be purchased or licensed by Customer from Hightouch.
1.15.“Service Term.” The period of time indicated in an Order Form beginning upon an Order Effective Date and ending on the last day of the Service Term set forth in the Order Form.
1.16.“Source.” A data repository of Customer connected to the Site from which the Site reads data. An example of a Source is a Snowflake data warehouse or Google Sheet.
1.17.“Sync.” A process created by Customer in the Site that defines how and when data is moved from Source to Destination by the Site.
1.18.“Users.” The number of identifiable unique persons consisting of Customer’s personnel and independent contractors who are authorized to access and use the Site, as specified in the applicable Order Form(s). Users include Customer’s third party contractors, outsourcers, consultants and other service providers, solely to the extent providing services to Customer.
1.19.“Third Party Systems.” means a third party’s web-based, mobile, or other software application that interoperates with the Site and is made available by Customer or a third party, including without limitation any Destination or Source.
2.0 Access to Services
Subject to the terms and conditions hereof, during the Service Term set forth in the applicable Order Form, Hightouch hereby grants to Customer a non-exclusive, non-sublicensable right to access and use the Site for the number of Users and the Destinations and Objects set forth on the applicable Order Form and solely for Customer’s internal business purposes.
3.0 Use Restrictions
Customer shall not, nor shall it permit or assist others to,
- (i) abuse or fraudulently use the Site;
- (ii) process or permit to be processed the data of any third party that is not expressly authorized herein to access and use the Site;
- (iii) attempt to copy, reverse-engineer, decompile, disassemble, create a derivative work from, or otherwise attempt to derive the source code of any part of the Site or the Hightouch Technology;
- (iv) access, alter, or destroy any information of any customer of Hightouch by any fraudulent means or device, or attempt to do so; or
- (v) use the Site in violation of any applicable law or regulation or any of its agreements with third parties, or otherwise outside of the scope expressly permitted herein.
In the event of any breach by Customer of any of the foregoing, in addition to any other remedies available at law or in equity, Hightouch will have the right to immediately suspend Customer’s access to the Site if deemed reasonably necessary by Hightouch to prevent any harm to Hightouch or its business. Hightouch will provide notice to Customer and an opportunity to cure, if practicable, depending on the nature of the breach. Once cured, Hightouch will promptly restore access to the Site.
4.0 Customer Responsibilities; Third Party Systems
Customer shall be solely responsible for (a) providing all Internet access, hardware, browsers, and other software necessary to access and login to the Site, and (b) acquiring and maintaining technology and procedures for maintaining the security of its link to the Internet, its account and passwords, and for all uses of Customer’s account. Customer hereby grants to Hightouch a non-exclusive, worldwide, royalty-free right to process use, copy, store, transmit, modify, create derivative works of and display the Customer Data during the Service Term, solely to the extent necessary to provide the Site and any related services to Customer hereunder. The Site contains features designed to interoperate with Third Party Systems. Customer agrees that its use of any Third Party System and any exchange of Customer Data between Customer and any Third Party System is solely between Customer and the applicable Third Party System provider. Hightouch does not warrant or support Third Party Systems, and Hightouch is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by any Third Party System or its provider.
5.0 Site Security
Hightouch shall implement reasonable security procedures consistent with prevailing industry standards to protect Customer Data processed by the Site from unauthorized access. Hightouch reserves the right to internally monitor Customer’s usage of the Site for the purposes of troubleshooting and maintaining and improving the Site.
6.0 Fees; Taxes
6.1.Customer shall pay to Hightouch the fees for access to the Site based upon Destinations, Events, and Objects selected by Customer as indicated in the Order Form. Customer will pay invoices within thirty (30) days of the date of invoice, unless otherwise set forth in the Order Form. Any overdue amounts shall be subject to a late charge of one-half percent (0.5%) per month or the highest rate permitted by applicable law, whichever is lower, on such invoice until fully paid. Any amounts due hereunder are exclusive of, and Customer shall be responsible for, all sales taxes, value added taxes, duties, use taxes, withholdings and other governmental assessments, excluding taxes based on the net income of Hightouch, unless Customer provides to Hightouch a valid tax-exempt certificate.
6.2. A La Carte FeesIn the event Customer’s use of the Site exceeds the volume tier of the subscription plan purchased by Customer, Hightouch will immediately charge additional fees (“A La Carte Fees”) at the overage rate indicated in the Order Form, and the Customer shall be obligated to pay any A La Carte Fees in the next month. For subscription plans on MQRs, if the number of Operations in a calendar month is greater than the number equal to the quantity of MQRs in such calendar month multiplied by 10, each and every additional 10 Operations shall be considered an additional MQR for the purposes of calculating A La Carte Fees.
6.3. SuspensionIf Customer’s account is thirty (30) days or more overdue, then, following five (5) business days’ written notice and opportunity to cure, in addition to any of its other rights or remedies, Hightouch may suspend Customer’s access to the Site until such amounts are paid in full.
Hightouch retains all right, title and interest in and to the Site, the Hightouch Technology, Hightouch’s Confidential Information, and all improvements, enhancements or modifications thereto (including all intellectual property rights therein). Any deliverables, concepts or inventions created or developed before or while providing the Site or any professional services to Customer are not considered a work made for hire and shall be owned by Hightouch.
Customer retains all right, title and interest in and to the Customer Data and Customer’s Confidential Information.
7.3.Feedback and Resultant Data
Customer may choose to provide Hightouch with suggestions, ideas, enhancement requests, feedback, recommendations or other information specifically relating to the Site (“Feedback”) and if Customer does provide Hightouch with Feedback, Hightouch shall own all right, title and interest in such Feedback. In addition, as a result of Customer’s use of the Site, Hightouch may derive (a) information by or through Customer’s use of the Site; (b) that is de-identified so that the identification of any individual cannot be re-identified or derived; and (c) aggregated with other Hightouch customer usage information (“Resultant Data”). Hightouch shall retain all right, title, and interest in and to the Resultant Data.
8.0 Confidential Information
Each Party (“Owner”) may disclose Confidential Information to the other Party (“Recipient”) pursuant to this Agreement.
8.1.Restrictions on Use and Disclosure
Recipient may use Confidential Information of Owner only for the purposes of the Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case, using no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder only to its employees or contractors who have a need to know for purposes of this Agreement and who are bound by signed, written agreements to protect the received Confidential Information from unauthorized use and disclosure.
Confidential Information does not include information that:
- (i) is in the possession or control of Recipient without restriction at the time of its disclosure hereunder;
- (ii) is, or becomes, publicly known through no wrongful act of Recipient;
- (iii) is received by Recipient from a third party free to disclose it without obligation to Owner, or
- (iv) is independently developed by Recipient without reference, reliance or incorporation of the Owner’s Confidential Information.
The Recipient may disclose Confidential Information of Owner pursuant to the requirements of a governmental agency or by operation of law, provided that such Recipient gives Owner written notice thereof as soon as practicable and reasonably cooperates with Owner to contest such disclosure. In addition, either Party may confidentially disclose this Agreement to an actual or potential financing source or acquirer.
8.3.Destruction of Confidential Information
At any time upon Owner’s request, and upon termination of the Agreement, Recipient shall delete Owner’s Confidential Information.
9.0 Representations and Warranties; Disclaimer
Customer represents and warrants that it has sufficient authority to enter into this Agreement and that it has sufficient rights in the Customer Data to authorize Hightouch to process, distribute and display the Customer Data as contemplated by this Agreement, and that the Customer Data does not infringe the rights of any third party. Customer will promptly inform Hightouch if it has reason to believe that the former representations and warranties are no longer true.
Hightouch warrants that it has sufficient authority to enter into this Agreement and that is has not entered into any other agreement, obligation or restriction which would prohibit the provision of services to Customer. Hightouch further warrants that the Site will conform to all material operational features as described in the documentation for the Site (“Product Warranty”). Customer’s sole and exclusive remedy for breach of the Product Warranty shall be the prompt correction of non-conforming portions of the Site at Hightouch’s sole expense.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 9, HIGHTOUCH AND ITS AFFILIATES, SUBCONTRACTORS AND THIRD PARTY LICENSORS MAKE NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. CUSTOMER ACKNOWLEDGES THAT HIGHTOUCH SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER THIRD PARTY SYSTEMS OUTSIDE THE REASONABLE CONTROL OF HIGHTOUCH.
10.0 Term and Termination
The Agreement will commence on the Effective Date of an Order Form and continue in full force and effect for the Service Term indicated in such Order Form. Each Party may terminate this Agreement upon thirty (30) days prior written notice to the other Party if the other Party materially breaches this Agreement and fails to correct the breach within such notice period. In the event of any termination, all amounts due under an Order Form for services and access to the Site provided prior to the date of termination shall be paid within ten (10) days of such termination. All sections of this Agreement which by their nature should survive termination will survive termination, including but not limited to Sections 1 (Definitions), 3 (Use Restrictions), 5 (Site Security), 6 (Fees; Taxes), 7 (Ownership), 8 (Confidential Information), 9.3 (Disclaimer), 10 (Term and Termination), 11 (Indemnification), 12 (Limitations) and 14 (Miscellaneous).
11.1.Indemnification by Hightouch
Hightouch will defend Customer from and against any third party claims, demands, suits or proceedings (“Third Party Claims”) made or brought against Customer by a third party alleging the Site (except for third party software, including without limitation open source software) infringes any U.S. patent, copyright or trademark of a third party, or misappropriates such third party’s trade secrets. Further, Hightouch will indemnify and hold Customer harmless against all damages, costs and reasonable attorneys’ fees (“Losses”) finally awarded against Customer by a court of competent jurisdiction or an arbitrator, or agreed to in a written settlement agreement signed by Hightouch, in connection with such Third Party Claims. Hightouch shall have no liability or obligation if the Third Party Claim arises from (i) any alteration or modification to the Site requested or implemented by or on behalf of Customer or its Affiliates, (ii) any combination of the Site by Customer with other technology or data not furnished by Hightouch, or (iii) any use by Customer of the Site not in accordance with this Agreement. If the Site becomes or Hightouch believes it may become the subject of a claim of intellectual property infringement, Hightouch, at its option and expense, may: (i) procure the right for Customer to continue to use the Site; (ii) replace or modify the Site so as to make it non-infringing; provided, however, that the Site continues to conform to the specifications provided in the applicable Order Form; or (iii) terminate this Agreement and refund to Customer the subscription fees paid in advance by Customer for the Site applicable to the remaining portion of the Service Term following the effective date of termination. This Section sets forth the entire liability of Hightouch to Customer for any infringement by the Site of any intellectual property right.
11.2.Indemnification by Customer
Customer shall defend Hightouch, at Customer’s expense, from and against any Third Party Claims made or brought against Hightouch alleging that the Customer Data, or Customer’s use of the Site in violation of this Agreement, infringes or otherwise violates a third party’s property, privacy or other rights, or violates any applicable law. Further, Customer shall indemnify and hold Hightouch harmless against all Losses awarded against Hightouch by a court of competent jurisdiction or an arbitrator, or agreed to in a written settlement agreement signed by Customer, in connection with such Third Party Claims.
The foregoing obligations of the indemnifying party are conditioned upon the party seeking indemnification (a) promptly providing notice to the indemnifying party concerning the existence of an indemnifiable claim (provided that failure to give prompt notice shall not constitute a waiver of a party’s right to indemnification and shall affect the indemnifying party’s obligations under this Agreement only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay), and (b) promptly providing all information and assistance reasonably requested and otherwise full cooperation with the indemnifying party in defending the claim, and (c) giving the indemnifying party sole control and authority of the defense and settlement of any indemnifiable claim (provided, however, that any settlement requiring the party seeking indemnification to admit liability or make any financial payment shall require such party’s prior written consent, not to be unreasonably withheld or delayed.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT FOR INDEMNITY OBLIGATIONS EXPRESSLY PROVIDED IN SECTION 11 ABOVE, , IN NO EVENT SHALL HIGHTOUCH OR ITS LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY (A) FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE OR INCOME) ARISING FROM OR RELATED TO THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SITE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) FOR ANY AMOUNT, IN THE AGGREGATE, EXCEEDING THE FEES PAID AND PAYABLE IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY, WHETHER BASED ON BREACH OF WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
Customer agrees to participate in reasonable marketing activities that promote the benefits of the Services to other potential customers and to use of Customer’s name and logo on the Hightouch web site and in Hightouch promotional materials. Customer agrees that Hightouch may disclose Customer as a customer of Hightouch.
Neither Party shall assign this Agreement without the prior written consent of the other Party; provided, that either party may transfer this Agreement in connection with a merger, consolidation, sale of substantially all of its assets, without the other party’s prior written consent. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules.
Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email or facsimile (provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt requested, in each case to the address set forth on the Order Form or at such other addresses as shall be designated in writing by either Party to the other in accordance with this Section. Such notice will be deemed to be given when received.
No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
These Terms of Service, together with any Order Form executed by and between you and Hightouch, constitute the entire agreement between you and us with respect to the Site and supersede all prior or contemporaneous communications and proposals (whether oral, written, or electronic) between you and us with respect to the Site. If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will remain in full force and effect. The failure of either Party to exercise in any respect any right provided for in the Agreement shall not be deemed a waiver of any further rights under this Agreement.
If you have any questions regarding these Terms of Service or the Site, please contact us at firstname.lastname@example.org.