Hey Design Terms of Service

1. APPLICABILITY AND DEFINITIONS

1.1 Applicability. These Terms of Service apply to the provision of Services by Hey Digital as part of the “Hey Design” solution
to the Client.

1.2 Definitions. In addition to definitions that may be defined elsewhere in the Agreement, the following definitions shall apply
throughout the Agreement:

(a) Account: a user account on the Platform created for the Client, through which the Client accesses and interacts with the Platform.

(b) Add-On(s): specific Service(s), Deliverable(s) and/or feature(s) which may be purchased by the Client on the Platform as a one-time purchase(s) without changing the Client’s current Package. Descriptions of the available Add-Ons are provided on the Platform and may be updated from time to time.

(c) Agreement: the agreement entered into between Hey Digital and the Client under which Hey Digital provides the Services to the Client. The Agreement consists of these Terms of Service and any other agreement entered into between the Parties in writing. 

(d) Client: a company acting within the scope of its business or professional activities that is a Party to the Agreement, and is eligible to receive the Services in accordance with the terms of the Agreement.

(e) Deliverable(s): the deliverable(s) provided by Hey Digital to the Client in the course of providing the Services. The Deliverables which the Client can request from Hey Digital as part of the Services are described in the Package or the Add-On purchased by the Client. Deliverables can be, among other things, the following:

i. Static Ad: a digital image that does not move and is therefore static.

ii. Display Ad: Static Ad used specifically for Google Display ad types.

iii. Carousel Ad: a digital image that displays up to ten static images within a single ad.

iv. Short Video: a short video with simple animation movements lasting up to 10 seconds with 2 scenes at the maximum. Short Video has no voiceover.

v. Video: a video lasting up to 1 minute with 6 scenes at maximum. Video requires a video copy. Voiceover is optional for Video.

vi. Landing Page Design: a landing page design file in Figma (or other platform used by Hey Digital). As a general rule, the landing page is meant to be a web page that exists in addition to the Client’s main webpage, the landing page’s purpose is usually limited with a certain campaign. Landing Page Design requires a copy (drafted by Hey Digital or the Client, as agreed between the Parties). For avoidance of doubt, the Deliverable referred to as a “Landing Page Design” (or “Landing Page” or similar) under the Services consists solely of the website’s design file and Hey Digital does not build, operate, or host landing page as a website as part of the Services. 

(f) Fee: the fee payable by the Client to Hey Digital for the Services. The Fee depends on the Package and its Subscription Period and/or the Add-On(s) purchased by the Client and is described here.

(g) Hey Digital: HeyDigital OÜ (registration code 14260443; VAT number EE101978167), registered at Rotermanni tn 18/1-601, 10111, Tallinn, the Republic of Estonia, with e-mail address dylan@goheydigital.com.

(h) Package: The bundle of Services selected by the Client. Details of the available Packages and their respective terms are provided here and may be updated from time to time. If the Client has purchased a specific Package, any updates to the terms of that Package will take effect from the start of the next Subscription Period.

(i) Party or Parties: the Client and Hey Digital referred individually or together.

(j) Platform: website available here via which Services are provided. 

(k) Privacy Policy: Hey Digital’s privacy policy available here.

(l) Request: a request for Services submitted by the Client to Hey Digital through the Platform.

(m) Services: the “Hey Design” services provided by Hey Digital to the Client under the Agreement. 

(n) Subscription Period: a period during which the Services under the chosen Package are provided to the Client. Unless otherwise specified on the Platform, the Subscription Period shall be one (1) month, meaning that the Subscription Period will end on the date in the next month that is one day before the date the subscription was started. For example, if the Subscription Period begins on April 15 (regardless of the time), it will end on May 14 at 23:59 (Estonian time).

(o) Terms of Service: these general terms and conditions which constitute a part of the Agreement, and which apply to all Services provided by Hey Digital to the Client.

1.3 Interpretation. As regards to interpretation, the Parties agree that:

(a) headings in the Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof;

(b) a reference to writing or written means a form reproducible in writing and thereby includes communications via Platform which are reproducible in writing;

(c) any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms; and

(d) unless the context requires otherwise, words in the singular shall include the plural and words in the plural shall include the singular.

2. ENTERING INTO THE AGREEMENT, ACCOUNT AND ON-BOARDING

2.1 Entering into the Agreement. The Agreement is deemed as entered into between the Parties and effective once the Client has (i) entered and submitted the required registration data on the Platform; (ii) chosen the Package; (iii) paid the Fee for the first Subscription Period; and (iv) accepted these Terms of Services. Notwithstanding the foregoing, Hey Digital reserves the right, at its sole discretion, to reject the Client. In such a case, Hey Digital shall notify the Client, any Fee already paid by the Client shall be refunded, and the Agreement shall be deemed not to have taken effect.

2.2 Representations and warranties. By entering into the Agreement, the Client expressly represents and warrants that the Client:

(a) has carefully read, fully understood and agrees to these Terms of Service; 

(b) all information that it submits to Hey Digital, including in the course of registration and on-boarding is true, accurate and up-to-date;

(c) is acting in its independent economic or professional activities and is thereby not considered as a consumer under applicable law; 

(d) has not been previously prohibited from accessing or using the Platform; and

(e) is legally competent and has the right to enter into the Agreement.

2.3 Account(s). Once the Agreement is entered into, an Account is created for the Client on the Platform. Subject to the Platform’s restrictions and guidelines, the Client may create additional Accounts. For the avoidance of doubt, the existence of multiple Accounts under the same Client does not grant the Client any additional rights, nor does it increase the scope of Services provided (including the number of active Requests allowed).

2.4 Onboarding. Before receiving any Services or submitting any Requests, the Client must complete and submit the onboarding form to Hey Digital, along with any required design files and brand information, in accordance with the instructions provided on the Platform.

3. PROVISION OF SERVICES

3.1 Starting and end date. Hey Digital shall provide Services to the Client during the Subscription Period. 

3.2 Scope. The Services which are provided, and the exact terms depend on the Package which the Client has purchased. The Client may also purchase Add-Ons while staying on its current Package.

3.3 Subscription. The Services are provided on a subscription basis in accordance with the Requests submitted by the Client. This means that in order to receive the Services, the Client must create a Request via the Platform and send it to Hey Digital using the instructions provided on the Platform. While the Client may submit an unlimited number of Requests, each Request must meet the requirements outlined in the Agreement and on the Platform. Additionally, there are limitations on the number of active Requests at any given time, as further detailed in section 3.4(c) of these Terms of Service. The Client acknowledges that a failure to submit any Requests during a Subscription Period does not entitle the Client to a refund of any Fees paid or payable, nor will any unused Services roll over to subsequent Subscription Periods.

3.4 Conditions for Request. Among other requirements as stipulated in the Agreement, the following conditions apply to Request(s):

(a) General conditions for Request. Per Request, the Client may request the creation of one Deliverable that includes: (i) single design theme; (ii) several copy variants (if the respective Deliverable requires a copy) once the initial design theme and copy variant are approved by the Client; (iii) with several size variants once the initial size has been approved by the Client; and (iv) in different file formats, as made possible by Hey Digital at its discretion (e.g., Static Ad in PNG and JPEG formats). Any inquiries exceeding these conditions will be considered additional, separate Requests. 

(b) Content requirements for Request. The content of the Request must meet the terms of the Package chosen by the Client, for example, the Client cannot request creation of a Deliverable which is not included in its Package. When creating the Request, the Client must follow all the instructions given on the Platform or by Hey Digital otherwise. The Request must include all the required instructions, information and materials as required by the Platform or Hey Digital otherwise. The Client shall provide all such input at no charge to Hey Digital and ensure that they are accurate, well-organized and complete to be effectively used by Hey Digital to provide the Services. 

(c) Limited number of Request(s) at once. Depending on the Package purchased by the Client, the number of Requests that can be active at a time are limited. If only one Request may be active at a time per Client, then this means that once the Client has submitted a Request that is being processed by Hey Digital, no additional Requests will be processed by Hey Digital until that Request is solved. If two (or more) Requests can be active at a time per Client, as specified by the respective Package, then this means that the respective number of Requests can be processed together by Hey Digital, but no additional Request exceeding the limit will be processed by Hey Digital until at least one other active Requests is solved. The Request shall be deemed to be started once the Client has sent the Request to Hey Digital via Platform and solved once the Client has approved the Deliverable which was the subject of the Request or if the Client renounces from the Request.

3.5 Delivery. Upon receipt of a Request which complies with the terms of the Agreement and subject to the terms of the Agreement (including conditions in section 3.10 of these Terms of Service), Hey Digital will process the Request and deliver the requested Deliverable within a reasonable timeframe, taking into account the complexity of the Request and Hey Digital’s workload. The Parties understand and agree that processing the Request and providing the Deliverable may take longer, and while Hey Digital does not make any warranties, assume any binding obligations or liability regarding the following timeframes, the typical timeframes can be as set forth below:

(a) Static Ad, Carousel Ad, Display Ad: the first draft is sent to the Client within 48 hours from receiving the Request.

(b) Short Video, Video: the storyboard is sent to the Client within 48 hours of receiving the Request. Upon the Client's approval of the storyboard, the produced Short Video or Video is delivered to the Client within 48 hours.

(c) Landing Page Design: if Client provides its own copy (written content which will be used for the Landing Page Design), then the first design draft of the Landing Page Design is sent to the Client within 48 hours from receiving the copy; if the Client does not provide its own copy, then the first design draft of the Landing Page Design (together with copy) is sent within 72 hours from receiving the Request.

3.6 Approval and request for changes. Once the Client is delivered the Deliverable, then the Client can via the Platform either: 

(a) approve the Deliverable in which case the Deliverable is considered as final and delivered and the Client can export the Deliverable from an online server as instructed by Hey Digital; or

(b) request changes to be made to the Deliverable within the same Request. The request(s) for changes must be presented by the Client to Hey Digital: (i) all at once; (ii) in writing via the Platform; and (iii) with a specific suggestion what needs changing.

3.7 Delivery of changed Deliverable. Once Hey Digital has received the request for changes pursuant to section 3.6(b) of these Terms of Service, Hey Digital shall start work with the requested change(s) within the same Request and shall take the Client’s wishes into account as much as reasonably possible. Once the changes have been implemented, Hey Digital shall deliver the changed Deliverable to the Client. After that, the Client can either approve the Deliverable (as specified in section 3.6(a) of these Terms of Service) or request more changes (as specified in section 3.6(b) of these Terms of Service). Typically, making changes takes around 48 hours, subject to the conditions provided in section 3.10 of these Terms of Service, but may in some cases also take longer time, taking into account the complexity of the changes and Hey Digital’s workload.

3.8 Differences for Video and Short Video. The approval and revision process for the Video and Short Video follows the same procedure as for any other Deliverable (as outlined in sections 3.5-3.7 of these Terms of Service), with the exception that it occurs in two stages. First, Hey Digital delivers the storyboard as a Deliverable, which the Client must review, request changes if desired and approve. Subsequently, Hey Digital delivers the Video or Short Video itself, which the Client must also review, request changes if desired and approve.

3.9 Differences for Landing Page Design. The approval and revision process for the Landing Page Design follows the same procedure as for any other Deliverable (as outlined in sections 3.5-3.7 of these Terms of Service), with the exception that it occurs in two stages. First, Hey Digital delivers the copy and initial design draft as a Deliverable, which the Client must review, request changes if desired and approve. Subsequently, Hey Digital delivers the Landing Page Design’s design file in Figma (or other platform used by Hey Digital), which the Client must also review, request changes if desired and approve.

3.10 Conditions of timeframe. The delivery timeframes specified in the Agreement are subject to the following conditions:

(a) the timeframes exclude weekends, meaning that any time falling on Saturday and Sunday is not counted (for example – if the timeframe is 48 hours and the Client sends request on Friday 11:00 AM, then the delivery is done latest by Tuesday 11:00 AM); 

(b) the timeframes exclude any period during which Hey Digital has the right to refuse to provide the Services to the Client as prescribed in the Agreement or in applicable law; and

(c) if Hey Digital’s performance of its obligation under the Agreement is prevented or delayed by any act or omission of the Client, its agent, subcontractor, consultant or employee, then, without prejudice to any other right or remedy it may have, Hey Digital shall be allowed an extension of time to perform its obligation equal to the delay caused by the Client.

3.11 Amendments after approval. After approval by the Client, Hey Digital is not obligated to redo or modify any Deliverables, unless the Client submits a new Request for such task.

3.12 Changing the Package. The Client may change their selected Package at any time during the term of the Agreement. In this case, the Services and features associated with the previous Package will expire immediately, and the Services and features of the new Package will commence immediately upon payment of the applicable Fee. If the new Package is priced higher than the previous one, the Client will be charged the difference in Fee. However, if the new Package is less expensive, the Fee already paid for the remaining Subscription Period of the more expensive and cancelled Package will be credited to the Client’s the next invoice, or if the Services are not continued, the Client will not be entitled to any refund.

3.13 General conditions applicable to Services. The Parties agree on the following:

(a) Manner. Hey Digital provides the Services using reasonable commercial efforts. 

(b) Authorized representative. The Client is responsible that the input given with the Request, as well as any other communication by the Client to Hey Digital, corresponds to the actual will of the Client. This also means that the Client is responsible that the person representing the Client is authorized to provide the input to Hey Digital. 

(c) No bots. The Client shall not use bots, scripts, or any other automated means to submit Requests through the Platform.

(d) No resell. The Client shall not resell, sublicense, or otherwise make the Services available to any third party.

(e) Accuracy. Hey Digital has no obligation to check the truthfulness and/or correctness of the information given by the Client. Hey Digital is not responsible for the authenticity of the data supplied to it by the Client. 

(f) Additional work. Hey Digital is not obligated to provide any services which are outside of the scope of the agreed upon Services. Provision of such services is subject to a separate negotiations and agreement agreed between the Parties in writing, and a separate fee payable by the Client to Hey Digital. 

(g) Desired outcomes. The Client may have certain desired outcomes as regards to the results of the Services (e.g., a rise in the number of customers, rise in revenue etc.). While Hey Digital uses reasonable commercial efforts when providing the Services, the Parties agree and understand that Hey Digital cannot and shall not guarantee any desired outcomes as a result of providing the Services as such are not under the control of Hey Digital. Thereby, the Parties agree and warrant that Hey Digital takes no liability if the desired outcomes of the Client are not reached.

(h) Independency. Hey Digital is free to choose the methods, details and means of performing the Agreement and providing the Services. This also means that Hey Digital is entitled to use any of its team members and use sub-contractors for providing the Services to any extent at Hey Digital’s discretion. This also means that Hey Digital is entitled to use any information technology tools and software for provision of the Services, including any software tools which include artificial intelligence solutions.

(i) Compliance. Where the provision of the Services is subject to special restrictions or regulations (e.g., special restrictions for marketing alcoholic beverages), the Client is obligated to provide such relevant information to Hey Digital. Where the Client has not provided such relevant information to Hey Digital, then Hey Digital shall not be liable for not following such restrictions or regulations.

4. GENERAL TERMS FOR USING THE PLATFORM AND THE SERVICES

4.1 Client responsibility. The Client is solely responsible for all its activities on the Platform, including activities carried through its Account(s). The Client is also responsible for the security of its Account and login credentials. The Client must not share, disclose, or allow third parties to access its Account, nor disclose, share, or make available its Account’s login credentials. Hey Digital is not responsible for unauthorized access, leakage, or damage resulting from the Client's failure to maintain the security of its Account. If the Client discovers or suspects unauthorized access to its account or any other security risk, the Client must immediately notify Hey Digital and implement appropriate security measures.

4.2 Compliance and prohibited uses. The Client is obligated to use the Platform and the Services in accordance with the Agreement, applicable law and good practice. The Client agrees not to use the Platform and the Services in a manner that is contrary to good practice, is illegal, damages the business or reputation of Hey Digital, is discriminatory, immoral, offensive, harmful, or otherwise inappropriate, or constitutes misleading or otherwise unfair trading practices, unfair competition, or illegal acquisition, use, or disclosure of trade secrets. The Client also agrees not to use the Platform or the Services in a manner for which it is not intended. This also means that the Client shall not reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, underlying structure, ideas, or algorithms of the Platform. This also means that the Client must not attempt to access other accounts or restricted parts of the Platform in an unauthorized manner, or introduce malware, viruses, or other harmful code.

4.3 Information. The Client agrees to maintain and promptly update the Client’s information which the Client has given to Hey Digital to keep it accurate and updated.

4.4 Changes to the Platform. The Platform may be modified or updated at any time, including to add or remove features, enhance functionality, or address security risks. Such changes may be made without prior notice or the Client’s consent.

5. FEE

5.1 Fee. The Client shall pay to Hey Digital a Fee for the Services for each Subscription Period and for each purchased Add-On. The Fee depends on the Package chosen by the Client. The Fee shall be paid by the Client in full and in cleared funds to the Hey Digital’s designated bank account using the payment method made available on the Platform. Any transaction fees or charges related to the payment shall be borne by the Client.

5.2 Upfront payment. The Client shall pay the applicable Fee in advance for each Subscription Period and for each selected Add-On. Upon successful payment of the Subscription Fee, the Client shall be granted the right to access and use the Services during the corresponding Subscription Period. Similarly, upon successful payment of the Fee for an Add-On, the Client shall be entitled to use the Add-On in accordance with its respective description.

5.3 Continuous billing. Unless and until the Agreement is terminated by either Party, the Subscription Fee will be automatically billed on the first day of each Subscription Period using the payment method provided by the Client. The Client hereby authorizes Hey Digital to charge the designated payment method accordingly. In case the Services are paused, section 12.2 of these Terms of Service apply.

5.4 Failure to pay or late payment. In the event that the Fee is not paid when due, without limiting any other remedies of Hey Digital, Hey Digital has a right to refuse performing any of its obligation under the Agreement.

5.5 No refunds. The Client waives its right to demand any refund of the Fee which has already been paid to Hey Digital. This also applies where the Fee has been prepaid for the Services which shall not be provided due to termination of the Agreement.

5.6 Third-party payment processor. Hey Digital may use a third-party payment processor to handle and process payments. Currently, Hey Digital uses Stripe, but this may change in the future. The Client acknowledges that the processing of payments may be subject to the terms, conditions, and privacy policies of the third-party payment processor. Hey Digital does not store or process payment information directly. All payment details are managed by the third-party payment processor.

5.7 Invoices. The invoice(s) for the Fee(s) paid by the Client are available to the Client on the Platform.

5.8 Fees changes. Hey Digital reserves the right to change the Fees, as provided in paragraph 11 of these Terms of Service.

5.9 VAT. All Fee amounts payable by the Client displayed on the Platform or communicated otherwise by Hey Digital are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Agreement by Hey Digital to the Client, the Client shall, on receipt of a valid VAT invoice from Hey Digital, pay to Hey Digital such additional amounts in respect of VAT.

6. INTELLECTUAL PROPERTY

6.1 Creation of intellectual property. The works used for the provision of the Services and created as a result of the provision of the Services (Deliverables) may be protected under intellectual property rights (e.g., visual solutions may be protected by copyright). When providing the Services, Hey Digital may:

(a) create unique works specially for the Client under the Agreement (“Client’s Works”);

(b) use works previously created by Hey Digital (“Hey Digital’s Prior Works”); and

(c) use works which intellectual property rights belong to a third-party (“Third-Party Works”; e.g., photos obtained from a third-party online database).

6.2 Use of the intellectual property. Concerning the intellectual property rights of the works mentioned in section 6.1 of these Terms of Service, the Parties agree that:

(a) taking into account the restrictions stipulated below in sections 6.2(b) and 6.2(c) of these Terms of Service, Hey Digital transfers the proprietary rights associated with the Client’s Works to the Client in aggregate, setting no limitations on the allowed aim, term, territory, extent, way or device of use for the Client’s Works. Also, Hey Digital issues to the Client an exclusive, transferable, sub-licensable license under the intended use of the Client’s Works until the validity term of the underlying moral rights or limitations to territory for the exercise of any moral rights that may have been created in regard to the Client’s Works;

(b) Hey Digital hereby grants to the Client a non-exclusive, transferable, sub-licensable license to use Hey Digital’s Prior Works to the extent that it is necessary for the provision of the Services to the Client (including making such works publicly available) without any limitations to the territory until the validity term of the underlying moral rights. Hey Digital retains the right to use Hey Digital’s Prior Works in whatever way or to transfer the right of use to third parties;

(c) the Client has the right to use the Third-Party Works according to the license agreement for that particular Third-Party Work. Upon a written request of the Client, Hey Digital shall provide the Client the terms of such license agreement;

(d) the fee for the transferring and licensing of the intellectual property is included in the Fee; and

(e) the transferring and licensing of the intellectual property as stipulated in section 6.2 of the Terms of Service takes place once the respective Deliverable (protected by the intellectual property rights) have been handed over to the Client and the Client has paid the respective Fee for the Services.

6.3 Representation and warranty by Hey Digital. Hey Digital represents and warrants that it has the right to exercise the intellectual property rights’ transfer and licensing as stipulated above in section 6.2 of the Terms of Service.

6.4 Intellectual property necessary for the Services. For the provision of the Services to the Client, the Client hereby issues to Hey Digital a non-exclusive, transferrable, sub-licensable license to use any intellectual property as regards to any works handed over or made accessible by the Client to Hey Digital to the extent that it is necessary for providing the Services, setting no limitations on the territory, extent, way or device of use (e.g., if the Client sends to Hey Digital a photo to use in advertisement, the Client grants Hey Digital the right to modify and publish the photo). This license is limited to the duration of the Agreement. The Client represents and warrants that it has the right to exercise the licensing of the rights in such manner. No payments are made by Hey Digital to the Client for the license.

6.5 License to use the Platform. Hey Digital hereby grants the Client a non-exclusive license to use the Platform for the purpose of receiving the Services. This license is limited to the duration of the Agreement and is not sub-licensable or transferrable. This license is not restricted by territory.

7. PUBLICITY AND TRADEMARK USAGE

7.1 Publicity and trademark. The Parties hereby agree that they may disclose to the public and to third parties that they are or have been cooperating. For that purpose, a Party (hereinafter in this section 7.1 “Owner”) hereby grants to the other Party a right to use the Owner’s trademark, company name and graphical logo (“Trademark”) on the other Party’s website and in marketing materials to represent that the Parties are co-operating or have done so in the past. The Party using the Trademark shall follow any procedures and/or guidelines provided by the Owner and shall refrain from any activity which may reduce the value of the Trademark or the reputation of the Owner. The license described for the use of the Trademark is considered as non-exclusive license, not restricted by the territory, given until the validity term of the underlying moral rights and is sub-licensable (e.g., a Party can sub-license the usage of a Trademark to a marketing company). No separate payments are made to the Owner for the license.

7.2 Use of Deliverables in portfolio. The Client hereby consents that Hey Digital may display a Deliverable provided to the Client as part of Hey Digital’s portfolio and publish it to showcase Hey Digital’s prior work. This also includes publishing any public weblinks of the Client where such Deliverables are displayed. These rights of Hey Digital survive the termination of the Agreement but will end once the Client specifically requests it from Hey Digital. As such, the Client hereby grants to Hey Digital a non-exclusive license to use any intellectual property rights belonging to or licensed to the Client regarding the Deliverable for the purpose of showcasing Hey Digital’s prior work. This license is not restricted by territory, is given until the validity term of the underlying moral rights (unless requested otherwise by the Client), and is sub-licensable (e.g., Hey Digital can sub-license this to its marketing company). No payments are made by Hey Digital to the Client for this license.

7.3 Case study and testimonial. Where Hey Digital wishes to do a case study presentation of the Client (e.g., discussing metrics, results etc.) or do a testimonial video with the Client, then Hey Digital shall ask the Client a prior permission to do that.

8. LIABILITY AND FORCE MAJEURE

8.1 Limitation of liability. Hey Digital shall be liable for damages caused to the Client only if the damages were caused intentionally or due to gross negligence. Under no circumstances will Hey Digital be liable for a loss of profit, pure economic loss, loss of business, loss of data, indirect damages and/or consequential damages, unless otherwise provided by imperative provisions of applicable law. Also, Hey Digital shall not take any liability for consequences which are caused by incorrect or outdated information provided by the Client and/or for consequences caused due to the Client not following the instructions provided on the Platform or given otherwise by Hey Digital. Furthermore, Hey Digital is not liable for damage caused by fulfilling the Client’s instructions if the instructions were given by a person not having the right of representation where such instructions were given under the Client’s Account or Hey Digital had other reasonable grounds to believe that such a person is an authorized representative of the Client.

8.2 Use of a third-party platform. The Parties agree and understand that Hey Digital does not have a control and is not responsible for the functioning of third-party services which may be relevant or connected to the provision of the Services by Hey Digital (e.g., social media platforms, landing page operators, third-party servers, etc.). Therefore, Hey Digital is not liable for any actions or omissions by such third-parties.

8.3 Maximum liability. In any case, where Hey Digital is held liable, Hey Digital’s liability for damages is limited to the amount of the Fee that the Client has paid to Hey Digital during previous three (3) months preceding the incident that allegedly caused the damage.

8.4 Platform. The Platform is provided on an "as is" and "as available" basis. Hey Digital makes no representations or warranties of any kind, express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, non-infringement, or that the Platform will be uninterrupted, error-free, secure, or free of viruses or other harmful components.

8.5 Force majeure. Neither Party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control (“Force Majeure Event”). Such impediments may include, but are not limited to, acts of government, fires, disturbances of data networks, floods, epidemics, quarantine restrictions, riots, wars, armed conflicts and acts of terror. In case of a Force Majeure Event, the affected Party shall be entitled to a reasonable extension of the time for performing such obligations. The Parties agree that Force Majeure Event shall not excuse a Party’s obligation to make payments when due under the Agreement.

9. INDEMNITY 

9.1 Indemnity by the Client. The Client hereby covenants and agrees, without any right to set-off or counterclaim, to indemnify and hold harmless Hey Digital and its directors, consultants, sub-contractors and employees, from and against any liability, personal or otherwise, arising from or by reason of: i) the Client’s breach of the Agreement or any representation or warranty made by the Client that is incorrect; and/or ii) any action taken or omitted by Hey Digital in connection with or pursuant to the Agreement, where such action or omission is in the interest of the Client. 

9.2 Indemnity by Hey Digital. Hey Digital hereby covenants and agrees, without any right to set-off or counterclaim, to indemnify and hold harmless the Client and its directors, consultants, sub-contractors and employees, from and against any liability, personal or otherwise, arising from or by reason of any action or claim of infringement of intellectual property rights of a third party relating to intellectual property rights transferred or licensed by Hey Digital to the Client under the Agreement.

10. . CONFIDENTIALITY

10.1 Confidential information. Confidential information in relation to either Party (“Disclosing Party”) shall mean all or any part of (“Confidential Information”):

(a) any information of the Disclosing Party marked "commercial in confidence" "confidential" or similarly;

(b) password or other Platform login credentials;

(c) any other information or data relating to the provision of the Services or business or affairs of the Disclosing Party (including know-how); and

(d) any other information or data disclosed by the Disclosing Party relating to the business or affairs of any third party disclosed subject to the terms of any non-disclosure agreement or any other express or implied duty of confidentiality,

in any case as disclosed whether in writing, orally or by any other means by or on behalf of the Disclosing Party to the other Party (“Recipient”), whether directly or indirectly and whether before or after the date of the Agreement.

10.2 Information not confidential. Confidential Information is not information or data which:

(a) is or becomes generally and freely publicly available in any way otherwise than as a result of breach by the Recipient of the Agreement; or

(b) the Recipient can show and prove (to the satisfaction of a reasonable person) that:

i. was lawfully in its possession or known to it by being in its use or being recorded in its files or computers or other recording media prior to receipt directly or indirectly from the Disclosing Party and was not previously acquired by the Recipient under any obligation of confidence; 

ii. was developed by or for the Recipient at any time independently of any information disclosed to it whether directly or indirectly by the Disclosing Party; or

iii. the Recipient obtained or has available from a source other than the Disclosing Party without breach by the Recipient or such source of any obligation of confidentiality or non-use towards the Disclosing Party.

10.3 Purpose of use. The purpose of disclosing and processing the Confidential Information is the performance of the Agreement (“Purpose”).

10.4 Obligations and rights regarding Confidential Information. The Parties agree as follows:

(a) the Recipient shall at all times maintain the Disclosing Party's Confidential Information in confidence, keep it secret and not disclose or divulge it, or allow or suffer it to be disclosed or divulged except as may be expressly permitted in the Agreement. The Recipient shall use the Confidential Information only for the Purpose;

(b) Hey Digital may disclose the Confidential Information where inherently necessary for providing the Services (e.g., the Client instructs Hey Digital to include or the Client approves use of such information in an advertisement); 

(c) the Recipient may disclose such part of the Confidential Information as is necessary for the Purpose to its employees, directors, professional advisers, sub-contractors as have the need to know the information for the Purpose, and also to a relevant third party for the purpose of evaluating or facilitating a potential merger or acquisition transaction, provided that the Recipient shall procure that such person complies with the terms provided in this paragraph 10 of these Terms of Service;

(d) the Recipient may disclose such of the Confidential Information as the Recipient is required to do so by law or pursuant to a court order, to such parties and to such extent that the Recipient is so required to make such disclosure provided that the Recipient shall notify the Disclosing Party as soon as possible prior to making any such disclosure and shall give to the Disclosing Party the opportunity to apply for appropriate protective relief in respect of such Confidential Information;

(e) except as otherwise expressly provided in the Agreement, the Recipient shall not make any disclosure of the Confidential Information to any third party except with the prior written consent of the Disclosing Party; 

(f) on the Disclosing Party's written request, the Recipient shall return to the Disclosing Party or, at the Disclosing Party’s option, destroy all or such part or any copies or such part of any copies of the Disclosing Party's Confidential Information (unless prohibited by the applicable law or necessary for fulfilling the Agreement); and

(g) exercising the rights as provided in paragraph 7 of these Terms of Service (publicity and trademark usage) is not a breach of a confidentiality obligation.

10.5 Term of the confidentiality. The obligations provided in in this paragraph 10 of these Terms of Service shall remain force indefinitely.

11. . AMENDMENT OF THE TERMS (INCLUDING FEE)

11.1 Amendment by Hey Digital. Hey Digital has a right to unilaterally amend the Terms of Service in the following cases:

(a) any term, as found necessary at the sole discretion by Hey Digital; and

(b) to change the Fee once in six months. 

11.2 Notification of the amendment. Hey Digital shall notify the Client of any amendment to the Terms of Service at least thirty (30) calendar days in advance via the Platform or e-mail and shall make the updated term(s) available (“Amendment Notification”).

11.3 Entry into force. The amended Terms of Service shall enter into force once thirty (30) calendar days has passed after the delivery of the Amendment Notification. If the Client does not agree to the amendment, the Client has the right to terminate the Agreement as provided in section 14.2 of these Terms of Service. In case of a Fee change payable for subscription, such change shall take effect at the start of the next Subscription Period.

12. . PAUSING SERVICES BY THE CLIENT

12.1 Pausing. The Client may pause the Services at any time through the Platform. This pause may be either: (i) indefinite, with no specified date for resumption, in which case the Services shall resume only upon the Client’s request; or (ii) scheduled to resume automatically on a specific date selected by the Client, in which case the Services will continue from that date. When the Services are paused, the Client is not eligible to receive the Services. Technically the Client may still be able to submit the Requests, but these will not be fulfilled or answered.

12.2 No consumption of the days in Subscription Period. If the Services are paused, the Subscription Period shall also be paused accordingly, and the remaining days in the current Subscription Period will not be consumed during the pause. For example, if the Client has a monthly Subscription Period which renews on April 30th but on April 5th the Services were paused until April 15th (paused for ten days) the next time the Client is charged is May 10th. 

13. . SUSPENSION OF SERVICES BY HEY DIGITAL

13.1 Hey Digital may suspend the Services and/or Client’s access to the Platform if: (i) necessary for maintenance work or due to any data security risk; or (ii) if the Client has breached the Agreement or there is reasonable suspicion of such a breach. The Client is not eligible for a refund or any other legal remedy for the suspension of Services.

14. . TERM AND TERMINATION

14.1 Term. The Agreement is entered into for indefinite term, unless terminated by either Party as set forth in the Agreement or applicable law. 

14.2 Ordinary termination by the Client. The Client may terminate the Agreement at any time with no prior notice by cancelling their subscription via the Platform. Termination takes effect either immediately or at the end of the active Subscription Period, as selected by the Client via the Platform. In either case, no Fees will be refunded to the Client, as stipulated in section 5.5 of these Terms of Service. 

14.3 Ordinary termination by Hey Digital. Hey Digital may terminate the Agreement at any time by providing the Client a prior notice of 15 (fifteen ) days via the Platform or via e-mail. The termination takes effect after the notice period provided in the previous sentence has elapsed.

14.4 Extraordinary termination by either Party. Without affecting any other right or remedy available to it, either Party may terminate the Agreement with immediate effect by giving a notice to the other Party via the Platform or via e-mail if:

(a) the other Party commits a material breach of any term of the Agreement and (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so;

(b) the other Party repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement;

(c) the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts; or

(d) the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

14.5 Definition of material breach. For the purposes of section 14.4(a) of these Terms of Service, a material breach means a breach that is serious in the widest sense of having a serious effect on the benefit which the terminating Party would otherwise derive from a substantial portion of the Agreement.

14.6 Default on payment. Without affecting any other right or remedy available to it, Hey Digital may terminate the Agreement with immediate effect by giving a prior notice to the Client via the Platform or e-mail if the Client fails to pay any amount due under on the due date for payment and remains in default not less than seven (7) days after being notified to make such payment.

14.7 Retaining the Deliverables. Hey Digital shall retain the final versions of the Deliverables and make them accessible to the Client throughout the term of the Agreement. Upon termination of the Agreement, the Client may request that Hey Digital provide the Deliverables (which were created before the termination of the Agreement), provided such request is made within three (3) months of the termination date. After this period, Hey Digital shall have no obligation to retain or provide such Deliverables to the Client.

14.8 Consequences of termination. On termination of the Agreement, the following sections shall continue in force: paragraph 1 (applicability and definitions), section 2.1 (entering into the Agreement), section 2.2 (representations and warranties), paragraph 5 (fee), paragraph 8 (liability and force majeure), paragraph 9 (indemnity), paragraph 10 (confidentiality), section 14.8 (consequences of termination), paragraph 15 (disputes and governing law), paragraph 17 (miscellaneous) and other section if so agreed upon in the Agreement or the continuance in force derives from the nature of the respective section. 

15. DISPUTES AND GOVERNING LAW

15.1 Settlement of disputes. Any dispute, controversy or claim arising out of or in connection with the Agreement, or the breach, termination or invalidity thereof, shall be resolved via mutual negotiation of the Parties. In case the negotiations fail to resolve the dispute, it shall be exclusively settled in Harju County Court (Estonia) as a court of first instance.

15.2 Governing law. The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed exclusively in accordance with the law of the Republic of Estonia without reference to its choice of law rules.

16. PERSONAL DATA PROCESSING

16.1 Applicability. The Parties agree that:

(a) The provisions given in this paragraph 16 of these Terms of Service (“Procedure”) apply only if and when the Client makes personal data of the Client’s representatives (“Personal Data”) accessible to Hey Digital and where the Client is considered as a data controller and Hey Digital as a data processor of such Personal Data in the meaning of the Regulation (EU) 2016/679 of the European Parliament and of the Council (“GDPR”), as specified in more detail in this Procedure. This would be the case where Hey Digital processes such Personal Data solely for the purpose of providing Services to the Client (see also section 16.5 of these Terms of Service below).

(b) This Procedure does not apply to processing of Personal Data (and other personal data) which Hey Digital processes as a controller within the meaning of the GDPR as is described in the Privacy Policy.

(c) This Procedure also does not apply to processing of personal data of Client’s customers since as part of the Services Hey Digital does usually access and process Client’s customers personal data.

(d) In any other case where there should be a controller-processor relationship between the Parties pursuant to the GDPR which is not covered in section 16.1(a) of these Terms of Services, then the Parties shall negotiate and enter into a separate data processing agreement.

16.2 Obligations of Hey Digital. Where Hey Digital acts as a processor of Personal Data, as stipulated in section 16.1(a) of these Terms of Service, Hey Digital agrees with the following and warrants that:

(a) Hey Digital shall process the Personal Data only on behalf of the Client, and in accordance with the instructions given by the Client and in the Procedure, including with regard to transfers of the Personal Data to a third country or an international organisation, unless required to do so by law to which Hey Digital is subject to. In such a case Hey Digital shall inform the Client of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;

(b) no circumstances occur that hinder or exclude Hey Digital’s ability to follow the instructions given by the Client or obligations deriving from the Procedure;

(c) Hey Digital ensures that persons authorised to process the Personal Data have committed themselves to confidentiality;

(d) Hey Digital takes all measures required pursuant to GDPR article 32 and Hey Digital has implemented technical and organisational security measures for protecting the Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Personal Data transmitted, especially when processing includes transmitting data using network, and against any other illegal processing;

(e) taking into account the nature of the processing, Hey Digital assists the Client by appropriate technical and organisational measures, insofar as this is possible, if the Client responds to requests related to exercising the data subject’s rights laid down in GDPR Chapter III;

(f) Hey Digital assists the Client in ensuring compliance with GDPR articles 32 to 36 taking into account the nature of processing and the information available to Hey Digital;

(g) if requested, Hey Digital makes available information necessary to demonstrate compliance with the obligations laid down in GDPR article 28 and allows audit regarding the means, procedure and location of processing the Personal Data which shall be conducted by an inspection body agreed by the Parties (and if required, such choice is conciliated with the supervisory authority) which consists of independent members who have the required professional skills and who are bound by requirement of confidentiality. Any audit and its terms, including its timing and means, shall be agreed between the Parties beforehand. Such audit may not interfere with the everyday business of Hey Digital and shall take place not sooner than 60 (sixty) calendar days before the Client has requested the audit. Costs related to the audit shall be borne by the Client. Hey Digital shall notify the Client immediately if, in its opinion, instruction to carry out audit infringes the law; and

(h) Hey Digital shall correctly and within reasonable time address all requests made by the Client which relate to the processing of the Personal Data and shall comply with all instructions of supervisory authority as regards to processing of the Personal Data.

16.3 Categories of Personal Data. The Client may make any Personal Data available to Hey Digital under this Procedure as chosen by the Client. However, typically the Personal Data shall include the following – the Client’s representatives’ Personal Data like contact data (first and last name, e-mail, telephone number), work position, employer’s name, preferred language, photo and possibly other Personal Data made available by the Client.

16.4 Retainment of Personal Data. Hey Digital shall retain the Personal Data until the termination of the Agreement. After that, Hey Digital deletes all the Personal Data and existing copies (or anonymises it), unless law requires storage of the Personal Data. 

16.5 Purpose and nature of processing. The purpose of processing the Personal Data is the provision of Services to the Client. The nature of processing the Personal Data includes any operation or sets of operations which are necessary to perform on the Personal Data or on sets of the Personal Data for the purpose of processing the Personal Data (as provided in the previous sentence).

16.6 Sub-processors. The Parties agree that Hey Digital may engage for processing the Personal Data any sub-processors as described in Hey Digital’s Privacy Policy paragraph 5 . The Client gives a general authorisation to Hey Digital to engage new sub-processors at Hey Digital’s discretion. If Hey Digital wishes to engage a new sub-processor, Hey Digital shall update the Privacy Policy. The Client has a right to submit an objection within two (2) weeks of updating of the Privacy Policy. If such objection is submitted, the Client must stop making the Personal Data available to Hey Digital and the performance of the Agreement is suspended. In such case the Parties shall enter into negotiations for accepting the new sub-processor. If an agreement is not reached, either Party has the right to terminate the Agreement under sections 14.2 or 14.3 of these Terms of Service (respectively). Hey Digital shall conclude contracts with sub-processors which provide sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of applicable law.

17. MISCELLANEOUS 

17.1 Communication and notices. If not explicitly agreed otherwise in writing, all communication between the Parties shall be in English and take place via the Platform. In case use of the Platform is not possible, all notices shall be sent to the e-mail addresses of the Parties.

17.2 Third party websites. The Platform may provide links to third-party websites which are not under the control of Hey Digital. Hey Digital makes no representations about third-party websites. When the Client accesses a third-party website, it is done at the Client’s own risk. Hey Digital is not responsible for any services provided at such third-party websites nor for the reliability of any data, opinions, advice, or statements made on third-party sites.

17.3 Severance. If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If that modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this section shall not affect the validity and enforceability of the rest of the Agreement.

17.4 No employment, partnership or joint venture. Nothing in the Agreement is intended to, or shall be deemed to, establish any employment relationship, partnership or joint venture between the Parties.

17.5 Entire agreement. The Agreement, including these Terms of Service and any links provided herein, constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.