Last updated: January 14, 2016
Welcome to Hightower, located at www.GetHightower.com (the “Website”), which is owned and operated by Hightower, Inc. (“Hightower”). Hightower provides a series of services through the Website and through mobile device applications (each, a “Hightower App”). The Website and the Hightower Apps are collectively referred to throughout these Terms as the “Hightower Platform”. Hightower’s services include different services for Landlords, Landlord Brokers and Tenant Brokers (defined below), collectively referred to as the “Hightower Service.”
Please read these Terms of Service carefully. They are important and contain information and legal disclosures that you should be aware of, including the terms that allow you to access and use the Hightower Platform, and other terms that specify permissible uses of the Hightower Platform. In order to use the Hightower Platform and the Hightower Service, you must agree to these Terms of Service.
Hightower Service Overview
The Hightower Service is a cloud based platform that allows commercial property owners (“Landlords”), commercial real estate brokers (“Landlord Brokers”), commercial tenant rep brokers (“Tenant Brokers”) (collectively, “Users”) to create an account via the Website or a Hightower App to obtain real time visibility, analysis and reporting on the performance of their real estate or tenancy portfolio (as applicable). Once a Landlord, Landlord Broker or Tenant Broker enters the basic information about a property or tenancy into the Hightower Platform, the Landlord, or Landlord Broker or Tenant Broker is able to track the details of the proposals and deals surrounding a property or tenancy using any device.
Your Acceptance of These Terms Of Service
These Terms of Service contain the terms and conditions that govern your use of the Hightower Platform and the Hightower Service. The Terms of Services also describe your rights and responsibilities and what you can expect from use of the Hightower Platform. Your use of the Hightower Platform constitutes your acceptance and agreements to these Terms of Service. If you do not agree with these Terms of Service, you are prohibited from accessing the Hightower Platform and must immediately discontinue using the Hightower Service.
Hightower May Change These Terms of Service
Hightower reserves the right to add, delete, and/or modify any of the terms and conditions contained in these Terms of Service at any time and in its sole discretion by promptly and clearly posting a change notice on the Website or Hightower App. In the event of substantive changes to these Terms of Service, you may be notified by email of the changes. If any modification is unacceptable to you, you should immediately cease use of the Website, Hightower App and the Hightower Service. Your continued use of the Website or Hightower App following a notice of a change in the Terms of Service on the Website or Hightower App will constitute binding acceptance of the changes.
Eligibility to Use the Hightower Service
You must be a Landlord, Landlord Broker or Tenant Broker (or an employee or independent contractor of a Landlord, Landlord Broker or Tenant Broker) in order to use the Hightower Service. Further, Hightower will only provide access to the Hightower Service to parties that can lawfully enter into and form contracts under applicable law. The Hightower Platform is not intended for anyone under the age of 18.
Individual Hightower Accounts
Business Hightower Accounts
If you are a business, you may create a “Business Hightower Account” for a group of Individual Hightower Accounts for your employees and/or independent contractors providing services to your business (typically all having the same @yourcompanyname.com email address). Each employee or independent contractor must have his/her own Individual Hightower Account and you can designate particular employees as administrators of the Business Hightower Account (each, a “Business Account Administrator”). Business Account Administrators can allow employees and independent contractors who hold Individual Hightower Accounts to be part of the Business Hightower Account, and each employee or independent contractor who is accepted into the Business Hightower Account is then an “Authorized User”. You may also authorize any of your employees or independent contractors with an @yourcompanyname.com email address to create an Individual Hightower Account as part of your Business Hightower Account. You are responsible for all actions taken under an Authorized User’s Individual Hightower Account, whether or not such action was authorized by an Authorized User. You are responsible for the security of each Authorized User’s log in details for use of the Business Hightower Account and will not share (and will instruct each Authorized User not to share) such log in details with any person or entity or otherwise permit any other person or entity to access or use the Hightower Service.
Grant of License
Hightower hereby grants you a limited, revocable license solely to access and use the Hightower Platform and the Hightower Service for the purpose of managing, tracking, reporting and analyzing the performance of your real estate or tenancy portfolio and related deals and proposals, subject to your compliance with these Terms of Service (including the license restrictions set out below) and the payment of any required fees. If you choose to access and use the Hightower Platform via a Hightower App, Hightower hereby grants you a limited non-exclusive, non-transferable, non-sublicenseable license, subject to your compliance with these Terms of Service (including the license restrictions set out below), to download and install a copy of the Hightower App on a mobile device or computer that you own or control.
You may only use the Hightower Platform and the Hightower Service as expressly permitted by Hightower. You agree that you will not do any of the following:
If you use the Hightower Platform or the Hightower Service in a manner that exceeds the scope of this license or you breach the Terms of Service, Hightower may revoke the license granted to you in addition to pursuing any other remedies available under these Terms of Service or applicable law.
Everything located on the Hightower Platform is the exclusive property of Hightower or is being used with permission. Hightower solely and exclusively owns all intellectual property and other rights, title, and interest in and to the Website and the Hightower Apps, except as expressly provided in these Terms of Service. You will not acquire any right, title, or interest therein under these Terms of Service or otherwise to any intellectual property owned by Hightower by using the Hightower Platform. Hightower reserves all rights not expressly granted in these Terms of Service. Any violation of this requirement may result in a copyright, trademark or other intellectual property right infringement that may subject you to civil and/or criminal penalties.
The Hightower Platform contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound, and the entire contents of the Hightower Platform are protected by copyright as a collective work under the United States copyright laws. Hightower owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit any of the content of the Hightower Platform, in whole or in part. You may download, print, and/or save copyrighted material for your personal use only. Except as otherwise expressly stated under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material without the express permission of Hightower or the copyright owner is permitted. You acknowledge that you do not acquire any ownership rights by downloading copyrighted material.
Get Hightower and Hightower are trademarks of Hightower, Inc. Product names, logos, brands, and other trademarks featured or referred to within the Hightower Platform are the property of their respective trademark holders. These trademark holders are not affiliated with Hightower, the Hightower Service, or the Hightower Platform. They do not sponsor or endorse Hightower.
Hightower reserves the right to modify the organization or structure of the Hightower Service or the Hightower Platform, and may change, suspend, or discontinue any aspect of the Hightower Service at any time either at no cost or subject to additional fees, in Hightower’s sole discretion. Hightower shall have complete discretion over the features, functions, and other terms and conditions on which the Hightower Service is offered. Notwithstanding anything else contained in these Terms of Service, Hightower will have no obligation to continue making the Hightower Service available or producing or releasing new versions of the Hightower Service or any updates thereto, or to continue offering any portion of the Hightower Service at a certain price or free of charge.
If you elect to access any paid component of the Hightower Service, such as becoming a subscriber of one of the available Hightower plans, you agree to pay all fees and charges associated with your subscription on a timely basis. A valid payment method, such as a credit card or purchase order (“Payment Method”), is required to subscribe to a Hightower plan.
All such fees and charges (including any taxes and late fees, as applicable) will be charged on your Payment Method. If applicable, you agree to maintain your Payment Method information current. You agree that by submitting credit card information to Hightower, you are authorizing Hightower to charge your credit card the fees associated with the plan you have selected. Hightower will use secure socket layer (SSL) encryption that permits your sensitive payment information to be securely collected and transmitted. Further, for your protection, the information related to your Payment Method will not be stored on the Hightower Service, but rather your Payment Method information will be stored by our secure payment gateway partner.
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that any content made available in connection with the Hightower Service infringes your copyright, you (or your agent) may send us a notice requesting that the content be removed, or access to it blocked. Notices and counter notices must meet the then-current statutory requirements imposed by the DMCA (see http://www.loc.gov/copyright for details). Notices and counter notices with respect to the Hightower Service should be sent to:
Attn: DMCA Agent
176 Grand Street, Suite 3 New York, NY 10013
or via email at firstname.lastname@example.org
You represent and warrant to Hightower that, in your use of the Hightower Service, you: (i) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other legal right of any third party; (ii) will comply with all applicable laws, rules, and regulations; and (iii) that you have the full power and authority to enter into and perform your obligations under these Terms of Service.
HIGHTOWER PROVIDES THE WEBSITE, THE HIGHTOWER APPS AND THE HIGHTOWER SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS. HIGHTOWER DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, HIGHTOWER SERVICE OR ITS USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. HIGHTOWER MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TERMS OF SERVICE, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON INFRINGEMENT.
HIGHTOWER WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA, OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO, OR CONNECTED WITH THE USE OF THE HIGHTOWER SERVICE, THE HIGHTOWER PLATFORM OR THESE TERMS OF SERVICE, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL HIGHTOWER’S LIABILITY EXCEED THE GREATER OF THE AMOUNT DIRECTLY PAID BY YOU TO USE THE HIGHTOWER SERVICE DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY, OR $500.
You will indemnify and hold Hightower, its directors, officers, employees, agents and licensors harmless with respect to any damage, loss, expense, suit or claim, including attorneys’ fees and costs (collectively, a “Claim”) arising out of (i) your breach of these Terms of Service, including but not limited to, any infringement by you of the intellectual property of any third party; or (ii) any third party Claim arising out of your use or misuse of the Hightower Service. If you are required to indemnify Hightower under this section, Hightower will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without Hightower’s express written permission.
You may terminate your account for any reason at any time by sending a request by email to email@example.com. Hightower may suspend, limit your access to, or terminate your use of the Hightower Service at any time, with or without cause, in its sole discretion. Notwithstanding this section, these Terms of Service will survive indefinitely unless and until Hightower chooses to terminate these Terms of Service.
In the event you decide to terminate your account with Hightower, or Hightower terminates your account for other than a breach of these Terms of Service, Hightower will, upon request, transfer your content to a medium of your choosing and deliver such content to you within a reasonable amount of time.
All notices required or permitted to be given under these Terms of Service will be in writing and delivered to the other party by any of the following methods: (i) U.S. Mail, (ii) overnight courier, or (iii) electronic mail. If you give notice to Hightower, you must use the following addresses: 176 Grand Street, Suite 3, New York, NY 10013, or firstname.lastname@example.org. If Hightower provides notice to you, Hightower will use the contact information provided by you to Hightower. All notices will be deemed received as follows: (i) if by delivery by U.S. Mail, five (5) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no “system error” or other non-delivery notice is generated. If applicable law requires that a given communication be “in writing,” you agree that email communication will satisfy the requirement.
These Terms of Service shall be governed by the laws of the State of New York, excluding its conflict of laws rules. All disputes arising out of or related to these Terms of Service will be subject to the exclusive jurisdiction and venue of the federal and state courts located in the County and State of New York, and you consent to the personal and exclusive jurisdiction of these courts.
Hightower may use third parties to provide certain services accessible through the Hightower Platform. Hightower does not control those third parties or the services provided, and you agree that Hightower will not be liable to you in any way for your use of such services or any charges incurred while using such services. These third parties may have their own terms of service and other polices. When you use those services, you must comply with such terms and policies, as well as these Terms of Service. If any such terms or policies conflict with these Terms of Service, or other Hightower agreements or policies, you must comply with Hightower’s Terms of Service, agreements, or polices, as applicable.
These Terms of Service will be binding upon each party hereto and its successors and permitted assigns. These Terms of Service (including all of the policies and other agreements described in these Terms of Service, which are incorporated herein by this reference) contain all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power, or privilege under these Terms of Service will operate as a waiver thereof, nor will any single or partial exercise of any right, power, or privilege preclude any other or further exercise of any such right, power, or privilege. You and Hightower are independent entities, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by these Terms of Service. The invalidity or unenforceability of any provision of these Terms of Service will not affect the validity or enforceability of any other provision of these Terms of Service, all of which will remain in full force and effect. The headings used throughout these Terms of Service are merely descriptive and not operative and have no legal or contractual effect.
If you have any comments or questions, you may address them to Hightower, Inc., 176 Grand Street, Suite 3, New York, NY 10013, or via email at email@example.com.