Last Updated: June 14, 2019
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION CLAUSE BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND HEARTBEAT WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT AND/OR CLASS-WIDE ARBITRATION. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE PARTIES ARE WAIVING THEIR RIGHT TO A TRIAL BY JURY IN THE EVENT OF ARIBTRATION.
3. Changes to Terms
5. Setting up an Account
6. Participating in Campaigns
Subject to the terms and conditions set forth herein, Heartbeat’s Services enable you to act as an ambassador for Heartbeat’s clients, businesses and/or brands (collectively, the “Clients”) in campaigns posted on the Services, interact with other ambassadors, users and Clients, post content related to campaigns the Ambassador participates in, follow Clients on the Services, offer and provide social media services via the Services, including but not limited to social media posts on ‘Instagram’, ‘Twitter’, ‘Facebook’, ‘Pinterest’, or ‘Snapchat’ (collectively, the “Social Media Networks”), aggregate and distribute Client Assets, participate in surveys and engage with various Clients on the Services as further described herein. Ambassador hereby acknowledges and agrees that while Heartbeat may provide information about its Clients, campaigns and related information, such information is based solely on information that is submitted by the Client and Heartbeat is not liable for any inaccuracy of such information. Any opinions, advice, or information expressed by any Client or other third-party are those of such third party and the third party alone and they do not reflect the opinions of Heartbeat. Heartbeat does not direct, is not an employer, has no control over, makes no representations and/or guarantees related to its Clients and/or any other users of the Services. Ambassador agrees that it is solely responsible for its interactions with any Clients and/or other users on the Services and will indemnify, defend and hold harmless Heartbeat for any damages Heartbeat suffers related to any of its interactions on the Services. Notwithstanding anything herein to the contrary, Heartbeat shall have no liability related to its Clients and/or other users acts and/or omissions. Heartbeat grants to Ambassador a limited, non-exclusive, royalty-free, revocable, non-transferable license to use, display, distribute, store, broadcast, transmit and otherwise use the Client Assets in relation to campaigns it participates in on the Services solely during the period of the campaign or as otherwise indicated by Heartbeat and/or its Clients in writing in accordance with the terms and conditions set forth herein. Ambassador acknowledges and agrees that it will use the Services as its exclusive method to participate in campaigns that involve the Clients identified on the Services, and will not engage in contact with any Clients and users outside of the Services. Ambassador agrees to notify Heartbeat immediately if a Client, a person representing a Client, and/or any other user improperly contacts Ambassador or suggests engaging in a relationship, making and/or receiving payments outside of the Services.
b. Location-Based Campaigns
Client may initiate location-based campaigns on the Services that Ambassador may elect to participate in. In such event, Heartbeat is not liable for arranging access to any location, nor ensuring the safety and suitability of such location, securing the location, paying any deposits, arranging for access, paying for travel expenses, securing proper permitting, ensuring sufficient insurance, and/or abiding by any laws and regulations related thereto.
c. Client Assets and Client Products for Campaigns
“Client Assets” shall mean Client’s Products and any information Client submits to Heartbeat and/or ambassadors through the Services, including but not limited to text, audio messages, videos, photos, images, Client’s trademarks and/or Client’s other intellectual property. In the event the Client is utilizing physical products in its campaign that Ambassador is participating in (“Client Product(s)”) Ambassador shall adhere to any instructions from the Client as it relates to such Client Products and Heartbeat shall have no liability related thereto.
d. Ambassador Content
“Ambassador Content” shall mean any information Ambassador submits to Heartbeat and/or Clients through the Services, including but not limited to text, audio messages, videos, photos, images, trademarks and/or its other intellectual property. Ambassador may submit Ambassador Content to Heartbeat and/or its Clients for use in performing Services and Ambassador agrees that it shall not:
- include any content that provides or claims to provide any medical advice;
- include any confidential information of a third party;
- submit any Ambassador Content that contains nudity, or sexual or explicit content;
- submit any Ambassador Content that depicts gratuitous violence, animal or child abuse, or encourages violence against others;
- submit any Ambassador Content that contains hate speech or promotes or condones violence against individuals or groups based on race or ethnic origin, religion, disability, gender, age, nationality, veteran status, or sexual orientation/gender identity;
- submit any Ambassador Content that is considered spam or politically controversial;
- submit any Ambassador Content that may be considered misleading, unlawful, defamatory, obscene, invasive, threatening and/or harassing;
- submit Ambassador Content that includes content that is (or may be) offensive, including without limitation, bigotry, racism, discrimination, hatred and/or profanity; and/or
- submit Ambassador Content that promotes and/or provides information about illegal activities and/or physical harm or injury to any group, individual, institution and/or property.
e. License Grant for Ambassador Content
Ambassador shall retain all right, title and interest in the Ambassador Content. Ambassador grants Heartbeat, its partners, affiliates, users, representatives, assigns and Clients a perpetual, non-exclusive, fully-paid, royalty-free, irrevocable, worldwide, transferable, assignable license to display, publicly perform, distribute, store, broadcast, transmit, reproduce, modify, prepare derivative works and otherwise use and/or reuse all or part of the Ambassador Content as it relates to the Services and for publicity purposes on Heartbeat’s website and in other marketing materials.
f. Access to Ambassador Social Media Networks
- monitor any campaign-related content placed on any Social Media Networks;
- maintain any identifying marks as requested by Heartbeat and/or its Client’s;
- interact with your Social Media Networks for the purposes of optimizing, tracking, measuring, and/or otherwise improving the Services; and/or
- access your Social Media Networks and any campaign-related content as required in Heartbeat’s sole and absolute discretion to provide the Services to you, Heartbeat’s Client’s and other users of the Services.
7. Commission Fees
8. Your Conduct and Responsibilities
When using the Services, you are solely responsible for your use and for any acts and/or omissions occurring under your account. Heartbeat grants you the rights set forth herein subject to the terms and conditions set forth herein, including without limitation:
- you shall not use the Services except through specific channels provided by Heartbeat to you;
- you shall not decompile, reverse engineer, disassemble, modify, and/or otherwise reduce to human-perceivable form all or any part of the Services;
- you shall not use or permit the use of, reproduce and/or otherwise duplicate, disclose, distribute, modify, encumber, time-share, license, sublicense, rent, sell, lease, loan, and/or transfer the Service, any portion thereof, and/or any of your rights thereto;
- you shall not merge the Services or any portion thereof with any other program and/or materials;
- you will not copy, distribute or disclose any part of the Services (including without limitation information provided therein) in any medium, including without limitation by any automated or non-automated “scraping”;
- you will not use any robot, spider, crawler, scraper or other automated means or interface not provided by Heartbeat to access the Services or to extract or export data collected through the Services;
- you agree not to submit and/or transmit any Ambassador Content, email and/or materials through the Services that contain a virus, worm, Trojan horse and/or any other harmful component;
- you are responsible for the accuracy and quality of the Ambassador Content, data and content that you submit and will not violate the intellectual property rights of anyone;
- you shall not submit content that is offensive or engage in unlawful acts, including without limitation, bigotry, racism, discrimination, hatred, profanity, harassment, stalking, bullying and/or harming anyone or anything;
- you shall not imply that Ambassador Content, materials and/or content is in anyway sponsored and/or endorsed by Heartbeat;
- you may not access all or any part of the Services in order to build a product and/or service which competes with the Services or to create derivative works or improvements to the Services;
- you shall not imitate part or all of the design, layout and/or look-and-feel of the Services and/or individual sections of it, in any form and/or media;
- you will use commercially reasonable efforts to prevent unauthorized access to and/or use of the Services and notify Heartbeat promptly of any unauthorized access;
- you shall not violate any of Heartbeat’s requirements, policies and procedures;
- you agree to comply with all applicable laws, rules and regulations;
- you shall not use the Services for any unlawful purpose and/or to violate any federal, state, international law, code of conduct and/or other guidelines which may be applicable to the Services provided;
- you agree not to intentionally hold Heartbeat and/or its employees, directors, officers or agents up to public scorn, ridicule and/or defamation;
- you will not attempt to do any of the following: access data not intended for you, monitor the Services for data gathering purposes in an effort to track usage by others and/or interfere with the Services in relation to any user in any manner;
- you will not attempt to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from the servers used by Heartbeat in providing the Services;
- you will not take any action that imposes, or may impose in Heartbeat’s sole discretion, an unreasonable or disproportionately large load on Heartbeat’s infrastructure and/or otherwise interfere with and/or disrupt the Services; and/or
- you will not permit any other person and/or entity to engage in any of the foregoing conduct.
In the event Heartbeat has reason to believe you are in breach of this Article 8, then Heartbeat may suspend your access to and/or use of the Services immediately, without liability.
9. Use of Services and Availability
Heartbeat retains the right, in its sole and absolute discretion, to deny Services and/or access to and/or use of the Services to anyone at any time and for any reason without liability. While we use reasonable efforts to keep the Services accessible, the Services may be unavailable from time to time. You understand and agree that there may be interruptions to the Services and/or access to your account due to circumstances both within our control such as routine maintenance, and outside of Heartbeat’s control. The Services may be modified, updated, suspended and/or discontinued at any time without notice and/or liability.
10. Cancellation of Campaigns, Right to Suspend & Termination
11. Third-Party Products
12. Linked Sites
15. Idea Submission
Heartbeat or any of its employees do not accept or consider unsolicited ideas, including but not limited to ideas relating to processes, technologies, product enhancements, or product names. Please do not submit any unsolicited ideas, content, artwork, suggestions, or other works (“Submissions”) in any form to Heartbeat. The sole purpose of this policy is to avoid potential misunderstandings or disputes when Heartbeat’s products might seem similar to ideas you submitted to Heartbeat. If, despite our request not to, you do send us your ideas, you agree to the following (i) your Submissions and their contents will automatically become the property of Heartbeat, without any compensation to you, (ii) Heartbeat may use or redistribute the Submissions and their contents for any purpose and in any way, (iii) there is no obligation for Heartbeat to review the Submission, and (iv) there is no obligation to keep any Submissions confidential.
16. Intellectual Property of Heartbeat
The name “Heartbeat,” the design of the Services along with Heartbeat created text, writings, images, templates, scripts, graphics, interactive features and the trademarks, marks and logos contained therein (“Marks“), are owned by or licensed to Heartbeat. The Marks are subject to copyright and other intellectual property rights under US laws and international conventions. Heartbeat reserves all rights not expressly granted in and to the Services. You agree to not engage in the use, copying, or distribution of the Marks or anything else contained within the Services unless we have given you express written permission. All rights not expressly granted are hereby reserved.
17. Representations and Warranties of Ambassador
18. Warranty Disclaimer
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THAT THE SERVICES INCLUDING WITHOUT LIMITATION THE CAMPAIGNS, INFORMATION RELATED THERETO, AND INTERACTIONS WITH OTHER USERS ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. HEARTBEAT DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE ERROR-FREE, UNINTERRUPTED AND/OR THAT DEFECTS WILL BE CORRECTED. HEARTBEAT DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING WITHOUT LIMITATION ANY INSTRUCTIONS) ON THE SERVICES ARE ACCURATE, COMPLETE, OR USEFUL. HEARTBEAT DOES NOT WARRANT THAT YOUR USE OF THE SERVICES ARE LAWFUL IN ANY PARTICULAR JURISDICTION. Heartbeat Makes no warranty that the INFORMATION AND/OR PARTICIPATION IN THE CAMPAIGNS will be effective. NEITHER HEARTBEAT, NOR ANY OF ITS EMPLOYEES, MANAGERS, OFFICERS, ASSIGNS AND/OR AGENTS MAKE ANY REPRESENTATIONS, GUARANTEES, WARRANTIES AND/OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS, STATUTORY AND/OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INTEGRATION, ACCURACY, AND FROM COURSE OF DEALING, USAGE AND/OR TRADE PRACTICE, OR ANY WARRANTIES AS TO THE NUMBER OF VISITORS TO PAGES DISPLAYED ON HEARTBEAT’S SERVICES, OR THE FUNCTIONALITY, PERFORMANCE AND/OR RESPONSE TIMES OF THE SERVICES, ANY INFORMATION PROVIDED VIA THE SERVICES AND/OR ANY SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO HEARTBEAT AND/OR VIA THE SERVICES.
19. Limitation of Liability
YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION THE CAMPAIGNS, CLIENT content, INTERACTIONS BETWEEN AMBASSADOR AND CLIENT, ACTS AND/OR OMISSIONS OF CLIENTs, Ambassador Content, URL names, INFORMATION, images AND copy IS AT YOUR OWN RISK. IN NO EVENT SHALL HEARTBEAT, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, LICENSORS, AND/OR SUPPLIERS BE LIABLE TO YOU AND/OR ANYONE ELSE FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING THOSE RESULTING FROM LOSS OF USE, DATA AND/OR PROFITS, WHETHER OR NOT FORESEEABLE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY, AND/OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF HEARTBEAT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE FOREGOING SHALL APPLY DESPITE ANY NEGLIGENCE, MISCONDUCT, ERRORS AND/OR OMISSIONS BY HEARTBEAT ITS EMPLOYEES, REPRESENTATIVES AND/OR AGENTS. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, HEARTBEAT’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. IN JURISDICTIONS WHERE SUCH LIMITATIONS ARE INAPPLICABLE, YOU AGREE THAT HEARTBEAT’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION THE CAMPAIGNS, CLIENT content, INTERACTIONS BETWEEN AMBASSADOR AND CLIENT, ACTS AND/OR OMISSIONS OF CLIENTs, Ambassador Content, URL names, INFORMATION, images AND copy IS THE LESSER OF THE AMOUNT YOU PAID IN THE PAST SIX MONTHS FOR SERVICES OR ONE HUNDRED DOLLARS (US$100.00).
You shall immediately give notice to Heartbeat of any third party claim against you that might give rise to a claim against Heartbeat. In the event of a claim such as the one described in this Article, we may elect to settle with the party/parties making the claim and you shall be liable for the damages as though we had proceeded with a trial.
21. DMCA Copyright Policy and Copyright Agreement
Heartbeat respects the intellectual property rights of others and expects you to do the same. We reserve the right to block access to and/or remove material that we believe in good faith to be copyrighted material that has been illegally distributed by you and/or other third parties and remove and discontinue service to repeat offenders. We will respond to clear notices of copyright infringement when you provide the following:
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed;
- identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled;
- information sufficient to permit Heartbeat to contact you, such as your physical address, telephone number, and, if available, an electronic mail address;
- a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Contact information for Heartbeat’s DMCA Agent for notice of claims of copyright infringement is: Heartbeat, Attn: Copyright Agent (Brian Freeman), 1507 7th Street #441, Santa Monica, CA 90401 and send a copy to firstname.lastname@example.org.
The Copyright Agent will not remove content from the Services in response to phone or email notifications regarding allegedly infringing content, since a valid DMCA notice must be signed, under penalty of perjury, by the copyright owner or by a person authorized to act on his or her behalf. Please submit such notifications by fax or ordinary mail only and as further described by this Section. The Copyright Agent should be contacted only if you believe that your work has been used or copied in a way that constitutes copyright infringement and that such infringement is occurring on the Services linked to and/or from the Services. The Copyright Agent will not respond to any inquiries other than as described herein.
22. Dispute Resolution
c. Exceptions to Agreement to Arbitrate
You and Heartbeat each agree that the following claims are exceptions to this arbitration clause and will be brought in a judicial proceeding in a court of competent jurisdiction (i) any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, (ii) any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack), or (iii) any claim that qualifies in small claims court in Los Angeles, California.
d. How to Opt-Out of Arbitration
e. Choice of Law
23. Relationship of Parties
24. Force Majeure
You agree that Heartbeat is not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
25. Statements By Employees
26. Severability & Non-Waiver
29. California Users
Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Heartbeat must be sent to our agent for notice to email@example.com.
California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
By using the Services, you agree to receive certain communications in connection with the Services. When you access and/or use the Services, you are communicating with Heartbeat electronically, and you consent to receive communications from Heartbeat electronically including but not limited to notices related to the Services provided to you via email. You agree that all agreements, notices, disclosures and/or other communications that Heartbeat provides to you electronically satisfy any legal requirement that such communications be in writing. Your consent to receive records and notices electronically will remain in effect until you withdraw it. You may withdraw your consent to receive further records and notices electronically at any time by contacting Heartbeat. If you withdraw your consent to receive such records and notices electronically, Heartbeat will revoke your access to the Services. Any withdrawal of your consent to receive records and notices electronically will be effective only after Heartbeat has a reasonable period of time to process your request for withdrawal.
31. Entire Agreement