Effective Date: July 7, 2017

Heymarket Terms of Service

Welcome to Heymarket, provided by Common Sun, Inc. (“Company,” “we,” “our,” or “us”). These Terms of Service govern your use of the Company website and the software and services made available there, as well as any other websites, subdomains, or services owned or controlled by Company (collectively, the “Service”). To access the Service, users must at all times agree to and abide by these Terms. The Service allows you to submit, store, and access certain business data and other information related to you, your customers, or your business (collectively, “User Data”). This Terms of Service for the Service is a legal contract between you, either an individual subscriber, customer, member, or user of at least 18 years of age or a single company, organization, or entity (“you” or, collectively with other users, “Users”) and Company regarding your use of the Service. Company may have different roles with respect to different types of Users, and “you” as used in these Terms will apply to the appropriate type of User under the circumstances. Please read carefully the following terms of service. By registering for and/or accessing, browsing, using or subscribing to the Service, or by clicking “I Agree,” or otherwise affirmatively manifesting your intent to be bound by these Terms of Service, you signify that you have read, understood, and agree to be bound by the following terms, including any additional guidelines and any future modifications (collectively, the “Terms”), and to the collection and use of your User Data as set forth in the Company Privacy Policy heymarket.com/privacy. If you are using or opening an account with Company on behalf of a company, entity, or organization (collectively, the “Subscribing Organization”) then you represent and warrant that you: (i) are an authorized representative of that entity with the authority to bind such entity to these Terms; (ii) have read these Terms; (iii) understand these Terms, and (iv) 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. License Grant.

    Subject to the terms and conditions of these Terms, Company hereby grants to you a limited, personal, non-transferable license to use the Service in the manner contemplated by these Terms solely for your internal business purposes. Users shall have no right to sub-license or resell the Service or any component thereof.

  2. Privacy.

    User privacy is important to us. Please read our Privacy Policy carefully for details relating to the collection, use, and disclosure of your personal information.

  3. Individual Features and Services.

    Certain features of the Service (“Individual Services”) may have their own terms and conditions that you must agree to when you sign up for that particular product, function, or service (each an “Individual Service Agreement”). An Individual Service Agreement supplements these Terms and is hereby incorporated by reference. If any term of these Terms expressly conflicts with any term of an Individual Service Agreement, the conflicting term in the Individual Service Agreement will control. All other terms and conditions of each agreement will remain in full force and effect. Further, you will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time (the “Guidelines”). All such Guidelines are hereby incorporated by reference into the Terms.

  4. Modification of the Terms.

    Company reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms at any time. You agree to review these Terms and any Guidelines 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 Company User Account.

  5. DMCA Notice.

    If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Company’s copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 (“DMCA”). For your complaint to be valid under the DMCA, you must provide the following information in writing:

    1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
    2. Identification of the copyrighted work that you claim has been infringed;
    3. Identification of the material that is claimed to be infringing and where it is located on the Service;
    4. Information reasonably sufficient to permit Company to contact you, such as your address, telephone number, and, e-mail address;
    5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
    6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.

    The above information must be submitted to the following DMCA Agent:

    Name: Legal
    Attn: DMCA Notice
    Company: Common Sun, Inc.
    Address: 2443 Fillmore St #510, San Francisco, CA 94115
    Telephone: (415) 562-0100
    Email: legal@heymarket.com

    Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.

    Please note that this procedure is exclusively for notifying Company that your copyrighted material has been infringed. The preceding requirements are intended to comply with Company’s rights and obligations under the DMCA, including 17 U.S.C. §512©, but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.

  6. Mobile Software

    1. Generally.

      We may make available software to access the Service via a mobile device (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the Mobile Software. Company does not warrant that the Mobile Software will be compatible with your mobile device. You may use mobile data in connection with the Mobile Software and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Company hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one Company account on one mobile device owned or leased solely by you, for your personal use. You may not: (a) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (b) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; © make any copies of the Mobile Software; (d) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (e) delete the copyright and other proprietary rights notices on the Mobile Software.

      You acknowledge that Company may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and Company or its third-party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. Company reserves all rights not expressly granted under these Terms. If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies. The Mobile Software will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms of Service and is prohibited except to the extent expressly permitted by these Terms of Service. The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the Service.

    2. Mobile Software from Apple App Store.

      The following applies to any Mobile Software you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that these Terms is solely between you and Company, not Apple, Inc. (“Apple”), and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Company as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (a) product liability claims; (b) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and © claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Company as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.

    3. Mobile Software from Google Play Store.

      The following applies to any Mobile Software you acquire from the Google Play Store (“Google-Sourced Software”): (a) you acknowledge that the Agreement is between you and Company only, and not with Google, Inc. (“Google”); (b) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; © Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (d) Company, and not Google, is solely responsible for its Google-Sourced Software; (e) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (f) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to Company’s Google-Sourced Software.

  7. Eligibility; Termination.

    The Service is not available to persons under 18 years of age or to any Users previously suspended or removed from the Service by Company. Company may terminate your account, delete any content or information that you have posted on the Service, and/or prohibit you from using or accessing the Services (or any portion, aspect, or feature of the Services) for any reason or no reason, at any time in its sole discretion, with or without notice, including without limitation if it believes that you are under 18.

    You agree that Company, in its sole discretion and for any or no reason, may terminate any account (or any part thereof) you may have with Company. In addition, Company reserves the right to discontinue any aspect of the Service at any time, including the right to discontinue the display of any User Data. You agree that any termination of your access to the Service or any account you may have or portion thereof may be affected without prior notice, and you agree that Company will not be liable to you or any third-party for such termination. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Service may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Company may have at law or in equity.

  8. Account Activity Responsibility

    1. User Accounts.

      In order to use certain aspects of the Service, you will have to register for the Service and create an account (“User Account”). When creating your account for the Service, you agree to provide true, accurate, current, and complete information. You further agree to maintain and update your personal information as needed to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. 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 ID, password, or any credit, debit or charge card number), you agree to immediately notify Company. You may be liable for the losses incurred by Company or others due to any unauthorized use of your User Account.

    2. 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 initially 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 a User of the Service under the organization associated with that Administrator and Subscribing Organization and the level of privileges that such Users will possess. Once initial registration has been completed, each Subscribing Organization will be able to register additional Administrators. Each Administrator may designate other Users as additional and/or successor Administrators, and is responsible for confirming that those person(s) accept such responsibility. Upon becoming an Administrator, each person will be deemed to agree to the obligations hereunder. In addition, 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 User Accounts.

    3. System Access.

      You may choose to allow Company to automatically retrieve data from your system(s) or third-party systems or services on your behalf. You hereby represent and warrant that you have the permission, authority, and rights to allow Company to so automatically access such system(s) and services and you hereby grant Company permission to access such system(s) and services and retrieve User Data therefrom by indicating the same within your User Account. Company disclaims any and all liability associated with accessing and retrieving User Data from such system(s) and services on your or your Subscribing Organization’s behalf. In order to connect the Service with any third-party service, you hereby designate Company as your agent and attorney-in-fact in connection with such service and further authorize is to: (a) store your User Data relating to such service; (b) access such service using User Data you provide us; © use any materials you provide us in order to provide you the Service; (d) gather and export from such service any User Data reasonably necessary for us to provide the Service to you; and (e) otherwise take any action in connection with such service as is reasonably necessary for us to provide the Service to you. You agree that those third-party service 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 the right and authority to allow Company automatic access to such system(s), then you hereby agree to immediately disable such functionality within your User or Administrator Account.

    4. Account Information.

      You acknowledge and agree that Company may access, preserve and disclose your account information and related contents if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; © respond to claims that any User Data violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of Company, its users, or the public.

    5. Phone Service Required.

      An underlying wireless phone service is required to use the Service. You are solely responsible for procuring, maintaining, and paying for the underlying phone service that will connect calls made with the Service to your phone. Using the Service requires using your own voice minutes and data plan. Fees, service charges, per message and per-minute usage and other charges may be assessed by your underlying phone service provider for any calls received through the Service. Common Sun is not responsible for your underlying phone service, for any calls made or messages sent across telecommunications networks which are not owned by Common Sun, or for problems with your underlying phone service including but not limited to no service, poor reception, and dropped calls. When you use Heymarket to send messages, these messages will not be itemized on your wireless telephone invoice. Additionally, as explained in detail below, THE SERVICE CANNOT BE USED FOR 911 OR EMERGENCY CALLING. YOU MUST USE YOUR UNDERLYING PHONE SERVICE FOR 911 OR EMERGENCY CALLING.

    6. 911 Calling Not Available.

      THE SERVICE CANNOT BE USED FOR 911 OR EMERGENCY CALLING. You must make alternative arrangements to place 911 calls using your landline, mobile or cell phone and cannot rely on the Service for 911 calling capability.

      COMMON SUN DOES NOT OFFER 911 OR EMERGENCY CALLING FOR THE SERVICE. DO NOT USE THE SERVICE TO CALL 911 OR OTHER EMERGENCY SERVICES. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE IS NOT A SUBSTITUTE FOR A TRADITIONAL TELEPHONE AND THAT YOU WILL AT ALL TIMES HAVE AVAILABLE A MOBILE OR TRADITIONAL LANDLINE PHONE THAT CAN BE USED TO MAKE OUTBOUND CALLS, INCLUDING CALLING 911 OR ANY OTHER APPLICABLE EMERGENCY SERVICES.

      You agree that Common Sun, its directors, officers, employees, subsidiaries and assigns may not be held liable for any claim, damage, or loss (including, without limitation, any attorneys’ fees) by, or on behalf of, you or any third-party user arising from any attempt to dial 911 or make an emergency call using the Service. You hereby waive all claims and causes of action against Common Sun, its directors, officers, employees, subsidiaries and assigns, arising from or relating to any attempt to dial 911 or make an emergency call using Common Sun Services.

    7. Number Ownership.

      You understand and agree that the Service issues phone numbers for limited time use. As such, you understand and agree that you are not the owner of any toll-free, local telephone number or any other number assigned to you by the Service, and further, you understand and agree that you may not port any such assigned number from the Service to another service provider. Certain telephone numbers may not be available for assignment but get issued to you in error. All assigned numbers are provided “as is” and Common Sun makes no warranty, representation or guarantee that any assigned number will be usable or “clean” when assigned or anytime thereafter, and you understand and agree that Common Sunmay from time to time at its sole discretion change the telephone number assigned to you. Common Sun will not be liable for any damages (including without limitation consequential or special damages) arising out of any such reassignment or change of a telephone number.

    8. Number Availability.

      Common Sun cannot guarantee that any specifically requested telephone numbers or area codes will be available or remain available. You agree not to request a phone number or area code for the purpose of misleading or hiding your identity from people that you communicate with using the telephone number.Common Sun will not be liable for reimbursement for any expenses you incur related to the assignment of a specific telephone number, including but not limited to business cards, stationary, event bookings, press releases or any other post or advertisement under any conditions, or for any other alleged damages, including without limitation consequential or special damages arising from any alleged failure to provide you with a specific telephone number or if your assigned number becomes unavailable or must be reassigned for any reason at any time.

    9. Emergency Broadcast Messaging.

      Broadcast messages are not intended to replace any primary phone service, such as traditional landline or mobile phone, that may be used for or to contact emergency services.

      Alerts sent via SMS may not be delivered if your phone is not in range of a transmission site, or if sufficient network capacity is not available at a particular time; furthermore, within a coverage area, factors beyond the control of the user’s wireless carrier may interfere with message delivery, including equipment, terrain, proximity to building, foliage, and weather.

      By agreeing to the terms of service, you acknowledge that urgent alerts may not be timely received and that your wireless carrier does not guarantee that alerts will be delivered.

    10. Responsibility for Calls and SMS/MMS Messages.

      As between you and Company, you acknowledge and agree that you are the initiator of any call, SMS/MMS message, or other communication that you transmit to others using the Service. You are solely responsible for obtaining any required permissions or consents for initiating any call, SMS/MMS message, or other communication that you transmit using the Service, including without limitation, any that are required under Calling Laws (defined below). Company is not responsible for reviewing the contents of any such communication you transmit using the Service, nor is it responsible for obtaining any necessary consents or permissions from people you communicate with. Since you are the initiator of any call, SMS/MMS message, or other communication that you transmit to others using the Service, Company does not verify whether the people or phone numbers you seek to communicate with are on any federal, state, or other do not call or do not contact list.

  9. Payment Terms; Charges and Taxes

    1. You are responsible for paying any applicable fees as set forth on our Pricing and Payment Terms and applicable taxes associated with the Service in a timely manner with a valid payment method. Unless otherwise stated, all fees are quoted in U.S. Dollars. All payments must be made electronically by the methods specified within the Service. 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, or expiration date) and to notify Company if your selected payment method is cancelled (e.g., for loss or theft). All fees and charges are earned upon receipt by us and are nonrefundable (and there are no credits) except (a) as expressly set forth herein, and/or (b) as required by applicable law.

    2. You are responsible for all charges incurred under your account made by you or anyone who uses your account (including your co-workers, colleagues, team-members, etc.). If your payment method fails or you are past due on amounts owed, we may collect fees owed using other collection mechanisms. Your account may be deactivated without notice to you if payment is past due, regardless of the dollar amount. You are also responsible for paying any governmental taxes imposed on your use of the Service, including, but not limited to, sales, use, or value-added taxes. To the extent Company is obligated to collect such taxes, the applicable tax will be added to your billing account.

    3. Authorization to charge your chosen payment method account will remain in effect until you cancel or modify your preferences within the Service; provided, however, that such notice will not affect charges submitted before Company could reasonably act. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you ordered the applicable service or on the Pricing and Payment Terms. You agree that 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.

    4. Company 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 Users. You will receive notice of any fee change at least five (5) days before the scheduled date of the transaction and 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. Fees paid for any subscription term are paid in advance and are not refundable in whole or in part. If you have a balance due on any Service account, you agree that Company can charge these unpaid fees to any payment method that you have previously provided.

    5. Your Service will be automatically renewed and your credit card account (or other payment method account) will be charged as follows without further authorization from you: (a) every month for monthly subscriptions; (b) upon every one (1) year anniversary for annual subscriptions; © such other periodic rate you have selected from among the options offered on the Service. You acknowledge that your subscription is subject to automatic renewals and you consent to and 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. For annual subscriptions, you will have thirty (30) days after the date that any renewal fee is posted to your account to give notice that you want to cancel your subscription, and the subscription will be cancelled upon receipt of such notification and a credit will be posted to your account equal to the latest renewal fee charged. For monthly accounts or other accounts with a periodic subscription cycle of less than one year, there are no refunds for cancellations for periodic charges. For monthly subscriptions, you must cancel your subscription within the Service at least five business days prior to the first day of the next calendar month to avoid being charged the renewal fee for such month. For all other subscriptions, you must cancel your subscription within the Service at least five (5) business days prior to the first day of the next subscription period to avoid being charged the renewal fee for such subscription period.

  10. Restrictions. When using the Service you agree not to:

    1. Upload or transmit via the Service pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content;

    2. Use the Service for any purpose that is unlawful or is otherwise prohibited by these Terms;

    3. Use the Service in any manner that in our sole discretion could damage, disable, overburden, or impair it;

    4. Attempt to gain unauthorized access to the Service, or any part of them, other User Accounts, computer systems or networks connected to the Service, or any part of them, 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;

    5. Modify 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;

    6. 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;

    7. Impersonate another person or access another User’s User Account without that User’s permission or to violate any contractual or fiduciary relationships;

    8. Share Company-issued passwords with any third party or encourage any other User to do so;

    9. Misrepresent the source, identity, or content of User Data;

    10. Modify, adapt, translate or create derivative works based upon the Service;

    11. Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Service, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;

    12. 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;

    13. Remove, circumvent, disable, damage or otherwise interfere with security-related features of the Service, features that prevent or restrict use or copying of any content accessible through the Service or Service, or features that enforce limitations on use of the Service or Service;

    14. Access the Service if you are a direct competitor of Company, except with Company’s prior written consent, or for any other competitive purposes; or

    15. Collect or harvest any personally identifiable information, including account names, from the Service.

    16. Engage in spamming or other unsolicited advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations including, but not limited to, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, , the Do-Not-Call Implementation Act, the Telemarketing Sales Rule, 47 C.F.R. § 64.1200 et seq, or other state or local laws relating to calling or texting (collectively, “Calling Laws”). .

    17. Send unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited or unwanted phone calls, SMS/MMS messages, voice mail, or faxes.

    18. Make phone calls or send SMS/MMS messages without the prior express consent (or, if required, the prior express written consent) of the person called, as required for people who initiate calls using an automatic telephone dialing system under 47 C.F.R. § 64.1200 et seq.

    19. Make phone calls or send SMS/MMS messages to any person who has revoked, withdrawn consent for you to call them or send them SMS/MMS messages.

    20. Use SMS or MMS in a manner that is not designed to enhance or augment the person-to-person nature of communications.

  11. User Data

    1. Use of User Data.

      By submitting User Data to Company, you hereby grant, and represent and warrant that you have all rights necessary to grant, all rights and licenses to the User Data required for Company and its subcontractors and service providers to provide the Service. Company shall have no right to sublicense or resell User Data, except however, that you agree that Company may collect, analyze, and use data derived from User Data, which may include Personal Data and/or information collected from or about an individual but which does not identify the individual personally, as well as data about you, and other Users’ access and use of the Service, for purposes of operating, analyzing, improving, or marketing the Service and any related services. If Company shares or publicly discloses information (e.g., in marketing materials, or in application development) that is derived from User Data, such data will be aggregated or anonymized to reasonably avoid identification of a specific individual or the User. By way of example and not limitation, Company may: (a) track the number of users on an anonymized aggregate basis as part of Company’s marketing efforts to publicize the total number of Users of the Service; (b) analyze aggregated usage patterns for product development efforts; or © use anonymous data derived from User Data in a form which may not reasonably identify either a particular individual or the User to develop further analytic frameworks and application tools. You further agree that Company will have the right, both during and after the term of these Terms, to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of the anonymized, aggregated data.

    2. Your Responsibilities for User Data.

      In connection with User Data, you hereby represent, warrant, and agree that: (a) you have obtained the User Data lawfully, and that your use of User Data through the Service does not and will not violate any applicable laws or any person or entity’s proprietary or intellectual property rights; (b) the User Data is free of all viruses, Trojan horses, and other elements that could interrupt or harm the systems or software used by Company or its subcontractors to provide the Service; © all User Data has and will be collected by you in accordance with a privacy policy that permits Company to share, collect, use, and disclose such User 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 User Data provided hereunder; (e) Company may exercise the rights in User Data granted hereunder without liability or cost to any third party; and (f) the User Data complies with the terms of these Terms. For purposes of clarity, Company takes no responsibility and assumes no liability for any User Data, and you will be solely responsible for its User Data and the consequences of sharing it hereunder. You may not submit any User Data that includes (1) a social security number, passport number, driver’s license number, or similar identifier; (2) credit or debit card number; (3) employment, financial or health information; or (4) any other information which may be subject to data privacy and security laws, including but not limited to the Gramm-Leach-Bliley Act (GLBA) and the Health Insurance Portability and Accountability Act (HIPAA) without Company’s prior written approval.

      You will use the Service in full compliance with all applicable laws and regulations with regard to Your use of the Services, to include, without limitation, the Telephone Consumer Protection Act, the Canadian Anti-Spam Legislation, the Telemarketing Sales Rule, the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act) of 2003, individual state laws, and all other laws and regulations concerning privacy, telemarketing, Internet marketing and the transmission of electronic communications. You will not use the Service in violation of any service agreement that You have with a third-party telecommunications provider.

    3. Security Incidents.

      In the event that User Data is disclosed to or accessed by an unauthorized party, Company will promptly notify you and use reasonable efforts to cooperate with your investigation of the incident; and if such incident triggers any third party notice requirements under applicable laws, you agree that as the owner of the User Data, you will be responsible for the timing, content, cost and method of any such notice and compliance with such laws.

    4. No Responsibility for Backups.

      Company will not be responsible for any backup, recovery or other steps required to ensure that User Data is recoverable in the case of data loss. You are solely responsible for backing up your User Data on a regular basis, and taking appropriate steps to safeguard and ensure the integrity of your User Data.

    5. Rights to User Data.

      You own all right, title and interest (including all intellectual property rights) in and to your User Data.

  12. Ownership; Proprietary Rights.

    The Service is owned and operated by Company. The visual interfaces, graphics, design, compilation, information, computer code, products, software, services, and all other elements of the Service provided by Company, but expressly excluding any of the foregoing owned or licensed by and posted to the Service at the direction of Users (including without limitation User Data) (“Materials”) are protected by intellectual property and other applicable laws. Except for any technology licensed by Company, which is owned by and provided by our third-party licensors, all Materials contained in the Service, including without limitation the intellectual property rights therein and thereto, are the property of Company or its subsidiaries or affiliated companies. All trademarks, service marks, and trade names are proprietary to Company 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 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 Materials.

    You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Company under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Company does not waive any rights to use similar or related ideas previously known to Company, or developed by its employees, or obtained from sources other than you.

  13. Third-Party Sites, Third-Party Information

    1. The Service may call the servers of other websites or services solely at the direction of and as a convenience to Users (“Third Party Sites”). Company makes no express or implied warranties with regard to the information, or other material, products, or services that are contained on or accessible through Third-Party Sites. Access and use of Third Party Sites, including the information, material, products, and services on such sites or available through such sites, is solely at your own risk.

    2. You acknowledge that Company does not manage or control the User Data that you access, store or distribute through the Service, and accepts no responsibility or liability for that information regardless of whether such User Data is transmitted to or by you in breach of these Terms. Company makes no warranty with respect to such User Data you may access, store or distribute through the Service. In particular, without limiting the generality of the foregoing, Company makes no warranty that such User Data will be free of any virus, worm, trojan horse, easter egg, time bomb, cancelbot, or other destructive or malicious code or programs. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Company with respect to third party and/or User Data that you choose to access, store or distribute, through the Service.

  14. Security and Privacy Settings.

    We have implemented commercially reasonable technical and organizational measures designed to secure your User Data from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your User Data for improper purposes. You understand that internet technologies have the inherent potential for disclosure. You acknowledge that you are under no obligation to provide Personal Data or other sensitive information in order to use the Service and that you provide any such information at your own risk.

  15. Disclaimers; No Warranties

    1. THE SERVICE AND ANY THIRD-PARTY OR USER DATA, SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY, ITS SUPPLIERS, LICENSORS, AND PARTNERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PRIVACY, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.

    2. COMPANY, ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

    3. COMPANY, ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN THIRD PARTY OR USER DATA, MATERIAL, OR DATA THROUGH THE USE OF THE SERVICE 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 USER PROVIDED INFORMATION, MATERIAL, OR DATA. COMPANY WILL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE OR MAINTAIN ANY THIRD-PARTY OR USER DATA.

    4. Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you might have additional rights.

  16. Limitation of Liability

    1. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL COMPANY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOSSES OR LIABILITY RESULTING FROM LOSS OF DATA, LOSS OF REVENUE, ANTICIPATED PROFITS, OR LOSS OF BUSINESS OPPORTUNITY) THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE INFORMATION OR MATERIALS ON THE SERVICE, OR ANY OTHER INTERACTIONS WITH COMPANY, EVEN IF COMPANY OR A COMPANY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW 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. IN SUCH CASES, COMPANY’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

    2. IN NO EVENT WILL COMPANY’S OR ITS AFFILIATES’, CONTRACTORS’, EMPLOYEES’, AGENTS’, OR THIRD-PARTY PARTNERS’, LICENSOR’S, OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION YOUR INTERACTIONS WITH OTHER USERS, (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.

    3. You acknowledge and agree that Company has offered its products and services, set its prices, and entered into these terms 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 Company.

  17. Indemnification.

    You agree to defend, indemnify and hold harmless Company 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 attorney’s fees) arising from: (a) your use of and access to the Service, including any data or work transmitted or received by you; (b) your violation of any term of these Terms, including without limitation, your breach of any of the representations and warranties above; © your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (d) your violation of any law, rule or regulation of the United States or any other country; (e) any claim or damages that arise as a result of any of your User Data or any other data that are submitted via your account; (f) any other party’s access and use of the Service with your unique username, password or other appropriate security code.(g)your violation of applicable law, including without limitation, any of the Calling LawsCompany will have the right to control the defense, settlement, adjustment or compromise of any such claims, actions or proceedings by using counsel selected by Company. Company will use reasonable efforts to notify you of any such claims, actions, or proceedings upon becoming aware of the same.

  18. Location of the Service.

    The Service is controlled and operated from our facilities in the United States. Company 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 are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the U.S. By using the Service, you are consenting to have your personal data transferred to and processed in the United States.

  19. Governing Law; Arbitration; and Class Action/Jury Trial Waiver

    1. Governing Law.

      You agree that: (a) the Service shall be deemed solely based in California; and (b) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Santa Clara County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Santa Clara County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings if the arbitration provision below is found to be unenforceable.

    2. Arbitration.

      Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from Company. For any dispute with Company, you agree to first contact us at legal@heymarket.com and attempt to resolve the dispute with us informally. In the unlikely event that Company 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 breach or alleged breach thereof (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.jamsadr.com. The arbitration will be conducted in Santa Clara County, California, unless you and Company agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert 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 Company 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.

    3. Class Action/Jury Trial Waiver.

      With respect to all persons and entities, regardless of whether they have obtained or used the Service 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. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. You agree that, by entering into these Terms, you and Company 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.

  20. Miscellaneous

    1. Notice and Modifications.

      Company may provide you with notices, including those regarding changes to Company’s terms and conditions, by email, regular mail, or postings on the Service. Notice will be deemed given twenty-four hours after email is sent, unless Company is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Service. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the Service is deemed given five (5) days following the initial posting. Company reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in these Terms. Company is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Company may, in its sole discretion, modify or update these Terms from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the bottom of this page and notify you that material changes have been made to the Agreement. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the Service.

    2. Waiver.

      The failure of Company 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 Company.

    3. Severability.

      If any provision of these Terms, an Individual Service Agreement, 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; except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.

    4. Assignment.

      These Terms, Individual Service Agreements, and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction.

    5. 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, Sections 3 and 8 through 21.

    6. 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.

    7. Entire Agreement.

      This, including the agreements incorporated by reference, constitutes the entire agreement between you and Company relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change made by Company as set forth in these Terms.

    8. Claims.

      You and Company agree that any cause of action arising out of or related to the Service must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.

    9. Disclosures.

      The Service is offered by Common Sun, Inc., located at 2443 Fillmore St #510, San Francisco, CA 94115, and can be reached via email at legal@heymarket.com or telephone at (415) 562-0100. If you are a California resident, (a) you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information; and (b) in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.