Ambassador Terms

Heartbeat Ambassador Terms of Use
Last Updated: June 14, 2019 

1.     Description of Services and Acceptance of Terms of Use

The Services that Heartbeat Technologies, Inc. (collectively, hereinafter “Heartbeat”, “we”, “our”, and “us”) provides to you are subject to the terms and conditions set forth herein (“Terms of Use”), which govern your access to and/or use of (a) Heartbeat’s consumer engagement and activation platform that enables ambassadors to discover and follow brands, engage with brands and other ambassadors, apply for and participate in campaigns and answer survey questions, (b) heartbeat.com and getheartbeat.co websites, and/ or (c) use of any mobile versions and/or applications, content, products, services and any sites Heartbeat may have now and/or in the future (collectively, the “Services”), including without limitation as it relates to marketing, participating in campaigns and/or surveys, interacting with other ambassadors, businesses, brands and/or other users of the Services, posting content related to campaigns it participates in and/or following brands and/or businesses on the Services.

By clicking on the “Accept” button on the screen as it relates to the Terms of Use and/or by accessing and/or using the Services, you will be deemed a Heartbeat Ambassador (“Ambassador”, “you” and “your”) and acknowledge and agree that you have read, understand and agree to be bound by all of the terms and conditions of this Terms of Use, as well as all other applicable rules or policies, terms and conditions and/or agreements that are and/or may be established by Heartbeat from time to time and the foregoing shall be incorporated herein by reference.  If you agree to this Terms of Use on behalf of an entity, or in connection with providing and/or receiving services on behalf of an entity, you represent and warrant that you have authority to bind such entity or agency to this Terms of Use. In such event, “Ambassador”, “you” and “your” as used herein will refer and apply to each entity or agency. The terms and conditions of this Terms of Use will exclusively govern your access to and/or use of the Services. Please read this Terms of Use carefully. If you do not accept this Terms of Use, now or in the future, please stop your use of the Services immediately, in which case any continuing access and/or use of the Services is unauthorized.   

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.

2. Privacy Policy

You also agree to Heartbeat’s privacy policy, located at heartbeat.com/privacy. (“Privacy Policy”) and consent to any personal information we may obtain about you being collected, stored, and/or otherwise processed in accordance with the Privacy Policy and this Terms of Use.

3. Changes to Terms

Subject to the terms and conditions set forth herein, Heartbeat may, at any time, for any reason, in its sole discretion make changes to the Services, plans and/or modify this Terms of Use. If Heartbeat makes changes and/or modifications that affect your access to and/or use of the Services, Heartbeat will provide a notice of such changes by posting the updated Terms of Use on the page and changing the “last updated” date listed above.  We may also provide you with additional forms of notice of modifications and/or updates as appropriate under the circumstances.  If you do not agree with the changes and/or modifications, you shall not use the Services after the effective date of the changes. Please revisit this Terms of Use regularly to ensure that you stay informed of any changes.

4. Eligibility

To access and/or use the Services, you must be eighteen (18) years or older and have the requisite power and authority to enter into this Terms of Use and meet any other applicable age and residency requirements. The Services are not intended for and should not be used by anyone under the age of thirteen (13) unless Heartbeat receives legal parental or guardian consent.  Otherwise, you represent and warrant that you are over the age of eighteen (18) and are the intended recipient of the Services. You may not access and/or use the Services for any purpose if either of the representations in the preceding sentence are not true.

5. Setting up an Account

You are required to establish an account through the Services, and you agree to provide true, accurate and current information in connection with your account.  After you sign up for an account, Heartbeat will review your information and determine whether to approve you as an ambassador in its sole and absolute discretion.  In the event Heartbeat approves you as an ambassador, Heartbeat will notify you and you may request to participate in campaigns by completing the instructions and requirements of each desired campaign.  Heartbeat will review such request and decide in its sole and absolute discretion whether to approve such request.  In the event such request is approved, Heartbeat will notify you that you have been accepted to participate in the campaign.  Heartbeat does not discriminate on the basis of race, creed, color, ethnicity, national origin, religion, sex, sexual orientation, gender expression, age, height, weight, physical or mental ability, veteran status, military obligations, and marital status.  Ambassadors are approved by Heartbeat in its sole and absolute discretion and based on the business and/or brand’s campaign criteria.  You are responsible for updating and correcting information you have submitted to create and/or maintain your account.  Any usernames and passwords used for the Services are for your use only.  You are solely responsible for maintaining the security and confidentiality of the password you use to access your account.  You understand and agree that Heartbeat shall have no responsibility for any incident arising out of, and/or related to, your account settings.  Heartbeat will assume that anyone using the Services and/or transacting through your account is you.  Therefore, you further agree to immediately notify Heartbeat of any unauthorized use of your password and/or account and/or any other breach of security.  You may only create and hold one (1) account that you are solely responsible for managing and are prohibited from using other disguised identities when using the Services.  We may refuse to grant you an account with a name that impersonates someone else, if it may be illegal, vulgar, offensive, and/or if it may be protected by trademark and/or other proprietary rights, as determined by Heartbeat in its sole and absolute discretion.  Your account is non-transferrable and may not be sold, combined and/or otherwise shared with any other person.  If you violate this Terms of Use, Heartbeat may terminate your account immediately.

6. Participating in Campaigns

a. 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:

  1. include any content that provides or claims to provide any medical advice;
  2. include any confidential information of a third party;
  3. submit any Ambassador Content that contains nudity, or sexual or explicit content;
  4. submit any Ambassador Content that depicts gratuitous violence, animal or child abuse, or encourages violence against others;
  5. 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;
  6. submit any Ambassador Content that is considered spam or politically controversial;
  7. submit any Ambassador Content that may be considered misleading, unlawful, defamatory, obscene, invasive, threatening and/or harassing;
  8. submit Ambassador Content that includes content that is (or may be) offensive, including without limitation, bigotry, racism, discrimination, hatred and/or profanity; and/or
  9. 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.

If you have violated any of the foregoing or if Heartbeat believes that any Ambassador Content may harm the Services, other users and/or Heartbeat’s interests, your access to and/or use of the Services may be suspended or terminated, without liability, as determined by Heartbeat in its sole and absolute discretion.  Heartbeat is not required to host, display, migrate, and/or distribute any of the Ambassador Content and Heartbeat may refuse to accept, provide access to and/or transmit any Ambassador Content in its sole and absolute discretion, without liability.  Any Ambassador Content found to be in violation of this Terms of Use or that Heartbeat determines may be harmful may be modified, edited, or removed by Heartbeat, without liability, in Heartbeat’s sole and absolute discretion.  Ambassador acknowledges and agrees that Clients will use the Ambassador Content from the campaign during the campaign and thereafter in any way Client determines in its sole and absolute discretion.  In any event, Heartbeat is not liable for Client’s use of such Ambassador Content.

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

During your access to and/or use of the Services and following termination, you grant Heartbeat access to your Social Media Networks as necessary and required by Heartbeat to enforce its rights and obligations under this Terms of Use and/or the Privacy Policy.  Specifically, you agree that Heartbeat shall have the ability to:

  1. monitor any campaign-related content placed on any Social Media Networks;
  2. maintain any identifying marks as requested by Heartbeat and/or its Client’s;
  3. interact with your Social Media Networks for the purposes of optimizing, tracking, measuring, and/or otherwise improving the Services;  and/or
  4. 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

As an Ambassador, when you are approved by Heartbeat as described herein to participate in certain paid campaigns, you will be eligible to receive compensation in exchange for completing the specific requirements related to the particular campaign. You will be compensated pursuant to the campaign specifications as set forth on the Services, which may include receiving Client’s Products and/or monetary compensation based on the Ambassador’s pay rate as described herein (the “Commission Fees”).  Ambassador must complete each of the specific requirements of a campaign according to Heartbeat and its Client’s satisfaction and failure to meet any one of the requirements related to a campaign may result in non-payment to Ambassador for all fees due and owing related to the campaign, as determined by Heartbeat in its sole and absolute discretion.  If you sign up for a campaign and are sent a Client’s Product in exchange for your participation and decide not to complete the campaign requirements, you must immediately notify Heartbeat by email at support@heartbeat.com and ship the Client’s Product back to Heartbeat and/or the Client at the address provided by Heartbeat at Ambassador’s cost or upon prior approval from Heartbeat and/or Client, Ambassador may pay Heartbeat and/or the Client the fair market value for such product (as determined by Heartbeat and/or its Client in its sole and absolute discretion) instead of returning such product.  When you sign up and create an account on the Services, you will be assigned a pay rate as determined by Heartbeat in its sole and absolute discretion, which is the amount you will be paid for campaigns you elect to participate in.  Such Commission Fees shall be listed on the Services.  Heartbeat makes Commission Fee payments via ‘PayPal’ and therefore you are also required to establish a ‘PayPal’ account and provide Heartbeat with the e-mail address you use to create such account so that Heartbeat can pay any Commission Fees earned hereunder.  Heartbeat shall pay Ambassador via ‘PayPal’ no later than ninety (90) days after such Commission Fees are earned subject to the terms and conditions set forth herein.  Commission Fees will be held in your ‘PayPal’ account until you elect to transfer it to your bank or other account.  Commission Fees are earned when the following requirements are met (a) post requirements for the specific campaign are complete, including without limitation (i) Ambassador shall post on the applicable Social Media Networks as identified in the campaign for a minimum of thirty (30) days, (ii) Ambassador shall post a campaign-related link identified by Heartbeat or the Client on Ambassador’s bio on the applicable Social Media Networks as identified in the campaign for at least seventy-two (72) hours, and (iii) Ambassador shall meet every requirement of the campaign instructions including without limitation the inclusion of any hashtags and/or specific language required to be included in the post; and (b) Heartbeat has approved all posts as meeting the specific campaign requirements after adequate time to review such posts.  Notwithstanding anything herein to the contrary (x) you acknowledge and agree that you will not be eligible for Commission Fees otherwise earned and Commission Fees will not be paid to you if you post or publish any disparaging content about a Client, (y) Heartbeat reserves the right to suspend payment of Commission Fees at any time and indefinitely, if it suspects fraud, other improper activity, a potential breach or breach of this Terms of Use and/or the Privacy Policy and/or (z) Heartbeat, in its sole and absolute discretion, reserves the right to withhold indefinitely any Commission Fee, and/or to reverse, deny or reject any Commission Fee, for any attempt by an Ambassador to manipulate, falsify or inflate any information related to any campaign.

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: 

  1. you shall not use the Services except through specific channels provided by Heartbeat to you;
  2. you shall not decompile, reverse engineer, disassemble, modify, and/or otherwise reduce to human-perceivable form all or any part of the Services;
  3. 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; 
  4. you shall not merge the Services or any portion thereof with any other program and/or materials;
  5. 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”;
  6. 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;
  7. 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;
  8. 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;
  9. 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;   
  10. you shall not imply that Ambassador Content, materials and/or content is in anyway sponsored and/or endorsed by Heartbeat;
  11. 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;
  12. 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;
  13. 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;
  14. you shall not violate any of Heartbeat’s requirements, policies and procedures;
  15. you agree to comply with all applicable laws, rules and regulations;
  16. 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;
  17. you agree not to intentionally hold Heartbeat and/or its employees, directors, officers or agents up to public scorn, ridicule and/or defamation;
  18. 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;
  19. 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;
  20. 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
  21. 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

In the event Ambassador desires to terminate its participation in a campaign after the campaign starts, Ambassador shall be liable for all costs and expenses related to such cancellation and shall immediately return all Client Products to Heartbeat or its Clients, as directed by Heartbeat, at its sole cost and expense or reimburse Heartbeat and/or its Client for the fair market value related thereto as described herein and Heartbeat shall not be liable to make any payments to Ambassador for any terminated campaigns. In addition, if Ambassador receives a Client’s Product as part of a campaign and does not complete the campaign requirements, Heartbeat reserves the right to terminate, suspend or limit Ambassador’s access to the Services and/ or change Ambassador’s pay rate for any future Commission Fees without liability.  Notwithstanding anything herein to the contrary, in the event Heartbeat and Ambassador are engaged in any dispute related to and/or arising out of this Terms of Use and/or the Privacy Policy, Heartbeat may suspend payments of Commission Fees until such dispute is resolved.  You may terminate your account and this Terms of Use at any time via the dashboard in the Services or by contacting Heartbeat at support@heartbeat.com.  Without limiting any other remedies Heartbeat may have, Heartbeat may suspend and/or terminate your account and this Terms of Use at any time, without liability and without prior notice, if we determine that (a) you have violated any applicable laws while using the Services, (b) if you have violated this Terms of Use and/or any other Heartbeat policies, (c) if Heartbeat believes or you have engaged in gross negligence, willful misconduct, fraud or misrepresentation and/or (d) if we believe that any of your actions may harm Heartbeat.  Upon termination (i) access to the Services will be become immediately disabled, (ii) any campaigns you are participating in that are not concluded will be terminated immediately without liability, (iii) you will reimburse Heartbeat for all fees, costs and expenses incurred by Heartbeat as a result of such termination, and (iv) Heartbeat will pay you any fees owed to you through the effective date of termination.  If we terminate your account for breach of this Terms of Use, you may not subscribe under a new account unless Heartbeat formally invites you.  If you commit fraud and/or falsify information in connection with your access to and/or use of the Services, your account will be terminated immediately and we reserve the right to hold you liable for any and all damages that we suffer, and we may pursue legal action through relevant local and national law enforcement authorities and may notify your ‘Internet Service Provider’ of any fraudulent activity we associate with you and/or your access to and/or use of the Services.

11. Third-Party Products

There may be third-party product, services, software, and/or social networks (collectively “Third-Party Products”) integrated into the Services.  Please be aware that Heartbeat is not affiliated with any Third-Party Products or the companies that own or control such Third-Party Products.  Any Third-Party Products that are made available in connection with the Services do not constitute an endorsement or recommendation to use such Third-Party Products.  Third-Party Products are not under the control of Heartbeat and Heartbeat shall have no ability to control the availability of and/or your access to any Third-Party Products.  You agree to release Heartbeat from any liability related to your use of any Third-Party Products or any costs or charges related to such Third-Party Products.  In order to use any Third-Party Products, you may be required to agree to that company’s terms and conditions and/or privacy policy. You agree to comply with the foregoing when using the Services.  Where you decide to use such Third-Party Products, Heartbeat is not a party to any contracts created between you and such Third-Party Products’ company.

12. Linked Sites

The Services may provide links to various other independent third-party websites (“Linked Sites”) that may be of interest to you and for your convenience only.  Heartbeat does not control and/or endorse such Linked Sites and is not responsible for their content nor is it responsible for accuracy and/or reliability of any information, data, opinions, advice or statements contained within such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites at your own risk.  We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each Linked Site that you visit.  Heartbeat reserves the right to terminate any link and/or linking program at any time. Heartbeat disclaims all warranties, express and implied, as to the accuracy, validity, and legality and/or otherwise of any materials or information contained on such Linked Sites. 

13. Confidentiality

For the purposes of this Terms of Use, “Confidential Information” means all information in whatever form supplied, relating to Heartbeat and its business including, without limitation: its products and services, pricing, operating methods, systems, practices, procedures, techniques, strategy, designs, tools, technical information, know-how, future and proposed products and services of Heartbeat and/or information concerning the brands and businesses participating in campaigns on the Services, and any of the information which could reasonably be expected to benefit competitors of Heartbeat including without limitation the fact that such information exists.  You agree to (i) maintain the confidentiality of the Confidential Information, (ii) not transfer or disclose any of the Confidential Information to any third party, (iii) not use any of the Confidential Information for any purpose other than in connection with the Services, and/or (iv) not take any other action with respect to the Confidential Information inconsistent with the confidential and proprietary nature of such information.  You acknowledge that a breach of this Article 13 may result in irreparable and continuing damage to Heartbeat for which monetary damages may not be sufficient, and agree that Heartbeat will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction.

14. Ownership

The Services and any Heartbeat-provided content, layouts, arrangements, metadata, images and the infrastructure used to provide the Services are proprietary to Heartbeat and Heartbeat shall retain all right, title and interest in the foregoing.  By using the Services and accepting this Terms of Use, Heartbeat grants you a limited, personal, nontransferable, nonexclusive, revocable right to access and/or use the Services pursuant to this Terms of Use and to any additional terms and policies set forth by Heartbeat.  Neither this Terms of Use nor your use of the Services convey and/or grant to you any rights (i) in or related to the Services except for the limited right to access and use the Services as described herein, and (ii) to use or reference in any manner Heartbeat’s and/or its Clients names, logos, product and service names, trademarks or service marks.

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

Ambassador represents and warrants the following (a) Ambassador owns or has properly licensed all Ambassador Content provided, (b) the Ambassador Content does not and will not infringe on any copyright, moral right, trademark or other intellectual property right and will not violate any right of privacy or right of publicity, (c) the Ambassador shall comply with all applicable laws and the Ambassador Content provided does not violate any US state or federal laws and/or any third party agreements, (d) the Ambassador has the sole, exclusive and unencumbered ownership of all rights of every kind and character throughout the universe in and to the Ambassador Content and has clear title to any other subsidiary materials contained in the Ambassador Content, (e) the Ambassador has the absolute right to grant to Heartbeat, all rights, licenses and privileges granted to or vested in Heartbeat under this Terms of Use, (f) the Ambassador has obtained all clearances and paid all monies necessary for Heartbeat to exercise the license granted herein and there will not be any other rights to be cleared or any payments required to be made by Heartbeat as a result of any use of the Ambassador Content pursuant to the rights and licenses herein granted (including without limitation, payments in connection with contingent participations, residuals, clearance rights, moral rights, union fees, and music rights), (g) all of the individuals and entities connected with the production of the Ambassador Content, and all of the individuals and entities whose names, voices, photographs, likenesses, appearance, works, services and other materials appear or have been used in the Ambassador Content, have authorized and approved Ambassador’s use thereof, and Heartbeat shall have the right to use all names, voices, photographs, likenesses, appearance and performances contained in the Ambassador Content in connection with the exploitation, promotion, and use of the license granted herein, (h) there are no existing, anticipated, or threatened claims or litigation that would adversely affect or impair the use of any of the Ambassador Content, and/or (i) the Ambassador owns and operates all Social Media Networks used in connection with the Services.

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).

20.  Indemnity

You agree to indemnify, defend and hold harmless Heartbeat, its officers, directors, employees, subcontractors and agents, from and against any and all claims, demands, proceedings, damages, obligations, losses, liabilities, costs, awards, fees, expenses (including but not limited to attorney’s fees) and liabilities of any nature arising from (a) your use of and access to the Heartbeat Services, (b) your violation of any term of this Terms of Use and/or Privacy Policy, (c) your negligence or willful misconduct, (d) any claim that your use of the Services harmed another user or third party, (e) any claim by a Client of unauthorized use or infringement of Client’s Product and/or information provided by Client to Ambassador, (f) any claim that Ambassador Content violates the intellectual property rights or other rights of any third party, (g) any claim of fraud or misrepresentation committed by Ambassador, and/or (h) Ambassador’s failure to comply with applicable laws.

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: 

  1. a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  2. identification of the copyrighted work claimed to have been infringed;
  3. 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;
  4. information sufficient to permit Heartbeat to contact you, such as your physical address, telephone number, and, if available, an electronic mail address;
  5. 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
  6. 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 support@heartbeat.com.

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

a. Disputes

We want to address your concerns without needing to file a formal legal case. Before filing a claim against Heartbeat, you agree to try to resolve the dispute informally by contacting us at support@heartbeat.com.  The parties will try to resolve the dispute within thirty (30) days after receipt of written notice, but if the parties are unable to resolve any claims related to this Terms of Use within such timeframe, then the parties shall resolve such dispute through final and binding arbitration, except as set forth under ‘Exceptions to Agreement to Arbitrate’ section below and/or opt out as described below.

b. Arbitration

By using the Services, you agree that (i) any claim, dispute, or controversy you may have against Heartbeat arising out of and/or relating to, or connected in any way with this Terms of Use shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA (“Rules and Procedures”), (ii) unless prohibited by law, the claim or dispute must be brought within one (1) year after the first date of the event giving rise to such action and the arbitration shall be held in Los Angeles, California, or at such other location as may be mutually agreed upon by you and Heartbeat, (iii) there shall be no authority for any claims to be arbitrated on a class or representative basis, (iv) the arbitrator can decide only your and/or Heartbeat’s individual claims, (v) the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated, (vi) both parties will bear their own costs of representation and filing for the dispute, (vii) where possible and allowed for under the AAA Rules and Procedures, Heartbeat shall be entitled to appear electronically or telephonically for all proceedings, and (viii) if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. For more information on AAA and its Rules and Procedures, users may visit the AAA website at http://www.adr.org

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

You can opt-out and decline this agreement to arbitrate by contacting Heartbeat in writing within thirty (30) days after the date that you first became subject to this arbitration provision (i.e.: the date you initially accepted this Terms of Use).  Such notice shall be sent to: Heartbeat, Attn: Brian Freeman, 1507 7th Street #441, Santa Monica, CA 90401 and send a copy to support@heartbeat.com. If you opt out, neither you nor Heartbeat can require the other to participate in an arbitration proceeding.

e. Choice of Law

This Terms of Use shall be governed by, construed and enforced in accordance with the substantive laws of the State of California, without regard to its conflict of laws principles.  The parties further agree that any cause of action arising under this Agreement shall take place exclusively in the courts situated in Los Angeles, California and the parties hereby submit to the venue of the courts situated therein. 

23.  Relationship of Parties

Ambassador agrees that Heartbeat is acting as an independent contractor in performing the Services contemplated under this Terms of Use and that the relationship between Heartbeat and Ambassador shall not constitute a partnership, joint venture or agency.  Neither Heartbeat nor any of Heartbeat’s employees or agents (a) is an employee, agent or legal representative of Ambassador, or (b) shall have any authority to represent Ambassador or to enter into any contracts or assume any liabilities on behalf of Ambassador.  Neither Ambassador nor Ambassador’s employees or agents (i) is an employee, agent or legal representative of Heartbeat, or (ii) shall have any authority to represent Heartbeat or to enter into any contracts or assume any liabilities on behalf of Heartbeat.  Depending on the laws of Ambassador’s jurisdiction Ambassador may be taxed for payments received by Ambassador from Heartbeat.  Ambassador agrees to pay and withhold all taxes as required by Ambassador’s laws and jurisdictions, and may be required to provide Heartbeat with Ambassador’s social security number or tax identification number, as applicable.

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

Any statements made or actions undertaken by Heartbeat’s employees are non-binding in nature.  Unless explicitly stated otherwise in this Terms of Use, Heartbeat employees and staff do not have the authority to execute an agreement or contractually bind Heartbeat to any agreements.

26.  Severability & Non-Waiver

In the event that a provision of this Terms of Use is found to be unlawful or otherwise is found to be unenforceable, the Terms of Use will remain in force as though it had been entered into without that unenforceable or unlawful provision being included in it.  We reserve all rights permitted to us under this Terms of Use as well as under the provisions of any applicable law.  Our non-enforcement of any particular provision or provisions of this Terms of Use or any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.

27.  Survival

All provisions of this Terms of Use which by their nature should survive termination shall survive termination, including, without limitation, content provisions, Ambassador representations and warranties, payment provisions, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

28.  Assignment

You may not assign your rights and/or obligations under this Terms of Use to any other party without our prior written consent.  We may assign our rights and/or obligations under this Terms of Use to any other party at our discretion.

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 support@heartbeat.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.

30.  Communications

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

This Terms of Use along with the Privacy Policy constitute the complete and exclusive understanding and agreement between the parties regarding the subject matter herein and supersedes all prior or contemporaneous agreements or understandings written or oral, relating to its subject matter.

Contact us: If you would like to request additional information regarding this Terms of Use or if you have feedback about our Services, please contact us at support@heartbeat.com.