Last Updated: May 22, 2018
HMBD offers a variety of products (“Products”) that each include different features. If you subscribe to, are given access to, or purchase for resale a Product described below, in addition to your agreement with HMBD and any and all Subscription Schedule(s) and Statement(s) of Work or similar ordering document(s) (collectively, the “Master Agreement”), the associated terms herein apply to your access and use of such Products. Capitalized terms used in these Product Terms and not otherwise defined have the meanings given to such terms in the Master Agreement. “You” and “your” will refer to you and will also refer to the Client or Partner (or similar term referring to the legal entity subscribing or being given access to Products) as defined in the relevant Master Agreement. In the event of a conflict between these Product Terms and the Master Agreement, unless otherwise specified herein, the terms of the Master Agreement will control.
1. You understand and acknowledge that HMBD may, at its option, provide certain products, features and services that are in development by HMBD and/or not yet made generally available to the public (each a “Beta Product” or a “Beta Service” or a “Beta,” collectively “Beta Products,” or “Beta Services” or “Betas”). Betas are made available on an “AS IS” and “AS AVAILABLE” basis for the sole purpose of evaluating the Beta and providing HMBD with feedback on the marketability, quality and usability of the Beta. Betas may be subject to additional terms (e.g., a Trial and Beta Product Agreement) and those terms will control in the case of any conflict with this Section. In addition, Betas will not give rise to an indemnification obligation of HMBD’s under the Master Agreement except as set forth in these Product Terms.
2. HMBD may discontinue any Beta at any time in HMBD’s sole discretion and may never make them generally available. Any feedback that you provide (on your behalf or on behalf of your clients who have been given access to any Beta) in connection with your use of a Beta may be used, modified and/or incorporated by HMBD in its sole discretion, including in its Products and documentation, and you grant to HMBD a perpetual, irrevocable, worldwide, non-exclusive, royalty free, sublicensable license to use any and all feedback, comments, and/or suggestions in HMBD’s sole discretion with no obligation to you.
3. All non-public information relating to the Betas, including, but not limited to the Beta itself and the fact that you received access to the Beta, is confidential information of HMBD (“HMBD Confidential Information”). Unless required by applicable law, you will not disclose any of the HMBD Confidential Information to any third party without the prior, written approval of HMBD. You will not use any of the HMBD Confidential Information for any purpose, other than as necessary to access and use the Beta. You will protect the confidentiality of the HMBD Confidential Information using at least the same degree of care as you use for your own highly sensitive confidential information (but in no event less than a reasonable degree of care).
4. In addition to any and all disclaimers in your Master Agreement, you agree that HMBD is not obligated to provide any maintenance, technical or other support for the Betas. Furthermore, Betas are not intended for production use and may contain errors or inaccuracies that could cause failures, corruption or loss of data and/or information. BETAS PROVIDED BY HMBD IN CONNECTION WITH THESE PRODUCT TERMS ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT UNDER APPLICABLE LAW, HMBD MAKES NO, AND DISCLAIMS ALL, WARRANTIES (INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT), GUARANTEES, AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, ORAL OR OTHERWISE. THE HMBD PRODUCTS AND HMBD WEBSITE, AND OTHER WEBSITES, DATABASES AND/OR THIRD PARTY PROGRAMS CONTAINED WITHIN THE PRODUCTS, MAY CONTAIN BUGS, ERRORS, PROBLEMS AND/OR OTHER LIMITATIONS. HMBD HAS NO LIABILITY, WHATSOEVER, TO YOU OR ANY THIRD PARTY, FOR ANY CHANGES MADE TO THE CLIENT CONTENT OR TO YOUR WEBPAGE OR WEBSITE AS A RESULT OF HMBD’S ASSISTANCE IN IMPLEMENTING ANY PRODUCT FEATURES, ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND/OR ANY PARTY’S USE OF, OR INABILITY TO USE, HMBD WEBSITES, DATABASES AND/OR PROGRAMS. HMBD DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY’S SECURITY METHODS, PRIVACY PROTECTION PROCEDURES AND/OR ANY PARTY’S USE OF HMBD’S WEBSITE, DATABASES AND/OR PROGRAMS WILL BE UNINTERRUPTED OR ERROR-FREE. Except as expressly set forth in your Master Agreement or In these product terms, BETAS ARE BEING PROVIDED ON A TRIAL BASIS, FOR EVALUATION PURPOSES ONLY, AND IN NO EVENT SHALL HMBD OR ANY PUBLISHER BE RESPONSIBLE TO YOU OR TO ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER IN CONNECTION WITH YOUR USE OF THE BETAS, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES ARISING FROM OR RELATING YOUR USE OF THE BETAS, INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF HMBD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HMBD WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THESE PRODUCT TERMS OR THE MASTER AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM, AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND HMBD’S CONTROL. IN NO EVENT SHALL HMBD’S TOTAL LIABILITY TO YOU UNDER THESE PRODUCT TERMS OR ARISING OUT OF OR RELATED TO YOUR USE OF THE BETAS EXCEED ONE HUNDRED DOLLARS (USD $100.00) IN THE AGGREGATE FOR ANY AND ALL CLAIMS. THE FOREGOING LIMITATIONS OF LIABILITY REFLECT A DELIBERATE AND BARGAINED FOR ALLOCATION OF RISKS BETWEEN YOU AND HMBD WITH RESPECT TO BETAS. To the extent any liability of HMBD cannot be disclaimed, excluded or limited under applicable law, such liability shall be disclaimed, excluded and limited to the fullest extent permitted under applicable law.
5. The following indemnification obligations will apply to your use of any Beta(s) and, by using a Beta, you agree that the following shall supersede and replace any indemnification obligations set forth in the Master Agreement as they apply to the use of any Beta(s).
6. HMBD will defend you, indemnify you, and hold you harmless, from and against any and all claims, actions, lawsuits and investigations brought by a third party (each a “Third Party Claim“) and will pay any settlements, awards, fines and reasonable attorney’s fees and expenses and court costs (“Losses“) associated with such Third Party Claims, in each case to the extent arising from or relating to any allegation that HMBD’s provision of the Beta (excluding, for the avoidance of doubt, any Client Content or third party content provided through the Beta) infringes or misappropriates third party intellectual property rights; provided, however, that this indemnity will not apply to the extent the Third Party Claim is caused by: (i) your unauthorized alteration or modification of the Beta, (ii) use of the Beta in violation of the Master Agreement or these Product Terms, (iii) the combination, operation or use of the Beta with any product, device, software or service not supplied by HMBD to the extent the combination creates the infringement, or (iv) HMBD’s compliance with your designs, specifications, requests, or instructions by Client to the extent the Third Party Claim is based on such compliance. You agree to defend, indemnify, and hold harmless, HMBD, its third party licensors and Publishers, and its affiliates, and each of its and their respective officers, directors, members, managers, employees, sublicensees, contractors and agents (collectively, the “HMBD Indemnitees”) from and against Third Party Claims and will pay any Losses associated with such Third Party Claims, in each case to the extent arising from or relating to: (a) your use of any Beta (or part thereof); (b) any violation of any law or regulation arising from or in connection with your use of any Beta; or (c) your breach of any provision of these Product Terms and/or the Master Agreement arising out of or in connection with your and/or your Client’s use of any Beta.
2. Communications sent by You via the Products and Betas
To the extent that HMBD provides you with access to a Product and/or Beta that allows you (or in the case of an agency or reseller, your clients), through HMBD, to send email or other communications (e.g., review requests) to your customers, you agree not to send any unsolicited, commercial communications (e.g., “spam”). Further, you acknowledge that you are responsible for your own compliance (and in the case of an agency or reseller, your clients’ compliance) with all Applicable Laws in connection with your use of any Product or Beta, and you represent and warrant that you comply (and in the case of an agency or reseller, your clients comply) with all such Applicable Laws. Accordingly, and notwithstanding any representation or warranty disclaimer in the Master Agreement, you represent, warrant and covenant that: (i) any applicable customer lists were not created or shared with HMBD in a manner that violates Applicable Laws; (ii) each recipient of applicable communications has been given clear and conspicuous notice that his or her email address and/or other contact information may be shared; and (iii) each recipient of applicable communications has given any required consent to receiving commercial email and other forms of communication, including, but not limited to SMS/text messages; and (iv) you (or in the case of an agency or reseller, your clients) will be considered the sender of any such communications under Applicable Laws. You will defend, indemnify, and hold harmless the HMBD Indemnitees from and against Third Party Claims and will pay any Losses associated with such Third Party Claims, in each case to the extent arising from or relating to: (a) a breach of Applicable Laws; (b) your (or in the case of an agency or reseller, your clients’) breach of your obligations in this Section; or (c) any communication(s) sent by you (or in the case of an agency or reseller, your clients) via the Products or Betas. The exclusions and limitations set forth in the “Liability” section of the Master Agreement will not apply with respect to the foregoing obligation. You agree that HMBD reserves the right to cap the number of emails and other forms of communication, including, but not limited to text messages, that may be sent in connection with any Product(s) at its sole discretion
3. GDPR Compliance
You agree that you shall be regarded as the data controller of the personal data of: (i) your employees to the extent such information is provided for publication (or in the case of an agency or reseller, your clients will be regarded as the data controller of the personal data of their employees) and (ii) your customers (or in the case of an agency or reseller, your clients will be regarded as the data controller of the personal data of their customers) which may be provided to HMBD in connection with Reviews features. When providing the relevant Reviews features, HMBD will act as a data processor in accordance with the Applicable Laws. This entails that HMBD must only act on instructions from the data controller, including as set out in the Master Agreement, as it relates to the end customers’ personal data with the exclusive aim of performing the data controller’s obligations on its behalf. HMBD will not communicate this personal data to any third parties without the relevant data controller’s consent. Where you are an agency or reseller, you will ensure that your agreement with your clients contains the appropriate provisions to permit you to process their personal data on their behalf as data processor and to ensure that they have the appropriate consent to subcontract the processing of the personal data to HMBD and other sub-processors. In addition, you agree that HMBD’s Data Processing Agreement, which is available at https://hartmarketingbusinessdevelopment.com/terms , shall form part of the Master Agreement.
4. Health Information (Applicable to US Clients)
1. HMBD’s Products do not involve the transmission or storage of Protected Health Information or Electronic Protected Health Information (collectively “PHI”) as defined by the Health Insurance Portability and Accountability Act (“HIPAA”).
2. You agree that in no event will HMBD be deemed a Business Associate as defined by HIPAA and you will take all necessary steps to ensure that HMBD is not deemed to be a Business Associate to you or to any of your agents, representatives, clients or end customer(s).
3. You further agree and covenant that: (i) neither you nor any third party acting on your behalf will transmit or make available any PHI to HMBD or its affiliates or representatives; (ii) if you become aware of any PHI in HMBD’s possession or transmitted through or received from HMBD’s platform due to your actions or omissions or any actions or omissions of your employees, agents, representatives, clients or end customers, you will immediately notify HMBD in writing, and you agree that HMBD may immediately and in its sole discretion remove all such PHI from its systems; and (iii) you will immediately inform HMBD in writing in the event of, and will provide any information reasonably requested by HMBD related to: (A) any event that would require a breach notification under 45 CFR 164.400-414, or any similar state breach notification rule, to any client referred to you by HMBD (provided that you will not be required to provide such notification if and to the extent that, in the reasonable determination of its counsel, to do so would be a breach of the HIPAA rules); (B) any claim, suit or governmental investigation or inquiry related to your obligations as a Business Associate and/or under HIPAA; and (C) any other event that could be reasonably expected to affect your abilities to carry out the obligations of a Business Associate, as set forth in HIPAA.
4. Prohibited Parties – If you are a Partner or reseller of Products, you shall not, nor shall you permit anyone else to sell Knowledge Engine: Ultimate (or any subsequent Product that includes review generation or review response features) to, or otherwise use it on behalf of, any heath care service provider and/or any entity or individual that may otherwise be subject to HIPAA (each of the foregoing, a “Prohibited Party”). You will defend, indemnify, and hold harmless the HMBD Indemnitees from and against Third Party Claims and will pay any Losses associated with such Third Party Claims, in each case to the extent arising from or relating to a breach of the foregoing obligation. The exclusions and limitations set forth in the “Liability” section of the Master Agreement will not apply with respect to your obligations in this Section. In the event that you breach this Section, HMBD reserves the right to, without limiting its other rights and remedies, suspend any Prohibited Parties’ access to Knowledge Engine: Ultimate (or any other relevant Products) at any time for any reason, or otherwise disable any access to the review generation or review response features (or any other features that could potentially introduce PHI into the Products). This Section shall survive any expiration or termination of the Master Agreement.
5. Additional Terms
1. Your access to the “Yelp MEC” or “Yelp MEC (Conditional on Yelp Paid Relationship)” Product (each referred to as the “Yelp MEC Product” herein)is conditioned upon your paid relationship with Yelp. To the extent that you or Yelp notify HMBD that your paid relationship with Yelp has ended, HMBD may immediately disable your access to the Yelp MEC Product.
HMBD continues to innovate and update its Products and features and as such, these Product Terms may change from time to time. You should check back frequently to ensure that you understand all applicable policies and terms in these Product Terms and any changes hereto. In the event that HMBD makes a material change or changes to these Product Terms that adversely impacts your rights under your Master Agreement, HMBD will provide notice via email to the contact on file.
 All applicable laws, rules or regulations including, but not limited to, 15 U.S.C. §§ 7701-7713 (the CAN-SPAM Act), 47 U.S.C. 227 (the Telephone Consumer Protection Act), Canada’s An Act to Promote the Efficiency and Adaptability of the Canadian Economy by Regulating Certain Activities that Discourage Reliance on Electronic Means of Carrying out Commercial Activities, and to Amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, SC 2010, c 23 (CASL), Data Protection Directive 95/46/EC, Privacy and Electronic Communications Directive 2002/58/EC and all national laws implementing such Directives and any and all relevant data privacy laws, rules, regulations, codes of practice and best practices (as may be amended, re-enacted or replaced from time to time including by the EU General Data Protection Regulation 2016/679 (“GDPR”)) (collectively, “Applicable Laws”).
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