This Agreement is between HIPPO FACILITY MANAGEMENT TECHNOLOGIES INC. (“HIPPO”) and the individual or organization agreeing to these terms (“Customer”). This Agreement governs access to and use of the HIPPO CMMS software and services that are made available to you. By clicking “I agree”, signing a HIPPO price quote, or using the Services, you agree to this Agreement as a Customer.
If you are agreeing to this Agreement for use of the Services by an organization, you are agreeing on behalf of that organization. You must have the authority to bind that organization to these terms, otherwise you must not sign up for the services.
a. Provision of Services: HIPPO will provide the Customer with the system during the term of and in accordance with this Agreement.
b. Facilities and Data Processing: HIPPO will use reasonable measures, in accordance with the industry standard, to transfer, store and process Customer Data. These measures are designed to protect the integrity of Customer Data and guard against unauthorized or unlawful access to Customer Data.
c. Software Updates: HIPPO may carry out software updates from time to time. If these updates result in a material change to the service, HIPPO will inform the Customer via the email address associated with the Point of Contact for the account and/or notify the Customer via an alert within the HIPPO software. Under this section, “Point of Contact” is defined as the person whose contact information is designated by the Customer in the HIPPO Price Quote.Beta Services: HIPPO may provide features or products that are still being tested or evaluated. These products and features may be identified as alpha, beta, preview, early access or evaluation (or words and phrases with similar meanings) (collectively “Beta Services”). Notwithstanding anything to the contrary in this Agreement, the following terms apply to all Beta Services: (a) Customer may use or decline any Beta Services; (b) Beta Services may not be supported and may be changed at any time without notice to Customer; (c) Beta Services may not be as reliable or available as HIPPO CMMS; (d) Beta Services may not have been subjected to the same security measures and auditing to which HIPPO CMMS has been subjected, (e) HIPPO is not obligated to offer Beta Services to all Customers and can choose to whom it will offer the services and (f) HIPPO will have no liability arising out of or in connection with beta services – use at customer’s own risk
2. Customer Obligations
a. Fees & Payment.
i. Fees. The Customer will pay, and authorizes HIPPO to charge, using the Customer's selected payment method, for all applicable fees. Fees are non-refundable except as required by law. The Customer is responsible for providing complete and accurate billing and contact information to HIPPO. HIPPO may suspend or terminate the Services if fees are overdue, as per the HIPPO price quote.
ii. Auto-renewal. HIPPO may charge automatically at the end of the initial and/or each term for the renewal, unless the Customer notifies HIPPO that the customer wants to cancel or disable auto-renewal 30 days prior to same taking effect.
iii. Revision. HIPPO may revise Service rates by providing the Customer at least 30 days’ notice prior to the next charge.
iv. Taxes. The Customer is responsible for all taxes, where applicable. HIPPO will charge tax when required to do so.
b. Compliance: Customer will use services in compliance with this Agreement. Customer will comply with laws and regulations applicable to Customer's use of the Services, if any.
c. Customer Administration of the Services: The Customer may designate its own end users as “Administrators” through the administrative console. Administrators have the ability to access, disclose, restrict or remove Customer Data in or from Services accounts. Administrators also have the ability to monitor, restrict, or terminate access to Service accounts. HIPPO’s responsibilities DO NOT extend to the internal management or administration of the services. The Customer is responsible for (i) maintaining the confidentiality of passwords and Administrator accounts; (ii) managing access to Administrator accounts (iii) ensuring that Administrators’ use of the Services complies with this Agreement. The Customer acknowledges that, if the Customer purchases the Services through a reseller and delegates any of such reseller’s personnel as Administrators of the Customer’s service account. Such reseller may be able to control account information, including Customer Data, and access the Customer’s Services account as further described above.
d. Unauthorized Use & Access. Customer will prevent unauthorized use of the Services by its End Users and terminate any unauthorized use of or access to the Services.
3. Term & Termination.
a. Term. This Agreement will remain in effect until Customer's subscription to the Services expires or terminates, or until the Agreement is terminated.
b. Termination for Breach. Either HIPPO or Customer may terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of notice, (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 30 days or (iii) the other party uses the Services in a manner that HIPPO reasonably believes will cause it liability.
c. Effects of Termination. If this Agreement terminates: (i) the rights granted by HIPPO to Customer will cease immediately (except as set forth in this section) and (ii) after 30 days, HIPPO may delete any Stored Data relating to Customer's account. Stored Data is defined as the files and structured data submitted to the Services by the Customer or End Users.
4. Indemnification. Customer will indemnify, defend and hold harmless HIPPO from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys' fees) arising out of any claim by a third party against HIPPO and its affiliates regarding: (i) Customer Data; or (ii) Customer's use of the Services in violation of this Agreement;
5. Disclaimers. The services are provided "as is". To the fullest extent permitted by law, except as expressly stated in this agreement, neither customer nor HIPPO and its affiliates, suppliers and distributors make any warranty of any kind, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular use or non-infringement. In the event of termination, HIPPO is not required to maintain and/or back up any Stored Data; no further notice will be provided regarding same.
6. Limitation of Liability.
a. Limitation on Indirect Liability. To the fullest extent permitted by law, neither customer nor HIPPO and its affiliates, suppliers and distributors will be liable under this agreement for (i) indirect, special, incidental, consequential, exemplary or punitive damages, or (ii) loss of use, data, business, revenues or profits (in each case whether direct or indirect), even if the party knew or should have known that such damages were possible and even if a remedy fails of its essential purpose.
b. Limitation of liability during downtime: HIPPO’s services will be available 99.7% of the time during each year. This amounts to approximately one day per year of downtime. HIPPO is not liable for damages to the Customer that takes place during periods of downtime.
c. Limitation on Amount of Liability. To the fullest extent permitted by law, HIPPO's aggregate liability under this agreement will not exceed the lesser of $100,000 or the amount paid by the customer for the services hereunder during the twelve months prior to the event giving rise to liability.
a. Informal Resolution. HIPPO wants to address your concerns without resorting to a formal legal case. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party through the notice procedures in section 12(e). If a dispute is not resolved within 30 days of notice, Customer or HIPPO may bring a formal proceeding.
i. We Both Agree To Arbitrate. Customer and HIPPO agree to resolve any claims relating to this Agreement through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
ii. Opt-out of Agreement to Arbitrate. Customer can decline this agreement to arbitrate by clicking here and submitting the opt-out form within 30 days of first accepting these Terms.
iii. Arbitration Procedures. Customer and HIPPO agree to resolve any dispute, controversy or claim arising out of or relating to this agreement including any question regarding its existence, interpretation, validity, breach or termination or the business relationship created by it shall be referred to and finally resolved by arbitration under the Canadian Arbitration Association Rules. Further:
iv. Arbitration Fees and Incentives. The CAA rules will govern payment of all arbitration fees. HIPPO and the Customer will equally (50%/50%) share the fees of arbitration.
v. Exceptions to Agreement to Arbitrate. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the courts of Manitoba to resolve your claim.
c. NO CLASS ACTIONS. You may only resolve disputes with us on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions and consolidation with other arbitrations aren't allowed.
a. Terms Modification. HIPPO may revise this Agreement from time to time and the most current version will always be posted on the HIPPO website. If a revision, in HIPPO's sole discretion, is material, HIPPO will notify Customer (by, for example, sending an email to the email address associated with the Point of Contact for the account. Other revisions may be posted to HIPPO's website, and Customer is responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may terminate the Services within 30 days of receiving notice of the change.
b. Entire Agreement. This Agreement, including HIPPO’s Price Quotes, constitutes the entire agreement between the Customer and HIPPO with respect to the subject matter of this Agreement, and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: this agreement, the HIPPO Price Quotes;
c. Governing law. The agreement will be governed by Manitoba law.
d. Severability. Unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.
e. Notice. Notices to HIPPO must be sent via email to firstname.lastname@example.org with a read receipt. Notices to Customer may be sent to the applicable account email address and are deemed given when sent.
f. Waiver. The failure of HIPPO to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
g. Assignment. Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement without written notice to HIPPO. HIPPO may not assign this Agreement without providing notice to Customer, except HIPPO may assign this Agreement or any rights or obligations under this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets without providing notice.
h. No Agency. HIPPO and Customer are not legal partners or agents.
i. Force Majeure. Except for payment obligations, neither HIPPO nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the party's reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action and Internet disturbance).
j. Headings: The headings appearing in this Agreement are for reference only and will not be used in construing this Agreement.
k. Customer List. HIPPO may include Customer's name in a list of HIPPO customers on the HIPPO website or in promotional materials.
l. Promotions, or General News Items: HIPPO may email the Customer promotions or general news items via a monthly newsletter. If the Customer does not wish to receive same, it can opt out at any time.
m. No Third-party Beneficiaries. There are no third-party beneficiaries to this Agreement. Without limiting this section, a Customer's End Users are not third-party beneficiaries to Customer's rights under this Agreement.