Effective date: 01/10/2023
1. SERVICES AND SUPPORT
1.1 Subject to these Customer Terms and Conditions and any limitations and restrictions set forth on the applicable Order Form, Hone will use commercially reasonable efforts to provide Customer with access to the services described in the Order Form (“Services”), and Customer may access the Services, during the applicable Service Term (as defined in the Order Form) only for the internal business purposes of Customer, only as provided herein and only in accordance with Hone’s applicable official user documentation. Because we are constantly changing and improving the Services, the Services are subject to modification from time to time at Hone’s sole discretion, for any purpose deemed appropriate by Hone, including adding or removing functionality or features, or suspending or stopping of the Services altogether. All Order Forms must be accepted in writing by Hone.
1.2 Hone will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, Hone reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of these Customer Terms and Conditions, including failure to pay any amounts due to Hone. Subject to the terms hereof, Hone will provide reasonable support by email to Customer for the Services from Monday through Friday during Hone’s normal business hours.
1.3 Customer may authorize its employees and independent contractors to utilize Services on Customer’s behalf, provided Customer shall ensure that each of such employees and independent contractors complies with all obligations imposed on Customer under this Agreement. Any breach of any such obligations by any such employee or independent contractor shall be deemed a breach by Customer of its obligations under this Agreement, and Customer shall be responsible and liable for any breach of any such obligations by any such employee or independent contractor.
1.4 Hone offers bookkeeping as part of its Services to provide a solution for Customer’s financial organization and other needs. Customer acknowledges and agrees that Hone is not an accounting firm; and the bookkeeping services and any communications with Hone relating to such Services are not a substitute for, and do not constitute, legal, tax, financial, real estate, healthcare, or accounting advice. Customer acknowledges and agrees that in performing the Services, Hone may need to use, modify, record, reconcile, view and or otherwise exploit Customer Data in order to provide the bookkeeping services (including, but not limited to: reviewing transactions to reconcile Customer bank accounts, categorizing transactions in Customer books to expense accounts and to balance sheet accounts for amortization purposes, and syncing payroll data via third party service providers such as Gusto).
1.5 Any modifications to Customer Data, including its books, made by Customer or on Customer’s behalf (e.g., by a third party service provider other than Hone) may adversely impact Services previously performed or still in progress by Hone and may cause Hone to have to re-perform such Services in order to correct potential inconsistencies or inaccuracies. To avoid these types of situations that are unfavorable both for Hone and Customer, Customer hereby appoints Hone as its exclusive third-party bookkeeper. If Customer engages another third-party service provider to make changes or chooses to otherwise modify Customer’s books directly while still engaging Hone to provide the Services, Hone reserves the right to terminate the applicable Order Form or part of the Order Form at any time upon written notice without a refund of the Services.
1.6 As part of the Services, you may receive communications through the Services, including messages that Hone sends you (for example, via email or SMS). When signing up for the Services, you will receive a welcome message and instructions on how to stop receiving messages. By signing up for the Services and providing us with your wireless number, you confirm that you want Hone to send you information that we think may be of interest to you, which may include Hone using automated dialing technology to text you at the wireless number you provided, and you agree to receive communications from Hone, and you represent and warrant that each person you register for the Services or for whom you provide a wireless phone number has consented to receive communications from Hone. You agree to indemnify and hold Hone harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing.
To the extent you voluntarily opt to have SMS notifications sent directly to your wireless phone number, the following terms apply:
(a) Your mobile provider’s standard messaging rates apply to our confirmation SMS and all subsequent SMS correspondence. You may choose to receive our mobile alerts by signing up. Message and data rates may apply, according to your individual rate plan provided by your wireless carrier. Please consult your mobile service carrier’s pricing plan to determine the charges for browsing data and sending and receiving text messages. Under no circumstances will we be responsible for any text messaging or wireless charges incurred by you or by a person that has access to your wireless device or telephone number. If your carrier does not permit text alerts, you may not receive our text alerts. Pre-paid phones or calling plans may not be supported. You may receive a bounce back message for every message you send to us.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, and will not permit any third party to, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or obtain the source code, object code or underlying structure, ideas or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) modify, translate, or create derivative works based on the Services or Software; (iii) use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own internal use for its own internal benefit; (iv) use the Software or Services in any infringing, defamatory, harmful, fraudulent, illegal, deceptive, threatening, harassing, or obscene way; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) interfere or attempt to interfere with the proper working of the Services or Software or any activities conducted on the Services; (vii) bypass any measures Hone may use to prevent or restrict access to the Services or Software (or other accounts, computer systems or networks connected to the Services); (viii) use the Services or Software to build an application or product that is competitive with any Hone product or service; (ix) re-sell, encumber, sublicense, transfer or distribute the Software or Services; (x) copy, create derivative works of or otherwise modify the Software or Services; (xi) permit any third party to do any of the foregoing; or (xii) use the Services or Software other than in accordance with these Customer Terms and Conditions and other than in compliance with all applicable laws and regulations (including but not limited to those related to privacy, intellectual property, consumer and child protection, SPAM, text messaging, obscenity or defamation).
2.2 Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to Hone.
2.3 Customer acknowledges that the Services will be performed in cooperation with Customer and its personnel. Accordingly, Customer agrees to provide to Hone (a) descriptions, specifications, materials, data and other information, including without limitation, Customer Data (as defined below) (b) cooperation, technical assistance, resources and support, and (c) access to Customer’s equipment, systems and networks, as reasonably necessary or appropriate to perform the Services. Customer agrees that in performing the Services, Hone (i) will use and rely primarily on the Customer Data and (ii) does not assume any responsibility for the accuracy or completeness of any Customer Data, and will not undertake to verify its accuracy or completeness.
2.4 If Customer fails to fulfill any of its responsibilities in a timely manner under Section 2.3 for any
reason (including without limitation, changes, errors or omissions in Customer Data), which delays provision of the Services, or results in additional costs, then Hone may act as it deems prudent to mitigate such effects. In such event, Customer agrees (a) to pay Hone its reasonable additional costs and (b) that any delivery dates, milestones or other time limits specified for Hone’s performance shall be appropriately extended.
2.5 Services may include functionality to transfer data (both automatically and upon request) from certain other websites and services, like Customer’s bank account, to Hone. If Customer chooses to provide login credentials (for example, account name or number, password, answers to security questions) (collectively, the “Login Credentials”) to Hone, Customer agrees to give Hone permission, and a limited power of attorney, and hereby gives Hone permission and a limited power of attorney, to use the Login Credentials solely for the purposes of providing the Services to Customer. Customer represents and warrants that Customer has the authorization to provide the Customer Data and Login Credentials to Hone and to permit and enable Hone to access and use all such Customer Data and Login Credentials as provided in these Customer Terms and Conditions and the Order Form. Customer will defend, indemnify and hold Hone harmless from all damages, losses and liabilities arising out of its breach of the foregoing.
2.6 Customer hereby agrees to indemnify and hold harmless Hone against any and all third party claims, damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from (i) an alleged violation of these Customer Terms and Conditions or from Customer’s use of Services and (ii) Hone’s use of the Customer Data and Login Credentials in accordance with these Customer Terms and Conditions and the Order Form. Although Hone has no obligation to monitor the content provided by Customer or Customer’s use of the Services, but Hone may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of these Customer Terms and Conditions.
2.7 Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent. If Customer becomes aware of any unauthorized login, Customer agrees to notify Hone immediately at [email protected].
2.9 Customer acknowledges and agrees that the Services operates on or with or using application programming interfaces (“APIs”) and/or other services operated or provided by third parties (“Third Party Services”). Hone is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and complying with any applicable terms or conditions thereof. Hone does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose to it information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). For clarity, Software is Hone’s Proprietary Information.
3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information except as otherwise permitted in these Customer Terms and Conditions, (ii) to give access to such Proprietary Information solely to those employees and independent contractors with a need to have access thereto for purposes of this Agreement, (iii) not to use any Proprietary Information except as otherwise permitted in these Customer Terms and Conditions and (iv) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the Receiving Party takes with its own proprietary information, but in no event will a Receiving Party apply less than reasonable precautions to protect such Proprietary Information.
The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party in violation of this Agreement, or (b) was rightfully in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it by a third party without restriction, or (d) was independently developed by it without use of, access to or reliance on any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party promptly notifies the Disclosing Party
of any such requirement and reasonably cooperates with the Disclosing Party in its efforts to contest such order or to obtain confidential treatment for its Proprietary Information. The Receiving Party shall be responsible and liable for any breach of its confidentiality obligations in this Section 3 by its respective employees and independent contractors.
3.3 Both parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both parties prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order), or is made on a confidential basis as reasonably necessary to potential investors or acquirors.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Except as expressly set forth herein, Hone alone (and its licensors, where applicable) will retain all rights, title, interest, copyright and other worldwide intellectual property and trade secret rights in and relating to the Services or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Services and/or the Software, which are hereby assigned to Hone. Customer will not copy, distribute, reproduce, re-sell or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Customer any rights of ownership or license in or related to the Services or Software, or any intellectual property rights, except solely for the use expressly permitted herein.
4.2 Hone may display registered and unregistered trademarks on the Services (the “Hone Trademarks”). Nothing in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Hone Trademark displayed in the Services. The use of any of the Hone Trademarks is prohibited without Hone’s prior written consent. All goodwill generated from the use of any Hone Trademark will inure to Hone’s benefit.
4.3 Customer hereby grants to Hone and its contractors a worldwide, non-exclusive, royalty-free license to use, copy, store, archive, access, process, create derivative works of, reproduce, perform, display, modify, distribute and transmit (“Use”) Customer Data as necessary to provide and improve the Services. “Customer Data” means all data, information and other materials (i) submitted or made available by Customer to the Services or to Hone or any of its employees or independent contractors or (ii) transmitted by Customer to Hone and/or collected by or on behalf of Customer by Hone. Customer represents and warrants that it has all necessary rights, authorizations and consents necessary to grant the foregoing rights and licenses and to permit the Use of the Customer Data by Hone and its contractors as set forth herein. Except as expressly permitted herein, Customer and its licensors shall have and retain all right, title and interest (including, without limitation, sole ownership of) all Customer Data.
4.4 Notwithstanding anything to the contrary in this Agreement, Customer hereby grants Hone a worldwide, perpetual, irrevocable, non-exclusive right and license (i) to create and Use de- identified and/or anonymized Customer Data sets (“De-ldentified Data”), (ii) to create deidentified compilations and analyses of Customer Data that is combined with data from other customers (“Aggregated Data”), (iii) to create reports, evaluations, benchmarking tests, studies, analyses and other work product from De-ldentified Data and Aggregated Data (“Analyses”) and (iv) to create, develop and enhance algorithms, machine learning and other generally available tools in connection with the Services, De-ldentified Data, Aggregated Data and Analyses. Hone will not (nor will it authorize any third party to) (i) distribute De-ldentified Data, Aggregated Data and/or Analyses in a manner that is identifiable as Customer Data, including by disclosing any Customer Data to any third party in any way that identifies (or can reasonably be used to identify) Customer, or associate Customer with any Customer end users, employees or contractors or any details regarding its or their use of the Services; or (ii) provide or sell the Customer Data to a third party for such third party to use for its own benefit.
4.5 If Hone receives any notice or claim that any Customer Data, or activities hereunder with respect to any Customer Data, may infringe or violate rights of a third party (a “Claim”), Hone may (but is not required to) suspend activity hereunder with respect to that Customer Data. Customer will indemnify Hone from all liability, damages, settlements, attorneys’ fees and other costs and expenses in connection with any such Claim, as incurred. If Customer becomes aware of any potential issue in relation to Hone’s use of Customer Data or Login Credentials, Customer shall notify Hone thereof in writing promptly.
5. PAYMENT OF FEES
5.1 Customer will pay Hone the applicable fees as set forth on the Order Form (the “Fees”) for which there is a one-time charge, followed by recurring period charges as agreed in the Order Form. By choosing a recurring payment plan, Customer acknowledges that such Services have an initial and recurring payment feature and Customer accepts responsibility for all recurring charges prior to cancellation. All payments will be made in accordance with the Payment Schedule and the Method of Payment set forth in the Order Form. If not otherwise specified, payments will be due within thirty (30) days of invoice and are non-refundable. HONE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION, UNTIL CUSTOMER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY HONE) THAT CUSTOMER HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE HONE REASONABLY COULD ACT. TO TERMINATE CUSTOMER’S AUTHORIZATION OR CHANGE PAYMENT METHOD, NOTIFY HONE at [email protected].
5.2 Unpaid Fees are subject to a finance charge of 1.5% per month, or the maximum permitted by law, whichever is lower. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on Hone’s net income) unless Customer has provided Hone with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Hone on account thereof.
5.4 Unless Customer opts out of auto-renewal, which can be done via email to [email protected],
any Services as listed in the Order Form will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. If Customer terminates an Order Form, Customer may use the Services until the end of the then-current term, and the Services will not be renewed after the then- current term expires. However, Customer will not be eligible for a prorated refund of any portion of the Fee paid for the then-current subscription period. If Customer does not want to continue to be charged on a recurring monthly basis, then Customer must cancel the applicable Order Form by emailing Hone at [email protected]t to terminate its HONE account before the end of the recurring term. Services cannot be terminated before the end of the period for which Customer has already paid, and except as expressly provided in these terms, HONE will not refund any fees that Customer has already paid.
5.5 Customer’s non-termination or continued use of the Services reaffirms that Hone is authorized to charge Customer’s Method of Payment for the Services. Hone may submit those charges for payment and Customer will be responsible for such charges. This does not waive Hone’s right to seek payment directly from Customer. Customer’s Fees may be payable in advance, in arrears, per usage, or as otherwise described when Customer initially selected to use the Services.
6.1 Subject to earlier termination as provided below, this Agreement is for the Service Term as specified in the Order Form.
6.2 In the event of any material breach of this Agreement (including any failure to pay), the non- breaching party may terminate this Agreement prior to the end of the Service Term by giving thirty (30) days (or ten (10) days in the case of nonpayment) prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such notice period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business.
6.3 Upon expiration or termination of this Agreement or Customer’s account for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except that (i) Customer’s liability to pay for Services performed (and non-cancelable expenses incurred) prior to the termination date shall not be extinguished, and shall become due and payable on the termination or expiration date, (ii) all other obligations that accrued prior to the effective date of termination or expiration and remedies for breach of this Agreement shall survive any termination or expiration and (iii) all sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, indemnities and limitations of liability.
7. WARRANTY DISCLAIMER
Hone and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns make no representations or warranties concerning the Services, including without limitation regarding any content contained in or accessed through the Services, and Hone will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to Customer’s participation in, the Services.
THE SERVICES AND HONE’S PROPRIETARY INFORMATION PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. HONE (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OR DEALING. HONE EXPRESSLY DISCLAIMS ALL GUARANTEES AND WARRANTIES THAT THE SERVICES WILL ACHIEVE ANY RESULT OR OUTCOME.
8. LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL HONE (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANY OTHER MATERIALS, INFORMATION OR SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANY OTHER MATERIALS, INFORMATION OR SERVICES
PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS, LOST BUSINESS OR LOST SALES OR LOSS OF DATA, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF HONE HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF HONE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (i) FIVE HUNDRED DOLLARS ($500), OR (ii) THE FEES PAID TO HONE HEREUNDER IN THE TWELVE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY.
Hone may offer rewards or incentives for referring others to the Services. For details of any current referral offers, please see our referral page at https://hone.rest/referrals/. The referring user (“Referrer”) may refer individuals or entities who are neither current customers of Hone nor registered users of the Services (“Referee”). A registered user is a person or entity that already has a current, existing account with Hone. There is no limit to the number of referrals that Referrer can make, nor the cumulative rewards or incentives that the Referrer may receive through such special offer, unless otherwise indicated. Referrer will receive an amount for each Referee sent by the Referrer that signs up for an account and enters into a customer agreement with Hone as set forth in the referral page. All Referees must be first-time recipients of the offer, and multiple referrals to the same individual or entity will be disregarded. Hone reserves the right to modify or terminate any special offers at any time and to revoke from Referrer and Referee the special offer at Hone’s discretion for any reason or for no reason. If Hone determines that Referrer or Referee is attempting to obtain unfair advantage or otherwise violate the terms or spirit of such special offer, Hone reserves the right to (a) revoke any rewards or incentives issued to either Referrer or Referee and/or (b) charge the Referrer or Referee for any rewards or incentives (1) used by Referrer or Referee prior to such revocation or (2) issued by Hone to any ineligible Referrer or Referee. All special offers are subject to any other terms, conditions and restrictions set forth on the Services or presented in connection with the special offer.
10.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.2 This Agreement is not assignable, transferable or sublicensable by Customer except with Hone’s prior written consent. Hone may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Hone may also subcontract performance of any part of the Services or other services to be performed under this Agreement. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties.
10.3 Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise expressly provided herein. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.
10.4 No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Hone in any respect whatsoever.
10.5 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.
10.6 Hone will not be liable for any loss resulting from a cause over which it does not have direct control. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Each party agrees that, in the event of any breach or threatened breach of Sections 2.1, 3 or 4, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain, temporarily or permanently, such breach or threatened breach, without the necessity of posting any bond or surety. Such remedies shall be in addition to any other remedy that the non-breaching party may have at law or in equity.
10.7 All disputes between the parties arising out of or in relation to or in connection with this Agreement, which the parties are unable to resolve between themselves, shall be settled by binding arbitration in accordance with the JAMS streamlined arbitration rules and procedures then in force, by one neutral arbitrator appointed in accordance with the rules; provided, either party may seek injunctive relief under Section
10.6 in any court of competent jurisdiction. The arbitration shall take place in Boston, Massachusetts, U.S.A. The proceedings shall be in English, all evidence shall be in English and the governing law shall be as set forth herein. The arbitrator’s decision shall be in writing and shall comply with all terms and conditions in this Agreement. The decision and award rendered shall be final and binding on both parties. The parties acknowledge and agree that this Agreement and any award rendered pursuant hereto shall be governed by the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Judgment on the award may be entered in any court of competent jurisdiction.
10.8 CUSTOMER AND HONE WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. The parties are instead choosing to have claims and disputes resolved by arbitration. In any litigation between Customer and Hone over whether to vacate or enforce an arbitration award, CUSTOMER AND HONE WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
10.9 ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither Customer nor Hone is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in Section 10.10.
10.10 If in any circumstances where the foregoing arbitration permits either Customer or Hone to litigate any dispute arising out of or relating to the subject matter of this Agreement in court, then both Customer and Hone agree that any judicial proceeding will be brought in the state or federal courts located in, respectively, Boston, Massachusetts, or the federal district in which that county falls.
10.11 This Agreement will be governed by the laws of the Commonwealth of Massachusetts, U.S.A, without regard to its conflict of laws provisions.
10.12 If either party is unable to perform any of its obligations under this Agreement, other than payment obligations, due to any acts of God, war, terrorist act, government regulation, over mental travel advisories or restrictions, or other government acts, curtailment of transportation facilities, riots, disaster, fire or other casualty, epidemic, pandemic, power interruption or failure, strikes or other labor action, or any other cause outside the reasonable control of the affected party (a “Force Majeure Event”), the affected party’s performance shall be extended for the period of its inability to perform due to such Force Majeure Event and no damages shall be due for such failure of performance due to such Force Majeure Event, provided that the affected party notifies the other party promptly of such Force Majeure Event and uses commercially reasonable efforts to overcome such Force Majeure Event.
10.13 Customer agrees that Hone may disclose (including through display of Customer’s logo) that Customer is one of its customers (including in its publicity and marketing materials).