Holly Services Agreement
Last Revision: 2014-01-05
THIS IS A LEGAL AGREEMENT BETWEEN YOU, A PERSON OR ENTITY WHO PURCHASES A HOLLY SERVICE PLAN ("Paid User") OR WHO REGISTERS TO USE THE FREE VERSION OF THE HOLLY SERVICE ("Free User") OR WHO POSTS CONTRIBUTIONS TO THE SITE WITHOUT PRIOR REGISTRATION ("ANONYMOUS USER") OR (Paid Users and Free Users and Anonymous Users, collectively "Customer(s)") AND HENNING KOCH SOFTWARE ("HollyCorp") REGARDING CUSTOMER’S USE OF HOLLY SERVICE ON THE HOLLY SITE. BY REGISTERING WITH THE SITE, OR BY POSTING CONTRIBUTIIONS TO THE SITE YOU AGREE TO THE TERMS OF THIS AGREEMENT.
- 1.1 Agreement means this Holly Services Agreement together with any rules and restrictions that apply to the Plan Customer selects as set forth on the Plan Selection Page.
- 1.2 Holly Site means the Holly website located at https://hollyapp.com/
- 1.3 Holly Service means HollyCorp’s Holly Service product that HollyCorp makes available to Customers over the Internet by means of the Holly Site.
- 1.4 Customer’s Data means any data, information or material submitted by Customer during its use of the Holly Service.
- 1.5 Plan Selection Page means the plan selection page on the Holly site located at: https://hollyapp.com/plans
- 1.6 Plan means the plan that the Customer selects from the Plan Selection Page.
- 1.7 Subscription Date means the day the Customer signs up for a Paid Plan from the Plan Selection Page.
- 1.8 Subscription Fees means the fees paid by Paid User to HollyCorp in consideration of Paid User’s use of the Holly Service.
- 1.9 Account Overview Page means the account overview page on the Holly site located at: https://hollyapp.com/account
2. SERVICES; CUSTOMER PLANS AND ACCOUNTS; CUSTOMER DATA
- 2.1 Services. HollyCorp shall provide to Customer access to Holly to be hosted and operated on HollyCorp’s computer servers and any applicable additional services in accordance with the terms of the Plan the Customer selects from the Plan Selection Page.
- 2.2 Changing Plans. Paid Users, as Account Owners (as defined below), may upgrade their Plan at any time, upon payment of additional license fees as set forth in HollyCorp’s then-current price list (or as otherwise set forth on the Price and Billing Page).
- 2.3 Customer Accounts. When a Customer signs up for the Holly Service, HollyCorp will automatically create an account ("Account") for the Customer. The Customer employee who registers for the Holly Service shall be deemed the Account owner ("Account Owner"). Customer is responsible for all activity occurring under its Account. Each Account will be associated with one Plan. HollyCorp reserves the right to modify any of its Plans. To collaborate Customers may create one or more trees (each, a "Tree") using the Holly Service. All Trees are associated with a single Account. Each Tree may have one or more Customers (hereinafter, "Collaborators"). Customer shall notify HollyCorp immediately of any unauthorized use of any password, account, copying or access to the Holly Service. Each Customer shall have a unique login (email address and username) ("UserID"), which may not be shared, but may be reassigned to new Customers replacing former Customers.
- 2.4 Customer’s Data. HollyCorp does not own any of the Customer’s Data. Customer is solely responsible for the accuracy, integrity, and legality of Customer’s Data. Notwithstanding anything to the contrary in this Agreement, HollyCorp shall not be responsible or liable for the deletion, corruption, correction, destruction, damage, loss or failure to any of Customer’s Data. Customer shall not knowingly send or store spam, unlawful, infringing, obscene, or libelous material, or viruses, worms, Trojan horses and other harmful code, or data which violates the rights of any individual or entity established in any jurisdiction including, without limitation, medical information, credit card information or social security numbers, driver’s license or personal identification numbers or account numbers on, to or from the Holly Service. Customer represents and warrants that it is in compliance with and will comply with all applicable privacy and data protection laws and regulations with respect to any of Customer’s Data uploaded or submitted to the Holly Service and its use of the Holly Service and performance of its obligations under this Agreement. Customer will indemnify, defend and hold HollyCorp harmless from any claims, losses and causes of action arising out of or related to Customer’s breach of this Section 2.4.
- 2.5 User IDs and Security.No User ID may be shared by more than one Customer. The Customer is entirely responsible for maintaining the confidentiality of its User IDs and account information. The Customer acknowledges and agrees that as between the parties, Customer is solely responsible for Customers’ use of the Holly Services and all acts, omissions and use of User IDs or passwords or in connection with the Holly Services.
3. ACCEPTABLE USE OF THE HOLLY SERVICE
Customers may not use the Holly Service in any way that violates applicable federal, state, or international law, or for any unlawful purpose. Customers may not use the Holly Service to send, receive, or download messages or materials that are inappropriate or violate the intellectual property rights of HollyCorp or others. Customers are entirely responsible for the content of, and any harm resulting from any of their postings or submissions to the Holly Site and Holly Service (collectively, "Contributions"). When you create or make available a Contribution, you represent and warrant that you:
- (a) will not attempt to harm, disrupt, or otherwise engage in activity that diminishes, the Holly Site, computer systems and network, or the Holly Service and will not post Contributions that constitute, contain, install or promote spyware, malware or other computer code, whether on HollyCorp’s or others’ computers or equipment, designated to enable you or others to gather information about or monitor the online or other activities of another party;
- (b) will not attempt to interfere with any other person's use of the Holly Service;
- (c) will not misrepresent your identity or impersonate any person or entity, sell or let others use your profile or password, provide false or misleading identification or address information, or invade the privacy, or violate the personal or proprietary right, of any person or entity;
- (d) will not attempt to gain access to any account, computers or networks related to the Holly Service without authorization;
- (e) will not attempt to obtain any data through any means from the Holly Service, except if we intend to provide or make it available to you;
- (f) will not attempt to charge others to use the Holly Service either directly or indirectly;
- (g) will not use the Holly Service to participate in pyramid schemes or to transmit chain letters, or to create an undue burden on the Holly Site or the networks or services connected to the Holly Site, including, without limitation, hacking into the Holly Site, or using the system to send unsolicited or commercial emails, bulletins, comments or other communications;
- (h) will not use the Holly Service for any unauthorized purpose including collecting usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited e-mail or communications or unsolicited commercial e-mail or other communications or engaging in unauthorized faming of, or linking to, the Holly Site without the express written consent of HollyCorp;
- (i) will not post Contributions that (1) are defamatory, damaging, disruptive, unlawful, inaccurate, pornographic, vulgar, indecent, profane, hateful, racially or ethnically offensive, obscene, lewd, lascivious, filthy, threatening, excessively violent, harassing, or otherwise objectionable or incite, encourage or threaten immediate physical harm against another, including but not limited to Contributions that promote racism, bigotry, sexism, religious intolerance or harm against any group or individual, or (2) contain material that solicits personal information from anyone under 13 or exploits anyone in a sexual or violent manner;
- (j) will not use the Holly Service to send or otherwise make available, any Contribution unless you own or have sufficient rights to such Contribution or have received all necessary consents to post such Contribution;
- (k) will not post Contributions that violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of HollyCorp or any other person;
- (l) have fully complied with any third-party licenses relating to Contributions, agree to pay for all royalties, fees and any other monies owning any person by reason of Contributions that you posted to or through the Holly Site;
- (m) will not use the Holly Service to send or otherwise making available any material that contains viruses, Trojan horses, worms, corrupted files, or any other similar software that may damage the operation of another's computer or property;
- (n) will not use the Holly Service to download any material sent by another user of the Holly Service that you know, or reasonably should know, cannot be legally distributed in such manner;
- (o) will not use the Holly Service to violate any code of conduct or other guidelines which may be applicable to the Holly Service or the Holly Site;
- (p) will not attempt to modify, translate, adapt, edit, copy, decompile, disassemble, or reverse engineer any software used or provided by HollyCorp in connection with the Holly Site, Holly Service; or
- (q) will not post Contributions that contain advertisements or solicit any person to buy or sell any products or services (other than HollyCorp products and services).
4. GRANT OF LICENSE TO HOLLYCORP
As between you and HollyCorp, you exclusively own all rights in and to the Contributions that you submit to the Holly Site. HollyCorp needs a limited license from you so that we can use your Contributions to make the Holly Services and Holly Site available to you. For example, if you submit copyrighted text material the Holly Site, we need a license from you to display, perform and distribute these Contributions in order to make these Contributions available to you on your Trees. And, if you permit third parties (such as your customers or consultants) to view your Trees, we need to have a license to sub-license your Contributions to these third parties so that they can view and use your Trees.
By making a Contribution to the Holly Site, you grant to HollyCorp a limited, perpetual, non-exclusive (meaning you are free to license your Contribution to anyone else in addition to HollyCorp), fully-paid, royalty-free (meaning that HollyCorp is not required to pay you to use your Contribution), sub-licensable (subject to the restrictions below), transferable (solely because we need the right to transfer this license to a successor Holly Site operator) and worldwide (because the Internet and the Holly Site are global in reach) license to use, modify, perform, display, reproduce and distribute the Contribution for the sole purpose of operating the Holly Site and Holly Services. HollyCorp needs the right to "modify" and "reproduce" your Content, because the software and servers hosting the Holly Site modify and reproduce your Content automatically in order to make the Holly Site and Holly Service available.
We will only sublicense your Contribution for the following purposes: (a) to make your Contributions available to any third party (such as a client or a contractor) that you permit to view your Trees on the Holly Site; and (b) to permit a third party hosted services provider to host the Holly Site.
Customer shall not: (a) rent, lease or loan the Holly Service; (b) conduct automated functionality tests or load tests on the Holly Service; (c) attempt to gain access to data that is not Customer’s Data, or use a disproportionate amount of the Holly Service that interrupts or degrades the Holly Service; or (d) use the Holly Service in any manner that violates any applicable law or regulation, including without limitation any third party copyright or other intellectual property or proprietary right.
6. SYSTEM REQUIREMENTS AND SUPPORT
6.1 System Requirements.
HollyCorp provides the Holly Service through different user interfaces: a) The main user interface "Holly Shell" is optimized for laptops and desktop PCs. "Holly Shell" requires a recent web browser version of Firefox, Chrome or Safari.
b) The alternative user interface "Holly Touch" is optimized for smartphones with a touch screen.
"Holly Touch" requires a recent web browser version of Chrome for Android or Safari for iOS.
- 6.2 Support. HollyCorp will provide support services in accordance with the terms of the Plan selected by Customer. HollyCorp will provide its support services via e-mail only. HollyCorp’s obligations, if any, to provide support is subject to the following: (a) Customer is using a supported browser to access the Holly Service as described in 6.1; (b) Customer shall provide HollyCorp with access to its employees to duplicate and resolve errors; (c) Customer shall provide supervision, control and management of the use of the Holly Service; (d) Customer shall document and promptly report all errors or malfunctions in the Holly Services to HollyCorp, and (e) Customer shall take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from HollyCorp.
7. SUBSCRIPTIONS AND PAYMENT
- 7.1 Evaluation Trial. When the Customer subscribes to a paid Plan (hereby creating a "Subscription") for the first time, the Customer's Account is automatically placed on a 30 day free evaluation trial (the "Evaluation Trial"). During the Evaluation Trial the Account shall have access to the full functionality of the selected paid Plan. HollyCorp will not bill the Customer subscription fees for the duration of the Evaluation Trial. If the Customer doesn't cancel the Subscription before the end of the Evaluation Trial, the Subscription will transition to a regular, non-evaluation Subscription with costs as described on the Plan Selection Page. The user is entitled to receive an Evaluation Trial for its first Subscription only. Subsequent Subscriptions will not be placed on an Evaluation Trial. If a User is a company, only one employee or consultant of such User is entitled to receive the Evaluation Trial.
- 7.2 Subscription Fees. The amount of the Subscription Fees, if any, are determined by the Plan selected on the Plan Selection Page. If a Paid User wants to add more Collaborators than are permitted under Paid User’s Plan limits, the Paid User must upgrade to a Plan with higher Collaborator limits. Subscription Fees for the new Plan will be calculated on a pro-rated basis for the remainder of the Term. In the event of cancellation or termination of this Agreement, no refunds will be made. User is responsible for all taxes, other than taxes levied on HollyCorp’s income. Subscription Fees do not include any applicable taxes. If HollyCorp is required to pay any sales, use, goods and services, value added, or other taxes in relation to Paid User’s purchase, those taxes will be billed to and paid by Paid User.
- 7.3 Payment. Paid User shall pay the Subscription Fees to HollyCorp on the date Paid User upgrades to a paid Plan (the "Subscription Date") and on every monthly anniversary thereof during the term of the Agreement. All Subscription Fees will be automatically billed to Paid User’s credit card. Paid User may upgrade from a paid Plan to another paid Plan at any point during the then-current billing cycle, and Paid User will be immediately charged, on a pro-rated basis, for the remainder of the then-current billing cycle. If either party terminates the Agreement before the end of the then-current term, HollyCorp shall not refund any fees to Paid User.
7.4 Receipts. HollyCorp will periodically send the Paid Users receipts for
Subscription Fees that were billed to the Paid User's credit card. Receipts are
sent electronically to an e-mail address chosen by the Customer when he signed up to a Paid Plan.
Paid users can cancel their Subscription from the Account Overview Page.
No refunds will be made for cancelled subscriptions.
Instead cancelled Subscriptions will allow the User to use the full functionality of the selected
Plan until the next monthly anniversary of the Subscription Date, at which point the Account will transition to the free Plan as described on the Plan Selection Page. If the Account exceeds the limits associated with the free Plan, the User will have limited access to his Account until the Account is either (a) brought below the free Plan limits or (b) User purchases a paid Plan for which such Account qualifies.
8. TERMINATION AND SURVIVAL
- 8.1 Termination. Either party may immediately terminate this Agreement as follows: (a) if either party materially breaches its obligations under this Agreement and fails to cure such breach within thirty (30) days after it has been notified in writing of such breach; or (b) if either party has instituted against it any proceedings seeking relief, reorganization or arrangement under any laws relating to insolvency and such proceeding is not resolved within sixty (60) days.
- 8.2 Survival. The provisions of Sections 1, 2.4, 2.5, 3-5, 7.2, 7.3 and 8-17 shall survive the cancellation or termination of this Agreement. All other provisions of this Agreement, which by their terms or import are intended to survive such cancellation or termination, shall survive.
9. NO LICENSE; INTELLECTUAL PROPERTY OWNERSHIP
HollyCorp hereby reserves all right, title and interest in and to the Holly Service and all intellectual property rights related thereto not expressly granted in this Agreement. Customer shall not reverse engineer or otherwise attempt to derive source code from the Holly Services.
- 10.1 Definition. "Confidential Information" shall mean all non-public information, whether in oral, written or other tangible form that either party ("Discloser") discloses to the other party ("Recipient") as being confidential, including without limitation the terms and conditions of this Agreement. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes generally available to the public other than (i) as a result of a disclosure by Recipient or its employees or any other person who directly or indirectly receives such information from Discloser or its employees or (ii) in violation of a confidentiality obligation to Discloser that is known to Recipient, (b) is or becomes available to Recipient on a non confidential basis from a source which is entitled to disclose it to the Recipient, (c) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser, or (d) is disclosed pursuant to an order of a court or other governmental body; provided that Recipient shall provide prompt notice thereof to Discloser so as to afford Discloser an opportunity to intervene and prevent or limit any such disclosure.
- 10.2 Non-Disclosure and Non-Use Obligation. Recipient shall not make use of (except for purposes of this Agreement), or disseminate or in any way disclose Discloser’s Confidential Information. Recipient shall treat Discloser’s Confidential Information with the same degree (but not less than a reasonable degree) of care as it accords its own confidential information. Recipient may disclose Confidential Information only to its employees who need to know such information and certifies that its employees have previously agreed, either as a condition to employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those of this Agreement. Recipient will immediately give notice to Discloser of any unauthorized use or disclosure of Discloser’s Confidential Information and will use all commercially reasonable efforts to assist Discloser in remedying any such unauthorized use or disclosure.
11. DISCLAIMER OF WARRANTY
CUSTOMER AGREES THAT CUSTOMER’S ACCESS TO AND USE OF, OR INABILITY TO ACCESS OR USE, THE HOLLY SERVICE IS AT CUSTOMER’S SOLE RISK. THE HOLLY SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE", AND HOLLYCORP AND ITS CONTRACTORS AND LICENSORS, AS APPLICABLE, MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF PROPRIETARY RIGHTS. CUSTOMER ACKNOWLEDGES THAT THE OPERATION OF THE HOLLY SERVICE MAY NOT BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE OR SOFTWARE. THE HOLLY SERVICE MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND HOLLYCORP SHALL NOT BE RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO CUSTOMER.
12. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, HOLLYCORP AND ITS CONTRACTORS OR LICENSORS, WILL NOT BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY ACCESS TO OR USE OF THE HOLLY SERVICE, EVEN IF SUCH PARTIES WERE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE AGGREGATE LIABILITY FOR ANY AND ALL OF CUSTOMER’S CLAIMS AGAINST HOLLYCORP AND ITS CONTRACTORS AND LICENSORS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE VALUE PAID FOR USE OF THE HOLLY SERVICE DURING THE 12-MONTH PERIOD PRIOR TO THE DATE A CLAIM IS MADE. THE PARTIES AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO SUCH CUSTOMERS.
13. INDEMNIFICATION BY CUSTOMER
Customer will defend or settle, at Customer’s expense, any action brought against HollyCorp based upon the claim that any modifications Customer makes to the Holly Service or any combination of the Holly Service with Holly Service or other items not approved by HollyCorp infringes or violates any third party intellectual property right.
15. GOVERNING LAW
This Agreement shall be governed by and construed under German laws, without regard to that state’s conflict of laws principles. Each party accepts unconditionally the jurisdiction and venue of the state and federal courts located in Augsburg, Germany. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
16. INJUNCTIVE RELIEF
Customer understands and agrees that its breach of this Agreement will cause HollyCorp irreparable damage for which recovery of money damages would be inadequate, and that HollyCorp shall therefore be entitled to obtain timely injunctive relief to protect HollyCorp’s rights under this Agreement in addition to any and all remedies available at law.
This Agreement is the entire agreement between the parties on the subject matter hereof. No amendment or modification hereof will be valid or binding upon the parties unless made in writing and signed by the duly authorized representatives of both parties. The relationship of the parties hereunder is that of independent contractors, and this Agreement will not be construed to imply that either party is the agent, employee, or joint venturer of the other. In the event that any provision of this Agreement is held to be unenforceable, this Agreement will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties. Customer may not assign this Agreement (by operation of law or otherwise) without the prior written consent of HollyCorp and any prohibited assignment will be null and void. This Agreement will be binding upon and will inure to the benefit of the parties permitted successors and/or assignees. Waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.