HOLLER TERMS OF USE
Last Modified: January 10, 2020
1. Your Acceptance
By
clicking “I agree”, accessing, or using the Platform you agree to be bound by
this Agreement and the Privacy Policy.
We may amend our Terms of Use or the Privacy Policy and may notify you
when we do so. PLEASE BE AWARE THAT
THERE ARE SUBSCRIPTION, ARBITRATION, AND CLASS ACTION PROVISIONS THAT MAY
AFFECT YOUR RIGHTS. If you do not agree
to the Terms of Use or the Privacy Policy please cease using our Platform immediately.
2.
User
Information and Accounts
Users may be required to
register on the Platform before accessing portions of the Platform. Your
information will be collected and disclosed in accordance with our Privacy
Policy. All Users are required to provide truthful and accurate information
when registering for our Platform and must be over the age of 13. We reserve the right to verify all User
credentials and to reject any Users. You are entirely responsible for
maintaining the confidentiality of your password and account and for any and
all activities that occur under your account. You agree to notify Holler
immediately of any unauthorized use of your account or any other breach of
security. Holler will not be liable for any losses you incur as a result of
someone else using your password or account, either with or without your
knowledge.
3.
Assignment
of Pseudonym
Once a user has registered the
Platform shall generate a random username.
Please be aware that although the username generated is random and
anonymous, your generated username is consistent throughout the Platform and
will be shared with other users of the Platform when you interact or submit
User Content (defined below) to the Platform.
4.
Access
and Ownership
After registering, where required, we shall grant
Users access to the Platform as permitted by us and in accordance with this
Agreement. All rights not explicitly granted are reserved for Holler. Where you download software to access our
Platform, we grant you a limited, fully revocable, non-exclusive license to
download one copy of our mobile application to access the Platform onto each of
your electronic device(s). If
you breach this Agreement, your access or license to use our Platform may be
terminated at our discretion.
Additionally, we may revoke your access or license to use our Platform
if we believe that your actions may harm us, our business interests, or any
third party rights. Failure by us to
revoke your access does not act as a waiver of your conduct. User agrees that
the structure, organization, and code of the Platform along with all software
components and related services are proprietary to Holler and/or Holler's
licensors. Holler and/or its licensors retain exclusive ownership of the Platform,
any documentation, information and any and all other intellectual property
rights relating to the Platform.
5.
User
Privacy
We
value your privacy and understand your privacy concerns. Our Privacy
Policy is incorporated into this Agreement, and it governs your submission of
information to our Platform. Please
review our Privacy Policy so that you may understand our privacy practices.
All information we collect is subject to our Privacy Policy, and by using
the Platform you consent to all actions taken by us with respect to your
information in compliance with the Privacy Policy.
6.
Use
of the Platform
When using our Platform, User is
responsible for its use of the Platform. You agree to the following:
·
You
way not copy, distribute, access, or disclose any part of the Platform in any
medium, including without limitation by any automated or non-automated
“scraping”;
·
You
may not attempt to interfere with, compromise the system integrity or security,
or decipher any transmissions to or from the servers running the Platform;
·
You
may not use any robot, spider, crawler, scraper or other automated means or
interface not provided by us to access the Platform or to extract data;
·
You
may not use automated bots or other software to send more messages through our Platform
than humanly possible;
·
You may not use the Platform on a
computer that is used to operate nuclear facilities, life support, or other
mission critical applications where life or property may be at stake;
·
You may not decompile, reverse engineer,
disassemble, modify, rent, sell, lease, loan, distribute, or create derivative
works or improvements to the Platform or any portion of it;
·
You
may not access our Platform in an attempt to build a similar or other
competitive product;
·
You may
not use the Platform in an unlawful manner;
·
You
may not take any action that imposes, or may impose at our sole discretion, an
unreasonable or disproportionately large load on our infrastructure;
·
You
may not collect or harvest any personally identifiable information, including
account names, except where permitted, from the Platform;
·
You
may not impersonate any person or entity or misrepresent your affiliation with
a person or entity;
·
You
may not violate or infringe other people's intellectual property, privacy, or
other contractual rights while using our Platform;
·
You
may not violate any requirements, procedures, policies or regulations of
networks connected to Holler;
·
You may not sell, lease, loan, distribute,
transfer, or sublicense the Platform
or
access to it or derive income from the use or provision of the Platform unless
enabled through the functionality of our Platform;
·
You
may not interfere with or disrupt the Platform;
·
You
may not violate any US state or federal laws or regulations and you solely are
responsible for such violations;
·
You
agree not to use the Platform in any way that is: misleading, unlawful,
defamatory, obscene, invasive, threatening, or harassing.
·
You agree that you will not
hold Holler responsible for your use of our Platform; and
·
You
agree not to cause, or aid in, the disruption, destruction, manipulation,
removal, disabling, or impairment of any portion of our Platform, including the
de-indexing or de-caching of any portion of our Platform from a third party’s
website, such as by requesting its removal from a search engine.
If
you are discovered to be undertaking any of the aforementioned actions your
privileges to use our Platform may at our discretion be terminated or
suspended. Additionally, if we believe
that your actions may harm us or a third party we may suspend or terminate your
use of the Platform. Generally, we will
provide an explanation for any suspension or termination of your use of any of
our Platform, but Holler reserves the right to suspend or terminate any account
at any time without notice or explanation.
7.
User
Content
User’s ability to submit or
transmit any information through the Platform, including but not limited to data, written content, images, videos,
or any other information will be referred to as “User Content” throughout this
Agreement. Please be aware that we are not required to host, display, migrate,
or distribute any of your User Content and we may refuse to accept or transmit
any User Content. You agree that you
are solely responsible for any User Content submitted and you release us from
any liability associated with any User Content submitted. We take no
responsibility for any User Content submitted to the Platform and make no
endorsements related to any User Content whether express or implied. Any User
Content found to be in violation of this Agreement or that we determine to be
harmful to the Platform may be modified, edited, or removed at our discretion.
When submitting any User Content
to our Platform you represent and warrant that you own all rights to the User
Content, you have paid any fees to use or license the User Content, or you
otherwise have the permission and right to use any User Content. Furthermore,
you represent and warrant that all User Content is legal and the User Content
does not interfere with any third party rights or obligations.
When you submit any User
Content to us, you grant Holler, its partners, affiliates, Users,
representatives and assigns a non-exclusive, unlimited, fully-paid,
royalty-free, irrevocable, world-wide, universal, transferable, assignable
license to display, distribute, store, broadcast, transmit, reproduce, modify,
prepare derivative works, or use and reuse all or part of your User Content for
any purpose deemed by us. Additionally, you grant to Holler a worldwide,
perpetual, irrevocable, royalty-free license to use and incorporate into the
Platform any suggestion, enhancement request, recommendation, correction or
other feedback provided by you relating to the operation of our Platform. We reserve the
right to remove, delete, modify, screen, edit, or refuse any User Content for
any reason or no reason, and with or without notice to you. Where any User
Content is submitted we shall store such User Content in a secure and
confidential manner that is compliant with our internal storage policies.
8.
User
Content Guidelines
We reserve the right to
remove, delete, modify, screen, edit, or refuse any User Content for any reason
or no reason, and with or without notice to you. Please be aware that all User
Content may be viewed by third parties, thus we cannot guarantee the confidentiality
of any User Content.
When submitting any User
Content you agree to the following:
·
You agree that User Content submitted is truthful, accurate,
and not misleading;
·
You agree not to submit any User Content that contains any
confidential information;
·
You agree not to submit any
User Content that contains nudity, pornographic, or sexually explicit content;
·
You agree not to submit any User Content that depicts
gratuitous violence, animal or child abuse, or encourages violence against others;
·
You agree not to submit any
User Content that contains hate speech or promotes or condones
violence against individuals or groups based on race or ethnic origin,
religion, disability, gender, age, economic, nationality, veteran status, or
sexual orientation/gender identity;
·
You agree not to submit any
User Content that is considered spam; and
·
You agree not to submit any
User Content that may be considered: bullying, illegal, misleading, unlawful,
defamatory, obscene, invasive, threatening, or harassing.
If you have violated any
of our User Content Guidelines or if we believe that any User Content may harm
the Platform, your access to the Platform may be suspended or terminated. Where you believe any users have abused the
Content Guidelines, please contact us or use the Offensive Content Reporting
Tool located on the Platform.
9.
Monitoring
User Content
Holler shall have the right,
but not the obligation, to monitor all User Content on the Platform at all
times, to determine compliance with this Agreement and any guidelines established
by us. Without limiting the foregoing, Holler shall have the right, but not the
obligation, to remove any User Content at its sole discretion. For example, we may remove User Content if we believe
that any User Content may harm us or our business interests or violate any
United States laws or regulations. We have no obligation to retain or provide
you with copies of any User Content after your termination of this Agreement.
10. User Content Storage Limits
The Platform may offer
reasonable storage of all User Content.
However, all User Content storage is subject to our internal data
storage limits. We have no obligation
to store any excess User Content. If you violate any storage limits, Holler
will notify you and may work with you to bring your usage into conformity with
our data storage policies.
11. Platform Availability
Although we try to provide
continuous availability to you, we do not guarantee that the Platform will
always be available, work, or be accessible at any particular time. Specifically, we do not guarantee any uptime
or specific availability of the Platform.
You agree and acknowledge that the Platform uses remote access and may
not always be either 100% reliable or available. Only Users who are eligible to use our Platform
may do so and we may refuse service or terminate your access at any time. We
cannot guarantee that anything found on our Platform will work to the
functionality desired by you or give you any desired results.
12. Modification of Platform
We reserve the right to alter,
modify, update, or remove the Platform or any portions thereof, at any time at
our discretion. We may conduct such
modifications to our Platform for security reasons, intellectual property,
legal reasons, or various other reasons at our discretion, and we are not
required to explain such modifications or provide you access to previous
versions of our Platform. For example,
we may provide updates to fix security flaws, or to respond to legal
demands. Please note that this is a
non-binding illustration of how we might exercise our rights under this
section, and nothing in this section obligates us to take measures to update
the Platform for security, legal or other purposes.
13. Intellectual Property
The
name “Holler”, the Holler Platform along with the design of the Holler Platform
and any text, writings, images, templates, scripts, graphics, interactive
features and any trademarks or logos contained therein ("Marks"), are
owned by or licensed to Holler, subject to copyright and other intellectual
property rights under US and foreign laws and international conventions. Holler
reserves all rights not expressly granted in and to the Platform. You agree to
not engage in the use, copying, or distribution of anything contained within the
Platform unless we have given express written permission.
14. Idea Submission
We
value your feedback and where applicable you may submit ideas, content,
artwork, suggestions, or other works (“Submissions”) to Holler. Where you
submit any Submission, you agree that: (1) your Submissions and their contents
will automatically become the property of Holler, without any compensation to
you; (2) where such a grant in sub-section (1) is not possible, your Submission
shall be subject to the User Content license grant as stated within this
Agreement ; (3) Holler may use or redistribute the Submissions and their
contents for any purpose and in any way; (4) there is no obligation for Holler to
review the Submission; and (5) there is no obligation to keep any Submissions
confidential. The sole purpose of this policy is to avoid potential
misunderstandings or disputes when Holler’s products might seem similar to
ideas you submitted to Holler.
15. Disclaimer
THE
PLATFORM IS PROVIDED ON AN "AS IS", "AS AVAILABLE" AND
"WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW,
NEITHER HOLLER, NOR ANY OF OUR EMPLOYEES, MANAGERS, OFFICERS, ASSIGNS,
AFFILIATES, OR AGENTS MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF
ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO: (1) THE PLATFORM
OR ANY HOLLER SERVICES; (2) ANY INFORMATION OR CONTENT PROVIDED VIA THE
PLATFORM; OR (3) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO HOLLER,
OR VIA THE PLATFORM. IN ADDITION, WE DISCLAIM ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET
ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS. HOLLER DOES NOT
REPRESENT OR WARRANT THAT THE PLATFORM WILL BE ERROR-FREE OR UNINTERRUPTED;
THAT DEFECTS WILL BE CORRECTED; OR THAT THE PLATFORM OR THE SERVER THAT MAKES
THE PLATFORM AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS. HOLLER DOES NOT
MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS)
ON THE PLATFORM IS ACCURATE, COMPLETE, OR USEFUL. HOLLER DOES NOT WARRANT THAT
YOUR USE OF THE PLATFORM IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND HOLLER SPECIFICALLY
DISCLAIMS ANY SUCH WARRANTIES.
16. Limitation of Liability
IN NO EVENT SHALL Holler, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES,
OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL,
PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT
(INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT HOLLER IS
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF
LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE
JURISDICTION. SOME STATES, Including New Jersey, DO NOT ALLOW THE LIMITATION OR
EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE
LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU OR ANY NEW JERSEY RESIDENTS. YOU
MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
Specifically, in those jurisdictions not allowed, we do not disclaim liability
for: (1) death or personal injury caused by Holler’s negligence or that of any
of its officers, employees or agents; (2) fraudulent misrepresentation; or (3)
any liability which it is not lawful to exclude either now or IN THE
FUTURE. WHERE A TOTAL DISCLAIMER OF
LIABILITY IS DISALLOWED YOU AGREE THAT OUR TOTAL LIABILITY TO YOU SHALL NOT EXCEED
FIVE HUNDRED USD ($500).
17. Indemnity
You
agree to defend, indemnify and hold harmless Holler, its officers, directors, employees,
affiliates, and agents, from and against any and all claims, damages,
obligations, losses, liabilities, costs or debt, and expenses (including but
not limited to attorney's fees) arising from:
This
defense and indemnification obligation will survive this Agreement and your use
of the Holler Platform. You also agree that you have a duty to defend
us against such claims and we may require you to pay for an attorney(s) of our
choice in such cases. You agree that
this indemnity extends to requiring you to pay for our reasonable attorneys’
fees, court costs, and disbursements. In
the event of a claim such as one described in this paragraph, we may elect to
settle with the party/parties making the claim and you shall be liable for the
damages as though we had proceeded with a trial.
18. Copyrights
We take copyright infringement
very seriously. If you believe that any
content owned by you has been infringed upon please send us a message which
contains:
· Your
name.
· The
name of the party whose copyright has been infringed, if different from your
name.
· The
name and description of the work that is being infringed.
· The
location on our Platform of the infringing copy.
· A
statement that you have a good faith belief that use of the copyrighted work
described above is not authorized by the copyright owner (or by a third party
who is legally entitled to do so on behalf of the copyright owner) and is not
otherwise permitted by law.
· A
statement that you swear, under penalty of perjury, that the information contained
in this notification is accurate and that you are the copyright owner or have
an exclusive right in law to bring infringement proceedings with respect to its
use.
You must sign this
notification and send it to our Copyright Agent: Copyright Agent of Holler, copyright@Holler.com
Counter
Notice
In the event that you receive
a notification from Holler stating content posted by you has been subject to a
copyright takedown notice, you may respond by filing a counter-notice pursuant
to the DMCA. Your counter-notice must
contain the following:
· Your
name, address, email and physical or electronic signature.
· The
notification reference number (if applicable).
· Identification
of the material and its location before it was removed.
· A
statement under penalty of perjury that the material was removed by mistake or
misidentification.
· Your
consent to the jurisdiction of a federal court in the district where you live
(if you are in the U.S.), or your consent to the jurisdiction of a federal
court in the district where your Vendor is located (if you are not in the US).
· Your
consent to accept service of process from the party who submitted the takedown
notice.
Please be aware that we may not take any action
regarding your counter-notice unless your notification strictly complies with
the foregoing requirements. Please send this counter-notice in accordance
with the takedown notice instructions above.
19. Trademark Infringement
We respect the rights of
trademark owners and if you believe that your trademark or trade name is being
infringed by a user of our Platform, please send us an email with your contact
information, the location of the infringing content, and the names of the users
infringing on your marks. Please be sure
to provide accurate and detailed information.
All trademark complaints should be sent to trademark@Holler.com. We may take any action that we deem
appropriate in rectifying your complaint.
20. Choice of Law
This Agreement shall be
governed by the laws in force in the state of California. The offer and
acceptance of this contract is deemed to have occurred in the state of California
21. Disputes
Any dispute, relating in any
way, to your access or use of our Platform or this Agreement shall be submitted
to confidential arbitration in Thousand Oaks, CA. Arbitration under this
Agreement shall be conducted pursuant to the applicable Consumer Rules (“Rules”)
then prevailing at the American Arbitration Association. Arbitration shall be
conducted in English by one (1) arbitrator as selected pursuant to the Rules;
the arbitrator's award shall be final and binding and may be entered as a
judgment in any court of competent jurisdiction. Each party shall be responsible for their own
arbitration fees and costs. To the fullest extent permitted by applicable law,
no arbitration under this Agreement shall be joined to an arbitration involving
any other party subject to this Agreement, whether through class action
proceedings or otherwise. Where permitted by the Rules, both parties may make
any and all appearances telephonically or electronically. You agree that
regardless of any statute or law to the contrary, any claim or cause of action
arising out of, related to or connected with the use of the Platform or this
Agreement must be filed within one (1) year after such claim or cause of action
arose or be forever banned. Notwithstanding the foregoing, either party
may seek equitable relief to protect its interests (including but not limited
to injunctive relief) , in a court of appropriate
jurisdiction, and issues of intellectual property ownership or infringement may
be decided only by a court of appropriate jurisdiction and not by arbitration. In
the event that the law does not permit the abovementioned dispute to be
resolved through arbitration or if this arbitration agreement is unenforceable,
you agree that any actions and disputes shall be brought solely in a court of
competent jurisdiction located within Ventura County, CA.
22. Class Action Waiver
You
and Holler agree that any proceedings to resolve or litigate any dispute
whether through a court of law or arbitration shall be solely conducted on an
individual basis and waive all trials by jury. You agree that you will not seek
to have any dispute heard as a class action, representative action, collective
action, or private attorney general action.
23. Severability
In the event that a provision
of this Agreement is found to be unlawful, conflicting with another provision
of the Agreement, or otherwise unenforceable, the Agreement will remain in
force as though it had been entered into without that unenforceable provision
being included in it.
If two or more provisions of
this Agreement or any other agreement you may have with Holler are deemed to
conflict with each other’s operation, Holler shall have the sole right to elect
which provision remains in force.
24. Non-Waiver
We reserve all rights
permitted to us under this Agreement as well as under the provisions of any
applicable law. Our non-enforcement of
any particular provision or provisions of this Agreement or any applicable law
should not be construed as our waiver of the right to enforce that same
provision under the same or different circumstances at any time in the future.
25. Assignment and Survival
You may not assign your rights
and/or obligations under this Agreement to any other party without our prior
written consent. We may assign our
rights and/or obligations under this Agreement to any other party at our
discretion. All portions of this Agreement
that would reasonably be believed to survive termination shall survive and
remain in full force upon termination, including but not limited to the
Limitation of Liabilities, Representation and Warranties, Access, Indemnification,
and Arbitration sections.
26. Termination
We may terminate your access
to the Platform if we determine the following: (1) you have violated any
applicable laws while using our Platform; (2) you have violated any portion of
this Agreement or any of our Platform policies; or (3) where we believe your current
or future actions may legally harm Holler, our business interests or a third
party, at our discretion. In the event
of termination, we will strive to provide you with a timely explanation; however,
we are not required to do so.
27. Entire Agreement
This
Agreement along with the Privacy Policy and any other supporting agreements
provided by Holler constitute the complete and exclusive understanding and
agreement between the parties regarding the subject matter herein and supersede
all prior or contemporaneous agreements or understandings written or oral,
relating to its subject matter. Any waiver, modification or amendment of any
provision of this Agreement will be effective only if in writing and signed by
a duly authorized representative of each party.
Where this Agreement conflicts with our Privacy Policy or any other documentation
listed on our Platform this Agreement shall supersede and control.
28. Amendments
We may amend this Agreement
from time to time. When we amend this
Agreement, we will update this page and indicate the date that it was last
modified or we may email you. You may
refuse to agree to the amendments, but if you do, you must immediately cease
using our Platform.
29. Electronic Communications
The
communications between you and Holler use electronic means, whether you visit
the Platform or send Holler e-mails, or whether Holler posts notices on the Platform
or communications with you via mobile notifications or e-mail. For contractual purposes, you (1) consent to
receive communications from Holler in an electronic form; and (2) agree that
all terms, conditions, agreements, notices, disclosures, and other
communications that Holler provides to you electronically satisfy any legal
requirement that such communications would satisfy if it were to be in
writing. The foregoing does not affect
your statutory rights.
30.
Export Controls
The Platform
and the underlying information and technology may not be downloaded, accessed,
or otherwise exported or re-exported (1) into (or to a national or resident of)
any country to which the U.S. has currently embargoed goods; or (2) to anyone
on the U.S. Treasury Department's list of Specially Designated Nationals or the
U.S. Commerce Department's Table of Deny Orders. By downloading or using the
Platform, you agree to the foregoing and you represent and warrant that you are
not located in, under the control of, or a national or resident of any such
country or on any such list, and that you will otherwise comply with all
applicable export control laws.
31. Platform Issues
Where you have any questions,
issues, or if you are having trouble accessing or using the Platform, please
contact us at contact@holler.fyi
32. California Users
Pursuant to California Civil
Code Section 1789.3, any questions about pricing, complaints, or inquiries
about Holler must be sent to our agent for notice to: contact@holler.fyi
Lastly, California Users are also entitled to the following
specific consumer rights notice: The Complaint Assistance Unit
of the Division of Consumer Services of the California Department of Consumer
Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA
95834, or by telephone at (916) 445-1254 or (800) 952-5210.