LAST UPDATED: JANUARY 2, 2021

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.

BY USING THE SERVICE, CLICKING AGREE OR OTHERWISE ASSENTING TO THIS AGREEMENT YOU OR THE COMPANY OR ENTITY THAT YOU REPRESENT ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THESE TERMS OF SERVICE. YOU ARE ALSO REPRESENTING AND WARRANTING THAT THE INDIVIDUAL CLICKING ON THE BUTTON IS AUTHORIZED TO ENTER INTO THIS AGREEMENT AND BIND SUCH ENTITY. YOUR CONTINUED USE OF ANY PORTION OF THE SERVICES SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THESE TERMS OF SERVICE. IF YOU ARE USING THE SERVICES ON BEHALF OF A COMPANY OR OTHER ENTITY, THEN ALL REFERENCES TO “YOU” OR “YOUR” HEREIN SHALL REFER TO BOTH THE INDIVIDUAL AND THE ENTITY.

If you do not uncondItIonally agree to all of the terms of these Terms of ServIce, you wIll have no rIght to use the ServIces (and you should ImmedIately cease all such use). IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS.

This agreement is between HereApp, Inc., and the customer agreeing to this agreement (Customer).

1. DELIVERY MANAGEMENT SERVICE. This agreement provides Customer with access to and usage of an Internet-based delivery management software service as specified on an order and the HereApp mobile applications (collectively, Service).
2. USE OF SERVICE.
   1. Customer Owned Data. All data uploaded by Customer remains the property of Customer, as between HereApp and Customer (Customer Data). Customer allows HereApp the right to use the Customer Data only for purposes of performing under this agreement. During the term of this agreement, Customer may export or print reports regarding certain Customer Data as allowed by functionality within the Service.
   2. Contractors and Employee Access and Usage. Customer may allow its contractors (including without limitation, third party logistics companies) and employees to access the Service in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors and its employees.
   3. Customer Responsibilities. Customer (i) will keep a secure password for his use of the Services and documentation and that each user will keep his password confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify HereApp promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s User Guide and applicable law.
   4. Privacy. HereApp’s (PRIVACY POLICY) describes the privacy issues in using the Service and the mobile apps. Customer acknowledges and agrees to the terms of this Privacy Policy, and that it may be modified over time
   5. API. HereApp provides access to its application-programming interface (API) as part of the Service for no additional fee. Subject to the other terms of this agreement, HereApp grants Customer a non-exclusive, nontransferable, terminable license to interact only with the Service as allowed by the API.
      Customer may not use the API in a manner–as reasonably determined by HereApp–that exceeds reasonable request volume, constitutes excessive or abusive usage, or fails to comply with any part of the API. If any of these occur, HereApp can suspend or terminate Customer’s access to the API on a temporary or permanent basis.
      HereApp may change or remove existing endpoints or fields in API results upon at least 30 days notice to Customer, but HereApp will use commercially reasonable efforts to support the previous version of the API for at least 6 months. HereApp may add new endpoints or fields in API results without prior notice to Customer.
      The API is provided on an AS IS basis. HereApp has no liability to Customer as a result of any change, temporary unavailability, suspension, or termination of access to the API.

SERVICE LEVEL AGREEMENT & WARRANTY.

1. Warranty. HereApp warrants to Customer: (i) that commercially reasonable efforts will be made to maintain the online availability of the Service for a minimum of availability in any given month (excluding maintenance outages, force majeure, and outages that result from any Customer technology issues or third party vendor issues); (ii) the functionality or features of the Service may change but will not materially decrease during any paid term; and (iii) that the Support may change but will not materially degrade during any term.
2. LIMITED REMEDY. Customer’s exclusive remedy and HereApp’s sole obligation for its failure to meet the warranty in a(i) above will be for HereApp to provide a credit for the applicable month, as provided in the chart above (if this agreement is not renewed, then a refund), for the month; provided that Customer notifies HereApp of such breach within 30 days of the end of that month.
3. DISCLAIMER. HEREAPP DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. WHILE HEREAPP TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, HEREAPP DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
4. PAYMENT. Customer must pay all fees as specified on the order, but if not specified then within 30 days of receipt of an invoice. No refunds of prepaid fees, unless otherwise provided in this agreement. Customer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes. HereApp may elect to charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement. Customer must provide current, complete and accurate billing and credit card information. Customer agrees to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In certain instances, the issuer of Customer’s credit card may charge Customer a foreign transaction fee or related charges, which Customer will be responsible to pay.

MUTUAL CONFIDENTIALITY.

a.Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). HereApp’s Confidential Information includes without limitation the Service (including without limitation the Service user interface design and layout, and non-public pricing information).

b.Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.

c.Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.

d.Security Measures. In order to protect Customer’s Confidential Information and Customer Data, HereApp will (i) implement and maintain all reasonable security measures appropriate to the nature of the Confidential Information including without limitation, technical, physical, administrative and organizational controls, and will maintain the confidentiality, security and integrity of such information and data; (ii) implement and maintain industry standard systems and procedures for detecting, preventing and responding to attacks, intrusions, or other systems failures and regularly test or otherwise monitor the effectiveness of the safeguards’ key controls, systems, and procedures; (iii) designate an employee or employees to coordinate implementation and maintenance of its security measures; and (iv) identify reasonably foreseeable internal and external risks to the security, confidentiality and integrity of information and data that could result in the unauthorized disclosure, misuse, alteration, destruction or other compromise of such information, and assess the sufficiency of any safeguards in place to control these risks.

e.Notice of Data Breach. If HereApp knows that Customer Confidential Information or Customer Data has been accessed, disclosed, or acquired without proper authorization and contrary to the terms of this agreement, HereApp will warn Customer of any such data breach within two business days, and immediately take such actions as may be necessary to preserve forensic evidence and eliminate the cause of the data breach. HereApp will give highest priority to immediately correcting any data breach and devote such resources as may be required to accomplish that goal. HereApp will provide Customer with all information necessary to enable Customer to fully understand the nature and scope of the data breach. To the extent that Customer, in its sole reasonable discretion, deems warranted, Customer may provide notice to any or all parties affected by any data breach. In such case, HereApp will consult with Customer in a timely fashion regarding appropriate steps required to notify third parties. HereApp will provide Customer with information about what HereApp has done or plans to do to minimize any harmful effect or the unauthorized use or disclosure of, or access to, Confidential Information.

HEREAPP PROPERTY.

1. Reservation of Rights. The software, workflow processes, user interface, designs, know-how and other technologies provided by HereApp as part of the Service are the proprietary property of HereApp and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with HereApp. Customer may not remove or modify any proprietary marking or restrictive legends in the Service. HereApp reserves all rights unless expressly granted in this agreement.
2. Customer may not (i) sell, resell, lease or rent the Service; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or their related systems or networks; (v) reverse engineer the Service; or (vi) access the Service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.
3. Aggregate Data. During and after the term of this agreement, HereApp may use and retains all rights in all non-personally identifiable data within the Service for purposes of enhancing the Service, aggregated statistical analysis, technical support and other internal and external business purposes.
4. Mobile Software. HereApp may make available software to access the software via a mobile device. To use the software, Customer must have a mobile device that is compatible with the software. HereApp does not warrant that the software will be compatible with Customer’s mobile device. Customer may use mobile data in connection with the software and may incur additional charges from Customer’s wireless provider for these services. Customer agrees that it is solely responsible for any such charges. Customer acknowledges that HereApp may, from time to time, issue upgraded versions of the software, and may automatically electronically upgrade the version of the software that Customer is using on its mobile device. Customer consents to such automatic upgrading on its mobile device, and agrees that the terms and conditions of this agreement will apply to all such upgrades. If the mobile device software is acquired from an Apple platform (App Store Software), the additional terms set forth on Exhibit A apply.

TERM AND TERMINATION.

1. Term. This agreement continues until all orders have expired or are terminated under Section 8(b) below.
2. Termination by Either Party. Customer have the option of canceling their account at any time by following the instructions on the HereApp Website or through the Services or by contacting us at elmasenterprise@gmail.com. With or without notice,with or without cause we reserve the right to terminate your account or access to all or any part of the Services at any time effective immediately. All provisions of these Terms of Service which by their nature should survive termination or expiration shall survive termination, including provisions regarding ownership, aggregate data use, payment (to the extent any payment obligations remain outstanding), warranty disclaimers, indemnity and limitations of liability).
3. Return of Customer Data. Within 60-days after termination, upon request HereApp will make the Service available for Customer to export such data as provided in Section 2(b).
   After such 60-day period, HereApp has no obligation to maintain the Customer Data and may destroy it.
4. Return HereApp Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay HereApp for any unpaid amounts, and destroy or return all property of HereApp. Upon HereApp’s request, Customer will confirm in writing its compliance with this destruction or return requirement.
5. Suspension for Violations of Law. HereApp may temporarily suspend the Service or remove the applicable Customer Data, or both, if it in good faith believes that, as part of using the Service, Customer has violated a law. HereApp will attempt to contact Customer in advance.

LIMITATION OF LIABILITY

Except as expressly and specifically provided in the Agreement:

The Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier will have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;

All warranties, representations, conditions and all other terms of any kind whatsoever implied by law are, to the fullest extent permitted by applicable law, excluded from the Agreement; and

The Services and the Documentation are provided to the Customer on an “as is” basis.

Nothing in the Agreement excludes the liability of the Supplier:

For death or personal injury caused by the Supplier’s negligence; or

For fraud or fraudulent misrepresentation.

The Supplier will not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and

The Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement will be limited to 50% of the total Charges paid during the 12 months immediately preceding the date on which the claim arose.

INDEMNITY.

1. Defense of Third Party Claims. HereApp will defend or settle any third-party claim against Customer to the extent that such claim alleges that the HereApp technology used to provide the Service violates a copyright, patent, trademark or other intellectual property right, if Customer, promptly notifies HereApp of the claim in writing, cooperates with HereApp in the defense, and allows HereApp to solely control the defense or settlement of the claim. Costs. HereApp will pay infringement claim defense costs incurred as part of its obligations above, and HereApp negotiated settlement amounts, and court awarded damages. Process. If such a claim appears likely, then HereApp may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If HereApp determines that none of these are reasonably available, then HereApp may terminate the Service and refund any prepaid and unused fees. Exclusions. HereApp has no obligation for any claim arising from: HereApp’s compliance with Customer’s specifications; A combination of the Service with other technology where the infringement would not occur but for the combination; Use of Customer Data; or Technology not provided by HereApp. This section contains Customer’s exclusive remedies and HereApp’s sole liability for intellectual property infringement claims.
2. Customer Indemnity. To the extent allowed by law, if any third-party brings a claim against HereApp related to Customer acts, omissions, data or information within the Services, Customer must defend, indemnify and hold HereApp harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim.
   GOVERNING LAW AND ARBITRATION. THIS AGREEMENT IS GOVERNED BY THE LAWS OF MASSACHUSETTS, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES. ANY DISPUTE BETWEEN CUSTOMER AND HEREAPP ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST BE DETERMINED BY BINDING ARBITRATION IN BOSTON, MA, US, UNDER THE THEN CURRENT COMMERCIAL OF THE AMERICAN ARBITRATION ASSOCIATION OR INTERNATIONAL RULES OF THE INTERNATIONAL CENTRE FOR DISPUTE RESOLUTION, DEPENDING ON WHETHER CUSTOMER IS LOCATED IN THE UNITED STATES OR OUTSIDE THE UNITED STATES. THE DECISIONS OF THE ARBITRATORS MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION. NOTHING IN THIS AGREEMENT PREVENTS EITHER PARTY FROM SEEKING INJUNCTIVE RELIEF IN ANY COURT OF COMPETENT JURISDICTION. THE PREVAILING PARTY IN ANY ARBITRATION OR LITIGATION IS ENTITLED TO RECOVER ITS ATTORNEYS’ FEES AND COSTS FROM THE OTHER PARTY.

OTHER TERMS.

1. Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it or Customer agrees to a new agreement or modification as provided by an online process designated by HereApp, and no waiver is effective unless the party waiving the right signs a waiver in writing.
   1. No Assignment. Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets, of a party.
   2. Independent Contractors. The parties are independent contractors with respect to each other.
   3. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation force majeure events.
   4. Money Damages Insufficient Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
   5. No Additional Terms. HereApp rejects additional or conflicting terms of any Customer form-purchasing document.
   6. Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
   7. Survival of Terms Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive. The UN Convention on Contracts for the International Sale of Goods does not apply.
   8. Feedback. If Customer provides feedback or suggestions about the Service, then HereApp (and those it allows to use its technology) may use such information without obligation to Customer.

Contacting Us

If you have any questions or concerns about our Services or these Terms, you may contact us at:

HereApp, Inc.
337 West 2nd st, #9 Boston,MA 02127

+1 617 3809649

hello@elmasenterprise.com

EXHIBIT A- MOBILE SOFTWARE FROM APPLE APP STORE

The following applies to any HereApp Mobile Software Customer acquires from the Apple App Store (App Store Software):

1. Acknowledgment. This agreement is between HereApp and Customer only, and not with Apple, and HereApp, not Apple, is solely responsible for the App Store Software and the content thereof. The agreement does not provide for usage rules for App Store Software that are in conflict with the App Store Terms of Service as of the effective date of the agreement (which Customer acknowledges it has had the opportunity to review).
2. Scope of License. The license granted to Customer for the App Store Software is limited to a non-transferable license on any Apple-branded Products that the Customer owns or controls and as permitted by the Usage Rules set forth in the App Store Terms of Service, except that such App Store Software may be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing.
3. Maintenance and Support. HereApp is solely responsible for providing any maintenance and support services with respect to the App Store Software, as specified in the agreement, or as required under applicable law. HereApp and Customer acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Software.
4. Warranty. HereApp is solely responsible for any App Store Software warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App Store Software to conform to any applicable warranty, Customer may notify Apple, and Apple may refund the purchase price for the App Store Software (if that purchase price was paid to Apple on behalf of HereApp to Customer; and that, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App Store Software, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty is HereApp’s sole responsibility.
5. Product Claims. HereApp and Customer acknowledge that HereApp, not Apple, is responsible for addressing any claims of Customer or any third party relating to the App Store Software or Customer’s possession and/or use of that App Store Software, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the App Store Software’s use of the HealthKit and HomeKit frameworks. This agreement does not limit HereApp ‘s liability to Customer beyond what is permitted by applicable law.
6. Intellectual Property Rights. HereApp and Customer acknowledge that, in the event of any third-party claim that the App Store Software or Customer’s possession and use of that App Store Software infringes that third party’s intellectual property rights, Customer, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
7. Legal Compliance. Customer represents and warrants that: (i) he/she/it is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she/it is not listed on any U.S. Government list of prohibited or restricted parties.
   Developer Name and Address. Company’s name is HereApp, Inc. and address is 337 West 2nd st, #9 Boston, MA 02127, and the contact information (phone number; email address) to which any Customer questions, complaints, or claims with respect to the App Store Software should be directed as follows: hello@elmasenterprise.com
8. Third-Party Terms of Agreement. Customer must comply with applicable third-party terms of use when using the App Store Software (e.g., the App Store Software is a VoIP application, then Customer must not be in violation of its wireless data service agreement when using the App Store Software).
9. Third-Party Beneficiary. HereApp and Customer acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this agreement, and that, upon Customer’s acceptance of the agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the agreement against Customer as a third-party beneficiary thereof.