Hunni, Inc.
Jan 23, 2025

These Terms of Service (the “Terms of Service”) govern all rights and obligations regarding the use of the Platform (defined below) and constitutes an agreement by and between Hunni, Inc. (“Hunni”) and the party that has agreed to be bound by these Terms of Service (“you” “your” or “Customer”). These Terms of Service includes any and all Platform Invoices (as that term is defined below) which are incorporated herein by reference.

By clicking to accept or agree (when this option is made available to you), you accept and agree to be bound and abide by these Terms of Service as of the date you click on the applicable confirmation button (the “Effective Date”), which includes a binding arbitration clause. This means that any disputes between you and Hunni must be resolved through arbitration and not in court. You additionally represent that you have the authority to enter into these Terms of Service on behalf of your company, and agree that the company, and all of its employees and users will be bound by these Terms of Service. If you and your company do not wish to be bound by these Terms of Service, you may not use the Platform.

1.       Definitions. All capitalized terms have the meaning set forth below or as otherwise noted in these Terms of Service.

a.       “Authorized Users” or “Active Users” means the individuals, such as personnel, authorized representatives and/or end customers, for whom Customer has authorized to access and use the Platform and includes Internal Users and External Users.

(i)     “Internal Users” means individuals within Customer’s organization, sharing the same domain, who may access and use the Platform for the purposes described herein.

(ii)   “External Users” means individuals outside of a Customer’s organization (a separate domain), but who may access shared Content. As described below, External Users will only have access to view Content shared with them by Internal Users; provided, however, Internal Users may grant External Users permission to access, modify or contribute to the Content.

b.      “Intellectual Property Rights” means, without limitation, any and all patents, trademarks, trade secrets, copyrights, and all other similar items of intellectual property, whether registered or unregistered, any and all applications thereto, including any common law or other rights created by use thereof, all proceeds thereof (such as by the way of example any licenses, royalties and proceeds of current infringements), and the right to sue for past, present and future infringements.

c.       “Hunni Materials” means the Platform, technology, source code, hardware, servers, materials, tools, templates, know-how, methods, processes, forms, reports, data and information (other than Customer Information, defined below) and any and all components and materials related to such items whether or not created, assembled, organized or produced by Hunni and modification and enhancements to any such items whether or not created by Hunni.

d.      “Platform Invoice” means an Platform Invoice pursuant to which Customer orders a tiered-package, consisting of access to the Platform based upon a certain scope, including the number of files, data values, and active users (Platform Invoices shall also include the purchase page on the Hunni website where Customer selects Platform levels for purchase.)

e.       “Platform” means the Hunni proprietary software-based tool designed to provide a simple method of data sharing and includes, without limitation, associated software, APIs and other technology supplied by Hunni to Customer.

f.        “Third Party Components” means any open source and freeware components licensed or utilized by Provider and any third-party software, tools or other materials provided with, or incorporated into, or linked to the Platform.

2.      Use of the Platform.

a.       Platform Invoices. Subject to the terms of the Terms of Service, Hunni will provide the Platform and perform associated services, solely as specified in an Platform Invoice.

b.      Registration. In order for an individual to become an Active User, the individual must complete a profile and register to use the Platform; thus, both Internal Users and External Users must register to use the Platform. The registration process may include selecting a tiered-package, such as a free, individual or business plan. In the event an individual initially selects a business plan, the first user – and other users as assigned by the Customer - will be deemed the “Administrator” and may send invitations to other individuals within the Administrator’s organization to become Internal Users and, in which case, each such individual must complete a profile and register to use the Platform. As indicated above, all individuals with the same domain will be deemed part of one organization and a business plan must be selected.

(i)     Administrators are permitted to use the Platform for the internal business of the Customer, including (i) managing, coordinating and reporting on information from, and the operation of, the Platform (ii) allocating, assigning and reassigning Internal Users and modifying roles; (iii) facilitating the resetting of passwords and multi factor authentication processes for Internal Users; (iv) modifying and cancelling the account; and (v) taking other actions as set forth in the Hunni documentation (docs.hunni.io).

(ii)   Internal Users may modify, access and configure tables, views and models in accordance with the permissions set by the Administrators. Administrators cannot manage account settings or user roles for External Users.

(iii)   External Users will only have access to view Content shared with them by Internal Users; provided, however, Internal Users may grant External Users permission to access, modify or contribute to the Content, in which case the External User will be counted in the total number of such users for the purpose of calculating applicable Fees.

c.       License to Platform. Subject to the terms and conditions of the Terms of Service and subject to receipt of all applicable Fees and other amounts due hereunder, Hunni hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license to access and use, the Platform solely for Customer’s internal business use and solely by its Active Users, within the scope, for the duration and in accordance with other requirements as set forth in the Platform Invoice.

(i)     The Customer (and the Active Users) may access the Platform through a web portal, from Excel using the Hunni Excel Add-in, through the Hunni API or through another link, software application or portal supplied by Hunni, which may change from time to time and in accordance with the permission levels set. Active Users may be required to uninstall out of date or older versions of the Hunni API, Hunni Excel Add-in or other link or software and download and reinstall a then-current version of each. Hunni may select and determine the formats that are compatible with the Platform and may change them from time to time in its sole discretion.

(ii)   Customer is responsible for the acts and omissions of Active Users and all uses of the Platform. If Customer gives or allows a person or entity to access the Platform without authorization as required by these Terms of Service, the person or entity shall be considered an Authorized User in that Customer shall be responsible and liable for all such actions or inactions.

(iii)   Customer and each of the Active Users must keep usernames, passwords and account details confidential. Hunni will not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with any unauthorized use of a username or password. Hunni retains the right to disable any user identification code or password, if Customer has violated any of the provisions of these Agreement.

d.      Limitations on Access to Platform. Customer may only use the Platform in its own business and pursuant to the terms of the Terms of Service and related Platform Invoices and shall ensure that its Active Users comply with the terms herein. Customer agrees that it shall not, in whole or in part, at any time during or after the Term: (i) sell, assign, sub-licensee, lease, rent, timeshare, grant a security interest in, distribute, transfer, communicate or disclose any of the Hunni Materials to any third party; (ii) copy, modify or attempt to modify any of the Hunni Materials or decompile, reverse engineer, create or recreate any related source code or interfere with, or circumvent, any feature of the Platform, including any security or access control mechanism; (iii) use any of the Hunni Materials to provide services to, or to otherwise benefit, any third party, other than the Active Users (which may include Hunni’ customers); (iv) use any of the Hunni Materials to create a program having similar features or functions of the Hunni Materials; (v) remove or modify any copyright or other proprietary notice contained in any of the Hunni Materials; (vi) use, possess, or transfer any of the Hunni Materials in and/or to any foreign jurisdiction in violation of any trade laws or regulations; (vii) permit or allow any damage, interference with or other harm to Hunni’s network, servers, systems, or other technological devices or any third-party network or system connected thereto, including using a robot, spider, scraper or other unauthorized automated means to access Hunni networks, servers, systems or other technological devices or any third-party network or system connected thereto; (viii) use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (ix) store or transmit material in violation of third-party privacy rights, use the Platform to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs or attempt to gain unauthorized access to the Platform or its related systems or networks; or (x) allow others to do any of the foregoing.

e.       Reports. Customer shall own all reports generated from the Platform and, as such, Customer is free to copy, distribute, and display reports for its business purposes in furtherance of the purpose for which the report was created (but not to develop a service competitive to the Platform).

f.        Maintenance and Support. Hunni will provide standard technical support from 8AM to 8PM Eastern Time, Monday through Friday. Thus, Customer may submit any questions or requests for support to [email protected] and Hunni shall provide email responses Monday to Friday, excluding those nationally recognized United States holidays. Hunni will make commercially reasonable efforts to respond to email support questions within one (1) business day upon receipt, provided that Hunni does not guarantee any specific response times.

g.      Customer Obligations. The Customer (and each Authorized User) shall be responsible, at its own expense, for procuring and maintaining the telecommunications, networks, peripherals and other items necessary to access the Platform. Each Authorized User shall be solely responsible for all aspects of Internet use and connectivity. Customer will use commercially reasonable efforts to provide Hunni with Customer Information and any other information or assistance reasonably requested by Hunni as may be necessary for Hunni to perform its obligations hereunder. Customer has obtained all necessary rights, permissions and authorizations, including, as may be required by applicable law (such as through the implementation of a privacy policy), as may be necessary to provide the Customer Information to Hunni, including, but not limited to, with respect to information regarding Active Users.

h.      Content Responsibility. Active Users may have the ability to upload, download, access, use, transmit and share data, information and content, which may include PDFs, excel spreadsheets, documents and other materials and supporting documentation within the Platform (“Content”). Content may also include data or concerning Customer, its Active Users, customers or clients, and/or its parent, subsidiaries, affiliates and agents provided by Customer in connection with the Platform.

(i)     By providing Content, Authorized User represents and warrants that it is the owner of the Content, or has the necessary licenses, rights, consents, and permissions to submit the Content and to license to Hunni the right use and distribute the Content, including in connection with and to Third Party Products, as described in these Terms of Service.

(ii)   Authorized User represents and warrants that it is authorized to provide all Content and that it is not violating any law or right of any third party in doing so.

(iii)   Authorized User, and not Hunni, is solely and completely responsible and liable for all Content it submits within the Platform. Thus, the Authorized User assumes sole responsibility for any Content, and you alone are liable for the consequences when you submit and/or share Content.

(iv)   By providing Content in or through the Platform, Authorized User grants Hunni a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify or the purpose of formatting for display, and distribute the Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.

(v)   User Information. As indicated herein, the collection, maintenance and use of all personally identifiable and related information about, or in connection with, Active Users shall be governed by the Hunni’s Privacy Policy. Customer warrants that its collection of all data pertaining to any Authorized User is, and shall remain, in accordance with all laws and that Customer has, and will continue to have, all right to collect, maintain and use that data. The collection, maintenance and use of data as described in this paragraph means and includes, without limitation, obtaining data, importing data into the Platform, exporting data from the Platform, identifying and transmitting information about Authorized User.

i.        General Content Limitations. Active Users may not use the Platform in any manner (or add, submit, or transmit any Content in or to the Platform) that contains, posts, shares, or transmits any material that: (1) is false, misleading, libelous, private, or other disparaging content; (2) is improper or unlawful (or for any illegal purpose or in violation of any local, state, national, or international law); (3) is defamatory, offensive, obscene, or otherwise objectionable or causes offense based upon one’s race, religion, ethnicity, gender, sexual orientation, nationality or disability (or harasses, threatens, demeans, embarrasses, bullies, or otherwise harms anyone); (4) breaches the confidence or privacy of any third-party's rights; (5) includes, contains or comprises any sensitive personal data, such as health information, government issued identification numbers, banking information, credit card numbers and the like; (6) violates copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right.

j.        Aggregated Data. Hunni may use anonymous, statistical or aggregated information (including anonymous location information), in a form that does not enable the identification of a specific user, to properly operate the Platform, to improve the quality of the Platform, to enhance the individual’s experience, to create new services and features, to change or cancel existing content or service, and for further internal, business and statistical purposes. Although we describe how we use aggregated information, aggregated and/or anonymized data does not constitute personal data and is not subject to the Hunni Privacy Policy. From time to time, Hunni may release non-personally identifying information in the aggregate, such as by publishing a report on trends in the usage of the Platform.

k.      Third-Party Products. The Platform may contain or link to Third Party Products and, in certain situations; Third Party Products may require notices to other licensors and/or compliance with additional terms and conditions. If applicable, such required Third Party Product notices and/or additional terms are hereby incorporated by reference into these terms and conditions.

3.      Fees, Payments.

a.       Fees. Customer shall timely pay to Hunni fees in U.S. dollars on the date and in the manner as set forth in the applicable Platform Invoice (the “Fees”), which shall indicate the tiered-package, the monthly or yearly billing period as well as fees for additional stage and Active Users (and Internal and External Users may be calculated separately). In the event that Hunni does not receive payment of any Fees when due, interest shall accrue at the maximum rate allowed by law. Hunni reserves the right to increase Fees in the ordinary course of business and will notify you at least twenty-one (21) days in advance of such increase (“Notice Period”). Upon receipt of the notice, you have the right to terminate in accordance with section 5; provided, however, if you do not terminate during the Notice Period, you agree to such increase.

b.      Payment. Hunni uses a third-party payment processor, such as Stripe, for the payment of all Fees. Customers must submit a valid payment card (debit, credit) through the applicable third-party payment processor. Hunni does not operate, own, or control the payment processor; thus, the use of your payment card is subject to the policies, procedures and is governed by your agreement with the payment processor. You agree to immediately notify the payment processor of any change in your billing address or other information for your payment card.

c.       Fee Adjustments. The Fees will remain fixed for the then-current Term; provided, however, the Fee may increase if (i) the Customer wishes to increase the levels and limits (a tiered-package) set forth in the Platform Invoice(s) during the then-current Term, (ii) Customer procures additional storage, or users; (iii) Customer procures additional components, as may be available from time to time (in which case the additional components will be pro-rated from the date of the new Platform Invoice through the end of the then-current Term); and/or (iv) Customer upgrades a tiered-package. Fees may not be decreased or downgraded during the Term. Customer may also change the tiered-package before each Renewal Term.

d.      Services, Expenses. Although the Terms of Service do not contemplate Hunni providing services to the Customer, or the creation and delivery of deliverables, in the event the parties determine that services and/or deliverables will be provided, the Platform Invoice and a corresponding statement of work will set forth the scope of the services and the amount of the fees. Further, only with Customer written preapproval, Hunni shall bill Customer for the actual cost of any out-of-pocket expenses (such as telephones, meals, travel, etc.) with respect to any expenses incurred in connection with the performance of such services.

e.       Taxes. All invoiced amounts are exclusive of any and all value added, use, sales, service, property or other taxes or contributions.  Customer shall be responsible for payment of any such value added, use, sales, service, property or other taxes or contributions that are, or should ultimately be, assessed against or required to be collected by Hunni in connection with Hunni' performance hereunder (except to the extent Customer is exempt by law and can provide Hunni with a bona fide exemption certificate).

f.        Fee Disputes. In the event that Customer disputes, in good faith, any charges on an invoice, it shall notify the controller at Hunni at the address listed in the appropriate Platform Invoice of such dispute with a detailed written explanation prior to the date that the invoiced amount is due. The parties shall use good faith efforts to resolve the dispute within ten (10) days after Customer notifies Hunni; provided, however, that Customer shall continue to timely pay Hunni any portion of the invoice not subject to a good faith dispute.

g.      Fees at Termination. Customer will remain liable after termination or expiration for all applicable Fees and other charges accrued hereunder prior to such termination and reasonable fees for the costs of collection of same.

4.      Proprietary Rights.

a.       Hunni Materials Ownership. All right, title and interest in and to the Hunni Materials and any and all Intellectual Property Rights therein shall belong exclusively to Hunni, and all rights granted to Customer under the Terms of Service are expressly limited to the license granted herein. For avoidance of doubt, Hunni owns all right, title and interest in and to all visual interfaces, graphics, designs, compilations, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Platform provided by Hunni. Hunni reserves all rights not granted expressly in these Terms of Service.

b.      Customer Information. All right, title and interest in and to the Customer Information and any and all Intellectual Property Rights therein shall belong exclusively to Customer. As used herein, “Customer Information” means and includes the Content and the data of or concerning Customer and its Active Users provided by Customer in connection with the Platform.

c.       Automated Decision Making, Mobile Application. In the future, the Platform may contain technology that includes the ability to track usage, make decisions, predict behavior, and draw certain analysis from Authorized User’s responses and navigation within the Platform. If Hunni adopts this type of technology, it will not involve the denial of or approval for access to the Platform and all information provided in an AI chatbot will be included in the definition of Customer Information. Should any Authorized User wish to opt-out of this type of technology, the Authorized User must submit a request to Hunni. In the future, Hunni may make a mobile application available and, if so, these Terms of Service will apply, unless Hunni determines other obligations will apply to such application.

5.      Term and Termination.

a.       Term. The applicable Platform Invoice – and these Terms of Service - shall commence on the date stated on the Platform Invoice and shall continue for the period specified in the Platform Invoice, which shall be either one year or monthly (the “Initial Term”), unless terminated as described below.  After the Initial Term, these Terms of Service and each Platform Invoice shall automatically renew for successive periods of either one (1) month or one (1) year as applicable (each, a “Renewal Term” and the Initial Term and any Renewal Terms shall be collectively known as the “Term”) unless either party provides written notice of its intent not to renew at least thirty (30) days prior to the end of the then-current Term.

b.      Termination. The Terms of Service and/or any Platform Invoice may only be terminated prior to the expiration of the Initial Term or then current Renewal Term as follows:

(i)     In the event Customer fails to pay Hunni any Fees or other payments due hereunder, in addition to any other available rights and remedies, Hunni shall have the right, in its sole discretion, to terminate the Terms of Service upon providing written notice of default to Customer and a ten (10) day opportunity to cure such default.  All Fees and other payments due hereunder shall continue to be due and immediately payable.

(ii)   In the event that either party breaches any term or condition of the Terms of Service in any material respect, the other party shall have the right to terminate the Terms of Service if the breaching party fails to cure such breach within thirty (30) days of receipt of written notice from the non-breaching party, which notice shall specify the nature of the default.

(iii)   Either party may terminate the Terms of Service immediately upon written notice in the event: (A) the other party commences or becomes the subject of any bankruptcy, insolvency, or equivalent case or proceeding; (B) the other party makes a general assignment for the benefit of its creditors; (C) a trustee or receiver is appointed for the other party, or for any of its property; or (D) any petition by or on behalf of the other party is filed to take advantage of any debtor’s act or to reorganize under the bankruptcy or similar laws, which petition is not removed within sixty (60) days after filing.

(iv)   Hunni may terminate a free or test account and/or modify any of the services, access, or components in such accounts at any time in its sole discretion.

c.       Suspension or Termination of Platform Access.

(i)     Hunni may temporarily suspend the Customer’s (or an Authorized User’s) access to any portion or all of the Platform if Hunni reasonably determines that (A) there is a threat or attack on the Platform; (B) Authorized User’s use of the Platform disrupts or poses a security risk to the Platform or to any other Authorized User or vendor of Hunni; (C) Authorized User is using the Platform for fraudulent or illegal activities; (D) subject to applicable law, the Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) the provision of the Platform to Authorized User is prohibited by applicable law; or (F) there is an unauthorized or unlawful usage by Customer or any third party gaining access to the Platform, directly or indirectly, through or as a result of Customer’s use of the Platform.

(ii)   Hunni may temporarily suspend or terminate the Customer’s (or an Authorized User’s) access to any portion or all of the Platform if any vendor of Hunni has suspended or terminated Hunni’s access to or use of any third-party services required to enable Authorized User to access the Platform; or upon Customer’s failure to pay Fees when due.

(iii)   Hunni will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Authorized User may incur as a result of a suspension or termination.

(iv)   Although Hunni will not review Content, as described herein, Hunni may, at any time and without prior notice, screen, remove, edit, or block any Content that in its sole judgment violates these Terms of Service or is otherwise objectionable. Hunni may make changes, impose limits, and occasionally suspend or terminate the features, functions or certain aspects of the Platform.

d.       Data at Termination; Individual Authorized User Cancellation.

(i)     Data at Termination. Upon termination of your account at the end of the Term your access to the Platform, and the Content, will likewise terminate. Therefore, you are solely responsible for downloading and exporting all Content from the Platform prior to the termination date. Hunni will delete the Content in accordance with its standard retention and destruction policies. In the event your account is terminated prior to the end of Term (as described above), you may download and export your Content during the cure period, if applicable, and only upon payment of fees due.  You may seek assistance for the download or export by contacting [email protected].

(ii)   Active Users. As detailed in the privacy policy, you may send an email to [email protected] to request access to, correct or delete any personal information that you have provided to us. We cannot delete your personal information except by also deleting your user account.  Thus, if you would like for Hunni to delete your account and your personal information contained in the account, please submit a request to [email protected] and provide your name, the username Customer name, if applicable and the information you wish to correct or delete. On receiving such a request, Hunni will use reasonable efforts to delete such information and will do so in accordance with Hunni’s Privacy Policy, noting that information may not be deleted immediately from any back-up systems and further noting that certain information may be retained to comply with the written agreement with the Customer and/or applicable law. For avoidance of doubt, the written agreement in effect between Hunni and the Customer may terminate and, if this occurs, the Authorized User’s rights to access and use the Platform will likewise terminate.

(iii)   Business Account. The Customer will have the right to assign the number of Active Users as set forth in the Platform Invoice. Customers may delete, reassign, deactivate and take other actions with respect to each Authorized User as permitted in the Platform. The Customer may upgrade the number of Active Users, and the amount of storage and number of files (as described in the Fee section above) at any time through the Platform. To downgrade the number of Active Users (or the amount of storage or files) at the end of the Term, Customers must submit a request through the Platform and Hunni will facilitate the downgrade, which may include – at Hunni’s sole discretion – (i) allowing for an export of Content; (ii) deleting any and all Content that exceeds the amount of storage, files or Active Users (or connections thereto); and/or (iii) allowing a time for the Customer to delete Content. The Customer recognizes that Content is associated with an Authorized User and actions with respect to such Authorized User may impact (including losing) Content.

e.       Effect of Termination. Upon termination of the Terms of Service or any Platform Invoice, Customer may no longer access the relevant Hunni Materials, or any rights or licenses granted to Customer under each Platform Invoice that has been terminated. Authorized User’s right to access and use the Platform shall likewise be terminated and revoked and Authorized User shall immediately discontinue use of the Platform and Authorized User shall delete, destroy, or return all copies of network passwords, links and other materials providing access to the Platform. Upon termination or cancellation of these Terms of Service for any reason Hunni will cease performing any actions in connection with the Platform for, or to, the Authorized User. The sections of these Terms of Service pertaining to Termination, Ownership, Warranties, Disclaimers and Limitation of Liability, and General Provisions shall survive any termination of these Terms of Service.

6.      DISCLAIMERS; LIMITATION OF LIABILITY.

a.       THE PLATFORM AND ANY ASSOCIATED SERVICES ARE PROVIDED “AS IS” AND HUNNI MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

b.      Hunni does not warrant that the Platform will operate in an uninterrupted or error-free manner, or that it will always be available or free from all harmful components, or that it is safe, secured from unauthorized access, immune from damages, free of malfunctions, bugs or failures, including, but not limited to hardware failures, software failures and software communication failures. You recognize that although Hunni offers an Excel plug-in, Hunni has no control over Excel or any other Third-Party Components and, as such, Hunni does not provide any warranty or guarantee that the Platform will be compatible with Excel or any other Third-Party Components and further you are obligated to install, update and maintain the then-current version of Excel. Hunni does not disclaim any warranty or other right that Hunni is prohibited from disclaiming under applicable law. Authorized User assumes responsibility for the selection of the Platform to achieve the Authorized User’s intended results, and for the use and results obtained from the Platform. Hunni is not liable for any damage to or loss of any programs, data, or other information or any non-Hunni-branded product, embedded software or software not covered by this warranty.

c.       HUNNI SHALL HAVE NO LIABILITY WHATSOEVER FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST REVENUE OR PROFITS, LOSS OF OPPORTUNITY OR DISRUPTION OF BUSINESS) OF THE CLIENT OR ANY THIRD PARTY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

d.      HUNNI’S AGGREGATE LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY CAUSE OF ACTION AGAINST HUNNI, ITS AFFILIATES, ITS VENDORS OR ITS SUBCONTRACTORS  IN CONNECTION WITH THE PERFORMANCE OR USE OF THE PLATFORM AND/OR ANY SERVICES AND REGARDLESS OF THE FORM OF ACTION (INCLUDING BREACH OF CONTRACT, STRICT LIABILITY, TORT INCLUDING NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE ACTION) SHALL BE LIMITED TO PAYMENT FOR ACTUAL DAMAGES UP TO A MAXIMUM AGGREGATE AMOUNT EQUAL TO THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CLIENT TO HUNNI FOR THE PLATFORM INVOICE UNDER WHICH THE CAUSE OF ACTION RELATES DURING THE TWELVE MONTH PERIOD PRECEDING THE DATE THE CAUSE OF ACTION AROSE.

7.      Indemnification.

a.       Customer Indemnification. Customer agrees to indemnify, defend and hold harmless Hunni and its affiliates, subsidiaries, employees, agents, shareholders, officers, directors and attorneys from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with the Content and/or a breach of these Terms of Information infringes the rights of, or has caused harm to, a third party.

b.      Hunni Indemnification. Hunni agrees to indemnify, defend and hold harmless Customer and its affiliates, subsidiaries, employees, agents, shareholders, officers, directors, and attorneys from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with any third party claims alleging that the Platform (excluding any Customer Information therein) directly infringes any validly issued U.S. copyright, patent or trademark of a third party.  Hunni shall have no indemnity obligations hereunder, and Customer shall indemnify, defend and hold harmless Hunni, with respect to any infringement or other third party claim is caused in whole or in part by the combination of any of the Platform, or any portion thereof, with any products, services, or other item of Customer or any third party or any modification of the Platform by Customer or any Authorized User. Should the Platform or any part thereof become, or in Hunni’ opinion be likely to become, the subject of any claim of infringement, Hunni shall, at Hunni’ option, either: (1) obtain for Customer the right to continue using the Platform; (2) replace or modify the affected portion of the Platform so that the use thereof becomes non-infringing or otherwise lawful; or (3) terminate these Terms of Service and refund to Customer any prepaid but unused Fees as of the date of termination. This infringement indemnity does not apply to any Third-Party Components.

c.       Each party’s respective indemnification obligations hereunder are conditioned upon the party seeking indemnification: (1) promptly giving written notice of the claim to the indemnifying party; (2) giving the  indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle or defend any claim unless it unconditionally releases the indemnified party of all liability); and (3) providing to indemnifying party all available information and reasonable assistance upon request.

8.      General.

a.       Assignment. This Terms of Service shall be binding upon and shall inure to the benefit of Hunni and Customer and their respective successors and permitted assigns. This Terms of Service may not be assigned by either party, in whole or in part, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign these Terms of Service in its entirety (including all Platform Invoices), upon written notice but without consent of the other party, in connection with a (i) merger, acquisition, corporate reorganization resulting in a change of voting control, or (ii) sale of all or substantially all of its assets not involving a direct competitor of the other party.  Any attempt by a party to assign its rights or obligations under these Terms of Service in breach of this Section shall be void and of no effect.

b.      No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third-party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

c.       Force Majeure. Neither party shall be liable for any delay (except for obligations to pay all Fees and other payments hereunder) or other failure of performance caused by reasonably unforeseeable factors beyond its control, including without limitation strikes, riots, insurrection, labor shortage, earthquake, hurricane, epidemic, war, acts of terrorism, fire, acts of God, or governmental acts or regulation.

d.      Invalidity, Headings. If any provision of the Terms of Service (or any portion thereof) shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder hereof shall not in any way be affected or impaired thereby. The headings in the Terms of Service are intended for convenience of reference and shall not affect its interpretation.

e.       Entirety. This Terms of Service, its Platform Invoices and any related exhibits or amendments contain the entire agreement of the parties with respect to its subject matter and supersede all existing agreements and all other oral, written or other communications between them concerning its subject matter.

f.        Waiver. Neither party’s failure to enforce strict performance of any provision of the Terms of Service will constitute a waiver of a right to subsequently enforce such a provision. No written waiver shall constitute, or be construed as, a waiver of any other obligation or condition of the Terms of Service.

g.      No Modification. This Terms of Service may be amended by the parties, provided that no amendment, modification or waiver of the Terms of Service shall be valid unless made in writing and signed by an authorized representative of the party to be charged.

h.      Independent Contractor. The parties are independent contractors, and nothing in the Terms of Service shall be considered to create a partnership, joint venture or similar relationship between the Parties.

i.        Governing Law and Venue. This Terms of Service shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflict of law provisions.  Each party agrees that any dispute shall be brought exclusively in the state or federal courts sitting within the judiciary district of the United States District Court in the Eastern District of Pennsylvania, Philadelphia County, and that it will submit to the jurisdiction of the state or federal courts therein, and to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.

j.        Notices. All demands, notices and communications required or permitted under these Terms of Service shall be in writing and shall be deemed given (a) upon personal delivery to the party to be notified, (b) by email and, with respect to Hunni, addressed to [email protected] with confirmation of electronic delivery; (c) three (3) days after mailing, if sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one day after dispatch, if sent by a nationally recognized overnight courier, with respect to Hunni, to the address first listed above, and with respect to Customer, to the address first provided by Customer when registering for an account or making a purchase on the Hunni website, or to such other address as may hereafter be furnished to the other party by like notice.

9.      Arbitration. The Customer, and each Authorized User, agrees to submit any and all disputes arising out of or related to the use of the Platform to binding arbitration. To the maximum extent permitted by applicable law, the Customer and each Authorized User and Hunni agree that any disputes arising out of or related to the use of the Platform will be resolved by binding arbitration pursuant to the Federal Arbitration Act. BY ACCEPTING THESE TERMS, THE CUSTOMER AND USERS WAIVE THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. EACH CUSTOMER AND AUTHORIZED USER AGREES TO GIVE UP ITS RIGHTS TO GO TO COURT TO ASSERT OR DEFEND RIGHTS UNDER THIS AGREEMENT (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT). ALL RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY.

CUSTOMERS, AUTHORIZED USER AND HUNNI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, UNLESS CUSTOMER, AUTHORIZED USER AND HUNNI AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.