Terms of Service

Terms of Service

Welcome to Hoot, provided by Hoot Myopia Care LLC and its subsidiaries, affiliates and other related entities, and as the context requires the Hoot entity listed on your order quotation (“Hoot,”“we,” “our,” or “us”). These Hoot Terms of Service (“Terms” or “Agreement”) govern your use of our software applications, content, architecture and platform (the “Software”) and systems and data facilities (the “Network”), as well as any other websites, subdomains, or services owned or controlled by Hoot that provide you with access to the Content, Software, Network, and Mobile App (as defined below), if downloaded by you or accessed through the cloud (collectively, the “Service”). To access the Service, you must at all times agree to and abide by these Terms.

These Terms constitute a legal contract between you, the representative who is authorized to legally bind a single company, organization, or entity (“you” or “Subscriber”) and the Hoot entity listed on your order quotation regarding your use of the Service. For purposes of these Terms, “you” or “Subscriber” also refers to the Subscriber’s end users of the Service. Hoot may have different roles with respect to different types of end users of the Service, and “you” as used in these Terms will apply to the appropriate type of end user of the Service under the circumstances.

Please carefully read these Terms. By executing an Order (as defined below) for the Service, you signify that you have read, understood, and agree to be bound by the Terms, which hereby incorporate the following:

  • the provisions of these Terms of Service;
  • the Business Associate Agreement (the “BAA”), Data Processing Addendum (“DPA”), or other such agreement that you and Hoot have agreed to in writing;
  • the quotation or service agreement that has been issued by Hoot to you (hereinafter referred to as the “Order”);
  • the Hoot Privacy Policy (the “Privacy Policy”); and any additional guidelines and any additional guidelines and any future modification to any of the foregoing that may be issued by Hoot from time to time.

If you are using or opening an account with Hoot on behalf of a company, organization or other legal entity (collectively, the “Subscribing Organization”) then you represent and warrant that you: (i) are an authorized representative of that Subscribing Organization with the authority to bind it to these Terms; (ii) have read and understand these Terms; and (iii) agree to these Terms on behalf of such Subscribing Organization.

PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

  1. 1. License Grant. Subject to the terms and conditions of these Terms, the Hoot entity listed on your order quotation hereby grants to you a limited, personal, non-transferable and revocable license to access and use the Service in the manner contemplated by these Terms solely for your internal business purposes. You have no right to sub-license or resell the Service or any component thereof.
  2. 2. The Hoot Service and Features. Subject to these Terms, we agree to provide the Service. Hoot has no obligation to provide any services or perform any tasks not specifically set forth in these Terms, including any applicable Order. Pursuant to your Order, the Service consists of integrated hardware and/or software features (each a “Feature” and collectively, “Features”) that enable you to engage in various communication, management and other business activities, which may include phone systems; text messaging; scheduling; payment processing and merchant services (including Hoot’s Text to Pay Feature); team communication and chat features; call, payment and practice analytics; and marketing tools, as more fully described at https://www.getHoot. com (the “Website”), as such descriptions may be changed by Hoot from time to time. Certain Features have additional terms and conditions specific to your access and use of such Feature (each the “Feature Terms and Conditions”) that you agree to by entering an Order for such Feature(s). Each Feature Terms and Conditions, as amended from time to time, supplements these Terms and each such Feature Terms and Conditions (available at https://www.getHoot. com/legal) is hereby incorporated by reference. If you use the Feature Hoot Payments, you are subject to the Payment Processing Service Terms. If you use the Hoot Phones/Voice over Internet Protocol (“VoIP”) Service, you are subject to the VoIP Service Terms. If you access and use the Service via a mobile device are subject to the Mobile App Terms. If any provision of these Terms expressly conflicts with any provision of a Feature Terms and Conditions, the conflicting terms in the Feature Terms and Conditions will control. If your Order conflicts with these Terms, your Order shall govern. All other terms and conditions of each agreement will remain in full force and effect. For the avoidance of doubt, any reference to the Service in these Terms includes the Features.
  3. 3. Third-Party Provider Agreements. In addition to these Terms, your relationship(s) with any of our third-party providers will be subject to separate terms and conditions applicable to each specific third-party provider (each a “Provider Agreement”). A Provider Agreement, available upon request, supplements these Terms and is hereby incorporated by reference. If any provision of these Terms conflicts with any term of a Provider Agreement, the conflicting terms in the Provider Agreement will control with respect to the third-party provider’s products or services. Further, you will be subject to any additional guidelines or rules applicable to a specific Provider Agreement which may be included in the Provider Agreement or posted from time to time. All such guidelines are hereby incorporated by reference into these Terms. Hoot MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WHATSOEVER IN RELATION TO THIRD-PARTY PRODUCTS AND SERVICES. SUBSCRIBER’S USE OF THIRD-PARTY PRODUCTS AND SERVICES IS AT ITS OWN RISK. Hoot ASSUMES NO RESPONSIBILITY AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR CLAIMS OF LOSS AND/OR DAMAGES INCURRED RESULTING FROM THE USE OF OR CONCLUSIONS DRAWN FROM ANY THIRD-PARTY PRODUCT OR SERVICE, REGARDLESS OF WHETHER Hoot IS A RESELLER OF, OR REFERRAL AGENT FOR, SUCH PRODUCT OR SERVICE.
  4. 4. Modification of the Terms. Hoot reserves the right, at its sole discretion, to change, supplement or remove all or part of these Terms, including any Feature Terms and Conditions, at any time. You agree to review these Terms periodically for changes. When we change the Terms in a material manner, we will update the “last modified” date at the top of this page and notify you that material changes have been made to these Terms. If any such revision is unacceptable to you, your only remedy is to terminate your Hoot Service. Your continued use of the Service following any revision to these Terms will mean you accept all of the updated terms and conditions.
  5. 5. Support. Hoot makes available web-based support at https://www.hoothelp.com and provides support services via email, chat and telephone, as further described on the Hoot Support webpage at https://www.hoothelp.com/support. Additional support services may be available to you upon payment of applicable fees (if any), as specified in any applicable Order. Any support services are subject to these Terms and hoot’s applicable support policies. Hoot may also provide onboarding, deployment and other services under this Agreement. The scope, pricing and other terms for these additional services will be set forth in the applicable Order.Hoot’s ability to deliver the Service will depend on your reasonable and timely cooperation and the accuracy and completeness of any information from you needed to deliver the Service.
  6. 6. Data Processing. The Service allows you to submit, store, and access certain business data and other information related to you, your customers (“Customers”), or your business, including personal data (collectively, “Subscriber Data”). Providing our Service requires collecting and using your Subscriber Data. The “BAA”, “DPA” and our Privacy Policy explain how we collect, use, and share information. They also explain the ways you can control your information. You and Hoot agree that, as between Subscriber and Hoot, you are the owner and controller of all Subscriber Data, and Hoot is the processor of the Subscriber Data.

    1. 6.1. Subscriber Data License Grant. By submitting Subscriber Data to Hoot or by otherwise providing Hoot with access to your Subscriber Data, you represent and warrant that you have all rights necessary to grant and hereby grant all rights and licenses to the Subscriber Data required for Hoot. and its subcontractors and service providers to provide the Service. You agree that Hoot may collect, analyze, and use data derived from Subscriber Data. You further agree that Hoot will have the right, both during and after the Term (as defined below), to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of the anonymized, aggregated Subscriber Data. Except for the rights you grant in these Terms, as between the parties, you own all rights, title and interest (including all intellectual property rights) in and to your Subscriber Data.
    2. 6.2. Your Responsibilities for Subscriber Data. In connection with Subscriber Data, throughout the Term you hereby represent, warrant, and agree that: a) You have obtained the Subscriber Data lawfully, and the Subscriber Data does not and will not violate any Applicable Laws (as defined below) or any person or entity’s proprietary or intellectual property rights; b) The Subscriber Data is free of all viruses, Trojan horses, and other elements that could interrupt or harm the Network or Software used by Hoot. or its subcontractors to provide the Service; c) All Subscriber Data has and will be collected by you in accordance with a privacy policy that permits Hoot to share, collect, use, and disclose such Subscriber Data as contemplated under these Terms, and if required by Applicable Law, pursuant to consents obtained by you to do each of the foregoing; d) You are solely responsible for ensuring compliance with all privacy laws in all jurisdictions that may apply to Subscriber Data provided hereunder; e) Hoot may exercise the rights in Subscriber Data granted hereunder without liability or cost to any third party; f) The Subscriber Data complies with the terms of this Agreement. For purposes of clarity, Hoot takes no responsibility and assumes no liability for any Subscriber Data, and you will be solely responsible for your Subscriber Data and the consequences of sharing it hereunder.
    3. 6.3. Use and Disclosure of Subscriber Data. Hoot will only use Subscriber Data to provide the Service to you, except with your prior written consent or as otherwise expressly permitted under this Agreement, the BAA, the DPA, the Privacy Policy or other such agreements you have entered with Hoot. Hoot will not disclose Subscriber Data outside of Hoot except: a) As you direct or as required to provide the Service, b) To your third-party service providers as directed by you, c) To sub-processors as described in the section titled “Sub-processors”, d) As otherwise described in the BAA, the DPA, or the Privacy Policy, e) As required by Applicable Laws to which Hoot is subject.
    4. 6.4. Disclosure of Subscriber Data required under Applicable Laws. If Hoot is required to disclose Subscriber Data by Applicable Laws, then Hoot will promptly notify you unless prohibited by law. On receipt of any other third-party request for Subscriber Data, Hoot will promptly notify you unless prohibited by Applicable Laws, and Hoot will attempt to redirect the third party to request the Subscriber directly from you.
    5. 6.5. Requests by Data Subjects. Unless prohibited by law, Hoot will promptly notify you if a) Hoot receives a request from a data subject for access to the data subject’s own personal data, or for the rectification or erasure of such personal data, b) Hoot receives any other request or query from a data subject relating to the data subject’s own personal data, c) Data subject exercises any rights under Applicable Privacy Laws. Hoot will assist you by providing appropriate technical and organizational measures, insofar as this is reasonably possible, for the fulfilment of your obligations to respond to such requests from a data subject. You agree to pay for assistance performed by Hoot at Hoot’s then current fees for such services.
    6. 6.6. Location of Subscriber Data. Subscriber Data will be stored in the United States. If you are located outside of the United States, then you consent to the storage of Subscriber Data in, and the transfer of Subscriber Data into and out of, the United States. Hoot will not move Subscriber Data from the United States, except: a) to provide services in Canada to Canadian subscribers; b) as provided below; c) with your consent; d) as necessary to comply with Applicable Laws or a binding order of a Governmental Authority (such as a subpoena or court order). A “Governmental Authority” is any governmental or regulatory authority, agency, commission or board of any US or Canadian federal, state, provincial, municipal or local government, legislature or parliament, or any court or, without limitation, any other law, regulation or rule-making entity having or purporting to have jurisdiction in the relevant circumstances. Hoot does not control or limit the locations from which you may access Subscriber Data or to which you may move Subscriber Data. You may interconnect the Service with certain other services provided by third parties. Hoot does not control or limit the locations
    7. 6.7. Hoot Security Measures. Hoot will implement and maintain appropriate technical and organizational measures for the Hoot Network, as determined by Hoot, designed to protect the security of Subscriber Data within the Hoot Network, including measures to protect Subscriber Data from unauthorized access, use, modification, deletion, loss or disclosure. Hoot will limit access to Subscriber Data to only those subcontractors and personnel who have a need to know. Hoot will ensure that its subcontractors and personnel authorized to access Subscriber Data are bound by appropriate obligations of confidentiality. For the avoidance of doubt, you are responsible for properly configuring and using the Service and taking your own steps to maintain appropriate security, protection, and backup of Subscriber Data outside of the Hoot Network.
    8. 6.8. Hoot Obligations on Occurrence of a Data Breach. If a Data Breach occurs: a) Hoot will notify you of the Data Breach without undue delay after Hoot discovers the Data Breach, and in any event within any notice period imposed under Applicable Privacy Laws; b) On request from you, Hoot will use commercially reasonable efforts to provide you with such information as you may reasonably require to provide any notification that you are required to make under Applicable Privacy Laws. If any notification is required by Applicable Privacy Laws, Subscriber shall make such notification, at its own cost. If Applicable Privacy Laws requires that Hoot make such notification, Hoot shall make such notification and Subscriber shall reimburse Hoot for all of the costs incurred by Hoot in providing that notification, except in cases where the Security Breach was solely and directly caused by Hoot’s gross negligence or willful misconduct.
    9. 6.9. Sub-processors. You agree that Hoot may use sub-processors to provide the Service to you, to fulfill its contractual obligations under the BAA, the DPA and the Agreement, or to provide certain services on its behalf. Hoot will enter into a written agreement with each sub-processor permitting the sub-processor to access and use Subscriber Data only for the purpose of delivering the services Hoot has retained the sub-processor to provide and for no other purpose. Hoot will be liable for the acts and omissions of any sub-processors to the same extent as if the acts or omissions were performed by Hoot.
    10. 6.10. Backups. Hoot will not be responsible for any backup, recovery or other steps required to ensure that Subscriber Data is recoverable in the case of data loss. You are solely responsible for backing up your Subscriber Data on a regular basis and taking appropriate steps to safeguard and ensure the integrity of your Subscriber Data. Except for requirements that are included in any BAA, DPA or Privacy Policy entered into between you and Hoot, Hoot expressly disclaims all other obligations with respect to storage of Subscriber Data.
    11. 6.11. Changes in Applicable Privacy Laws. If there is a change in Applicable Privacy Laws that, in the opinion of Hoot, may cause Hoot to incur unanticipated costs to comply or may cause Hoot to face adverse regulatory action, then Hoot will provide notice in writing to you. On receipt of such notice by you, the parties will negotiate in good faith to agree on a solution that will enable you to continue to use the Service and that will enable both you and Hoot to comply with all Applicable Privacy Laws. If the issue can be resolved by a commercially reasonable change to the Service or to the manner in which you use the Service, then the parties, acting reasonably and in good faith, will attempt to reach agreement on the nature of the change and, if the change will result in a material cost being incurred by Hoot, the portion of that cost that will be borne by you. If the parties are unable to reach agreement within sixty (60) days after the commencement of such negotiations, then either party may terminate the Agreement by thirty (30) days’ notice in writing to the other party. Subject to the foregoing, the parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for compliance with the requirements of Applicable Privacy Laws and any other Applicable Laws
    12. 6.12. Definitions. Terms having a meaning defined in this Agreement, or Canadian PHI Laws will have the same meaning when used in this Section 6 unless the context otherwise requires, and the following terms will have the following meanings:
      1. A. “Applicable Privacy Laws” means Applicable Laws relating to the collection, use, processing, or disclosure of personal data and includes, in each case to the extent applicable: a) the Health Insurance Portability and Accountability Act and its implementing regulations, 45 C.F.R. Part 164; b) the California Consumer Privacy Act (California); c) the Gramm-Leach-Bliley Act of 1999, as amended, and the regulations promulgated under that act; (d) US state data breach notification laws; d) the Personal Information Protection and Electronic Documents Act (Canada), the Personal Information Protection Act (British Columbia), the Personal Information Protection Act (Alberta), and the Act respecting the protection of personal information in the private sector (Quebec); e) the Canadian PHI Laws, as amended from time to time.
      2. B. “Canadian PHI Laws” means: a) Health Information Act (Alberta); b) Personal Health Information Act (Manitoba); c) Personal Health Information Privacy and Access Act (New Brunswick); d) Personal Health Information Act (Newfoundland and Labrador); e) Health Information Act (Northwest Territories); f) Personal Health Information Act (Nova Scotia); g) Personal Health Information Protection Act (Ontario); h) Health Information Act (Prince Edward Island); i) Health Information Protection Act (Saskatchewan); j) Health Information Privacy and Management Act (Yukon), as amended when necessary.
      3. C. “Data Breach” means the unauthorized acquisition, access, use, modification, or disclosure of unencrypted personal data from or within the Hoot Network or its sub-processors in a manner which compromises the security or privacy of the personal data, if it is reasonable in the circumstances to believe that the acquisition, access, use, modification, or disclosure of unencrypted personal data creates a real risk of significant harm to a data subject.
      4. D. “Data Subject” means the individual identified in or identifiable from personal data.
      5. E. “Personal Data” has the meaning given to it in Applicable Privacy Laws and includes “personal information”, “Protected Health Information” and “Personal Health Information”, as applicable, as those terms are defined in Applicable Privacy Laws.
      6. F. “Hoot Network” means Hoot’s internal data center facilities, services, networking equipment, and host software systems that are within Hoot’s reasonable control and are used to provide the Service.
  7. 7. Subscriber Obligations. You acknowledge and agree to the following:
    1. 7.1. How You Use the Service.
      1. A. Subscriber Accounts. To use certain features of the Service, you must register for the Service and create an account (“Account”). When creating your Account, you agree to provide true, accurate, current, and complete information and to maintain and update your Account information as needed. You are responsible for implementing generally accepted security measures to protect your Account, including maintaining the confidentiality of your Account username and password and for restricting access to your computer or device, and you agree to accept responsibility for all activities that occur under your Account. You understand this means that you accept full liability and responsibility for your actions or the actions of anyone who uses the Service through your Account with or without your permission. If you have reason to believe that your Account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your username, password, or any credit, debit or charge card number), you agree to immediately notify Hoot. You may be liable for the losses incurred by Hoot or others due to any unauthorized use of your Account.
      2. B. Administrator Accounts. The person who first completes the Service registration on behalf of any Subscribing Organization is the initial “Administrator” for purposes of such Subscribing Organization’s use of the Service and exercises certain options to determine the level of access, privacy, and security for the Service related to the Subscribing Organization (“Administrator Account”). For example, the Administrator will determine who can be an authorized end user of the Service for the associated Subscribing Organization and the level of end user privileges. Each Administrator may designate other end users as additional and/or successor Administrators, each of whom hereby accepts Administrator responsibilities. Administrators are responsible for managing Accounts and assigning the appropriate level of privileges for each Account within your Subscribing Organization. Any person designated as the billing contact in the Service billing record for a Subscribing Organization will be deemed to assume the rights and obligations of an Administrator. Administrator Accounts must comply in all respects with all terms and conditions applicable to Accounts. You agree that you are solely responsible for managing your Accounts and terminating credentials and access for any end users no longer authorized by you to use the Service.
      3. C. System Access. You may choose to allow Hoot to automatically retrieve data from your system(s) or from systems or services provided by third parties on your behalf (collectively, the “Systems”). You hereby represent and warrant to Hoot that you have all necessary consents, rights, permissions and authority to allow Hoot to automatically access such System(s) and you hereby grant Hoot permission to access such System(s) and retrieve Subscriber Data therefrom by indicating the same within your Account. Hoot disclaims any and all liability associated with accessing and retrieving Subscriber Data from such System(s) on your or your Subscribing Organization’s behalf. In order to connect the Service with any third-party System to enable certain functionality of the Service, you hereby designate Hoot as your agent and attorney-in-fact in connection with such System access and further authorize Hoot to: a) store your Subscriber Data relating to such System; b) access such System using Subscriber Data you provide us; c) use any materials you provide us in order to provide you the Service; d) gather, transfer, handle and export from such System any Subscriber Data reasonably necessary for us to provide the Service to you; e) otherwise take any action in connection with such System as is reasonably necessary for us to provide the Service to you. You agree that those third-party System providers are entitled to rely on the foregoing authorization, agency, and power of attorney granted by you. IF AT ANY TIME YOU DO NOT HAVE ALL NECESSARY CONSENTS, RIGHTS, PERMISSIONS, AND AUTHORITY TO ALLOW Hoot AUTOMATIC ACCESS TO SUCH SYSTEM(S), THEN YOU HEREBY AGREE TO IMMEDIATELY DISABLE SUCH FUNCTIONALITY WITHIN YOUR ACCOUNT OR ADMINISTRATOR ACCOUNT.
      4. D. Compliance with Laws. You are solely responsible for, and agree to use the Hoot. Service, including all Features and functionalities, in accordance with all applicable federal, state, provincial, municipal or local government laws, statutes, rules, by-laws and regulations, and all applicable official rules, policies, notices, directives, orders, judgments and decrees of any Governmental Authority, as amended from time to time, (“Applicable Laws”) including, but not limited to, the Health Insurance Portability and Accountability Act (HIPAA), the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the CAN-SPAM Act, the Gramm-Leach-Bliley Act, the California Consumer Privacy Act, Canada’s Personal Information Protection and Electronic Documents Act and equivalent provincial private-sector privacy legislation, Canada’s provincial health information privacy laws, Canada’s Telecommunications Act and the Canadian Radio-television and Telecommunications Commission’s Unsolicited Telecommunications Rules, Canada’s anti-spam legislation, Quebec’s Charter of the French Language and all other Applicable Laws and regulations concerning privacy, telecommunications, telemarketing, call recording, language translation, and the sending of email, text, and fax messages. You covenant and warrant that you shall ensure that all communications that you make using the Service will comply with all such Applicable Laws.
      5. E. Consent to Send Texts, Emails, Fax, and Telephone Calls. Without limiting the generality of Section 7.1.4, you represent and warrant that you have obtained from the Customers that you contact or cause to be contacted through the Service, including by telephone, email, text or fax message, all consents required under Applicable Law. You acknowledge and agree that you are solely in control of, and responsible for, the calls and email, text or fax messages you cause to be sent through the Service.
      6. F. Minimum Specifications and Internet Connectivity. You are solely responsible for and agree to obtain and maintain computing devices, software, and internet access required to operate the Service in accordance with the terms of this Agreement and Applicable Law. The proper operation of the Service requires underlying software and an internet connection meeting minimum specifications, available here https://www.hoothelp.com/network-specs. Hoot has no obligation to provide full functionality of the Service if these minimum standards are not met.
    2. 7.2 Restrictions and Unlawful Activity. The actions of individual end users can have an impact on the Service as a whole. Accordingly, when using the Service you agree not to do any of the following, or permit any of your end users, employees, contractors, agents, representatives or any third party to:
      1. A. Use the Service:
        • For any purpose that is unlawful or is otherwise prohibited by these Terms;
        • To upload or transmit any material or content that Hoot reasonably believes is offensive, inappropriate, pornographic, obscene, illegal, or otherwise objectionable to any person or entity; or
        • To upload or transmit any material or content that is, facilitates, or encourages libelous, defamatory, discriminatory, or otherwise malicious or harmful speech or acts to any person or entity, including but not limited to hate speech.
      2. B. Offer these types of services, products, or content:
        • Adult content and services, including but not limited to, pornography and other obscene materials (including literature, imagery and other media) depicting nudity or explicitly sexual acts; sites offering any sexually-related services such as prostitution, escorts, mail-order bride/spouse finders, international marriage brokers, pay-per view, adult live chat features; sexually oriented items (e.g., adult toys); adult video stores and sexually oriented massage parlors; gentleman’s clubs, topless bars, and strip clubs; sexually oriented dating services
        • Sale of goods or services that are counterfeit or illegally imported or exported
        • Gambling services or product
        • Credit repair and get out of debt opportunities
        • List brokers or list rental services
        • Twitter followers, Facebook likes, YouTube views, and other forms of social media activity and online traffic
        • Cryptocurrencies, virtual currencies, and any digital assets related to an initial coin offering
        • Online pharmacies or card-not-present pharmacy services
        • Substances designed to mimic illegal drugs
        • Pyramid schemes and multi-level marketing
        • Services that support programmatically sending mail on behalf of third parties without creating or reviewing the content
      3. C. Send spam or unsolicited calls or messages if such unsolicited activities could reasonably be expected to or do in fact provoke complaints (even if the messages themselves are not actually spam or unsolicited messages). You must be able to point to an opt-in form or show other evidence of consent for any bulk message you send;
      4. D. Conduct repetitive and/or continuous messaging or calling to the same destination or number if such activity could reasonably be expected to or in fact does provoke complaints;
      5. E. Send “junk mail”, “chain letters”, “pyramid schemes”, incentives (e.g., coupons, discounts, awards, or other incentives) or other material in any message that encourages a recipient to forward the message to another recipient;
      6. F. Upload or transmit any material that was not created by you, provided for you to use, or that would violate anyone’s rights, including text, photos, graphics, and other content;
      7. G.Use any misleading or incorrect names, addresses, email addresses, telephone numbers, subject lines, or other information in the Service or in any communications created, managed, or sent using the Service;
      8. H. Conduct illegal robocalls;
      9. I. Set up multiple accounts for any person or entity in order to send similar content, unless you are part of a franchise or agency;
      10. J. Use the Service in any manner that in our sole discretion could damage, disable, overburden, impair, adversely affect, or impact the security of the Service;
      11. K. Attempt to gain unauthorized access to the Service, or any part of it, other Accounts, computer systems or networks connected to the Service, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service;
      12. L. Modify, adapt, or translate the Service in any manner or form, or use modified versions of the Service, including, but not limited to, for the purpose of obtaining unauthorized access to the Service;
      13. M. Use any robot, spider, scraper, or other automated means to access the Service for any purpose without our express written permission, or bypass any measures we may use to prevent or restrict access to the Service;
      14. N. Impersonate another person or access another end user’s Account without that end user’s permission or to violate any contractual or fiduciary relationships;
      15. O. Misrepresent the source, identity, or content of Subscriber Data;
      16. P. Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
      17. Q. Rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Service to any third party; provide time sharing or similar services for any third party; or use the Service for any purpose other than your own internal business use;
      18. R. Access the Service if you are a direct competitor of Hoot, except with Hoot’s prior written consent, or for any other competitive purposes; or
      19. S. Collect or harvest any personally identifiable information, including account names, from the Service.
    3. 7.3 Suspension of Service. You agree that Hoot may suspend all or any part of the Service immediately without notice if Hoot reasonably believes you are, or any activities conducted via or through the Service are, in violation of these Terms or Applicable Law, (b) your usage patterns or volumes are materially outside your regular usage patterns, or (c) you are not up to date on all amounts owed to Hoot hereunder.

      If you have reason to believe that any of the restricted activities described in Section 7.2 have occurred, you agree to immediately notify Hoot. You may be liable for the losses incurred by Hoot or others due to any unauthorized use of the Service through your Account.

  8. 8. Ownership; Proprietary Rights​. The Service is owned and operated by Hoot. The visual interfaces, graphics, design, compilation, information, computer code, products, Software, Network, and all other elements of the Service provided by Hoot, but expressly excluding any of the foregoing owned or licensed by and posted to the Service at the direction of end users (including without limitation Subscriber Data), (collectively “​Hoot Materials​”) are protected by intellectual property laws and other Applicable Laws. Except for any technology licensed by Hoot, which is owned by and provided by our third-party licensors, all Hoot Materials contained in the Service, including without limitation the intellectual property rights therein and thereto, are the sole and exclusive property of Hoot or its subsidiaries or affiliated companies. All trademarks, service marks, and trade names are proprietary to Hoot or its affiliates and/or third-party licensors. Except as expressly provided herein, nothing in these Terms shall be deemed to create a license in or under any such Hoot Materials or the intellectual property rights therein or thereto. You agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Hoot Materials.
  9. 9. Payment Terms; Charges and Taxes.
    1. 9.1. You are responsible for paying any applicable fees as set forth on your Order and applicable local, state, provincial, territorial, federal and other taxes, including, but not limited to, sales, goods and services, use, value-added taxes, and harmonized sales tax or provincial sales tax, associated with the Service and your use of the Service, in a timely manner with a valid payment method. To the extent Hoot is obligated to collect such taxes, the applicable tax will be added to your billing account. Unless otherwise stated, all fees are quoted in U.S. Dollars. All payments must be made electronically by acceptable payment methods, which are limited to credit card or automated clearing house (ACH). You agree that we may charge your selected payment method for any such fees owed. You are required to keep your billing information current, complete, and accurate (​e.g.​, a change in billing address, credit card number, account number, routing number, or expiration date) and to notify Hoot if your selected payment method is cancelled (​e.g.​, for loss or theft). All fees and charges are nonrefundable (and there are no credits) except: as expressly set forth herein; and/or (b) as required by Applicable Law.
    2. 9.2. You are responsible for all charges incurred under your Account made by you or anyone who uses your Account. All costs for phone usage, including, without limitation, any domestic or international calls or text messages, made through or via the Service, are your responsibility and you agree to cover all such costs.
    3. 9.3. If your payment method fails or you are past due on amounts owed, we may collect fees owed using other collection mechanisms. Notwithstanding any other provision in these Terms or an applicable Order, your Account may be deactivated without notice to you if payment is past due, regardless of the dollar amount. Authorization to charge your chosen payment method account will remain in effect until you cancel or modify your preferences with Hoot; provided, however, that such notice will not affect charges submitted before Hoot could reasonably act.
    4. 9.4. Hoot reserves the right to change the amount of, or basis for determining, any fees or charges for the Service we provide, and to institute new fees, charges, or terms effective upon prior notice to our customers. You will receive notice of any fee change at least thirty (30) days before the scheduled date of the change. Failure to cancel your account as set forth herein will constitute acceptance of such fee change. Any changes to fees will apply only on a prospective basis. If you do not agree to any such changes to fees, charges, or terms, your sole remedy is to cancel your subscription for the Service. Fees are due in advance and are not refundable in whole or in part; provided, however, you agree that certain charges may be accumulated as incurred and may be submitted as one or more aggregate charges during or at the end of the applicable billing cycle.
    5. 9.5. You acknowledge that your subscription to the Service is subject to automatic renewals. You consent to automatic renewal of the Service every month or such other time period as is agreed upon in your Order, and you accept responsibility for all related recurring charges to your applicable payment method without further authorization from you and without further notice, unless required by law. You acknowledge that the amount of the recurring charge may change if the applicable tax rates change or if there has been a change in the applicable fees.
    6. 9.6. There are no refunds for Service cancellations. For monthly subscriptions, you must cancel your subscription within the Service at least seven (7) business days prior to the first day of the next month to avoid being charged the renewal fee for such month. For all other subscriptions, such as annual subscriptions, you must cancel your subscription with Hoot at least seven (7) business days prior to the first day of the next subscription period to avoid being charged the renewal fee for such subscription period.
  10. 10. Term; Termination.
    1. 10.1. Term​. Unless the applicable Order states otherwise, these Terms are effective upon the date you sign up for the Service, and shall remain in effect on a month-to-month basis (the “​Term​”) until one party notifies the other of its intent to terminate in accordance with Section 10.2 or Section 10.3, below.
    2. 10.2. Termination for Convenience. Except as prohibited by Applicable Law or as otherwise stated in applicable Feature Terms and Conditions, either party may terminate these Terms upon thirty (30) days’ advance written notice.
    3. 10.3. Termination for Cause. Either party may terminate these Terms upon thirty (30) days’ advance written notice if: the other party has breached these Terms (including through non-payment of amounts owed hereunder) and has not cured such breach within such notice period; or (b) the other party becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, initiates or becomes subject to any proceeding under any bankruptcy or insolvency law, or has wound up or liquidated its business.
    4. 10.4. Effects of Termination. Upon termination of these Terms, Subscriber and all of its end users must cease use of the Service. All licenses granted shall immediately terminate and, if applicable, each party shall promptly cease all use of the other party’s logos and promptly cease representing itself as the customer or commercial service provider of the other, respectively. If any fees are outstanding, you shall pay such fees within thirty (30) days of the effective date of termination.
      1. A. Return of Supplied Hardware. ​If and to the extent you have been provided any hardware by or on behalf of Hoot in connection with the Service (“​Supplied Hardware​”), then upon termination or the earlier request by Hoot you must return such Supplied Hardware to Hoot within ten (10) business days of such termination or request in accordance with Hoot’s instructions or you will incur additional charges. Supplied Hardware must be in working condition taking into account normal wear and tear. If not, Subscriber will be billed applicable fees for lost or damaged Supplied Hardware. For all Supplied Hardware, applicable taxes and surcharges may apply. You are responsible for all costs of return shipping. For the avoidance of doubt, Hoot assumes no responsibility or liability surrounding the operation of, or your use of, any Supplied Hardware.
      2. B. Return or Deletion of Subscriber Data. On the expiry or termination of this Agreement for any reason, Hoot may retain Subscriber Data that is necessary for Hoot to continue its proper management and administration, to carry out its legal responsibilities or for other purposes described in the BAA, DPA or Privacy Policy, and Hoot will return to you or destroy the remaining Subscriber Data. Hoot will continue to comply with the terms of this Agreement, the BAA, the DPA, the Privacy Policy or other such agreement that you and Hoot have agreed to in writing, as to any Subscriber Data that Hoot retains for so long as Hoot retains that Subscriber Data, and Hoot will return to you or destroy the retained Subscriber Data when it is no longer needed.
  11. 11. Confidentiality. For purposes of these Terms, “​Confidential Information​” means any non-public information provided by one party to the other party that should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure, including, without limitation, with respect to Hoot, the Hoot Materials. Each party agrees that it shall take reasonable measures to protect against disclosure and unauthorized use of the Confidential Information of the other party; provided, however, that Hoot may disclose your Confidential Information to employees, contractors, advisors and service providers who are required to know such Confidential Information in order to perform the Service. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own confidential information of a similar nature, but in no case less than reasonable care. The receiving party shall promptly notify the disclosing party of any actual or suspected misuse or unauthorized disclosure of any of the Confidential Information. Upon termination of these Terms, each party will either return or, at the disclosing party’s request, destroy the Confidential Information of the other party; provided however, that each party may retain copies of the other’s Confidential Information for routine backup and archival purposes. The obligations set forth in this Section shall not apply to any information to the extent that it required to be disclosed by applicable legal authority provided that, if practicable, adequate notice and assistance is given by the receiving party to the disclosing party for the purpose of enabling the disclosing party to prevent and/or limit the disclosure.
  12. 12. Warranty; Disclaimer.
    1. 12.1. Hoot Warranty​. Hoot represents and warrants that it possesses sufficient rights, approvals, licenses, consents and permissions necessary to perform its obligations hereunder, subject to the grant of rights by you pursuant to the terms hereof, exercise its rights hereunder and to grant the licenses granted by it under these Terms.
    2. 12.2. DISCLAIMER​. ​E​XCEPT ​AS ​EXPRESSLY ​PROVIDED ​IN ​THESE T​ERMS​, ​THE S​ERVICE ​AND ​ANY ​THIRD​-​PARTY ​DATA​, ​SOFTWARE​, INCLUDING ​MOBILE ​SOFTWARE​, ​SUPPLIED ​HARDWARE​, ​Hoot ​MATERIALS​, ​SERVICES​, ​OR ​APPLICATIONS ​MADE ​AVAILABLE ​IN ​CONJUNCTION WITH ​OR ​THROUGH ​THE S​ERVICE ​IS ​PROVIDED “​AS ​IS​”, “​WHERE ​IS​” ​AND “​AS ​AVAILABLE​” ​WITHOUT ​WARRANTIES ​OF ​ANY ​KIND ​EITHER EXPRESS ​OR ​IMPLIED​. T​O ​THE ​FULLEST ​EXTENT ​PERMISSIBLE ​PURSUANT ​TO A​PPLICABLE L​AW​, HOOT​, ​ITS ​SUPPLIERS​, ​LICENSORS​, ​AND PARTNERS ​DISCLAIM ​ALL ​WARRANTIES ​AND ​CONDITIONS​, ​STATUTORY​, ​EXPRESS ​OR ​IMPLIED​, ​INCLUDING​, ​BUT ​NOT ​LIMITED ​TO​, ​IMPLIED WARRANTIES ​OR ​CONDITIONS ​OF ​MERCHANTABILITY​, ​FITNESS ​FOR ​A ​PARTICULAR ​PURPOSE​, ​AND ​NON​-​INFRINGEMENT ​OF ​PROPRIETARY RIGHTS​. ​HOOT​, ​ITS ​SUPPLIERS​, ​LICENSORS​, ​AND ​PARTNERS ​DO ​NOT ​WARRANT ​THAT ​THE ​FUNCTIONS ​CONTAINED ​IN ​THE S​ERVICE WILL ​BE ​UNINTERRUPTED ​OR ​ERROR​-​FREE​, ​THAT ​THE S​ERVICE ​WILL ​MEET ​YOUR ​REQUIREMENTS​, ​THAT ​DEFECTS ​WILL ​BE CORRECTED​, ​OR ​THAT ​THE S​ERVICE ​OR ​THE ​SERVER ​THAT ​MAKES ​IT ​AVAILABLE ​ARE ​FREE ​OF ​VIRUSES ​OR ​OTHER ​HARMFUL COMPONENTS​. HOOT​, ​ITS ​SUPPLIERS​, ​LICENSORS​, ​AND ​PARTNERS ​DO ​NOT ​WARRANT ​OR ​MAKE ​ANY ​REPRESENTATIONS REGARDING ​THE ​USE ​OR ​THE ​RESULTS ​OF ​THE ​USE ​OF ​THE S​ERVICE ​IN ​TERMS ​OF ​CORRECTNESS​, ​ACCURACY​, ​RELIABILITY​, ​OR OTHERWISE​. Y​OU ​UNDERSTAND ​AND ​AGREE ​THAT ​YOU ​DOWNLOAD ​OR ​OTHERWISE ​OBTAIN ​THIRD ​PARTY ​OR S​UBSCRIBER D​ATA​, W​EAVE ​MATERIAL​, ​OR ​DATA ​THROUGH ​THE ​USE ​OF ​THE S​ERVICE ​AT ​YOUR ​OWN ​DISCRETION ​AND ​RISK ​AND ​THAT ​YOU ​WILL ​BE SOLELY ​RESPONSIBLE ​FOR ​ANY ​DAMAGE ​TO ​YOUR ​COMPUTER ​SYSTEM ​OR ​LOSS ​OF ​DATA ​THAT ​RESULTS ​FROM ​THE ​DOWNLOAD ​OF SUCH ​THIRD ​PARTY ​OR ​END ​USER​-​PROVIDED ​INFORMATION​, ​MATERIAL​, ​OR ​DATA​. W​EAVE ​WILL ​NOT ​BE ​RESPONSIBLE ​OR ​LIABLE FOR ​THE ​DELETION​, ​CORRECTION​, ​DESTRUCTION​, ​DAMAGE​, ​LOSS​, ​OR ​FAILURE ​TO ​STORE ​OR ​MAINTAIN ​ANY ​THIRD​-​PARTY ​OR S​UBSCRIBER​ D​ATA​.
  13. 13. Limitation of Liability.
    1. 13.1.HOOT ​AND ​ITS ​AFFILIATES​, ​CONTRACTORS​, ​EMPLOYEES​, ​AGENTS​, ​THIRD​-​PARTY ​PROVIDERS​, ​LICENSORS​, ​AND ​SUPPLIERS WILL ​NOT ​BE ​LIABLE ​FOR ​ANY ​SPECIAL​, ​INDIRECT​, ​INCIDENTAL​, ​CONSEQUENTIAL​, ​PUNITIVE​, ​RELIANCE​, ​AGGRAVATED ​OR ​EXEMPLARY ​DAMAGES (​INCLUDING ​WITHOUT ​LIMITATION ​LOSSES ​OR ​LIABILITY ​RESULTING ​FROM ​LOSS ​OF ​DATA​, ​LOSS ​OF ​REVENUE​, ​ANTICIPATED ​PROFITS​, THIRD​-​PARTY ​CLAIMS​, ​FAILURE ​TO ​REALIZE ​EXPECTED ​SAVINGS​, ​OR ​LOSS ​OF ​BUSINESS ​OPPORTUNITY​) ​THAT ​RESULT ​FROM ​YOUR ​USE ​OR ​YOUR INABILITY ​TO ​USE ​THE ​INFORMATION ​OR W​EAVE M​ATERIALS ​OR ​THE S​ERVICE​, ​OR ​ANY ​OTHER ​INTERACTIONS ​WITH HOOT​, ​EVEN ​IF W​EAVE OR ​A HOOT ​AUTHORIZED ​REPRESENTATIVE ​HAS ​BEEN ​ADVISED ​OF ​THE ​POSSIBILITY ​OF ​SUCH ​DAMAGES​. A​PPLICABLE L​AW ​MAY ​NOT ​ALLOW THE ​LIMITATION ​OR ​EXCLUSION ​OF ​LIABILITY ​FOR ​INCIDENTAL ​OR ​CONSEQUENTIAL ​DAMAGES​, ​SO ​THE ​ABOVE ​LIMITATION ​OR ​EXCLUSION ​MAY NOT​ ​APPLY​ ​TO​ ​YOU​. I​N​ ​SUCH​ ​CASES​, HOOT​’S​ ​ ​LIABILITY​ ​WILL​ ​BE​ ​LIMITED​ ​TO​ ​THE​ ​FULLEST​ ​EXTENT​ ​PERMITTED​ ​BY​ A​PPLICABLE​ L​AW​.
    2. 13.2.T​HE ​TOTAL ​AGGREGATE ​LIABILITY ​OF HOOT ​AND ​ALL ​OF ​ITS ​AFFILIATES​, ​CONTRACTORS​, ​EMPLOYEES​, ​AGENTS​, ​THIRD​-​PARTY PROVIDERS​, ​LICENSORS ​AND ​SUPPLIERS ​TO ​YOU ​FOR ​ALL ​CLAIMS​, ​DAMAGES​, ​LOSSES​, ​CAUSES ​OF ​ACTION​, ​COSTS ​AND ​EXPENSES ​OF ​EVERY NATURE ​AND ​KIND​, ​INCLUDING ​LEGAL ​FEES ​AND ​EXPENSES​, ​ARISING ​OUT ​OF ​OR ​RELATING ​TO ​THESE T​ERMS ​OR ​THE S​ERVICE​, (​WHETHER ​IN CONTRACT​, ​TORT ​INCLUDING ​NEGLIGENCE​, ​WARRANTY​, ​OR ​OTHERWISE​) ​SHALL ​NOT ​EXCEED ​THE ​AMOUNT ​PAID ​BY ​YOU​, ​IF ​ANY​, ​FOR ACCESSING ​THE S​ERVICE ​DURING ​THE ​TWELVE (12) ​MONTHS ​IMMEDIATELY ​PRECEDING ​THE ​DAY ​THE ​FIRST ​ACT ​OR ​OMISSION ​OCCURRED THAT​ ​GAVE​ ​RISE​ ​TO​ ​YOUR​ ​CLAIM​ ​OR​ $10,000, ​WHICHEVER​ ​IS​ ​GREATER​.
    3. 13.3.Y​OU ​ACKNOWLEDGE ​AND ​AGREE ​THAT HOOT ​HAS ​OFFERED ​ITS ​PRODUCTS ​AND ​SERVICES​, ​SET ​ITS ​PRICES​, ​AND ​ENTERED INTO ​THESE T​ERMS ​IN ​RELIANCE ​UPON ​THE ​DISCLAIMERS ​OF ​WARRANTY ​AND ​THE ​LIMITATIONS ​OF ​LIABILITY ​SET ​FORTH ​HEREIN​, ​THAT ​THE DISCLAIMERS ​OF ​WARRANTY ​AND ​THE ​LIMITATIONS ​OF ​LIABILITY ​SET ​FORTH ​HEREIN ​REFLECT ​A ​REASONABLE ​AND ​FAIR ​ALLOCATION ​OF ​RISK BETWEEN ​THE ​PARTIES (​INCLUDING ​THE ​RISK ​THAT ​A ​CONTRACT ​REMEDY ​MAY ​FAIL ​OF ​ITS ​ESSENTIAL ​PURPOSE ​AND ​CAUSE ​CONSEQUENTIAL LOSS​), ​AND ​THAT ​THE ​DISCLAIMERS ​OF ​WARRANTY ​AND ​THE ​LIMITATIONS ​OF ​LIABILITY ​SET ​FORTH ​HEREIN ​FORM ​AN ​ESSENTIAL ​BASIS ​OF ​THE BARGAIN​ ​BETWEEN​ ​YOU​ ​AND​ HOOT.
  14. 14. Indemnification. ​You agree to defend, indemnify and hold harmless Hoot and its subsidiaries, agents, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from or related to: a) any alleged or actual breach of any representation, warranty or covenant made by you under these Terms; b) violations of any Applicable Law, rule or regulation by you; c) any claim for damages that arise as a result of any of your Subscriber Data or any other data that are submitted via your account. You shall not, without the prior written consent of Hoot, compromise or consent to the entry of any judgment with respect to any pending or threatened claim unless the settlement, compromise or consent provides for and includes an express, unconditional release of such claim against Hoot.
  15. 15. Governing Law; Arbitration; and Class Action/Jury Trial Waiver.
    1. 15.1. Governing Law. These Terms shall be governed by the internal substantive laws of the State of Utah, without respect to its conflict of laws principles. You agree to submit to the exclusive jurisdiction of the federal and state courts located in Salt Lake County, Utah for any actions arising in connection with these Terms and you irrevocably waive objection to the venue of any proceeding in such court or that such court constitutes an inappropriate forum. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
    2. 15.2. Arbitration. R​EAD ​THIS ​SECTION ​CAREFULLY ​BECAUSE ​IT ​REQUIRES ​THE ​PARTIES ​TO ​ARBITRATE ​THEIR ​DISPUTES ​AND LIMITS ​THE ​MANNER ​IN ​WHICH ​YOU ​CAN ​SEEK ​RELIEF ​FROM W​EAVE​. Notwithstanding Section 15.1 with respect to the substantive law, any arbitration conducted pursuant to the provisions of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). For any dispute with Hoot, you agree to first contact us at privacy@getHoot. com and attempt to resolve the dispute with us informally. In the unlikely event that Hoot has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms or the Service, or the breach or alleged breach of these Terms (collectively, “​Claims​”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at ​www.jams adr.com​. The arbitration will be conducted in Salt Lake County, Utah, unless you and Hoot agree otherwise. Each party will be responsible for paying its JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Hoot from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property or other proprietary rights. You agree that Salt Lake County, Utah is the proper forum for any appeals of an arbitration award or for trial court proceedings if this arbitration provision is found to be unenforceable.
    3. 15.3. Class Action/Jury Trial Waiver. W​ITH ​RESPECT ​TO ​ALL ​PERSONS ​AND ​ENTITIES​, ​REGARDLESS ​OF ​WHETHER THEY ​HAVE ​OBTAINED ​OR ​USED ​THE S​ERVICE ​FOR ​PERSONAL​, ​COMMERCIAL ​OR ​OTHER ​PURPOSES​, ​ALL ​CLAIMS ​MUST ​BE ​BROUGHT IN ​THE ​PARTIES​’ ​INDIVIDUAL ​CAPACITY​, ​AND ​NOT ​AS ​A ​PLAINTIFF ​OR ​CLASS ​MEMBER ​IN ​ANY ​PURPORTED ​CLASS ​ACTION​, COLLECTIVE ​ACTION​, ​PRIVATE ​ATTORNEY ​GENERAL ​ACTION ​OR ​OTHER ​REPRESENTATIVE ​PROCEEDING​. T​HIS ​WAIVER ​APPLIES ​TO CLASS ​ARBITRATION​, ​AND​, ​UNLESS ​WE ​AGREE ​OTHERWISE​, ​THE ​ARBITRATOR ​MAY ​NOT ​CONSOLIDATE ​MORE ​THAN ​ONE ​PERSON​’​S CLAIMS​. Y​OU ​AGREE ​THAT​, ​BY ​ENTERING ​INTO ​THESE T​ERMS​, ​YOU ​AND W​EAVE ​ARE ​EACH ​WAIVING ​THE ​RIGHT ​TO ​A ​TRIAL ​BY JURY ​OR ​TO ​PARTICIPATE ​IN ​A ​CLASS ​ACTION​, ​COLLECTIVE ​ACTION​, ​PRIVATE ​ATTORNEY ​GENERAL ​ACTION​, ​OR ​OTHER REPRESENTATIVE​ ​PROCEEDING​ ​OF​ ​ANY​ ​KIND​.
  16. 16. Miscellaneous.
    1. 16.1. Remote Access. ​In certain instances, Hoot Support may best be able to assist you by using a remote access support tool through which we have full access to your computer. If you do not want us to have this access, you should not consent to support through the remote access tool, and we will assist you through other means. Hoot disclaims any liability or responsibility for any damage or loss resulting from use of the remote access tool. In the event of any conflict between these Terms and information provided by Hoot Support or other portions of our Website, these Terms will control.
    2. 16.2. Pre-release Features. ​If the Feature is a pre-commercial release or beta version (“​Pre-release Feature​”), then this section applies. The Pre-release Feature is a pre-release version, does not represent a final product from Hoot, and may contain bugs, errors, and other problems that could cause system or other failures and data loss and may only be used for testing purposes. Hoot may decide to never commercially release the Pre-release Feature. Hoot may alter features, licensing terms, or other characteristics of any version of the Pre-release Feature that it releases. If you received the Pre-release Feature pursuant to a separate written agreement (“​Test Agreement​”) for Pre-release Feature, your use of the Service is also governed by the Test Agreement. If there is a conflict between these Terms and the Test Agreement, the Test Agreement controls. You may not disclose, publish or disseminate any information regarding the Pre-release Feature to anyone, including but not limited to any new features or faults to any Internet forums. YOUR USE OF PRE-RELEASE FEATURE IS AT YOUR OWN RISK. THE SECTIONS RELATED TO WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS ALSO APPLY TO THE PRE-RELEASE FEATURE.
    3. 16.3. Notices. ​We will send you information relating to your Account (e.g. payment authorizations, invoices, confirmation messages) and any notices under these Terms in electronic form, for example via emails to your email address provided during registration, or certified mail (return receipt requested, postage pre-paid) or nationally recognized overnight delivery service (all delivery charges pre-paid) and addressed to the contact identified in your most recent Order. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. Additionally, you agree that any notices, agreements, disclosures or other communications that we send to you will be provided in the English language only. You will send any notices under these Terms in writing to Hoot by e-mail to ​privacy@getHoot.com.
    4. 16.4. Location of the Service. ​The Service is controlled and operated from our facilities in the United States. If you are a Hoot customer in Canada, the Service is being provided by our Canadian operations through an agreement with our operations in the United States. Hoot makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with local law, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States or Canada, or are a foreign person or entity blocked or denied by the United States or Canadian government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States and Canada. You also acknowledge that Subscriber Data may be accessed, stored or processed in the United States, and that it may be accessible to law enforcement and national security authorities of the United States.
    5. 16.5. U.S. Government End Users. If the Subscriber is the U.S. Government (or use of the Service will be used on behalf of the U.S. Government), the terms in this section apply. For the purposes of this Section 16.5, the term “U.S. Government” shall mean a United States federal executive agency organized under Article III of the United States Constitution, including, without limitation, any sub-agencies, departments, and bureaus thereof. The Service is a “commercial item,” as defined at 48 C.F.R. §2.101, and constitute “commercial computer software” and “commercial computer software documentation,” as such terms are defined in 48 C.F.R. §12.212. Accordingly, if the Subscriber is the U.S. Government, the Service and any related documentation or other materials are provided for use with only those rights which may be granted to all other subscribers pursuant to these Terms, and in accordance with 48 C.F.R. §§ 227.7201 through 227.7204, with respect to the Department of Defense and its contractors, or (b) 48 C.F.R. § 12.211 and 48 C.F.R. § 12.212, with respect to all other U.S. Government agencies and its contractors.
    6. 16.6. Feedback. ​You may provide feedback to Hoot concerning the functionality and performance of the Service including, without limitation, identifying potential errors and improvements (“​Feedback​”). Hoot may use Feedback to improve or enhance its products and services, however, Hoot will not be obligated to implement any suggestions or correct any defects, bugs or errors in the Service identified in the Feedback or otherwise. Subscriber hereby assigns and agrees to assign to Hoot all right, title and interest worldwide in and to the Feedback, and all intellectual property rights therein, without any compensation to Subscriber.
    7. 16.7. Waiver. ​The failure of Hoot to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Hoot.
    8. 16.8. Severability. ​If any provision of these Terms, an Order, or any guideline is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
    9. 16.9. Assignment. ​Your rights and obligations under these Terms, including the licenses granted and the right to receive the Service hereunder, may not be transferred or assigned by you to any other person, including by way of change of control, operation of law (including merger, amalgamation or share exchange), consolidation, sale of assets or otherwise, without the prior written consent of Hoot. If Hoot elects to consent to any such transfer or assignment, Hoot will condition such consent on you and/or the transferee or assignee (including the entity surviving a change of control, a transfer or assignment by operation of law (including merger, amalgamation or share exchange), consolidation, asset sale or other assignment or transfer) providing to Hoot evidence of such transfer or assignment that Hoot may request (which may include any assignments, transfer agreements, bills of sale, purchase agreements, acquisition agreements, merger agreements, shareholder agreements, buy-sell agreements, partnership agreements, limited liability company agreements, operating agreements, stock or other ownership ledgers and/or stock/membership interest/unit certificates (including any cancelled certificates) and (b) the transferee or assignee confirming the terms of the Order. Each transferee or assignee to whom an transfer or assignment is made in accordance with this Section 16.9 will be bound by these Terms. Hoot may assign its rights and/or delegate its obligations hereunder without restriction.
    10. 16.10. Survival. Upon termination of these Terms, any provision which, by its nature or express terms should survive, shall survive such termination or expiration, including, but not limited to, the applicable provisions of Sections 3, 6.1, 8, 9, 10.4 (including 10.4.1 and 10.4.2), 12.2, 13, 14, 15, 16.3, and 16.5 through 16.13.
    11. 16.11. Headings. The heading references herein are for convenience only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
    12. 16.12. Entire Agreement. These Terms, including the Feature Terms and Conditions and any other documents or agreements incorporated by reference, together with any Order, including any online order, agreed upon by you and Hoot, constitutes the entire agreement between you and Hoot relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change made by Hoot as set forth in these Terms.
    13. 16.13. Claims. ​ Y​OU ​AND HOOT ​AGREE ​THAT ​ANY ​CAUSE ​OF ​ACTION ​ARISING ​OUT ​OF ​OR ​RELATED ​TO ​THE S​ERVICE ​MUST COMMENCE​ ​WITHIN​ ​ONE​ (1) ​YEAR​ ​AFTER​ T​ HE​ ​CAUSE​ ​OF​ ​ACTION​ ​ACCRUES​. O​THERWISE​, ​SUCH​ C​AUSE​ ​OF​ ​ACTION​ ​IS​ ​PERMANENTLY​ ​BARRED​.