This document describes the relationship between HIO, Inc., a Virginia corporation, (“HIO” or “Company”) and the customer identified below (“Customer”). The document, entitled “Terms and Conditions” (the “Terms”), describes and sets forth the general legal terms governing the relationship between the parties (collectively, the “Agreement”). This Agreement will become effective when the Order Form is executed by authorized representatives of both parties (the “Effective Date”).  Your use of the HIO Application is also subject to Our Privacy Policy available here (the “Privacy Policy”).

 

A. Definitions

“Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Users to access the Application.

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“Affiliate” means any person, firm, corporation, association, organization, or unincorporated trade or business that, now or hereafter, directly or indirectly, controls, is controlled by, or is under common control with the Customer, including without limitation, any service corporation of the Customer.

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“Application” means all technology and/or other intellectual property (including software, hardware, data, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by HIO in connection with providing the Services and all improvements, innovations, derivative works based on the foregoing.

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“Customer Data” means any data, information, or material, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly, from You or Users by or through or for providing and improving the Services.

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“Current Resident” means members of the public who are named on the lease of a Customer property.

“HIO Staff Support” means the feature of the Services that utilizes email or SMS to communicate with Customer’s employees when responding to employee inquiries.  

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“HIO Resident Support” means the feature of the Services that utilizes email or SMS to communicate with Customer’s Current Residents when responding to Current Resident inquiries.  

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“HIO Web Portal” means the feature of the Services that allows Customer’s Application Administrators to manage users, see analytics on Service usage and update the model’s answers.

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“Onboarding Fee” shall have the meaning given such term in the chart set forth in the relevant Order Form.

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“Initial Term” and “Renewal Term” shall have the meanings given such terms in the chart set forth in the relevant Order Form.

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“Model(s)” means the large language models that have been trained on Customer Data to respond to User’s inquiries. 

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“Onboarding Activities” means the Services associated with the implementation of the Services for your particular Order.

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“Order Form” means the writing which identifies the Services ordered by Customer from HIO pursuant to this Agreement, including but not limited to cost, time, schedule and any other terms and conditions agreed to by the Parties, as shall be amended by the Parties from time to time pursuant to its terms. Parties may from time to time enter into subsequent Order Forms memorializing subsequent business arrangements, which when duly executed and delivered by both Parties shall become part of this Agreement.  In the event of a conflict between the terms and conditions of this Agreement and any Order Form, the terms and conditions of this Agreement will govern, except to the extent that the Order Form expressly states that it supersedes specific language in the Agreement.

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“Professional Services” means professional services provided by HIO to Customer as described in any Order Form (as may be further elaborated in any statement of work), including without limitation, services relating to technical implementations that enable Customer to access HIO’s technology.

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“Prospective Residents” means members of the public who inquire about a Customer property.

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“Services” means HIO’s Resident Support Service and Staff Support Service, together with other services under this Agreement as set forth in an Order Form provided by HIO to Customer pursuant to this Agreement.

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“Subscription Fee” shall have the meaning given such term in the chart set forth in the Order Form(s).

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“Third Party Claim” means any Claim (as such term is defined below) brought by any party other than You or your Affiliates.

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“User(s)” means Your employees, Affiliates, consultants or contractors who are authorized to use the Services, together with any Prospective or Current Residents.

 

B. Services

B(1) Access. Subject to Customer’s payment of the fees set forth in the Order Form (“Fees”), HIO will provide Customer with access to the Application. On or as soon as reasonably practicable after the Effective Date HIO will provide to Customer the necessary passwords, security protocols and policies to allow Customer and its Users to access the Application in accordance with the Access Protocols. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Application, and notify HIO promptly of any such unauthorized use known to Customer.

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B(2) License Grant and Restrictions.  Subject to the terms and conditions of this Agreement, and as more specifically defined in the Order Form(s), HIO hereby grants to Customer and Users, for the duration of the Term (as defined below), a limited, non-exclusive, non-transferable and non-sublicensable right to access and use the Services for Customer’s own internal business purposes.  In addition, HIO agrees to provide certain additional Services as specified in the Order Form(s).  The license granted by HIO to Customer in this Section B(2) will not include any right by Customer to access any object code or source code included in the Services.  Customer shall not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make available to any third party the Services or any portion thereof, other than making the Application available to Users as strictly required for Customer’s performance of its obligations hereunder.

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B(3) Support Services. Subject to the terms and conditions of this Agreement, HIO will exercise commercially reasonable efforts to (a) provide support for the use of the Application to Customer, and (b) keep the Application operational and available to Customer.

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B(4) Intellectual Property Ownership.  As between HIO and Customer, the Application and all intellectual property rights therein or related thereto, including any modifications, improvements, enhancements or upgrades thereto, and all derivative works therefrom, are and shall remain the exclusive property of HIO or its third-party licensors as applicable.

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B(5)  Customer Data.  We acknowledge that, as between Us and You, You own the Customer Data and reserve all rights in the Customer Data not expressly granted to Us under this Agreement.  You grant to Us a non-exclusive, perpetual, royalty-free irrevocable, fully paid-up, worldwide license to copy and use the Customer Data as necessary to provide the Services and for Us to otherwise exercise Our rights and discharge Our obligations under this Agreement and to improve and enhance the Services, subject to and in accordance with all applicable laws relating to data privacy and security, and for no other purpose.  For the avoidance of doubt, no consideration was (or shall be) asked for or received with respect to any Customer Data provided by You to Us hereunder.  You represent, warrant and covenant to Us that: (i) You have the requisite rights with respect to the Customer Data to grant to Us the license and other rights with respect to the Customer Data set forth in this Section B(5); and (ii) Customer Data was not obtained through an act of misappropriation or unlawful means and the collection of Customer Data and the disclosure of Customer Data to Us do not violate any terms of service, applicable privacy policy or any obligation of confidentiality or other duty owed to the source of the Customer Data.  

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B(6) Open Source Software. Certain items of software may be provided to Customer with the Application that are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections B(2) or I. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, HIOmakes such Open Source Software, and HIO's modifications to that Open Source Software, available by written request at the notice address specified below.

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B(7) Hosting. HIO will, at its own expense, host the Application, provided that nothing herein will be construed to require HIO to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any User to access the Application from the Internet.

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B(8)  Compliance with Law.  Both Parties will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (a) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (b) You shall not permit Users to access or use the Services in violation of any U.S. export embargo, prohibition, or restriction.

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B(9) Updates and Upgrades.  You acknowledge that We will from time to time develop updates and that We may incorporate updates in the Services, and We reserve the right to make such updates without prior notice.  We may, from time to time, offer to include optional updates as part of the Services, either for a fee or at no additional charge.  With respect to updates for which additional Fees apply, You shall not be charged for such updates, and correspondingly shall not be provided access to such updates, unless and until You so agree with Us in writing.

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B(10) Use of the Services.  You represent, covenant, and warrant that You will use the Services only in compliance with these Terms and Conditions and all applicable law, including (without limitation) laws associated with the collection and dissemination of Customer Data. You further represent, covenant and warrant that You shall not use, nor shall You permit others to: (a) whether directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (b) modify, translate, or create derivative works based on the Services or any Software; (c) use the Services or any Software for the benefit of a third party; (d) remove any proprietary notices or labels; (e) use the Services for any unlawful, infringing, defamatory, or fraudulent purpose or to transmit obscene, harassing or otherwise objectionable material, whether or not such material is constitutionally protected; (f) use the Software or Services to send any virus, worm, trojan horse or harmful code or attachment; or (g) use the Software or Services to alter, steal, corrupt, disable, destroy, trespass or violate any security or encryption of any computer file, database or network (the items set forth in (a)-(g) above, collectively, the “Use Restrictions”).  If HIO determines, in its sole discretion based on reasonable evidence, that You are in breach of any of the Use Restrictions, You agree that, upon notice from Us, We may immediately take corrective action which includes, but is not limited to, (i) suspending the Services; and/or (ii) terminating this Agreement or any part thereof. Such corrective action is in addition to any other rights We may have under this Agreement or under law.

 

C. ​Fees, Term and Termination

C(1) Fees. In consideration for the access rights granted to Customer and the Services performed by HIO under this Agreement, Customer will pay to HIO the Fees. Fees are billed as particularly described in the relevant Order Form. Payments shall be made by check, ACH or wire transfer within fifteen (15) days of the date of the invoice. HIO reserves the right to modify the Fees payable hereunder upon written notice to Customer at least ninety (90) days prior to the end of the then-current term.  HIO reserves the right (in addition to any other rights or remedies HIO may have) to discontinue the Application and suspend all Users’ and Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times.

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C(2) Interest. Any amounts not paid when due will bear interest at the rate of one and one-half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.

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C(3) Subscription Term; Renewal.  This Agreement shall commence as of the Effective Date and shall continue thereafter for the duration of the relevant period set forth in the relevant Order Form Initial Term(s), and Renewal Term(s) (as the case may be) (such period of time, collectively, the “Term”) unless terminated pursuant to this Agreement. For avoidance of doubt, other than the Subscription Fee, all other terms of this Agreement shall apply to any utilization of Services prior to the Subscription Fee Start Date.  

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C(4) Termination.  You may terminate this Agreement, in whole or in part, by providing thirty (30) days prior written notice to HIO. Either Party may terminate this Agreement upon written notice to the other Party in the event that: (a) the other Party commits a material breach of this Agreement and fails to cure such default to the non-defaulting Party’s reasonable satisfaction within fifteen (15) days after receipt of notice; or (b) the other Party becomes insolvent or bankrupt, assigns all or substantially all of its business or assets for the benefit of creditors, permits the appointment of a receiver for its business or assets, becomes subject to any legal proceeding relating to insolvency or the protection of creditors’ rights or otherwise ceases to conduct business in the normal course.

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C(5) Effects of Termination.  Upon termination of this Agreement for any reason, all rights granted and obligations of the Parties hereunder and under each of the foregoing, shall (except as otherwise expressly provided herein or therein) immediately terminate. In the event of any termination of this Agreement, Customer will pay HIO all fees and expenses for Services performed up to the effective date of the termination.    

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​D. Customer Content and Responsibilities

D(1) Customer Warranty. Customer represents and warrants that any Customer Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage HIO’s system or data; and (e) otherwise violate the rights of a third party. HIOis not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer agrees that any use of the Application contrary to or in violation of the representations and warranties of Customer in this Section 5.2 constitutes unauthorized and improper use of the Application.

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D(2) Customer Responsibility for Data and Security. Customer and its Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order to access the Application. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.

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E. Professional Services

Where the parties have agreed to HIO’s provision of Professional Services, the details of such Professional Services will be set out in an Order Form. The Order Form will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services. Each Order Form will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order Form and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form expressly states that it supersedes specific language in the Agreement.

 

F. Disclaimer of Warranties

THE APPLICATION IS PROVIDED TO USER "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. 

G. Limitation of Liability. 

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:

1. PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.

2. DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION. 

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. 

H. Confidentiality

H(1) Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of HIO.

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H(2) Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to HIO). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.

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H(3) Exceptions. The confidentiality obligations set forth in Section H(s) will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

​I. Indemnification 

Client agrees to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to Client's use or misuse of the Application or Client breach of this Agreement, including but not limited to the content Client submits or makes available through this Application.

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Client shall indemnify Company against all claims, costs and expenses (including reasonable attorneys' fees) arising from any breach of this Agreement by Client and from any negligent act or omission or willful misconduct of Client, its agents, employees or representatives.  Additionally, Client will indemnify Company for any claims arising from Client's or its employees' failure to perform any of its or their duties in accordance with this Agreement.

 

J. Miscellaneous 

J(1) Publicity. Unless a party has specifically notified the other party to the contrary in writing, either party may include the name or logo of the other party in lists of Customers or vendors, as applicable.

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J(2) Governing Law and Venue. This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Virginia without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Virginia in each case located in the city of Richmond. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. 

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J(3) Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from HIO, or any products utilizing such data, in violation of the United States export laws or regulations.

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J(4) Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.

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J(5) Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

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J(6) No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.

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J(7) Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.

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J(8) Notices. All notices required or permitted under this agreement must be delivered in writing, if to HIO, by emailing notice@heyhio.com and if to Customer by emailing the Principal Contact Person’s email address listed on the Cover Page, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Cover Page by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.

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J(9) Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and HIO.

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Revised and posted as of March 8, 2024