Terms of Service
These Terms of Service (“Terms of Service”), together with our Privacy Notice, Data Processing Agreement, and any Service Order (as defined below), collectively, constitute a binding agreement (the “Agreement”) between Helium Development, LLC (“Helium”) and you or the legal entity you represent (“Merchant”, “You” or “Yours”).
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF THE SERVICES. BY CLICKING ON THE “CREATE ACCOUNT” BUTTON, COMPLETING THE REGISTRATION PROCESS OR ACCESSING OR USING ANY OF THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH HELIUM, (3) THE INFORMATION YOU PROVIDED IN CONNECTION WITH YOUR REGISTRATION FOR THE SERVICES IS ACCURATE AND COMPLETE, AND (4) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE AGREEMENT. THE TERM “YOU” OR “USER” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED FOR THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU DO NOT HAVE SUCH AUTHORITY OR ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH HELIUM, YOU MAY NOT ACCESS OR USE THE SERVICES.
If you have any questions about these Terms of Service or the Services, please reach out to Helium Support at email@example.com.
Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
- “Authorized User” means any individual who is an employee of You or an affiliate, partner, service provider or such other person or entity as may be authorized by You to access the Services pursuant to Your rights under this Agreement.
- “Merchant Communications” means communications sent via the Services, including emails, SMS and MMS messages, communications through websites and transactions, and other similar communications.
- “Merchant Data” means any data, information, programs, and other content provided or transmitted by You or Your Authorized Users to the Services, including, without limitation, Merchant Marketing Content and personal data, including personal data of end customers and prospects.
- “Merchant Marketing Content” means trademarks, trade names, service marks, slogans, logos, other source identifiers, and marketing and promotional content, including content in Merchant Communications provided or transmitted by You or Your Authorized Users to the Services in connection with the advertising, promotion, and sale of products and services.
- “Documentation” means written information (whether contained in user or technical manuals, training materials, specifications or otherwise, whether in paper, electronic or other written form) regarding the Services that are made available by Helium to You online or in any other manner.
- “Intellectual Property Rights” means any and all intellectual property, industrial property, and other proprietary rights throughout the world, including all rights in, to, or arising out of patents, patent applications, inventions (whether patentable or not), invention disclosures, trade secrets, know-how, proprietary information, works of authorship, copyrights, mask works, moral rights, trademarks, service marks, software, data, technology, layout designs and design rights, and all registrations, applications, renewals, extensions, or reissues of any of the foregoing.
- “Services” means the Helium application or website Services made generally available and subscribed by You in a Service Order.
- “Service Order” means any online or written form or other communication provided by Helium evidencing the initial designation of the Service by You and any subsequent orders to purchase the Services.
2. MODIFICATION TO THE AGREEMENT
Helium may amend the Agreement from time to time due to changes to the Services, to account for developments under the law, or for any other reason. When material modifications are made, Helium may (and where required by law, will) send an email to you at the last email address you provided to us pursuant to the Agreement to provide an updated copy of the Agreement. Helium may require you to provide consent to the updated Agreement in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK HELIUM’S WEBSITE TO VIEW THE THEN-CURRENT TERMS.
3. PROVISION OF SERVICES
- Access. Subject to the terms and conditions of this Agreement, Helium grants You a non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Services during the Term (as defined below). You may permit Your Authorized Users to use the Services provided that You shall be responsible for each Authorized User’s compliance with and breach of the Agreement.
- Restrictions. You will not, and will not permit any Authorized User or other party to: (a) modify, adapt, alter, translate, or create derivative works of the Services; (b) sublicense, lease, rent, loan, distribute, or otherwise transfer the Services or Documentation to any third party; (c) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Helium); (d) bypass, delete, or disable any copy protection or security mechanisms of the Services; (e) use or demonstrate the Services in any other way that is in competition with Helium; (f) remove any notice of proprietary rights from the Services; (g) attempt to gain unauthorized access to, or disrupt the integrity, performance or security of the Services or the data contained therein; (h) use or copy the Services or Documentation, except as expressly allowed herein or (i) use the Services in violation of the Acceptable Use Policy. Helium shall have the right, but not the obligation, to review and monitor all use of the Services to ensure compliance with the terms and conditions of this Agreement.
- Downtime. You acknowledge that access to and use of the Services may be suspended for the duration of any scheduled or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions, or any other acts, omissions or failures on the part of Helium.
- Service Orders. Each Service Order, if applicable, is hereby incorporated into this Agreement by reference and is subject to the terms and conditions of this Agreement; provided, however, that in the event of a conflict with the terms contained in any Service Order, the terms contained in the body of this Agreement shall control unless express reference to the superseded term in the Agreement is set forth in the Service Order. Any terms and conditions that may be contained in any acknowledgement, invoice, purchase order or other Merchant-provided form are specifically null and void.
- Cooperation with Platform Partners. You may use our Services to interact with your other partners (e.g., Shopify or e-commerce platforms). If you choose to integrate the Services with those partner platforms, you will ensure that the integration does not conflict with the partner’s terms and conditions. Further, some partner platforms may require you or Helium to provide certain Merchant Data that we are processing on your behalf back to the partner. In these cases, we consider your request to integrate with the partner as instruction to provide this data to the partner according to the partner terms and conditions. If you do not want this data to be provided to the partner, please immediately request the suspension of the integration with the respective partner.
4. USE OF SERVICES
- Setup Responsibilities. You shall be responsible for setting up and configuring the Services, including without limitation any provisioning of access to the Services to Your Authorized Users. You shall be responsible for obtaining and maintaining, at Your expense, all of the necessary telecommunications, computer hardware, software, services and Internet connectivity required by You or any Authorized User to access the Services from the Internet. In the event that Helium assists or advises You with any Services setup, configuration or support, in no event shall such assistance or advice be construed as legal advice.
- Merchant Account. You are solely responsible for protecting and safeguarding Your account and passwords and/or keys or other access protocols that have been provided to You or that are generated in connection with Your use of the Services. You shall use commercially reasonable efforts to prevent unauthorized access to or use of Your account and the Services. You are solely and fully responsible for all activities, including accrued charges, that occur in connection with Your account and Your use of the Services. In the event You believe Your account or the Services have been compromised, including any unauthorized use or access of the Services or any other known or suspected breach of security, You shall immediately notify Helium by email to firstname.lastname@example.org, but in no event more than twenty-four (24) hours following discovery of such breach.
- Suspension, Limitation and Termination of Access. Helium shall be entitled, without liability to You, to immediately suspend, terminate or limit Your access to the Services at any time in the event that Helium determines, in its reasonable discretion, that (i) the Services are being used by You, or Your Authorized Users, in violation of any applicable laws or regulations or this Agreement; (ii) the Services are being used by You in an unauthorized, inappropriate, or fraudulent manner; (iii) the use of the Services by You adversely affects Helium’s equipment or service to others; (iv) Helium is prohibited by an order of a court or other governmental agency from providing the Services; (v) there is a denial of service attack or any other event which Helium determines, in its sole discretion, may create a risk to the Services or to any other customers if the Services were not suspended; (vi) there is a security incident or other disaster that impacts the Services or the security of the Services, Your account or Merchant Data; or (vii) any amount due under this Agreement is not received by Helium within fifteen (15) days after it was due. Without limiting the generality of this Section, Helium shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Your right to use the Services pursuant to this Section 4.3.
5. INTELLECTUAL PROPERTY
- Ownership. You acknowledge and agrees that the Services (including the Documentation) are protected by copyright and other laws relating to Intellectual Property Rights, and that the Services embody valuable confidential information of Helium and its suppliers, the development of which required the expenditure of considerable time and financial resources. All right, title, and interest in and to the Services, and all worldwide Intellectual Property Rights therein and associated therewith, are the exclusive property of Helium and its suppliers. All rights in and to the Services not expressly granted to You in this Agreement are reserved by Helium and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to You regarding the Services, or any part thereof, including any right to obtain possession of any software, source code, data or other technical material related to the Services.
- Continuous Development. You acknowledge that Helium may continually develop, deliver and provide to You on-going innovation to the Services in the form of new features, functionality, and efficiencies. Accordingly, Helium reserves the right to modify the Services from time to time. Some modifications will be provided to You at no additional charge. In the event Helium adds additional functionality to a particular Service, Helium may condition the implementation of such modifications on Your payment of additional fees, provided that You may continue to use the version of the Services that Helium makes generally available (without such features) without paying additional fees.
- Feedback. In the event that You or Your Authorized Users provide any comments or suggestions in connection with the Services, whether written or oral (collectively, the “Feedback”), Helium, in its sole discretion, shall be entitled to use the Feedback without restriction, and such Feedback will not be treated as confidential to You. You hereby grant Helium, on behalf of itself and Your Authorized Users, a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into Helium products and services.
- Aggregated Data. Helium may collect and derive from Merchant Data aggregated data that does not identify You, any third-party entity or any natural persons, and use and disclose such aggregated data for Helium’s legitimate business purposes, which may include but is not limited to Services improvement, service and product development, research and marketing. Additionally, Helium may collect and review Merchant Marketing Content to improve and enhance the Services and for other development, diagnostic and corrective purposes.
6. FEES AND EXPENSES; PAYMENTS
Fees Generally. In consideration for the Services, You will pay to Helium the then-current fees set forth in the “Account” section of Your account in the Services unless otherwise set forth in an applicable Service Order (“Fees”). Helium shall be entitled to withhold performance and suspend or discontinue the Services until all amounts due are paid in full. In the event of a temporary suspension of Your access to the Services, applicable Fees will continue to accrue.
a. Subscriptions. Some parts of the Service may be billed on a subscription basis (“Subscription(s)”). You will be billed in advance on a recurring and periodic basis (“Billing Cycle”). Billing cycles are set on a monthly basis. At the end of each Billing Cycle, your Subscription will automatically renew under the exact same conditions unless you cancel it, or Helium cancels it. You may cancel your Subscription renewal through your online account management page, either within the Application or through a Third-Party, or by contacting Helium customer support team.
B. Free Trials. Helium may, at its sole discretion, offer a Subscription with a free trial for a limited period of time (“Free Trial”). You may be required to enter your billing information in order to sign up for the Free Trial. If you do enter your billing information when signing up for the Free Trial, you will not be charged by Helium until the Free Trial has expired. On the last day of the Free Trial period, unless you canceled your Subscription, you will be automatically charged the applicable Subscription fees for the type of Subscription you have selected. At any time and without notice, Helium reserves the right to (i) modify the terms and conditions of the Free Trial offer, or (ii) cancel such Free Trial offer.
- Fee Increases. Helium will provide You fourteen (14) days advance notice for any increase in Subscription Fees. Any increases to the Fees shall apply at the beginning of Your following Term. Your continued use of the Services after a Fee increase will constitute Your agreement to the increase in Fees.
- Billing, Invoicing, and Payment Terms. Helium will charge You the Fees for the Services in advance for each billing period on or after the first day of such billing period. All Fees for Services are due and payable in US Dollars and are non-refundable. All payments are completed via Shopify’s application charges and will be applied to Your associated Shopify account for billing. Should automatically billing via Shopify fail to occur for any reason, Helium will issue an electronic invoice indicating that you must proceed manually corresponding to the Billing Period as indicated on the invoice. In such case, if You pay by credit card or eCheck, (a) You hereby irrevocably authorize Helium to charge the credit card or other payment method provided for any such amounts when due, (b) amounts due will be automatically charged, (c) if Your credit card is declined, Helium will attempt to reach out to You for a new payment method, and (d) if Your credit card expires, You hereby give Helium permission to submit the credit card charge with a later expiration date. If Helium fails to resolve an issue with You resulting from a credit card decline or expiration, Helium may terminate the account due to non-payment. You agree to notify Helium of all billing disputes within fourteen (14) days of delivery of the billing statement or invoice, and disputes not made within that time are waived. Late payments, including those resulting from credit card declines, will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. If Helium must initiate a collections process to recover Fees due and payable hereunder, then Helium shall be entitled to recover from You all costs associated with such collections efforts, including but not limited to reasonable attorneys’ fees. In the event Helium delivers to You an invoice for any Fees or interest payments owed hereunder, such invoiced amounts shall be due within thirty (30) days of the date of such invoice.
- Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and You will be responsible for payment of all such taxes (other than taxes based on Helium’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees and the delivery of the Services. To the extent that Helium charges any of the aforementioned taxes, they are calculated using the tax rates that apply based on the billing address provided by You. Such amounts are in addition to the Fees and will be billed to Your authorized payment method. If You are exempt from payment of any such taxes, You must provide Helium with evidence of exemption. If You are not charged any of the aforementioned taxes by Helium, You are responsible for determining if taxes are payable, and if so, self-remitting such taxes to the appropriate tax authorities in Your jurisdiction. You will make all payments of Fees to Helium free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of Fees to Helium will be Your sole responsibility, and You will provide Helium with official receipts issued by the appropriate taxing authority, or such other evidence as Helium may reasonably request, to establish that such taxes have been paid. You shall indemnify, defend, and hold Helium harmless in connection with any proceedings brought by any taxing authorities in connection with this Agreement.
- Expenses. If pre-approved by You in a Service Order, You shall reimburse Helium for reasonable out-of-pocket expenses (including travel and living) incurred in performing its obligations for specific Services under such Service Order. All costs and expenses incurred by You in connection with this Agreement are the sole responsibility of You.
7. MERCHANT DATA AND RESPONSIBILITIES
- Merchant Data. Merchant Data, and all worldwide Intellectual Property Rights therein, is, as between Helium and You, the exclusive property of You. You grant Helium a non-exclusive, sublicensable, transferable, worldwide, royalty-free and fully paid license to process and use the Merchant Data as necessary for purposes of providing the Services and as otherwise permitted in this Agreement. You warrant that You is the owner or legal custodian of, or otherwise has the right and has or will obtain the necessary permissions, valid consents and releases to lawfully transmit, store and use all Merchant Data in connection with the Services and to grant the rights granted to Helium under this Agreement.
- Merchant Personal Data. Helium shall collect, use, disclose and otherwise process Merchant Personal Data (as defined in the Data Processing Agreement), and safeguard the privacy, confidentiality and security of Merchant Personal Data in accordance with the requirements set forth in the Data Processing Agreement, which is hereby incorporated into this Agreement by reference.
- Merchant Responsibilities for Data and Security. You and Your Authorized Users shall have access to the Merchant Data and shall be responsible for all changes to and/or deletions of Merchant Data and the security of all passwords and other account information required in order to access and use the Services. You shall have the ability to retrieve or export Merchant Data out of the Services using the self-service tools Helium makes available to You. You are encouraged to make Your own back-ups of the Merchant Data and You are responsible for backing up such data. You shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Merchant Data and the means by which You acquired Merchant Data, and for the adequate security, protection and backup of Merchant’s Data. You understand that the Services may store and backup files that are no longer usable due to corruption from viruses, software malfunctions and other causes, which might result in You restoring files that are no longer usable.
- Merchant Communications. You shall comply with all applicable laws and regulations applicable to Your use of the Services, including Merchant Communications and Merchant Marketing Content, which laws and regulations shall include but not be limited to (a) any applicable laws that govern online promotions, offers, gift cards, coupons, and/or gift certificates, data privacy and protection, intellectual property, the sending of electronic marketing messages and the sending of SMS and/or MMS text messages and (b) laws and regulations that apply to commerce, in each jurisdiction in which You will be sending marketing communications to a resident of the jurisdiction. You acknowledge and agrees that Helium (y) does not control or monitor Merchant Communications, or guarantee the accuracy, integrity, security or quality of such Merchant Communications and (z) is not responsible for obtaining any necessary consents or permissions from recipients of Merchant Communications. Upon request, You shall provide reasonable proof of compliance with the provisions set forth in this Section and Helium shall have no obligation to provide Services where Helium reasonably believes that You have not so complied.
8. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
- Mutual Representations and Warranties. Helium and You each represent and warrants that: (i) it has full corporate right, power, and authority to enter into this Agreement and is over the age of eighteen (18) and (ii) the execution of this Agreement by and the performance of their obligations and duties hereunder do not and will not violate any agreement to which it is a party or is otherwise bound.
- Limited Warranty. Helium warrants that the Services, when used in accordance with the terms of this Agreement, will perform substantially in accordance with the Documentation during the term of this Agreement. The foregoing warranty shall not apply to performance issues of the Services resulting from (i) content provided by or passed through You or third parties in connection with the Services (including Merchant Data); (ii) Your data structures, operating environment, equipment or other technology; (iii) the use or combination of the Services with any other software, services or hardware not supported by Helium; (iv) causes external to the Services, such as problems with the hardware, network or other infrastructure with which the Services are used; (v) unauthorized or improper use of the Services; (vi) any modification of the Services by You or Your Authorized Users; or (vii) third party components incorporated into the Services, including open source software. Provided that You notifies Helium in writing of any breach of the foregoing warranty during the term of this Agreement, Helium shall, as Your sole and exclusive remedy, use commercially reasonable efforts to correct such non-conformance and if Helium fails to remedy the non-conformity, You may terminate the Agreement.
- Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 8.3 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.3 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES (INCLUDING THE DOCUMENTATION) ARE PROVIDED “AS IS,” AND HELIUM MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION, OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY HELIUM, AND ANY OFFERS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HELIUM DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR OPERATE WITHOUT INTERRUPTION OR DOWNTIME OR BE ERROR FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
In addition, the materials appearing on Helium’s website could include technical, typographical, or photographic errors. Helium does not warrant that any of the materials on its web site are accurate, complete, or current. Helium may make changes to the materials contained on its web site at any time without notice.
9. LIMITATION OF LIABILITY
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL HELIUM, NOR ANY OF ITS AFFILIATES, SUBCONTRACTORS, LICENSORS, VENDORS OR SUPPLIERS, NOR ANY OF ITS THIRD PARTY PARTNERS, BE LIABLE TO CUSTOMER OR ANY OTHER THIRD PARTY FOR LOST REVENUES, LOST PROFITS OR OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, RELIANCE OR EXEMPLARY DAMAGES ARISING FROM CUSTOMER’S OR ANY OTHER THIRD PARTY’S USE OF OR INABILITY TO USE THE SERVICES INCLUDING, BUT NOT LIMITED TO, LOSS OF TECHNOLOGY, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE DAMAGES WHETHER OR NOT HELIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. THE MAXIMUM AGGREGATE LIABILITY OF HELIUM, ITS LICENSORS AND VENDORS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), SHALL NOT EXCEED THE ACTUAL FEES PAID BY CUSTOMER FOR THE SERVICE FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY HEREUNDER, LESS ANY DAMAGES PREVIOUSLY PAID BY HELIUM TO YOU IN THAT TWELVE (12) MONTH PERIOD.
- Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 9 shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the Fees have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
- Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services, or other confidential or proprietary information (collectively, “Confidential Information”) in whatever form (written, oral or visual) that is furnished or made available to the Receiving Party by or on behalf of the Disclosing Party that (a) if in tangible form, the Disclosing Party has labeled in writing as proprietary or confidential, (b) if in oral or visual form, the Disclosing Party has identified as proprietary or confidential at the time of disclosure, or (c) is of a character that is commonly and reasonably regarded as confidential and/or proprietary. For the avoidance of doubt, the Services, Documentation, and all enhancements and improvements thereto, will be considered Confidential Information of Helium.
- Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except for exercising Your rights and performing Your obligations under this Agreement. The Receiving Party will limit access to the Confidential Information to its employees and contractors who have a need to know, who are subject to confidentiality obligations no less restrictive than those set forth herein and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and, upon request, the Receiving Party shall provide to the Disclosing Party written notice certifying compliance with this sentence, unless prohibited by applicable law.
- Exceptions. The confidentiality obligations set forth in this section will not apply to any information that: (a) is or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) the Receiving Party can prove, by clear and convincing evidence, was already known to the Receiving Party without restriction at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce Your rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly (to the extent legally permitted) notifies the Disclosing Party in writing of such required disclosure and reasonably cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
- Remedies. Any breach or threatened or attempted breach of this Section 10 may result in immediate, irreparable harm for which monetary damages would be an inadequate remedy. If a court of competent jurisdiction finds that the Receiving Party has breached (or attempted or threatened to breach) any of the obligations set forth in this Section 10, the Receiving Party agrees that, without any additional findings of irreparable injury or other conditions to injunctive relief, it will not oppose the entry of an appropriate order compelling its performance and restraining it from any further breaches (or attempted or threatened breaches).
- By Helium. Helium will defend at its expense any suit brought against You, and will pay any settlement Helium makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Services infringe or misappropriate any Intellectual Property Rights in the U.S., Canada, European Union member countries or the United Kingdom. If any portion of the Services becomes, or in Helium’s opinion is likely to become, the subject of a claim of infringement, Helium may, at Helium’s option: (a) procure for You the right to continue using the Service; (b) replace or modify the Services to be non-infringing without materially impairing the functionality of the Services; or (c) terminate this Agreement and refund to You the pro-rated portion of any prepaid fees attributable to any unused Services, and upon such termination, You will immediately cease all use of the Services. Notwithstanding the foregoing, Helium shall have no obligation under this Section or otherwise with respect to any infringement claim based upon (v) the Merchant Data (w) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (x) any use of the Services in combination with other products, equipment, software or data not supplied by Helium; (y) any modification of the Services by any person other than Helium; (z) modification of the Services based upon specifications furnished by You (any of the foregoing circumstances under clauses (v) through (z) will be collectively referred to as a “Merchant Indemnity Responsibility”). This Section 11.1 states the sole and exclusive remedy of You and the entire liability of Helium, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for third party claims and actions described in this Section 11.1.
- By Merchant. You will indemnify, defend and hold Helium, its officers, directors, affiliates, subsidiaries, licensors, agents and employees (each a “Helium Party”) harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs arising out of or relating to: (a) a Merchant Indemnity Responsibility; (b) Your breach or alleged breach of any representation, warranty or obligation under the Agreement, or any violation of law; or (c) the use, transmission, access, disclosure, or other processing of Merchant Data.
- Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
12. TERM AND TERMINATION
- Term. Unless otherwise specified on an applicable Service Order, this Agreement commences on Your registration for an account, and shall continue in effect for thirty (30) days (the “Initial Term”). Thereafter, and unless otherwise specified in a Service Order, this Agreement and each applicable Service Order shall automatically renew for successive thirty (30) day terms (each a “Renewal Term”), unless either party provides notice to the other party of its intention not to renew prior to expiration of the Initial Term or the then-current Renewal Term. You must provide at least five (5) days prior notice and Helium must provide at least fifteen (15) days prior notice. Notification of such non-renewal from must be provided in writing and be confirmed by Helium. The Initial Term and all Renewal Terms will collectively be referred to as the “Term”.
- Termination. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. Helium may terminate this Agreement at any time without cause and without notice. In addition, Helium may terminate this Agreement upon notice to You if (a) You becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, or liquidation for the benefit of creditors; (b) in the event of non-payment in accordance with Section 6; or (c) You is on a free-tiered account and such account is inactive for a period of twelve (12) months or more. Upon termination, You shall not be entitled to any refund of any Fees previously paid to Helium for Services except in the event Helium terminates without cause or You terminates due to Helium’s uncured material breach, in which case You may be entitled to a pro-rata refund of any pre-paid and unused Fees advanced to Helium.
- Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate (except that all payment obligations accrued prior to termination or expiration shall survive); and (b) each party shall comply with the obligations to return or destroy all Confidential Information of the other party, as set forth in Section 10.2. Additionally, Helium shall have no obligation retain any Merchant Data after any termination or expiration of this Agreement and may delete all Merchant Data, unless required by applicable law. All liabilities accrued under this Agreement prior to the effective date of termination and the following Sections will survive expiration or termination of this Agreement for any reason: 1 (Definitions), 2 (Modification of the Agreement), 4.3 (Suspension, Limitation and Termination of Access), 5 (Intellectual Property), 6 (Fees and Expenses; Payments), 8.4 (Disclaimer), 9 (Limitation of Liability), 10 (Confidentiality), 11 (Indemnification), 12.3 (Effect of Termination) and 13 (Miscellaneous).
- Marketing. You agree that Helium may refer to You by name, logo and trademark in Helium’s marketing materials and website. You acknowledge and agrees that Helium does not certify or endorse, and has no obligation to certify or endorse, any of Your products, services, or content.
- Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the state of Washington, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. You hereby expressly consent to the personal jurisdiction and venue in the state and federal courts located in Tacoma, Washington for any lawsuit arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. You may not bring any suit or action against Helium for any reason whatsoever more than one (1) year after the cause of action accrued.
- Export. You agree not to export, re-export, or transfer, directly or indirectly, any software, technology or information forming a part of the Services or the Documentation in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction.
- Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- No Assignment. You may not assign Your rights or delegate any obligations hereunder without the express prior written consent of Helium. Any assignment by You without the prior written consent of Helium shall be null and void. Helium may assign Your rights or obligations hereunder without notice or consent; provided, however, that the Services shall continue to operate as specified in this Agreement. This Agreement shall inure to the benefit of each party’s permitted successors and assigns.
- Force Majeure. Without limiting any other provision in the Agreement, Helium, or any Helium Party, is not responsible or liable to any You for delay or failure to perform its obligations hereunder in the event that any of Helium or Helium Parties’ operations or activities are affected by any cause or event beyond the sole and reasonable control of the applicable Helium Party (as determined by such party in its sole discretion), including, without limitation, by reason of any acts of God, equipment failure, threatened or actual terrorist acts, air raid, act of public enemy, war (declared or undeclared), civil disturbance, insurrection, riot, epidemic, pandemic, fire, explosion, earthquake, flood, hurricane, unusually severe weather, blackout, embargo, labor dispute or strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slowdown, any law, rule, regulation, action, order, or request adopted, taken, or made by any governmental or quasi-governmental entity (whether or not such governmental act proves to be invalid), or any other cause, whether or not specifically mentioned above.
- Independent Contractors. Each party’s relationship to the other party is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have and will not represent to any third party that it has, any authority to act on behalf of the other.
- Notices. Where Helium requires you provide an email address, you are responsible for providing Helium with your most current email address. In the event that the last email address you provided to Helium is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Helium’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Helium at the following email address: email@example.com. Notice shall be deemed to have been duly given on the first business day following successful email transmission to Helium.
- Entire Agreement. This Agreement, any applicable Service Orders, our Privacy Notice and Data Processing Agreement constitute the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. Except as otherwise set forth in the Agreement, no modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of You and Helium.