Terms of Service

Last updated on: May 7, 2020

 

By signing up for an HQ Account (as defined in Section 1) or by using any HQ Services (as defined below), you are agreeing to be bound by the following terms and conditions (the “Terms of Service”).

As used in these Terms of Service, “we”, “us” and “Mr. Smith Agency, LLC” means the applicable HQ Contracting Party (as defined in Section 4 below).

The services offered by HQ under the Terms of Service include various products and services to help you sell goods and services to buyers, whether online (“Online Services”), in person (“POS Services”), or both. Any such services offered by HQ are referred to in these Terms of Services as the “Services”. Any new features or tools which are added to the current Services shall be also subject to the Terms of Service. You can review the current version of the Terms of Service at any time at https://www.get-hq.co/terms. HQ reserves the right to update and change the Terms of Service by posting updates and changes to the HQ website. You are advised to check the Terms of Service from time to time for any updates or changes that may impact you. and if you do not accept such amendments, you must cease using the Services.

You must read, agree with and accept all of the terms and conditions contained or expressly referenced in these Terms of Service, including HQ’s Acceptable Use Policy (“AUP”) and Privacy Policy, and, if applicable, the HQ Data Processing Addendum (“DPA”) before you may sign up for a HQ Account or use any HQ Service. Additionally, if you offer goods or services in relation to COVID-19, you must read, acknowledge and agree to the Rules of Engagement for Sale of COVID-19 Related Products.

Everyday language summaries are provided for convenience only and appear in bold under each section, but these summaries are not legally binding. Please read the Terms of Service, including any document referred to in these Terms of Service, for the complete picture of your legal requirements. By using HQ or any HQ services, you are agreeing to these terms. Be sure to occasionally check back for updates.

 

1. Account Terms

  • To access and use the Services, you must register for a HQ account (“Account”) by providing your full legal name, current address, phone number, a valid email address, and any other information indicated as required. HQ may reject your application for an Account, or cancel an existing Account, for any reason, in our sole discretion.
  • You must be the older of: (i) 18 years, or (ii) at least the age of majority in the jurisdiction where you reside and from which you use the Services to open an Account.
  • You confirm that you are receiving any Services provided by HQ for the purposes of carrying on a business activity and not for any personal, household or family purpose.
  • You acknowledge that HQ will use the email address you provide on opening an Account or as updated by you from time to time as the primary method for communication with you.
  • You are responsible for keeping your password secure. HQ cannot and will not be liable for any loss or damage from your failure to maintain the security of your Account and password.
  • You are responsible for all activity and content such as photos, images, videos, graphics, written content, audio files, code, information, or data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with your Account (“Materials”)
  • A breach or violation of any term in the Terms of Service, including the AUP, as determined in the sole discretion of HQ may result in an immediate termination of your Services.
  • You are responsible for your Account and any Materials you upload to the HQ Service. Remember that if you violate these terms we may cancel your service.
  • If we need to reach you, we will send you an email.

 

2. Creation of Your Account and Site

2.1  Site Owner

  • Subject to section 2.1(2), the person signing up for the Service by opening an Account will be the contracting party (“Site Owner”) for the purposes of our Terms of Service and will be the person who is authorized to use any corresponding Account we may provide to the Site Owner in connection with the Service.
  • If you are signing up for the Services on behalf of your employer, your employer shall be the Site Owner. If you are signing up for the Services on behalf of your employer, then you must use your employer-issued email address and you represent and warrant that you have the authority to bind your employer to our Terms of Service
  • Your HQ Store can only be associated with one Site Owner. A Site Owner may have multiple HQ Stores. “Store” means the online store or physical retail location(s) associated with the Account.

 

2.2  Staff Accounts

  • Based on your HQ pricing plan, you can create one or more staff accounts (“Staff Accounts”) allowing other people to access the Account. With Staff Accounts, the Site Owner can set permissions and let other people work in their Account while determining the level of access by Staff Accounts to specific business information (for example, you can limit Staff Account access to sales information on the Reports page or prevent Staff Accounts from changing general store settings).
  • The Site Owner is responsible and liable for the acts, omissions and defaults arising from use of Staff Accounts in the performance of obligations under these Terms of Service as if they were the Site Owner’s own acts, omissions or defaults.
  • The Site Owner and the users under Staff Accounts are each referred to as a “HQ User”.

 

2.3 Stripe Payments

Payment processing services for business owners on HQ are provided by

Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to HQ’s terms and conditions or continuing to collect payments from your customers through HQ, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of HQ enabling payment processing services through Stripe, you agree to provide HQ accurate and complete information about you and your business, and you authorize HQ to share it and transaction information related to your use of the payment processing services provided by Stripe.

 

3. General Conditions

  • You must read, agree with and accept all of the terms and conditions contained in these Terms of Service, including the AUP and the Privacy Policy before you may become a HQ User. Additionally, you acknowledge and agree to the Rules of Engagement for the Sale of COVID-19 Related Products if you sell such products
  • Technical support in respect of the Services is only provided to HQ Users.
  • The Terms of Service shall be governed by and interpreted in accordance with the laws of the State of New York, without regard to principles of conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms of Service and is hereby expressly excluded.  In the event of any dispute in any way arising out of or relating to, these Terms of Service or use of the Services, the state and federal courts situated in the County of Erie, State of New York shall have exclusive jurisdiction over such disputes and You hereby consent to the exercise of jurisdiction by such courts for adjudication of any such dispute.
  • You acknowledge and agree that HQ may amend these Terms of Service at any time by posting the relevant amended and restated Terms of Service on HQ’s website, available at https://www.get-hq.co/terms and such amendments to the Terms of Service are effective as of the date of posting. Your continued use of the Services after the amended Terms of Service are posted to HQ’s website constitutes your agreement to, and acceptance of, the amended Terms of Service. If you do not agree to any changes to the Terms of Service, do not continue to use the Service.
  • You may not use the HQ Services for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws), the laws applicable to you in your customer’s jurisdiction, or the laws of the State of New York, or any federal laws. You will comply with all applicable laws, rules and regulations in your use of the Service and your performance of obligations under the Terms of Service.
  • You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Services, or access to the Services without the express written permission by HQ.
  • You shall not purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use HQ or HQ trademarks and/or variations and misspellings thereof.
  • Questions about the Terms of Service should be sent to HQ Support.
  • You understand that your Materials (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
  • You acknowledge and agree that your use of the Services, including information transmitted to or stored by HQ, is governed by its privacy policy at https://www.get-hq.co/terms
  • All the terms and provisions of the Terms of Service shall be binding upon and inure to the benefit of the parties to the Terms of Service and to their respective heirs, successors, permitted assigns and legal representatives. HQ shall be permitted to assign these Terms of Service without notice to you or consent from you. You shall have no right to assign or otherwise transfer the Terms of Service, or any of your rights or obligations hereunder, to any third party without HQ’s prior written consent, to be given or withheld in HQ’s sole discretion.
  • If any provision, or portion of the provision, in these Terms of Service is, for any reason, held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability will not affect any other provision (or the unaffected portion of the provision) of the Terms of Service, and the Terms of Service will be construed as if such invalid, illegal or unenforceable provision, or portion of the provision, had never been contained within the Terms of Service.
  • Your Materials may be transferred unencrypted and may be altered, but credit card information is always encrypted.
  • Sections 1, 3(2)-(5), 4, 6-8, 14-15, 17(9)-(11), 19, 21 and 22 will survive the termination or expiration of these Terms of Service.

4. HQ’s Rights

  • We reserve the right to modify or terminate the Services for any reason, without notice at any time. Not all Services and features are available in every jurisdiction and we are under no obligation to make any Services or features available in any jurisdiction.
  • We reserve the right to refuse service to anyone for any reason at any time
  • We may, but have no obligation to, remove Materials and suspend or terminate Accounts if we determine in our sole discretion that the goods or services offered via a Store, or the Materials uploaded or posted to a Site, violate our Acceptable Use Policy (“AUP”) or these Terms of Service.
  • Verbal or written abuse of any kind (including threats of abuse or retribution) of any HQ customer, HQ employee, member, or officer will result in immediate Account termination.
  • HQ does not pre-screen Materials and it is in our sole discretion to refuse or remove any Materials from the Service, including your Store.
  • We reserve the right to provide our services to your competitors and make no promise of exclusivity in any particular market segment. You further acknowledge and agree that HQ employees and contractors may also be HQ customers/merchants and that they may compete with you, although they may not use your Confidential Information (as defined in Section 6) in doing so.
  • In the event of a dispute regarding Account ownership, we reserve the right to request documentation to determine or confirm Account ownership. Documentation may include, but is not limited to, a scanned copy of your business license, government issued photo ID, the last four digits of the credit card on file, your status as an employee of an entity, etc. HQ retains the right to determine, in our sole judgment, rightful Account ownership and transfer an Account to the rightful Site Owner. If we are unable to reasonably determine the rightful Site Owner, without prejudice to our other rights and remedies, HQ reserves the right to temporarily disable an Account until resolution has been determined between the disputing parties.

 

5. Confidentiality

“Confidential Information” shall include, but shall not be limited to, any and all information associated with a party’s business and not publicly known, including specific business information, technical processes and formulas, software, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, product designs, sales, costs (including any relevant processing fees), price lists, and other unpublished financial information, business plans and marketing data, and any other confidential and proprietary information, whether or not marked as confidential or proprietary. HQ’s Confidential Information includes all information that you receive relating to us, or to the Services, that is not known to the general public including information related to our security program and practices.

Each party agrees to use the other party’s Confidential Information solely as necessary for performing its obligations under these Terms of Service and in accordance with any other obligations in these Terms of Service including this Section 6. Each party agrees that it shall take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than (i) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such party’s obligations hereunder, who each shall treat such Confidential Information as provided herein, and who are each subject to obligations of confidentiality to such party that are at least as stringent as those contained herein; or (ii) as required by any law, regulation, or order of any court of proper jurisdiction over the parties and the subject matter contained in these Terms of Service, provided that, if legally permitted, the receiving party shall give the disclosing party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment. Confidential Information shall not include any information that the receiving party can prove: (A) was already in the public domain, or was already known by or in the possession of the receiving party, at the time of disclosure of such information; (B) is independently developed by the receiving party without use of or reference to the other party’s Confidential Information, and without breaching any provisions of these Terms of Service; or (C) is thereafter rightly obtained by the receiving party from a source other than the disclosing party without breaching any provision of these Terms of Service.

 

6. Limitation of Liability

  • You expressly understand and agree that, to the extent permitted by applicable laws, HQ shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses pertaining to, arising out of, or resulting from the use of, or inability to use, the Services.  Subject to other limitations in this Agreement, in no event shall HQ have any liability to You for any claims, losses, or damages of any and every kind in excess of the amount of compensation received by HQ from You in connection with the Services for the twelve (12) month period immediately preceding the accrual of any such claim, loss, or damages.
  • Your use of the Services is at your sole risk. The Services are provided on an “as is” and “as available” basis without any warranty or condition, express, implied or statutory.
  • HQ does not warrant that the Services will be uninterrupted, timely, secure, or error-free.
  • HQ does not warrant that the results that may be obtained from the use of the Services will be accurate or reliable.
  • HQ does not warrant that the quality of any products, services, information, or other materials purchased or obtained by you through the Services will meet your expectations, or that any errors in the Services will be corrected.

 

7. Waiver and Complete Agreement

The failure of HQ to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service, including the documents it incorporates by reference, constitute the entire agreement between you and HQ and govern your use of the Services and your Account, superseding any prior agreements between you and HQ (including, but not limited to, any prior versions of the Terms of Service).

 

8. Intellectual Property and Customer Content

We do not claim any intellectual property rights over the Materials you provide to the HQ Service. All Materials you upload remains yours. You can remove your HQ Store at any time by deleting your Account.

By uploading Materials, you agree: (a) to allow other internet users to view the Materials you post publicly to your Store; (b) to allow HQ to store, and in the case of Materials you post publicly, display and use your Materials; and (c) that HQ can, at any time, review and delete all the Materials submitted to its Service, although HQ is not obligated to do so.

You retain ownership over all Materials that you upload to the Store; however, by making your Store public, you agree to allow others to view Materials that you post publicly to your Store. You are responsible for compliance of the Materials with any applicable laws or regulations.

HQ shall have the non-exclusive right and license to use the names, trademarks, service marks and logos associated with your Store to promote the Service.

 

9. Payment of Fees

You will pay the Fees applicable to your subscription to the Services (“Subscription Fees”) and any other applicable fees, including but not limited to applicable fees relating to the value of sales made through your Store when using all payment providers other than HQ Payments (“Transaction Fees”), and any fees relating to your purchase or use of any products or services through third party offerings made available through the Services.

You must keep a valid payment method on file with us to pay for all incurred and recurring Fees. HQ will charge applicable Fees to any valid payment method that you authorize (“Authorized Payment Method”), and HQ will continue to charge the Authorized Payment Method for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full. Unless otherwise indicated, all Fees and other charges are in U.S. dollars, and all payments shall be in U.S. currency.

Subscription Fees are paid in advance and will be billed in 30 day intervals (each such date, a “Billing Date”). Transaction Fees and Additional Fees will be charged from time to time at HQ’s discretion. You will be charged on each Billing Date for all outstanding Fees that have not previously been charged. Fees will appear on an invoice, which will be sent to the Site Owner via the email provided. As well, an invoice will appear on the Account page of your Store’s administration console. Users have approximately two weeks to bring up and settle any issues with the billing of Subscription Fees.

If we are not able to process payment of Fees using an Authorized Payment Method, we will make a second attempt to process payment using any Authorized Payment Method 3 days later. If the second attempt is not successful, we will make a final attempt 3 days following the second attempt. If our final attempt is not successful, we may suspend and revoke access to your Account and the Services. Your Account will be reactivated upon your payment of any outstanding Fees, plus the Fees applicable to your next billing cycle. You may not be able to access your Account or your storefront during any period of suspension. If the outstanding Fees remain unpaid for 60 days following the date of suspension, HQ reserves the right to terminate your Account.

All Fees are exclusive of applicable federal, provincial, state, local or other governmental taxes.

You are responsible for all applicable Taxes that arise from or as a result of your subscription to or purchase of HQ’s products and services. To the extent that HQ charges these Taxes, they are calculated using the tax rates that apply based on the billing address you provide to us. Such amounts are in addition to the Fees for such products and services and will be billed to your Authorized Payment Method. If you are exempt from payment of such Taxes, you must provide us with evidence of your exemption, which in some jurisdictions includes an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive evidence satisfactory to HQ of your exemption. If you are not charged Taxes by HQ, you are responsible for determining if Taxes are payable, and if so, self-remitting Taxes to the appropriate tax authorities in your jurisdiction.

For the avoidance of doubt, all sums payable by you to HQ under these Terms of Service shall be paid free and clear of any deductions or withholdings whatsoever. Other than Taxes charged by HQ to you and remitted to the appropriate tax authorities on your behalf, any deductions or withholdings that are required by law shall be borne by you and paid separately to the relevant taxation authority. HQ shall be entitled to charge the full amount of Fees stipulated under these Terms of Service to your Authorized Payment Method ignoring any such deduction or withholding that may be required.

You must maintain an accurate location in the administration menu of your HQ Store. If you change jurisdictions you must promptly update your location in the administration menu.

HQ does not provide refunds.

 

10. Cancellation and Termination

You may cancel your Account and terminate the Terms of Service at any time by contacting HQ Support and then following the specific instructions indicated to you in HQ’s response.

Upon termination of the Services by either party for any reason:

HQ will cease providing you with the Services and you will no longer be able to access your Account;

unless otherwise provided in the Terms of Service, you will not be entitled to any refunds of any Fees, pro rata or otherwise;

any outstanding balance owed to HQ for your use of the Services through the effective date of such termination will immediately become due and payable in full; and

your Store website will be taken offline.

If you purchased a domain name through HQ, upon cancellation your domain will no longer be automatically renewed. Following termination, it will be your sole responsibility to handle all matters related to your domain with the domain provider.

If at the date of termination of the Service, there are any outstanding Fees owing by you, you will receive one final invoice via email. Once that invoice has been paid in full, you will not be charged again.

We reserve the right to modify or terminate the HQ Service, the Terms of Service and/or your Account for any reason, without notice at any time. Termination of the Terms of Service shall be without prejudice to any rights or obligations which arose prior to the date of termination.

Fraud: Without limiting any other remedies, HQ may suspend or terminate your Account if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the use of the Services.

We may change or terminate your account at any time. Any fraud and we will suspend or terminate your account.

 

11. Modifications to the Service and Prices

Prices for using the Services are subject to change upon 30 days’ notice from HQ. Such notice may be provided at any time by posting the changes to the HQ Site (https://www.get-hq.co) or the administration menu of your HQ Store via an announcement.

HQ reserves the right at any time, and from time to time, to modify or discontinue, the Services (or any part thereof) with or without notice.

HQ shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.

 

12. Third Party Software

Notwithstanding the terms and conditions of this Agreement, any portion of the Services that constitutes third party software, including software provided under a public license (“Third Party Software”), is licensed to you subject to the terms and conditions of the software license agreements accompanying such Third Party Software, whether in the form of a discrete agreement, shrink-wrap license, electronic license terms at the time of download or installation.. The use of the Third Party Software by you as part of the Services will be governed exclusively by the terms and conditions of such software license agreements.

 

13. Beta Services

From time to time, HQ may, in its sole discretion, invite you to use, on a trial basis, pre-release or beta features that are in development and not yet available to all merchants (“Beta Services”). Beta Services may be subject to additional terms and conditions, which HQ will provide to you prior to your use of the Beta Services. Such Beta Services and all associated conversations and materials relating thereto will be considered HQ Confidential Information and subject to the confidentiality provisions in this agreement. Without limiting the generality of the foregoing, you agree that you will not make any public statements or otherwise disclose your participation in the Beta Services without HQ’s prior written consent. HQ makes no representations or warranties that the Beta Services will function. HQ may discontinue the Beta Services at any time in its sole discretion. HQ will have no liability for any harm or damage arising out of or in connection with a Beta Service. The Beta Services may not work in the same way as a final version. HQ may change or not release a final or commercial version of a Beta Service in our sole discretion.

 

14. DMCA Notice and Takedown Procedure

HQ supports the protection of intellectual property and asks HQ merchants to do the same. It’s our policy to respond to all notices of alleged copyright infringement. If someone believes that one of our merchants is infringing their intellectual property rights, they can send a DMCA Notice to HQ’s designated agent using our form. Upon receiving a DMCA Notice, we may remove or disable access to the Materials claimed to be a copyright infringement. Once provided with a notice of takedown, the merchant can reply with a counter notification using our form if they object to the complaint. The original complainant has 14 business days after we receive a counter notification to seek a court order restraining the merchant from engaging in the infringing activity, otherwise we restore the material. For more information, see our DMCA Notice and Takedown Procedure.

 

15.Rights of Third Parties

Save for HQ and its affiliates, HQ Users or anyone accessing HQ Services pursuant to these Terms of Service, unless otherwise provided in these Terms of Service, no person or entity who is not a party to these Terms of Service shall have any right to enforce any term of these Terms of Service, regardless of whether such person or entity has been identified by name, as a member of a class or as answering a particular description. For the avoidance of doubt, this shall not affect the rights of any permitted assignee or transferee of these Terms.

 

16.Privacy & Data Protection

HQ is firmly committed to protecting the privacy of your personal information and the personal information of your customers. By using the Service, you acknowledge and agree that HQ’s collection, usage and disclosure of this personal information is governed by our Privacy Policy.

Additionally, if: (a) you are established in the European Economic Area (EEA); (b) you provide goods or services to customers in the EEA; or (c) you are otherwise subject to the requirements of the EU General Data Protection Regulation, HQ’s collection and use of personal information of any European residents is also subject to our Data Processing Addendum.