These terms and conditions (the “Terms”) apply to any and all use of the HUCKLE online software platform (the “Software”) provided by Futurety, LLC, an Ohio limited liability company (“Futurety”). For the purposes of these Terms, references to (i) “You”, “Your”, and “Users” mean each authorized user identified in the applicable Account (defined below); and (ii) “We”, “Us”, and “Our” mean Futurety and its affiliates, agents, and contractors. Further, We and You may be referred to herein individually as a “Party” or collectively as the “Parties”. By creating a user account, agreeing to purchase a subscription to use the Software from Futurety, or using the Software, You hereby agree to the following:

 

1. Permitted Use. During such time that You are not in default or breach of these Terms and have an active account, Futurety hereby grants You limited, non-transferable, non-sublicensable, and revocable permission to access and use the Software via the account You created (the “Account”) in order to access and use the Software. In connection with such permission, You, and each authorized user associated with the Account (collectively, the “Users”), may use the Software via the Account to upload and analyze Your customer data, including but not limited to name, address, phone number, email address, financial information, and any other personally identifiable information (collectively, “Customer Data”) for the purposes of identifying key demographic information about Your customer audience.

 

1.1       Prohibited Use. At all times, the Users shall not, and shall not permit any other person or entity to, do any of the following: (i) copy or republish the Software; (ii) make the Software available to any person or entity who is not an authorized user of the Account; (iii) modify or create derivative works based upon the Software or any user guides, online help, release notes, training materials and other documentation that may be provided or made available to You by Us; (iv) remove, modify or obscure any copyright, trademark, or other proprietary notices related to the Software or any other intellectually property owned by Futurety or any of its affiliates, owners, or agents; (v) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software; (vi) access or use the Software in order to build a similar or competitive product; (vii) access or use the Software in any manner not authorized by these Terms; (viii) offer, resell, or advertise use of the Software without prior written consent from Us; (ix) upload, store, or transmit any viruses, malware, or other types of malicious software, or links to such software, through the Software; (x) probe, scan, or test the vulnerability or security of the Software or any Futurety system or network without prior written consent from Us; (xi) circumvent or attempt to circumvent any limitations We impose on the Account; or (xii) use the Software to commit any unlawful activity or cause any person damage, harm, or injury of any kind to any person or entity.

 

1.2       Authorized Users. For the purposes of these Terms, an “authorized user” is a person authorized to access and use the Software via the Account. Accordingly, each authorized user is subject to these Terms, and You are responsible for ensuring any and all activity of each authorized user complies with these Terms and all applicable federal and state laws and regulations.

 

1.3       Passwords and Access. During all times, You are responsible for safeguarding and maintaining the confidentiality of the Account info, including but not limited to Users passwords and all other credentials used to access the Account. Access to and use of the Account may not be shared with any person or entity that is not and authorized user, and You are responsible for all access and use of the Software in connection with the Account, whether by Users or otherwise. If You become aware of any unauthorized access to and/or use of the Account, You must notify Us immediately.

 

1.4       Account Information. During all times, You must keep all contact and payment details associated with the Account current and accurate. You are solely responsible for maintaining, protecting, and making backups of the contact and payment information associated with your Account, and We will not be liable for any failure to store such information or for loss or corruption of the same.

 

1.5       Inactive Account. We may terminate Your Account and delete any User information and/or Customer Data contained therein if there is no activity for more than twelve (12) months.

 

2. Fees, Subscriptions, and Billing. You agree to pay to Futurety all fees charged to the Account in accordance with the applicable pricing and payment terms associated with the subscription plan You selected upon creating the Account (“Your Subscription”). In connection with Your Subscription, We will bill You on a recurring, periodic basis (each period is called a “billing cycle”) in accordance with the billing method associated with Your Subscription. Your Subscription will automatically renew at the end of each billing cycle unless You cancel auto-renewal through the Account, or by contacting Our customer support team. You may cancel auto-renewal of Your Subscription at any time, in which case Your Subscription will continue until the end of the then-current billing cycle before terminating. If You have elected to pay the fees associated with Your Subscription (the “Subscription Fees”) by credit card, You represent and warrant that the credit card information associated with the Account is correct, and You will promptly notify Us of any changes to such information. Subscription Fees paid by You in connection with Your Subscription are non-refundable, except as provided in these Terms or when required by law.

 

2.1       Price Changes. We may, at our sole discretion, change the Subscription Fees associated with Your Subscription at any time upon our delivering written notice of such change to You; provided, however, that such change will become effective only at the end of the then-current billing cycle of Your Subscription.

 

2.2       Taxes. Your Subscription Fees may include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes (collectively, “Taxes”), that We are obligated to collect under applicable state and federal law, and You agree to pay all such Taxes collected by Us. Notwithstanding the foregoing, You are solely responsible for reporting and paying any and all Taxes imposed on payments of Subscription Fees that We are not obligated by law to collect.

 

3. Customer Data. In connection with Your Subscription, You hereby grant Us a limited, non-exclusive, and non-transferable license to store, configure, analyze, display, and transmit any and all Customer Data uploaded by You in connection with Your use of the Software. Subject to the foregoing limited license, You will retain ownership of all of Your Customer Data and We do not claim ownership over any of such Customer Data. These Terms do not grant Us any licenses or rights to Your Customer Data except for the limited rights needed for Us to provide the Software, and as otherwise described in these Terms. Further, We agree to not sell any Customer Data or Account information to any third party, and no provision of these Terms shall authorize the sale of any of Your Customer Data or Account information by Us or any subcontractor engaged by Us in connection with these Terms.

 

3.1       Representations and Warranties. You hereby represent and warrant that: (i) You own or have all appropriate permissions and rights necessary to use the Customer Data in connection with Your use of the Software; (ii) You will not submit, upload, or otherwise make available in connection with Your use of the Software, any Customer Data or third party information or materials that (a) You do not have the rights necessary to use, transmit, publish, or grant Us the license described above, (b) infringes, misappropriate, or otherwise violate any intellectual property, privacy, or other rights of any third party, or (c) violates any applicable federal or state law or regulation; (iii) We may engage and use subcontractors to assist in the performance of Our obligations under these Terms without prior notice to You and without approval from You; and (iv) You are solely responsible for any and all loss or damage to You or any third party resulting from Your use of, or reliance on, any Customer Data or other third-party information or materials in connection with use of the Software by any authorized user.

 

3.2       Customer Data Review. You acknowledge and agree that, in order to ensure compliance with all applicable state and federal laws and regulations, We have the right to: (i) review all Customer Data uploaded to the Software through the Account to determine whether it is illegal or whether it violates these Terms; and (ii) modify, prevent access to, delete, or refuse to display any Customer Data that We believe violates applicable law or these Terms. Notwithstanding the foregoing, We have no obligation to monitor or review any Customer Data uploaded to the Software through the Account. As such, You are solely responsible for monitoring and reviewing all Customer Data to ensure the same (and Your use thereof) complies with applicable law and these Terms.

 

4. Privacy and Security. You are solely responsible for the security of all Customer Data in Your possession or under Your control. Users shall comply with all applicable laws, policies, and regulations governing the security, privacy, collection, retention, disclosure, and use of Your Customer Data. Further, You warrant that You have taken all necessary precautions to secure Your Customer Data and Account information from breach or intrusion by unauthorized third parties. In the event of a breach or unauthorized access to Your Customer Data or the Account, You will immediately notify Us and take any and all reasonable action necessary to mitigate such breach and prevent similar breaches in the future. You acknowledge and agree that We are not liable to any third party for any unauthorized access to, disclosure of, use of, or transmission of any of Your Customer Data or Account information.

 

Notwithstanding the foregoing, We will store and safeguard your Customer Data and Account information in a manner consistent with industry security standards. We have implemented appropriate technical, organizational, and administrative systems, policies, and procedures designed to help ensure the security, integrity, and confidentiality of Your Customer Data and Account information and to mitigate the risk of unauthorized access to or use of the same. Further, during such times that We are in possession of Your Customer Data or Account information, We will handle, retain, and maintain such information and data in compliance with all applicable federal and state laws and regulations. We do not, however, warrant or guarantee that Your Customer Data and Account information will not be accessed or compromised by unauthorized third parties. Further, We will not sell any of Your Customer Data or Account information to any third party without Your prior written consent.

 

If We become aware of any unauthorized or unlawful access to, or acquisition, alteration, use, disclosure, or destruction of, personal data related to the Account (a “Security Incident”), We will take reasonable steps to notify You without undue delay, but in any event within seventy-two (72) hours of becoming aware of the Security Incident. We will also reasonably cooperate with You with respect to any investigations relating to a Security Incident, and provide any other information reasonably requested by You in relation to a Security Incident, where such information is not already available to You through the Account through updates provided by Us.

 

5. Customer Data Retention. You are solely responsible for compiling and retaining permanent records of Your Customer Data. Except as otherwise provided in these Terms, at no time will We have any obligation to store, retain, report, or otherwise provide any copies of or access to any Customer Data provided to Us in connection with Your use of the Software. Accordingly, We will not retain, use, or disclose any Customer Data for any purpose other than those expressed in these Terms, and will not provide any Customer Data to any third party, except as permitted under these Terms or required by applicable law.

 

6. Suspension and Termination of Use.

 

6.1.       By You. You can terminate Your Subscription and delete the Account at any time through the “Account Settings” page accessed through the Account. Such termination and deletion will result in the deactivation or disablement of thee Account and access to it, and the deletion of Customer Data provided in connection with Your use of the Software. If You terminate a Subscription in the middle of a billing cycle, You will not receive a refund unless You are terminating these Terms for any of the following reasons: (i) We have materially breached these Terms and failed to cure that breach within thirty (30) days after You delivering Us with written notice of such beach; (ii) a refund is required by law; or (iii) We, in our sole discretion, determine a refund is appropriate.

 

6.2.       By Us. We may terminate Your Subscription at the end of a billing cycle by providing at least ten (10) days’ prior written notice to You. We may terminate Your Subscription for any reason by providing at least thirty (30) days’ prior written notice to You. We may immediately suspend access to the Account or terminate Your Subscription entirely for any of the following reasons:(i) You have materially breached these Terms; (ii) You cease Your business operations or become subject to insolvency proceedings; or (iii) You fail to pay any Subscription Fee due hereunder for more than thirty (30) days after becoming due. Additionally, We may limit, suspend, or terminate the Services to You if: (a) You fail to comply with these Terms, (b) You use the Services in a way that may cause Us to incur liability or disrupt use of the Software by others; or (c) We are investigating suspected misconduct by You. Also, if We limit, suspend, or terminate You Subscription, depending upon the reason, We will endeavor to give You advance notice. However, there may be time sensitive situations where We decide that immediate action is necessary without notice. You acknowledge and agree that We have no obligation to retain Your Customer Data or the Account information upon termination of Your Subscription.

 

6.3       Effect of Termination. Upon termination of Your Subscription, for any reason, all of Your rights to access and use the Software pursuant to these Terms will immediately terminate and We will be relieved of all further obligations hereunder, except as otherwise required by applicable law. Unless otherwise indicated in these Terms, termination of Your Subscription shall not relieve You of any obligation to pay Subscription Fees that accrued and became due prior to the date of termination.

 

7. Intellectual Property. You acknowledge and agree that We own all rights, title, and interest in and to the Software and all other information or materials provided by Us in connection with Your Subscription, including but not limited to all modifications, improvements, upgrades, derivative works, and feedback related to the Software and Our intellectual property rights therein. For the purposes of these Terms, “intellectual property rights” includes any and all now known or hereafter existing: (i) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask works; (ii) trademark and trade name rights; (iii) trade secrets; (iv) patents, designs, algorithms, and proprietary rights of every kind and nature, whether arising by operation of law, contract, license, or otherwise; and (v) all registrations, applications, renewals, extensions, combinations, divisions or reissues related to the foregoing. This Section 7 shall survive termination of Your Subscription.

 

8. Confidentiality. We agree to keep confidential all Confidential Information disclosed, transmitted, or uploaded by You in connection with the Account, Your Subscription, and Your use of the Software. For the purposes of these Terms, “Confidential Information” includes but is not limited to all Customer Data and other information, whether written or oral, relating to the research, development, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel data, and other material or information considered confidential and proprietary. Confidential Information does not include information that: (i) is or becomes public (other than through breach of these Terms by Us); (ii) was lawfully known to Us before receiving it from You; (iii) is received by Us from a third party without knowledge of breach of any obligation owed to You; or (iv) was independently developed by Us. Notwithstanding the foregoing, We may disclose Your Confidential Information when required by law or legal process, but only after We, if permitted by law, uses commercially reasonable efforts to notify You to give You the opportunity to challenge the requirement to disclose.

 

9. No Warranties or Guarantees. You hereby acknowledge and agree that We make no warranty or guarantee that: (i) the Software will produce any particular desired result or benefit; (ii) Your use the Software will be uninterrupted, timely, and error-free; (iii) the result of using the Software will be effective, accurate, and reliable; (iv) the quality of the Software will meet Your expectations; or (v) the Software is free of error or mistake, whether technical or otherwise. Additionally, You acknowledge and agree that We, may, in Our sole discretion, modify, alter, and update the Software at any time without notice to You.

 

10. Limitation of Liability. YOU HEREBY ACKNOWLEDGE AND AGREE THAT FUTURETY, ITS EMPLOYEES, OWNERS, AGENTS, AFFILIATES, AND CONTRACTORS ARE NOT LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, CUSTOMER DATA, AND USE OF THE SOFTWARE INCURRED IN CONNECTION WITH THE ACCOUNT, YOUR SUBSCRIPTION, AND YOUR USE OF THE SOFTWARE, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE. FURTHER, OUR AGGREGATE LIABILITY FOR DAMAGES UNDER THESE TERMS, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), WILL NOT EXCEED THE SUBSCRIPTION FEES PAID OR PAYABLE BY YOU UNDER THESE TERMS DURING THE TWELVE (12) MONTHS PRECEDING THE DATE OF SUCH CLAIM. NOTWITHSTANDING THE FOREGOING, NOTHING IN THESE TERMS SHALL BE DEEMED TO EXCLUDE OR LIMIT LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW.

 

11. Indemnification. You (the “indemnifying Party”) hereby agree to indemnify, hold harmless, and defend Futurety and its affiliates, owners, officers, employees, and agents (each an “indemnified Party”), from and against any and all claims, demands, actions, and proceedings asserted, and all losses, liabilities, judgments, awards, settlements, damages, fines, injuries, penalties and costs (including reasonable legal fees and expenses) (collectively, “Losses”) incurred, by any third party in connection with, arising out of, or resulting from the Account, Your Subscription, or Your use of the Software.

 

The indemnifying Party shall have the right, at its sole expense, to defend with counsel reasonably acceptable to the indemnified Party all claims, demands, actions, and proceedings related to the indemnifying Party’s obligations under this Section 11. The indemnified Party shall notify promptly the indemnifying Party of any such claims, demands, actions, or proceedings in writing and, if it is defending any such claim diligently and in good faith, the indemnifying Party shall have full and complete authority for the defense thereof; provided however, the indemnifying Party shall have no authority to enter into any settlement or compromise on behalf of the indemnified Party without the prior written consent of the indemnified Party, which consent shall not be unreasonably withheld or delayed. If the indemnifying Party does not undertake the diligent, good faith defense of a claim, the indemnified Party shall have the right to conduct the defense of such claim at its sole defense, provided, (i) nothing in the foregoing shall limit or be deemed to limit a Party’s right to dispute that a claim (and/or any losses arising therefrom) relates to an indemnifiable matter hereunder, and (ii) if the indemnifying Party has agreed that a claim relates to an indemnifiable matter hereunder, the indemnified Party shall have no authority to enter into any settlement or compromise on behalf of the indemnifying Party without the prior written consent of the indemnifying Party, which consent shall not be unreasonably withheld or delayed. In all circumstances, the indemnified Party shall have the right to participate in the defense of any proceedings with counsel of its own choosing, at its sole expense, and shall cooperate with the indemnifying Party in the defense of any claim maintained thereby.

 

12. Force Majeure.We will not be liable for any losses arising out of the delay or interruption of its performance of Our obligations under these Terms due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, internet services or network provider services, acts or omissions of a third party, infiltration or disruption of the Software by a third party by any means, including, without limitation, DDoS attacks, software viruses, trojan horses, worms, time bombs, or any other software program or technology designed to disrupt or damage the Software, or other catastrophes or any other occurrences which are beyond Our reasonable control (each a “Force Majeure Event”). If delayed by a Force Majeure Event, We will provide You with written notice of such delay or interruption as soon as reasonably practicable, and will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event. Notwithstanding any of the foregoing, in no event will any failure to pay Subscription Fees due hereunder be excused due to a Force Majeure Event.

 

13. Capacity. Each Party represents and warrants to the other Party that it has the capacity and right to agree to these Terms and perform all obligations set forth herein without any restriction whatsoever by any other agreement, document, or otherwise.

 

14. Assignment and Subcontractors. You may not assign any of Your rights, duties, interests, or obligations under these Terms without Our prior written consent. You hereby acknowledge and agree that We may, at Our sole discretion, assign Our rights, duties, interests, and obligations under these Terms without Your consent. Further, We may, at Our sole discretion, engage and use subcontractors to assist in the performance of Our obligations under these Terms without prior notice to You and without Your consent. You further acknowledge and agree that We may share, distribute, and disclose any and all Customer Data and Account Information to Our subcontractors as may be reasonably needed for Us to fulfill Our obligations under these Terms.

 

15. Complete Agreement; Modification. The Terms (along with any Exhibits) contains the entire agreement between the Parties and supersedes any prior or contemporaneous discussions, negotiations, representations, or agreements between them relating to the subject matter herein. We may modify these Terms from time-to-time, and such modified Terms will become effective and applicable to Your Account, Your Subscription, and Your use of the Software from the date We provide You with written notice of such modification.

 

16. Notices. Any notice required or permitted to be given under these Terms will be properly made upon You if delivered in writing via email to the email address associated with Your Account, and will be made upon Us if delivered in writing via email to Our customer support staff.

 

17. Governing Law; Venue; Jurisdiction. All questions concerning the validity, intention, or meaning of these Terms, or relating to the rights and obligations of the Parties with respect to the performance hereunder shall be construed and resolved under the laws of Ohio without regard to conflict or choice of law provisions. Further, the parties hereby agree and consent to the exclusive venue and jurisdiction of the state courts located in Franklin County, Ohio, for any and all disputes between the Parties in connection with the Account, Your Subscription, Your use of the Software, and these Terms.

 

18. Severability. The intention of the Parties is to comply fully with all laws and public policies to the extent possible. If any court of competent jurisdiction determines it is impossible to construe any provision of these Terms consistently with any law or public policy, the Parties agree: (i) that such court shall have jurisdiction to reform these Terms to the smallest degree possible with regard to such provisions so that it is enforceable to the maximum extent permitted by law; and (ii) to abide by such court’s determination. If such unenforceable provisions cannot be reformed, such provision shall be deemed severed from these Terms, but every other provision of these Terms shall remain in full force and effect.

 

19. Non-waiver. No failure by any Party to insist upon strict compliance with any provision of these Terms, to exercise any option, enforce any right, or seek any remedy upon any default of the other Party shall affect, or constitute a waiver of, the first Party’s right to insist upon such strict compliance, exercise that option, enforce that right, or seek that remedy with respect to that default or any prior, contemporaneous, or subsequent default; nor shall any custom or practice of the Parties at variance with any provision of these Terms affect, or constitute a waiver of, any Party’s right to demand strict compliance with all provisions of these Terms.

 

20. Captions. The captions of the various sections of these Terms are not part of the context of the Parties agreement herein but are only labels to assist in locating those sections and shall be disregarded when construing these Terms.

 

21. Attorney Fees. If it becomes necessary for Us to bring suit to enforce any provision of these Terms, We shall be entitled to recover, in addition to any other award available under applicable law, from You costs incurred by Us in connection therewith, including court costs and attorney’s fees.