HUCKLEBERRY TERMS OF SERVICE
Effective Date: February 27th, 2018
Welcome to Huckleberry, a website that provides information and services to help you find and enroll in, commercial insurance products. Our Website allows businesses to generate price quotes and to purchase commercial insurance products online.
BY ACCESSING OR USING THE WEBSITE YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS, AND THAT YOU AGREE TO COMPLY WITH AND BE LEGALLY BOUND BY THE TERMS.
IF YOU DO NOT AGREE TO THE TERMS, YOU MAY NOT ACCESS OR USE THE WEBSITE OR SERVICES.
If you are accepting or agreeing to the Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to act on behalf of and bind that entity to the Terms.
1. ABOUT THE TERMS
1.1 Key Terms
As used in these Terms of Service:
"Services" means any and all insurance brokerage services, and related services and promotions, provided by Huckleberry, including support services.
"Users" means any and all persons that access or use the Website. References to "access" and/or "use" of the Website (and any variations thereof) include the acts of accessing or browsing the Website and accessing or using the Services.
"Website" refers to any website owned or operated by Huckleberry (including the website currently located at www.huckleberry.com), through which access to the Services is available. References to the "Website" include any and all features, functionality, tools and content available on or through each such website.
"Huckleberry," "we," or "us" refer to Huckleberry Insurance Services LLC and our parent, subsidiaries, affiliates, officers, directors, employees, contractors and agents. To the extent applicable, they also refer to our service providers and licensors, and their respective officers, directors, employees, contractors and agents.
1.2 Website Rules and Supplemental Terms
Certain of the features, functionality, tools, content and promotions available on or through the Website may be subject to additional or supplemental terms and conditions ("Supplemental Terms"). If you choose to access or use those features, functionality, tools or content or participate in those promotions, the applicable Supplemental Terms are also incorporated and deemed part of these Terms of Service.
If there is a conflict between these Terms of Service and the Supplemental Terms, the Supplemental Terms will govern and control with respect to the applicable features, functionality, tools, content and promotions.
- IMPORTANT INFORMATION ABOUT THE FUNCTIONAL LIMITATIONS OF THE WEBSITE AND/OR THE SERVICES;
- YOUR OBLIGATION TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS;
- LIMITATIONS OF OUR LIABILITY TO YOU; AND
- A REQUIREMENT THAT YOU PURSUE CLAIMS OR SEEK RELIEF AGAINST US (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, RATHER THAN AS A PARTICIPANT IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
YOUR ACCESS TO AND USE OF THE WEBSITE AND SERVICES IS CONDITIONED ON YOUR ACCEPTANCE OF AND COMPLIANCE WITH THESE TERMS.
2. ABOUT THE WEBSITE
2.1 Website Content and Services
Huckleberry provides a website where businesses can research and purchase commercial insurance offerings from a licensed insurance company with which we contract. We provide information about insurance options and other products and services that may be available to you from that insurance company based upon information you provide to us. The information provided on our Website does not describe all the terms and conditions applicable to the insurance products and services you may be interested in. Any information on the Site does not in any way alter, supplement, or amend the terms, conditions, limitations or exclusions of the applicable insurance policy and is intended only as a brief summary of such insurance product. Please consult the policy for the exact terms and conditions.
We help to connect you with the insurance company we have contracted with in your State of residence based on information you provide. We also provide enrollment assistance and customer support services. However, Huckleberry is not an insurance company. We do not make any coverage decisions on behalf of any insurance company. We do not issue insurance coverage or any other insurance products or services, or otherwise bind coverage directly. All decisions regarding any insurance products, including approval, premium, commissions and fees, will be made solely by the authorized insurance company underwriting the insurance under the insurer's then-current criteria. Thus, we do not guarantee that you will obtain coverage, or the terms of any such coverage. Nor do we guarantee that the insurance company to which we forward your User Information will provide you coverage or maintain such coverage. Coverage and availability will vary from state to state and your individual circumstances. All coverages are subject to the terms and conditions in insurance policies issued by the insurance company. Huckleberry may receive a commission from an insurance company or other intermediary and/or additional compensation in connection with the sale of insurance to you.
PLEASE DO NOT CANCEL ANY EXISTING INSURANCE POLICY UNTIL YOU RECEIVE WRITTEN CONFIRMATION FROM THE INSURANCE COMPANY TO WHICH YOU ARE APPLYING THAT YOUR NEW POLICY IS IN EFFECT. WE ARE NOT RESPONSIBLE FOR ANY INTERRUPTION OF COVERAGE IF YOUR EXISTING POLICY IS CANCELLED BEFORE THE NEW POLICY TAKES EFFECT.
2.2 State Insurance Licenses
All insurance quotes and products are offered through Huckleberry Insurance Services LLC, a California insurance agency (License No. 0M08797). Additional information regarding Huckleberry's state insurance agency license may be found here. All insurance products on the Website are underwritten by a third party insurance company. All decisions regarding any insurance products, including approval, premium, commissions and fees, will be made solely by the authorized insurer underwriting the insurance under the insurer's then-current criteria. All insurance products are governed by the terms, conditions, limitations and exclusions set forth in the applicable insurance policy. Any information on the Website does not in any way alter, supplement, or amend the terms, conditions, limitations or exclusions of the applicable insurance policy and is intended only as a brief summary of such insurance product. Please consult the policy for the exact terms and conditions. No warranty, guarantee, or representation, either express or implied, is made as to the correctness or sufficiency of any information contained on the Website. Insurance coverage may not be available in your state. Huckleberry may receive a commission from an insurer or other intermediary and/or additional compensation in connection with the sale of insurance to you.
You must be at least 18 years of age to access or use the Website. In addition, the Website is controlled and operated within the United States and is not intended for use outside of the United States. You are hereby prohibited from accessing or using the Website from any territory where the Services, information, content, features, functionality, tools or promotions offered are illegal. If you choose to access the Website from a location outside the United States, you do so at your own risk and you are solely responsible for compliance with applicable laws, rules and regulations, including export laws and any regulations and local laws regarding online conduct and content. By accessing or using the Website, you represent and warrant to us that: (i) you are at least 18 years of age; (ii) you are a resident of the United States; (iii) your use of the Website is in compliance with all applicable laws and regulations; and (iv) if you are accessing the Website from outside of the United States, you consent to the transfer of your information outside of your home jurisdiction for processing.
2.4 License to Use
Subject to your compliance with the Terms, Huckleberry grants you a limited non-exclusive, non-transferable, non-assignable and non-sublicensable license to access and use the Website and Services, for your own internal business use only, and not for use for any third party business purpose or commercial activity, unless agreed to otherwise by Huckleberry in writing. This license is granted for the sole purpose of enabling you to use and enjoy the benefit of the Website as provided by Huckleberry, in the manner permitted by the Terms.
2.5 Broker of Record
By using the Website to enroll in an insurance plan and completing a Broker of Record Letter, you are authorizing Huckleberry to be your "broker of record" with your insurance carrier. As such, you authorize Huckleberry to take any and all actions appropriate to act as the intermediary between you and the insurance carrier, and to use any and all of your information in a manner appropriate for such purpose.
YOU AFFIRM THAT YOU HAVE READ THE FOREGOING AND ACKNOWLEDGE THAT:
- HUCKLEBERRY DOES NOT AND CANNOT GUARANTEE THAT THE WEBSITE WILL BE CONTINUOUS OR ERROR-FREE.
- IF YOUR MOBILE OR DATA PLAN SERVICES OR ACCESS TO THE INTERNET OR OUR WEBSITE IS/ARE SUSPENDED, CANCELLED OR TERMINATED (E.G., AS A RESULT OF BREACH), YOU MAY NOT BE ABLE TO USE SOME OR ALL OF THE WEBSITE.
- YOU ARE EXCLUSIVELY RESPONSIBLE FOR YOUR USE OF THE WEBSITE. ABUSE OF THE SERVICES MAY SUBJECT YOU TO CIVIL AND CRIMINAL FINES AND PENALTIES.
2.7 Modifications and Updates to the Website and Services
Huckleberry reserves the right, in its sole discretion, to modify or discontinue offering the Website and/or Services, in whole or in part, or any features, functionality, tools or content thereof, at any time, for any reason or no reason, with or without notice to you. We also retain the right to impose limits on your use and storage of your User Information at our sole discretion at any time without prior notice to you.
You agree that Huckleberry has no obligation to provide any updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions.
3.1 Account Registration
While certain areas of the Website are publicly available, you must register for a user account before you are able to use certain Services. You may register to create an account directly via the Website.
You may not register for an account on behalf of any person (other than yourself).
No person or entity may have more than one active account at any given time.
3.2 Account Set-Up
You agree to provide complete, accurate and up-to-date information during the registration process and to update such information as necessary to ensure that it remains complete, accurate and up-to-date.
When you create your account, you will be asked to create a password, which you will be solely responsible for safeguarding. We encourage you to use "strong" passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Huckleberry account or any other account that you may connect to your Huckleberry account. You agree not to disclose your password to any third party, and you agree to immediately notify Huckleberry of any unauthorized use of your account. You further acknowledge and agree that you will be solely responsible for any activities or actions on or through your account, whether or not you have authorized such activities or actions. Huckleberrycannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
3.3 Account Suspension and Cancellation
You may cancel your account at any time.
We may, in our discretion, without liability to you and without limiting our other remedies, with or without prior notice and at any time, decide to (i) limit, suspend, deactivate or cancel your account and take technical and legal steps to prevent you from using our Website and Services at any time for any reason, and (ii) screen or delay the posting or delivery of your User Information.
Huckleberry reserves the right to suspend or terminate your account or your access to the Website if you create more than one account, or if any information provided during the registration process or thereafter is determined to be incomplete, inaccurate, out dated, deceptive or fraudulent.
We reserve the right to cancel unconfirmed accounts or accounts that have been inactive for a prolonged period of time. We also reserve the right to cancel accounts of Users who fail to comply with the Terms, including the terms and conditions regarding User conduct, as set forth in the "General User Conduct" section below and elsewhere in the Terms.
If your account is deactivated or cancelled, Huckleberry will have the right, but not the obligation to delete your User Information.
If Huckleberry has suspended your account due to your actual or suspected breach of the Terms, such suspension will continue until the suspected breach is cured or otherwise resolved to Huckleberry's reasonable satisfaction.
You acknowledge and understand that cancellation of your account on the Website does not affect the status of your purchased insurance policy. Notwithstanding the foregoing, cancellation of your Website account may result in the cancellation, termination or expiration of your insurance policy in the event you fail to make scheduled payments or otherwise maintain your insurance policy. Cancellation of your insurance policy is governed by the terms of the policy and the requirements of the issuing insurance company from which you purchased the policy.
3.4 Policy Enforcement
When an issue arises, we reserve the right to consider such User's performance history and the specific circumstances in applying our policies, and to determine how strictly to enforce such policies in an effort to achieve a fair outcome for all parties involved.
4. PRICING AND PAYMENT TERMS
4.1 Service Fees. We do not charge you a fee to use the Website. We are not involved with and are not responsible for any fee arrangement that you may enter into with the insurance company. However, the insurance company may pay us commissions, fees and other compensations for services and to be matched with users of the Website. You acknowledge and agree to this compensation arrangement.
4.2 Price Information. The cost estimates and pricing information provided on the Website are for general reference only. Results generated through the Website to project insurance costs are estimates intended to educate and inform individuals regarding policy choices. However, they do not represent price guarantees. The premium rates shown are for quoting purposes only, are not an offer of coverage, may not be current, and are not guaranteed. Final premium rates will be determined by the insurance company and are based on individual circumstances. As a result of underwriting, final premium rates may differ from quoted premium rates.
5. USER CONDUCT GUIDELINES
Any time you access or use the Website, you are required to comply with our User conduct guidelines, as set forth below.
You are not authorized to access or use the Website:
- to impersonate any person or entity, or falsify or otherwise misrepresent your identity, credentials, affiliations or intentions
- to collect, store or use any information from or about another User;
- to "stalk" or harass any other User;
- to distribute unsolicited commercial or bulk electronic communications (or, "spam"), chain letters or "pyramid" schemes;
- for political campaigning, recruiting votes or soliciting donations or other support for legislative or other initiatives;
- to systematically retrieve information or content to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
- if you are not able to form legally binding contracts (for example, if you are under 18);
- if you are a person barred from receiving services under the laws of the United States or other applicable jurisdiction; or
- for any other purposes that are not expressly permitted by the Terms.
Further, you may not:
- access, copy, distribute, share, publish, use or store, or prepare derivative works from the Website that belongs to Huckleberry or to a third party, including works covered by any copyrights, trademark, patent, or other intellectual property right, except with prior express permission of the person or entity party holding the rights to license such use;
- share your password or transfer your account to another party without our consent;
- circumvent our systems, policies, determinations as to your account status, including by attempting to access or use the Website if your account has been suspended or cancelled or you have otherwise been temporarily or permanently prohibited or blocked from using the Website;
- access, search, collect information from, or otherwise interact with the Website by "scraping," "crawling" or "spidering" the Website, by the use of any software, device, script or robot, or by any other means (automated or otherwise) other than through the currently available, published interfaces that are provided by Huckleberry, unless you have been specifically authorized to do so in a separate agreement with Huckleberry;
- use, display, mirror or frame the Website, or any feature, functionality, tool or content of the Website, Huckleberry's name, any Huckleberry trademark, logo or other proprietary information, without Huckleberry's express written consent;
- interfere with, disrupt, damage or compromise the Website or our systems or the access of any User, host or network in any way, including through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or by overloading, flooding, spamming, mail-bombing the Website or otherwise imposing an unreasonable or disproportionately large load on the Website;
- access, tamper with or use non-public areas of any of the Website, Huckleberry's computer systems, or the technical delivery systems of Huckleberry's providers;
- probe, scan, or test the vulnerability of any system or network of Huckleberry or its providers, or breach or circumvent any security or authentication measures of such system or network;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Huckleberry or any of Huckleberry's providers or any other third party to protect the Website;
- forge any TCP/IP packet header or any part of the header information in any e-mail or posting, or in any way use the Website to send altered, deceptive or false source-identifying information;
- attempt to decipher, decompile, disassemble or reverse engineer any of the code or software used to provide the Website;
- export or re-export the Website, except in compliance with the export control laws and regulations of any relevant jurisdictions;
- otherwise abuse the Website or breach the Terms; or
- attempt to do any of the foregoing, or advocate, encourage or assist any third party in doing any of the foregoing.
5.1 Responsibility for User Information
Ultimately, all User Information, whether provided by you or a third party, is the sole responsibility of the User or third party who originated such information. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any User Information or endorse any opinions expressed in such User Information. Under no circumstances will Huckleberry be liable in any way for any User Information, including, but not limited to, any errors or omissions in any User Information, or any loss or damage of any kind incurred as a result of any User Information.
5.2 Investigations; User Cooperation
Huckleberry reserves the right to investigate of any and all reports, complaints and claims of violations or misconduct, and to prosecute such violations or otherwise suspected misconduct to the fullest extent of the law.
Without limiting the foregoing, you acknowledge that Huckleberry has the right, but not the obligation, at any time and without prior notice, to monitor access to or use of the Website or Services by any User, to access, review, preserve and disclose any User Information, or to remove any User Information, if we believe in good faith that it is reasonably necessary (i) to comply with any law or regulation or satisfy any legal process or governmental request (for example, a subpoena, warrant, order or other requirement of a court, administrative agency or other governmental body), (ii) to respond to claims asserted against Huckleberry, (iii) to enforce and to ensure a User's compliance with the Terms, including the investigation of potential violations, (iv) to conduct risk assessments, and prevent, detect and investigate incidents of fraud, security and technical issues, (v) to protect the rights, property or safety of Huckleberry, its Users or members of the public, and (vi) for the purpose of operating and improving the Website and Services (including for customer support purposes).
You agree to cooperate with and assist Huckleberry or its representative in good faith, in any such investigations, including by providing us with such information as we may reasonably request.
6. INTELLECTUAL PROPERTY OWNERSHIP
6.1 The Website
The Website and Services, including all features, functionality, tools and content thereof, is protected by copyright, trademark, patent and other laws of the United States and foreign countries. You acknowledge and agree that the Website and Services, and all intellectual property rights therein are the exclusive property of Huckleberry and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark, patent marking, or other proprietary rights notices incorporated in or accompanying the Website or Services.
Without limiting the foregoing, you acknowledge and agree that the trade names, logos, and other trademarks and service marks associated with Huckleberry (the "Huckleberry Marks") are the property of Huckleberry, and that you are not permitted to use the Huckleberry Marks without our prior written consent.
You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any features, functionality, tools or content of the Website or Services in any form or by any means, or sublicense the rights granted in the Terms, except as expressly permitted herein, without the prior written permission of Huckleberry or the intellectual property owner, as applicable.
This foregoing license is subject to modification or revocation at any time at Huckleberry's sole discretion.
No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Huckleberry or its licensors, except for the licenses and rights expressly granted in the Terms. All rights not expressly granted to you by the Terms are hereby reserved.
6.2 User Information
By submitting your User Information on, through or to the Website, you hereby grant Huckleberry a worldwide, non-exclusive, transferable, sublicensable, royalty-free right and license to use, copy, reproduce, process, and distribute your User Information electronically as necessary to provide the Services to you including, without limitation, to (i) obtain both public and privately held User Information from third parties for the purpose of determining insurance coverage eligibility; (ii), disclose your information to your designated insurance company in order to facilitate purchase of insurance products; (iii) provide customer support services, and (iv) otherwise operate the Website, including for product development and de-bugging purposes.
You agree that this license includes the right for Huckleberry to provide and make your User Information available to other companies, organizations or individuals who have a business relationship with Huckleberry ("partner") for the purposes of determining insurance coverage eligibility and purchasing insurance products, subject to our terms and conditions for such use.
Such additional uses by Huckleberry, or other companies, organizations or individuals who partner with us, may be made with no compensation paid to you with respect to your User Information.
Huckleberry does not claim any ownership rights in your User Information and nothing in the Terms will be deemed to restrict any rights that you may have to use and exploit any such content, subject only to the licenses granted to Huckleberry under these Terms.
You acknowledge and agree that you are solely responsible for your User Information, and for any consequences thereof, including the use of your User Information by our third party partners.
You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to your User Information, and that neither your User Information, nor Huckleberry's use of your User Information (or any portion thereof) on or through the Website or in connection with the Services will infringe, misappropriate or violate the rights of any person or entity, including patent, copyright, trademark, trade secret, moral rights, industrial rights, database rights or other proprietary or intellectual property rights, rights of publicity or privacy or data protection or contractual rights, or result in the violation of any applicable law or regulation.
You understand that your User Information may be distributed to our partners and if you do not have the right to submit your User Information for such use, it may subject you to liability. Huckleberry will not be responsible or liable for any use of your User Information by Huckleberry or any third party in accordance with the Terms.
We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the Website ("Feedback"). You may submit Feedback by e-mailing us, at email@example.com. You acknowledge and agree that all Feedback you give us (i) will be treated as non-confidential, and (ii) will be the sole and exclusive property of Huckleberry. Without limiting the foregoing, you acknowledge that your Feedback may be disseminated or used by Huckleberry or its affiliates for any purpose whatsoever, including developing, improving and marketing products. You hereby irrevocably transfer and assign to Huckleberry all of your right, title, and interest in and to all Feedback, including all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback.
You agree to sign and deliver such documents, and otherwise provide such assistance, as may reasonably be required from time to time to perfect Huckleberry's rights in such improvements, enhancements and modifications.
7. NO ADVICE, ENDORSEMENTS OR GUARANTEES
7.1 No Advice
No information available on or through the Website is intended to be a substitute for professional tax, legal, or financial advice.
7.2 No Endorsement
Huckleberry does not recommend or endorse any specific plan, product offering or provider, or any other information that may be mentioned on the Website. Reliance on any information provided by Huckleberry is solely at your own risk.
7.3 Links to Third Party Websites and Services.
The Website may also provide links to third-party websites, resources or services. You acknowledge and agree that Huckleberry is not responsible or liable for (i) the availability, terms or practices of such websites, resources or services, or (ii) the content, products or services available on or through such websites, resources or services, including that any information provided is complete, accurate or up-to-date. Links to such websites, resources or services do not imply any endorsement by Huckleberry of such websites, resources or services or the content, products or services available on or through such websites, resources or services. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites, resources or services or the content, products or services available on or through such websites or services. We will not be responsible or liable for any damage or harm resulting from your interactions with such websites or services, or the content, products or services available on or through such websites or services.
7.4 No Guarantee of Quotes, Fees, Terms, Rates, Coverage, or Services.
Huckleberry endeavors to ensure that all information on the Website is accurate. However, it is possible that information found on the Website may be out-of-date as prices for many insurance products may change at any time without notice. We do not make any warranties or representations regarding the quotes, fees, terms, rates, coverage, products or services offered or made available by the insurance company. We do not guarantee that quotes, fees, terms, rates, coverage, products or services offered by the insurance company are the best available. Additionally, laws or other forms of regulation may impact the insurance costs or coverage provided.
8. WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY & INDEMNIFICATION
8.1 Warranties by Users
You represent and warrant to Huckleberry that:
- (i) you have the power and authority to accept and agree to the Terms,
- (ii) you own or control all of the rights necessary to grant the rights and licenses granted herein,
- (iii) you will not violate any federal, state or local laws, rules or regulations or infringe the rights of any third party, including, any intellectual property, privacy or publicity-related rights, in connection with your User Information or otherwise in connection with your access to or use of the Website and Services,
- (iv) the exercise by Huckleberry of the rights granted by you hereunder will not cause Huckleberry to violate any applicable laws, rules or regulations, to infringe the rights of any third party, and
- (v) all account information provided by you will be complete, accurate and up-to-date when provided, and updated as necessary to ensure that it remains complete, accurate and up-to-date.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE WEBSITE AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, HUCKLEBERRY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE WEBSITE OR SERVICES, OR THAT USE OF THE WEBSITE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, WARRANTIES AS TO THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY WEBSITE CONTENT.
8.3 Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW:
- THE ENTIRE RISK ARISING OUT OF OR RELATING TO YOUR USE OF THE WEBSITE IS AND REMAINS WITH YOU.
- WITHOUT LIMITING THE FOREGOING, HUCKLEBERRY DISCLAIMS ANY AND ALL LIABILITY RELATED TO (I) YOUR USE OF OR INABILITY TO USE THE WEBSITE OR SERVICES, (II) THE ACTS OR OMISSIONS OF ANY OTHER THIRD PARTY WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE WEBSITE OR SERVICES, AND (III) ANY USER INFORMATION SUBMITTED, PROCESSED, OR DISTRIBUTED IN CONNECTION WITH THE USE OF THE WEBSITE OR SERVICES.
- YOU ACKNOWLEDGE AND AGREE THAT THE ACCESSING AND USING THE WEBSITE, SUBMITTING AND TRANSMITTING YOUR USER INFORMATION ARE DONE AT YOUR OWN DISCRETION AND RISK, AND YOU AND HEREBY RELEASE HUCKLEBERRY AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED BY ANY OF THE FOREGOING.
- IN NO EVENT WILL HUCKLEBERRY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR DAMAGES FOR LOST REVENUES OR PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH ANY OF THE FOREGOING, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT HUCKLEBERRY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSIVE OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN THIS SECTION, SO THESE LIMITATIONS AND EXCLUSIONS APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, HUCKLEBERRY'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY AND ALL OF THE FOREGOING, SHALL BE LIMITED TO ONE HUNDRED U.S. DOLLARS (US$100).
8.4 Basis of the Bargain
YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HUCKLEBERRY AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
NOTHING IN THE TERMS FURTHER IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE FROM DEATH OR PERSONAL INJURY. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN THIS SECTION 8 THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT REQUIRED BY LAW.
To the maximum extent not prohibited by applicable law, you agree to release, defend, indemnify, and hold Huckleberry its parent, subsidiaries, affiliates, licensors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless (collectively "indemnify" or any variation thereof) from and against any claims, liabilities, damages, losses, costs and expenses, including, any bodily injury, illness, death or damage to any real or personal property, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs, arising out of or relating to or in any way connected with (i) your access to or use of the Website, including any and all features, functionality, tools, content and promotions available on and through the Website, (ii) your User Information, (iii) any interactions with any third party, (iv) your breach of the Terms, including any violation of national, federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (v) your gross negligence or willful misconduct.
8.7 Obligation to Defend.
You agree that, at Huckleberry's option, you will conduct the defense of any such claim or action; provided that, notwithstanding our election that you to conduct the defense, (i) Huckleberry may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) you will not enter into any settlement or other compromise without the prior written approval of Huckleberry (which approval shall not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.
8.8 No Implied Indemnity.
No person or entity shall be entitled to any form of equitable or implied indemnification at any time, except as provided by the Terms.
9. Governing Law & Dispute Resolution
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND Huckleberry HAVE AGAINST EACH OTHER ARE RESOLVED.
9.1 Governing Law
The Terms shall be governed by and interpreted in accordance with the laws of California without regard to conflict of law principles.
Notwithstanding any contrary provision of these Terms, all disputes, claims, controversies and matters relating to or in connection with these Terms (or the breach thereof) or any transactions hereunder shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (" AAA Rules"), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in San Francisco, California before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity.
9.3 Jurisdiction and Venue
Subject to the above arbitration provisions, you and Huckleberry agree that any and all disputes, claims and actions, at law or in equity, arising out of or relating to or in connection with the Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Website (collectively, "Disputes") in the federal or state courts located in San Francisco, California and each us agrees that such courts shall have exclusive jurisdiction and venue for any such actions, except that Huckleberry retains the right to submit a Dispute to any court of competent jurisdiction. Huckleberry also may seek injunctive or other equitable relief for breach of these Terms in any court of competent jurisdiction wherever located. You consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable legal fees and costs and expenses from the other party.
9.4 Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST HUCKLEBERRY ONLY ON AN INDIVIDUAL BASIS AND HEREBY WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW. FURTHER, UNLESS BOTH YOU AND HUCKLEBERRY OTHERWISE AGREE IN WRITING, THE COURT MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.
9.5 Future Amendments to this Section
Both of us agree that if we make any amendment to this Dispute Resolution section (other than an amendment to any notice address or site link provided herein) in the future, that amendment will not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the amendment. However, the amendment will apply to all other disputes or claims governed by this section that have arisen or may arise between you and Huckleberry. We will notify you of amendments to this section by posting the amended Terms on www.huckleberry.com. If you do not agree to the amended terms, you may close your account within 30 days and you will not be bound by the amended dispute resolution terms. If you do not have an account (or once you have closed your account, if applicable), you must cease using the Website immediately. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Huckleberry in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted the Terms (or accepted any subsequent changes to the Terms).
10.2 Entire Agreement
You may not assign, transfer, delegate or sublicense any of your rights or obligations under the Terms, including by operation of law or merger or consolidation, without our express prior written consent, which may be granted or withheld in our sole discretion. Any attempted assignment, transfer, delegation or sublicense without the foregoing consent will be null and void. Huckleberry may assign, transfer, delegate and/or sublicense our rights and obligations under the Terms, in whole or in part, in its sole discretion, without restriction.
Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors and assigns.
10.4 No Agency
Except as otherwise expressly set forth herein, no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Terms.
10.5 Survival of Terms
Any provisions of the Terms that contemplate performance or observance subsequent to the expiration or termination of these Terms of Service shall survive such expiration or termination.
Any notices or other communications permitted or required hereunder, including those regarding modifications to the Terms, will be in writing and given by Huckleberry (i) via e-mail (in each case to the address that you provide), or (ii) by posting to the Website. For notices made by e-mail, the date on which such notice is transmitted will be deemed the date of receipt.
Our failure to exercise any right or enforce any obligation under these Terms of Service or to take action with respect to a breach by you or others will not constitute a waiver of such right, obligation or breach. The waiver of any right, obligation or breach will be effective only if in writing and signed by a duly authorized representative of Huckleberry. In addition, no waiver granted in any instance shall constitute a waiver in any other instance.
Except as expressly set forth in the Terms, the exercise by either party of any of its remedies under the Terms will be without prejudice to its other remedies available under contract, at law, in equity or otherwise.
Except as otherwise provided in the Terms, if an arbitrator or a court of competent jurisdiction finds any provision of the Terms to be invalid, void or unenforceable, in whole or in part, for any reason, the offending provision will be enforced to the maximum extent permissible and will not affect the validity or enforceability of the remaining provisions, which will remain in full force and effect.
The headings in the Terms are for reference purposes only and do not limit or otherwise affect the meaning or interpretation of any of the provisions hereof.
10.11 Third Party Beneficiaries
Except as otherwise expressly set forth herein, the Terms do not and are not intended to confer any rights or remedies upon any person other than the parties hereto.
In the Terms, unless the context requires otherwise: (i) "herein," "hereof," "hereunder," "hereto," and similar terms refer to the Terms collectively and as a whole, and not merely to the specific section, paragraph or clause in which the term appears, (ii) "or" connotes any combination of all or any of the items listed, and (iii) "including" (and any of its derivative forms) means "including but not limited to."
10.13 Contact Us
If you have any questions or concerns, please contact Huckleberry at firstname.lastname@example.org.
You can also write to us at:
Huckleberry Insurance Services LLC
500 2nd Street, Level 0
San Francisco CA 94107
10.14 California Residents
Pursuant to California Civil Code §1789.3, California residents are also entitled to the following specific consumer rights notice:
Complaints regarding the Website or Services or requests to receive further information regarding use of the Website or Services may be sent to the above address or to email@example.com.
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 Boulevard, Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210. Hearing impaired persons may call TDD (800)-326-2297 or TDD (916)-928-1227, see www.dca.ca.gov for additional information.
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