Last Revised: January 16, 2017
HoneyCo Homes Society, Inc. (“HoneyCo“) develops and operates a proprietary web-based and mobile solution that offers residents of HoneyCo homes a maintenance-free lifestyle, supported by smart home technology and connected to community (the “HoneyCo Platform“). These Terms of Service are referred to as the “Agreement” and govern Client’s access to and use of the HoneyCo Platform and related subscription services that can be accessed via HoneyCo websites and mobile applications, as well as certain concierge services. The term “Client” as used herein means any person or entity who accesses or uses the HoneyCo Platform, or who creates a user account on behalf of itself or a third party and accepts these Terms of Service, including Authorized Users (as defined below). This Agreement is effective upon the date that HoneyCo makes the HoneyCo Platform available to Client in response to Client’s registration (including its acceptance of this Agreement) and purchase of a subscription, all as made through the HoneyCo online or in-person ordering process or pursuant to an Order Form (in either case, pursuant to the “Order Form“) (the “Effective Date“).
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE OR BY EXECUTING A HONEYCO ORDER FORM THAT REFERENCES THIS AGREEMENT, CLIENT AGREES THAT IT HAS READ AND UNDERSTANDS, AND AGREES TO, THE TERMS OF THIS AGREEMENT, AND THAT THE PERSON ACCEPTING THIS AGREEMENT HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT, EITHER INDIVIDUALLY OR AS AN EMPLOYEE OR AGENT OF AN ORGANIZATION OR ENTITY ON WHOSE BEHALF IT IS ACTING. If Client does not accept this Agreement, it must cancel its registration for the HoneyCo Platform.
Client acknowledges that HoneyCo may modify the HoneyCo Platform herein from time to time in order to provide updates or additional or different features; provided, however, that HoneyCo will not materially reduce the functions or features of such subscription during the Subscription Term (as defined below) without Client’s prior consent.
- License Grant. Subject to the terms of this Agreement, HoneyCo hereby grants to Client a limited, non-transferable, non-sublicensable and nonexclusive license: (i) to access and use that edition of the HoneyCo Platform identified in the applicable Order Form and for which Client has registered and paid the corresponding fees, and any output generated from Client’s authorized use of the HoneyCo Platform, for Client’s family use and in accordance with all applicable laws; and (ii) to allow its authorized designees (such as employees, caretakers, representatives and agents) (“Authorized Users“) to access and use the HoneyCo Platform for Client’s family use, for the subscription term as set forth in the Order Form (the “Subscription Term“).
- HoneyCo Platform Restrictions. The limited license to the HoneyCo Platform granted in Section 1.1 is subject to the following restrictions: (a) no provision of this Agreement grants Client a license under any HoneyCo intellectual property rights, and no license is granted to Client by implication or estoppel; (b) Client shall not reverse engineer, disassemble, decompile, otherwise attempt to derive the source code of the HoneyCo Platform, or separate the contents of any HoneyCo Platform, or permit others to do any of the foregoing; (c) Client shall not sublicense the HoneyCo Platform (except that Client may grant access to the HoneyCo Platform to Authorized Users), and (d) Client may not use the HoneyCo Platform for time-sharing, rental, outsourcing, or service bureau use. Also, Client may not: (i) use the HoneyCo Platform to send or store material containing software viruses, worms, Trojan horses or other harmful computer code; (ii) interfere with or disrupt the integrity or performance of the HoneyCo Platform or the data contained therein; (iii) attempt to gain unauthorized access to the HoneyCo Platform or related systems or networks; (iv) use the HoneyCo Platform for any benchmarking or competitive purposes; (v) use the HoneyCo Platform to build a competitive product or service, build a product using similar ideas, features, functions or graphics of the HoneyCo Platform, or copy any ideas, features, functions or graphics of the HoneyCo Platform; (vi) access or use (or attempt to access or use) a HoneyCo Platform user’s account without permission, or solicit another user’s login information, or use the HoneyCo Platform to violate the security or integrity of any network, computer or communications system, software applicable, or network or computing device; (vii) “frame” or “mirror” any portion of the HoneyCo Platform; (viii) use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the HoneyCo Platform; (ix) probe, scan or test the vulnerability of the HoneyCo Platform, or breach the security or authentication measures on the HoneyCo Platform, or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the HoneyCo Platform, such as a denial of service attack; (x) use the HoneyCo Platform to distribute, publish, send, or facilitate the sending of unsolicited mass email or other messages, promotions, advertising, or solicitations (such as spam); (xi) use the HoneyCo Platform to engage in unlawful multi-level marketing, such as a pyramid scheme; (xii) use, or encourage, promote, facilitate or instruct others to use, the HoneyCo Platform for any illegal, harmful, fraudulent, infringing or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, fraudulent, infringing, offensive, or the like; or (xiii) make network connections to any users, hosts, or networks unless Client has permission to communicate with them. Client shall not aid or permit others to do any of the foregoing.
- Ownership. HoneyCo reserves all rights not expressly granted to Client in this Agreement. Without limiting the generality of the foregoing, Client acknowledges and agrees that any implementation, customization, configuration or deployment of the HoneyCo Platform for Client shall not affect or diminish HoneyCo’s rights, title, and interest in and to the HoneyCo Platform. As between the parties, HoneyCo and its licensors, suppliers and customers retain all worldwide right, title and interest in and to the HoneyCo Platform, including all worldwide intellectual property rights therein, and HoneyCo solely and exclusively owns all right, title and interest therein and thereto, and to all derivative works or enhancements thereof, including but not limited to all worldwide intellectual property rights therein. Client shall not act in any manner inconsistent with such ownership. If Client suggests any new features, functionality, or improvement to the HoneyCo Platform (“Feedback“), Client acknowledges that all Feedback and products or services incorporating such Feedback are the sole and exclusive property of HoneyCo, and Client hereby irrevocably assigns to HoneyCo all intellectual property rights and all other rights and title to Feedback.
- Breach. Client is responsible for all use of the HoneyCo Platform and Client Data by its users, and for their compliance with this Agreement, and any breach of this Agreement by such user shall be deemed to have been a breach by Client.
HoneyCo may perform certain concierge services for Client in accordance with the terms and conditions set forth in the Order Form or another document agreed upon in writing by the parties from time to time (the “Services“).
- PRICE AND PAYMENT
Client will pay HoneyCo the deposits, fees, and costs as set forth on the applicable Order Form. Client shall pay all applicable fees and costs on a monthly basis via an electronic payment method reasonably prescribed by HoneyCo, as set forth on the applicable Order Form. If Client does not pay amounts when due then HoneyCo may, without limiting its other available remedies, assess a monthly late payment charge of 1.5% or the highest amount permitted under applicable law (whichever is less) on the unpaid amount or, upon notice to Client, suspend performance of this Agreement (including suspending Authorized User access to the HoneyCo Platform). All payments are nonrefundable and non-creditable except as may otherwise be expressly permitted herein or in the Order Form.
- TERM AND TERMINATION
Unless a different term is identified in the applicable Order Form (such as, for example, an evaluation or trial license), the initial term of this Agreement is for one (1) year from the Effective Date. This Agreement shall thereafter automatically renew for successive month-to-month renewal periods unless either party gives written notice to the other party of its desire not to renew the Agreement at least thirty (30) days prior to the expiration or the initial term or then-current renewal term, as the case may be. Each party may terminate this Agreement if the other party materially breaches any provision of this Agreement and does not cure such breach within thirty (30) days of receipt of notice describing such breach. Upon expiration or termination of this Agreement, Client and all Authorized Users shall cease using the HoneyCo Platform. If this Agreement is terminated by HoneyCo for cause, or by Client without cause, prior to the end of the then-current term, Client must pay any unpaid fees covering the remainder of the then-current term. Except as may be set forth otherwise in this Agreement, all rights and obligations that expressly or by their nature survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement until they are satisfied or by their nature expire and shall bind the parties and their successors and permitted assigns, and the provisions of Sections 1.4, 1.5, 4, 6, 7, 8, 9 and 10, and Client’s payment obligations, shall survive any termination or expiration of this Agreement.
- LIMITED WARRANTIES AND DISCLAIMERS
Each party warrants that it has the authority to enter into this Agreement. Client represents and warrants to HoneyCo that (i) Client has the right to deliver the Client Data to HoneyCo and to allow HoneyCo to use, copy, modify, distribute, display and publicly perform Client Data, and all such Client Data is accurate, complete and not misleading; and (ii) Client will comply with all applicable laws and regulations in connection with its use of the HoneyCo Platform, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data. HoneyCo represents and warrants that (i) the HoneyCo Platform will be made available in accordance with the terms of this Agreement and the functionality of the HoneyCo Platform will not be materially decreased during the term of this Agreement; and (ii) the Services will be provided in a professional and workmanlike manner in accordance with the terms of this Agreement or the applicable Order Form, as applicable. THE EXPRESS WARRANTIES MADE BY HONEYCO ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE HONEYCO PLATFORM, THE SERVICES, OR ANY INFORMATION OR SERVICES RELATING TO THE HONEYCO PLATFORM, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE, ALL OF WHICH ARE HEREBY DISCLAIMED. HONEYCO DOES NOT WARRANT THAT THE HONEYCO PLATFORM, THE SERVICES, OR ANY INFORMATION OR SERVICES MADE AVAILABLE IN CONNECTION WITH THIS AGREEMENT OR THE HONEYCO PLATFORM WILL BE ERROR OR DEFECT-FREE, UNINTERRUPTED, COMPLETELY SECURE, OR THAT ERRORS, DEFECTS OR BUGS CAN OR WILL BE CORRECTED.
Client shall indemnify, defend and hold HoneyCo, its affiliates and licensors and suppliers, and their respective officers, directors and employees, harmless from any losses, damages, costs and expenses directly or indirectly arising out of any claim from any party arising out of or relating to (i) Client’s or its Authorized Users’ use of the HoneyCo Platform, unless such claims are caused by HoneyCo’s gross negligence or is covered by HoneyCo’s obligations in Section 7; (ii) Client’s noncompliance with applicable laws or breach of this Agreement, and (iii) Client Data.
- Third Party Claims. If a third party makes a claim against Client alleging the HoneyCo Platform (excluding Client Data) directly infringes any U.S. patent, U.S. copyright, or trademark or misappropriates any trade secret (“IP Claim“), then HoneyCo will defend Client against the IP Claim and pay all costs, damages and expenses (including reasonable legal fees and costs) finally awarded against Client by a court of competent jurisdiction or agreed to in a written settlement agreement signed by HoneyCo arising out of such IP Claim; provided that: (a) Client promptly notifies HoneyCo in writing no later than thirty (30) days after Client’s receipt of notification of a claim or potential claim; (b) Client permits HoneyCo to assume sole control of the defense of such claim and all related settlement negotiations; and (c) Client provides HoneyCo, at HoneyCo’s request and expense, with the reasonable assistance, information and authority necessary to perform HoneyCo’s obligations under this Section 7.1. Client may not make any admissions or consent to any judgment or settlement in respect of an IP Claim without HoneyCo’s prior written consent.
- Exceptions. HoneyCo shall have no liability for any claim of infringement based on (i) the unauthorized modification of the HoneyCo Platform, (ii) use of the HoneyCo Platform other than in accordance with the provided documentation and this Agreement, or (iii) Client Data. If, due to an IP Claim or the threat of an IP Claim, (a) the HoneyCo Platform is held by a court of competent jurisdiction to be infringing, or in HoneyCo’s reasonable judgment may be held to infringe by such a court, or (b) Client receives a valid court order enjoining Client from using the HoneyCo Platform, or in HoneyCo’s reasonable judgment Client may receive such an order, HoneyCo may, at its option, (1) replace or modify the HoneyCo Platform to be non-infringing; (2) obtain for Client a license to continue using the HoneyCo Platform; or (3) terminate this Agreement upon notice and refund prepaid but unused amounts received from Client in respect of the balance of the Term. THIS SECTION 7 STATES THE ENTIRE LIABILITY OF HoneyCo AND ITS AFFILIATES TO CLIENT OR ANY THIRD PARTY WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHTS.
- LIMITATION OF LIABILITY
IN NO EVENT SHALL HONEYCO, OR ITS AFFILIATES, LICENSORS, OR SUPPLIERS, BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION LOSS OF OR DAMAGE TO DATA, LOSS OF PROFITS, OR OTHER ECONOMIC LOSS, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF HONEYCO HAS BEEN ADVISED OF SUCH CLAIM. The aggregate and cumulative liability of HoneyCo to Client or any third party for all damages arising out of or relating to this Agreement shall in no event exceed the amount of fees paid by Client to HoneyCo under the applicable Order Form during the six (6) months immediately preceding the cause of action. HoneyCo does not exclude or limit its liability for death or personal injury caused by its negligence or for fraud. HoneyCo is not responsible for any Authorized User’s behavior, or for any personal injury, death, property damage (including, without limitation, to Client’s home), or other harm or losses arising from or relating to their use of the HoneyCo Platform.
- Proprietary Information. The term “Proprietary Information” means information relating to a party’s products, services and business that it treats as confidential. HoneyCo’s Proprietary Information shall include, but not be limited to, the HoneyCo Platform, and all of its proprietary or confidential formulas, source code, algorithms, methods, know how, processes, designs, components or features, developmental work, marketing requirements, marketing plans, customer names, prospective customer names, third party proprietary information included in the HoneyCo Platform, and the terms and pricing under this Agreement, regardless of whether such information is marked as “Proprietary Information”.
- Limitations. The receiving party shall not use the disclosing party’s Proprietary Information for any purpose unrelated to this Agreement and shall limit disclosure of such Proprietary Information to those of its employees, subcontractors, and consultants with a need to know the Proprietary Information, subject to a nondisclosure obligation comparable in scope to this Section 9. Each party shall protect the other party’s Proprietary Information by using the same degree of care (but no less than a reasonable degree of care) that it uses to protect its own Proprietary Information. The obligations imposed by this Section 9 shall expire five (5) years after this Agreement’s expiration or termination, provided however that the obligations imposed by this Section 9 shall continue in perpetuity with respect to HoneyCo’s trade secrets. The receiving party shall return all of the disclosing party’s Proprietary Information in the receiving party’s possession or control within thirty (30) days of the disclosing party’s written request therefor.
- Exceptions. The obligations in this Section 9 shall not apply to any Proprietary Information that: (a) is or becomes publicly known through no fault of the receiving party; (b) is developed independently by the receiving party prior to the date of disclosure, without use of the disclosing party’s Proprietary Information, as evidenced by the receiving party’s records kept in the ordinary course of its business; (c) is in the receiving party’s possession prior to receipt from the disclosing party, as evidenced by the receiving party’s records kept in the ordinary course of its business; or (d) is rightfully obtained by the receiving party from a third party entitled to disclose the information without confidentiality restrictions. A receiving party also may disclose Proprietary Information to the extent required by a court or other governmental authority, provided that the receiving party promptly notifies the disclosing party of the disclosure requirement and cooperates with the disclosing party (at the latter’s expense and at its request) to resist or limit the disclosure.
- Injunctive Relief. A party’s breach of this Section 9 could cause the other party irreparable injury for which it may not have an adequate remedy at law and for which damages may be difficult to ascertain. The non-breaching party shall be entitled to seek injunctive relief in any court of competent jurisdiction in addition to other legal or equitable remedies, without posting a bond.
- GENERAL TERMS
- Third Party Website Links and Referrals. HoneyCo’s user websites and applications may contain links to other websites operated by third parties (“Third Party Sites“) and referrals to third party vendors (“Referred Vendors“). Such Third Party Sites and Referred Vendors are not under HoneyCo’s control. HoneyCo provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third Party Sites or Referred Vendors. Clients’ and Authorized Users’ use of these Third Party Sites is at their own risk.
- Interpretation; Severability. All headings in this Agreement are included solely for convenient reference, and shall not affect its interpretation. If any provision of this Agreement is determined by a court to be invalid or unenforceable as drafted, that provision shall be severed and the enforceability of other provisions shall not be affected.
- Amendment; Entire Agreement. This Agreement may be modified or amended only by a written agreement signed by both parties. This Agreement, together with each Order Form, constitutes the entire agreement between the parties concerning its subject matter and supersedes any prior or separate agreements between the parties concerning the subject matter of this Agreement, and supersedes the terms of any Client purchase order, and such terms are rejected by the parties.
- Waivers. The failure by a party to exercise any right or remedy hereunder will not operate as further waiver of such right or remedy in the future or any other right or remedy. No waiver of any default, condition or breach of this Agreement shall be deemed to imply or constitute a waiver of any other default, condition or breach of this Agreement, whether of a similar nature or otherwise.
- Notices. All notices and consents sent under this Agreement shall be in writing and: (a) hand delivered; (b) transmitted by confirmed e-mail; or (c) delivered by prepaid overnight courier. Notices to HoneyCo shall be sent to HoneyCo Homes Society, Attn: Operations Manager, at 331 54th Ave N., Nashville, TN 37209 or Ashley@honeyco-marketing-prod.herokuapp.com, and notices to Client shall be sent to its address indicated through its registration for the HoneyCo Platform. Notices shall be deemed received on the date of receipt.
- Relationship of the Parties. The parties are independent contractors and nothing in this Agreement shall be construed as creating a partnership, joint venture or agency relationship between the Parties, or as authorizing either Party to act as agent for the other or to enter into contracts on behalf of the other. There are no third party beneficiaries to this Agreement.
- Force Majeure. HoneyCo will be excused from performance for any period during which, and to the extent that it or its subcontractor(s) is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence.
- Publicity. Client agrees that HoneyCo may announce and promote Client’s use of the HoneyCo Platform and this Agreement, including adding Client’s logo to its website and promotional materials and include Client as a reference.
- Governing Law. The interpretation of this Agreement shall be governed by the laws of the Tennessee, USA, without regard to its conflict of laws principles. The United Nations Convention for the International Sale of Goods is excluded. The parties agree that any dispute arising from or relating to the subject matter of this Agreement shall be governed by the exclusive jurisdiction and venue of the state and federal courts in Davidson County, Tennessee.
- Assignment. Neither this Agreement, nor any rights granted hereunder may be sold, leased, assigned, or otherwise transferred, in whole or in part by Client, and any such attempted assignment shall be void and of no effect without the advance written consent of HoneyCo. This Agreement will inure to the benefit of and be binding upon any successors and permitted assigns of the parties.
- Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by fax or email shall be sufficient to bind the parties to the terms and conditions of this Agreement.