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Last Updated: June 5, 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. Plans and Payment Terms
a. Plans. Heartbeat offers the following subscription plans to access and/or use the Services: a managed service plan (“Managed Service Plan”) and a self-service plan (“Self-Service Plan”). Client will elect either a Self-Service Plan or Managed Service Plan when Client signs up for an account on the Services. Individual campaigns that exceed a cost of $25,000 will be designated Managed Service.
i. Self-Service Plans
In the event you elect a Self-Service Plan, the terms and conditions in this Section 6ai apply in addition to the other terms and conditions set forth herein (except for the terms and conditions specifically related to Managed Service Plans).
The term of the Self-Service Plan shall commence on the date you click and agree to the terms and/or otherwise use our Services and shall continue until either you or Heartbeat terminate your account in accordance with the terms and conditions set forth herein.
You will be required to provide and input the requested information into the Services related to each campaign, including without limitation, the brand logo, brand description, campaign description and instructions and related images. After such information is provided for any applicable campaign, the potential ambassadors will be identified and recommended for the campaign based upon the information you provided and the information the ambassadors have provided to Heartbeat. Selected ambassadors will receive approved Instructions, with details regarding post requirements. Client is responsible for communicating with any selected ambassadors, managing its own customer support channels and/ or shipping products to and/or from the ambassador. Heartbeat will provide standard metrics and analytics related to the ambassadors and campaigns as made generally available to its other users, via the Client Dashboard. In addition, Heartbeat will assign a ‘Client Success Manager’ to assist with any questions you may have. The Self-Service Plan does not include creative recommendations and other customer service support beyond reasonable troubleshooting, and in the event the foregoing is provided, Client shall pay Heartbeat its then-current rates for such additional services and such amounts shall be due and payable upon Client’s receipt of the invoice.
The Self-Service Plan pricing is based on each campaign and indicated on the Services and, in consideration for Heartbeat’s performance of the Services, you agree to pay the related fees for the Services you elect to use, for campaigns you initiate. Such fees shall be due and payable upon campaign approval, and shall be deducted from a payment account designated by you. You authorize Heartbeat to automatically charge the payment account for the fees due and owing hereunder. Self-Service campaigns do not include guarantees regarding Post Count, Potential Reach, or Engagement Rates. All numbers provided during the campaign creation process are estimates, and are not guaranteed.
ii. Managed Service Plans
Pricing for Managed Service Plans vary based on several factors including reach, engagement and campaign objectives, and such details shall be set forth in a SOW. In consideration for Heartbeat’s performance of the Services described herein and in the SOW, Client shall pay Heartbeat the fees set forth in the applicable SOW. Unless otherwise set forth in an SOW, campaign-related fees shall be due and payable by Client to Heartbeat as follows: fifty-percent (50%) of the fees related to the campaign shall be due and payable upon execution of the applicable SOW, and the remaining fifty percent (50%) of the fees related to the campaign shall be due and payable thirty (30) days after the effective date of the applicable SOW. Heartbeat’s preferred payment method is via credit card, but Client may request an alternate payment form. Any services provided outside of the scope of the Services described herein and in the applicable SOW shall be provided at Heartbeat’s then-current rates and due and payable by Client upon receipt of the applicable invoice. Unless otherwise set forth in a SOW, all fees due hereunder shall be made via credit card, “ACH”, or check to [Heartbeat, Attn: Kate Edwards, PO Box 1507 7th Street, Santa Monica, CA, 90401.
b. Credit Card Payments
Heartbeat uses a third-party payment platform to process payments. Your credit card information or other payment method will be processed and stored by our third-party payment processor, Stripe. You expressly understand and agree that all payments and monetary transactions are handled by such third-party and the use of such platform is governed by the third-party’s terms and conditions and Heartbeat shall have no liability related thereto.
In the event Client elects to pay the fees due hereunder via credit card, Client authorizes Heartbeat to automatically charge the payment account for the fees due and owing hereunder and any SOW. If Client’s payment account on file is closed or the account information is changed, or if, for any reason, a charge is rejected by Client’s payment account, Client shall immediately update Client’s payment account or supply a new payment account, as appropriate. If Client is unable to update its payment account with appropriate information, then Heartbeat will suspend Services, without liability, until valid payment account information is provided. If Heartbeat believes that Client has participated in a fraudulent chargeback, Heartbeat will pursue its claims against Client to the fullest extent allowed by law.
c. Taxes, Late Fees, Right to Suspend
a. Campaign Objectives
b. Submission of Campaigns
For Self-Serve Campaigns, Client shall submit campaigns on the Services for Heartbeat’s review and approval. Upon Heartbeat’s approval of such campaign, Heartbeat will provide Client with a notice of approval, and will process and receive Client’s payment for the applicable campaign. For the avoidance of doubt, campaigns may be rejected by Heartbeat in its sole and absolute discretion, without liability, and Heartbeat’s obligations described herein shall not apply until Heartbeat approves of such campaign as described herein. Self-Serve clients may work with their Client Success Manager to make revisions to a campaign to ensure approval.
c. Campaign Period
Subject to the terms and conditions set forth herein, the “Campaign Start Date” shall commence beginning on the date on which the Client agrees to the TOS and SOW, and upon receipt of initial payment. The Campaign will continue thereafter until the completion of Services and/or as set forth in the applicable SOW (“Campaign End Date”). The “Campaign Period” shall be the period beginning on the Campaign Start Date and ending on the Campaign End Date. For Managed Serve Clients only, at the expiration of the Campaign Period, Heartbeat shall provide Client with a report (“Campaign Wrap Report”). If Client wishes to extend the campaign, Client must notify Heartbeat before the Campaign End Date. In the event Heartbeat approves such extension, Client agrees to pay Heartbeat the remaining fees owed for the initial Campaign Period and the applicable fees related to such extension as follows: fifty-percent (50%) of the fees related to the extended campaign shall be due and payable upon Heartbeat’s acceptance of such extension and the remaining fifty percent (50%) of the fees related to the extended campaign shall be due and payable on the extended Campaign End Date.
d. Location-Based Campaigns
Client may initiate location-based campaigns on the Services. In such event, Client is solely responsible for all elements of a location-based campaign including but not limited to arranging access and 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 abiding by any laws and regulations. For campaigns that are limited to specific regions or locations, Client acknowledges that fewer ambassadors will be available, depending on the designated locations, which might extend the campaign timeline. Campaign that are regional in scope may also require additional costs, to be outlined in a SOW.
e. Products for Campaigns
In the event Client is utilizing physical products in its campaign (“Client Product(s)”) Client shall be responsible for all shipping costs and any other costs related to the production, preparation, and delivery of any Client Products to any ambassadors. In the event Client elects a Self-Service Plan and is utilizing Client Products in a campaign, Client agrees that it shall make its own shipping arrangements with the ambassadors that are participating in any campaign with Client Products, but that it will provide tracking numbers, via the Client Dashboard, to ensure a seamless Campaign experience for the Ambassadors. In the event Client elects a Managed Service Plan and is utilizing Client Products in a campaign, Client shall make its own shipping arrangements with the ambassadors that are participating in any campaign with Client Products, unless otherwise agreed in an SOW by the parties that Heartbeat will provide shipping and fulfillment services through one of its partners. In either case, Client agrees to provide Tracking numbers for Client Products to Heartbeat, via the Campaign Dashboard or otherwise, to ensure seamless delivery of the campaign. Heartbeat cannot guarantee specific Campaign timelines, unless the client provides tracking numbers, as Heartbeat will not be able to determine the status of individual ambassador posts. In the event a Client Product is required for any Client campaign, Client agrees that Heartbeat may required additional time in advance of the Post go live date, in order to account for shipping. Heartbeat recommends that Client supply at least twenty percent (20%) more Client Products to ambassadors than the expected number of participating ambassadors in each instance to account for any Client Products that may get damaged or lost in transit. Client acknowledges and agrees that Heartbeat is not liable for any lost and/or damaged Client Products.
e. Campaign Ambassadors and Ambassador Content
Heartbeat allows third-parties who sign up to participate as ambassadors access to and use of the Services in order to participate in campaigns initiated by a Client. Each ambassador may offer social media services via the Services, including but not limited to social media posts, like aggregation, and distribution of Client Assets (collectively referred to as “Ambassador Service(s)”) and has the opportunity to work with various brands and business on the Services. Client hereby acknowledges and agrees that while Heartbeat may provide information about an ambassador, based on location, following, engagement, or relevancy; such information is based solely on data that is submitted by the ambassador, and Heartbeat provides such information solely for the convenience of all clients and this is not an introduction, endorsement, or recommendation by Heartbeat of any ambassador or any Ambassador’s Services. Any opinions, advice, or information expressed by any ambassador or other third-party are those of the individual and the individual alone and they do not reflect the opinions of Heartbeat and the inclusion of any ambassador in a campaign does not constitute any endorsement by Heartbeat. Heartbeat does not direct, is not an employer, has no control over, makes no representations and/or guarantees related to any individual ambassador or any Ambassador Services. For Managed Services, Heartbeat will guarantee that posts meet the requirements outlined in the SOW, and as agreed to and outlined in the Ambassador Instructions. For Self-Serve, Client agrees that it is solely responsible for its interactions with any ambassadors on the Services and will indemnify, defend and hold harmless Heartbeat for any damages Heartbeat suffers related to any of Client’s interactions on the Services.
Self-Serve: Notwithstanding anything herein to the contrary, Heartbeat (i) does not ensure that ambassadors will meet Client’s requirements or complete instructions in accordance with Client’s direction, (ii) does not conduct criminal background checks on its ambassadors or otherwise inquire into the background of its ambassadors, other than the ambassador-provided answers to survey questions, and (iii) shall have no liability related to ambassadors’ acts and/or omissions (including without limitation if any ambassador participates in competing campaigns and/or opts-out to receive communications).
Managed: Notwithstanding anything herein to the contrary, Heartbeat does ensure that ambassadors will meet Client’s requirements or complete instructions in accordance with Client’s direction, and will replace any ambassadors who do not meet requirements with one who does. All campaign requirements must be laid out to Heartbeat during the Applications and Instructions approval process, and any edits to requirements provide after the Instructions are approved will be subject to Change Fees. Heartbeat does not conduct criminal background checks on its ambassadors or otherwise inquire into the background of its ambassadors, other than the ambassador-provided answers to survey questions. Heartbeat shall have no liability related to individual ambassadors’ acts and/or omissions (including without limitation if any ambassador participates in competing campaigns and/or opts-out to receive communications).
Client acknowledges and agrees that it will use the Services as its exclusive method to request, initiate, and pay for any nano-influencer or ambassador social media campaigns that involve the ambassadors identified and/or used on the Services, and will not engage in contact with any ambassadors outside of the Services. Heartbeat acknowledges that Clients may work with other influencer-style companies or platforms, but requires that they not provide Heartbeat ambassador information to competitive companies. Client agrees to notify Heartbeat immediately if an ambassador, a person representing an ambassador, and/or any other user improperly contacts Client or suggests engaging in a relationship, making or receiving payments outside of the Services. Any content provided by an ambassador via its Ambassador Services (the “Ambassador Content”) is the property of such ambassador, and such ambassador shall retain all title, right, and interest in such Ambassador Content. Heartbeat secures the right for Client to use such Ambassador Content and hereby grants Client a royalty free, non-transferable, non-assignable, non-exclusive, perpetual license to use, display, modify and create derivative works of any Ambassador Content from any Client campaigns in any format for purposes of advertising and marketing. All Heartbeat Ambassadors agree to the above permissions via the Ambassador Terms of Service.
8. Client Assets
a. Client Asset Guidelines
“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 intellectual property. Client may submit Client Assets to Heartbeat for use in performing Services and Client agrees that it shall not:
- include any content that provides or claims to provide any medical advice;
- include any confidential information of Client and/or any other third party in the Client Assets;
- submit any Client Assets that contain nudity, or sexual or explicit content;
- submit any Client Assets that depict gratuitous violence, animal or child abuse, or encourages violence against others;
- submit any Client Assets that contain 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 Client Assets that are considered spam or politically controversial;
- submit any Client Assets that may be considered misleading, unlawful, defamatory, obscene, invasive, threatening or harassing;
- submit Client Assets that include content that is (or may be) offensive, including without limitation, bigotry, racism, discrimination, hatred and/or profanity; and/or
- submit Client Assets that promote and/or provide information about illegal activities and/or physical harm or injury to any group, individual, institution and/or property.
b. Client Asset Placement
Client understands and agrees that ambassadors may use the Client Assets in the campaign and as it relates to the Services and may be placed on ambassadors’ social media channels. Use of these assets will be outlined in Campaign Instructions, which must be approved by the Client. In any event, Heartbeat is not liable for ambassadors’ use of such Client Assets. In the event you elect a Self-Service Plan, Client is responsible for instructing ambassadors on how the ambassadors should properly use Client Assets. Please be aware that if Client wishes to supply instructions related to the Client Assets, Client must submit such information contemporaneously when submitting the Client Assets, and before the campaign is initiated. For Managed Service Campaigns, in the event Client modifies the instructions after the campaign is initiated, then Client shall pay Heartbeat its then-current change fee to implement such modifications. In the event you elect a Managed Service Plan, Heartbeat will discuss with Client how Client Assets should be used and/or displayed and monitor the placement of Client Assets by ambassadors to ensure Client Assets are used and/or displayed in accordance with Client’s expectations.
c. License Grant for Client Assets
Client shall retain all right, title and interest in the Client Assets. Client grants Heartbeat, its partners, affiliates, users, representatives, assigns and ambassadors a 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 Client Assets as it relates to the Services and for publicity purposes on Heartbeat’s website and in other marketing materials.
d. Client Contacts
Through the Services, Client may deliver Client Assets that contain personal information including but not limited to social media information, email addresses, or usernames of Client’s customers (“Client Contact(s)”). Where any Client Contacts have been delivered by Client, Heartbeat agrees that it shall use the Client Contacts only for the purposes of providing the Services described herein. Further, Heartbeat shall not sell or disclose the Client Contacts to third parties without the prior consent of Client or such Client Contact. For the avoidance of doubt, once a Client Contact joins the Services, such Client Contact may join other brand communities at their discretion and are not limited to only participating in Client’s campaigns.
9. 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 Client Assets, 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 Client Assets, 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 Client Assets, 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 Section 9, then Heartbeat may suspend your access to and/or use of the Services immediately, without liability.
10. 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.
11. Cancellation of Campaigns & Termination
12. Third-Party Products
13. Linked Sites
16. 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 (a) your Submissions and their contents will automatically become the property of Heartbeat, without any compensation to you, (b) Heartbeat may use or redistribute the Submissions and their contents for any purpose and in any way, (c) there is no obligation for Heartbeat to review the Submission, and (d) there is no obligation to keep any Submissions confidential.
17. 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.
18. Representations and Warranties of Client Assets
19. Warranty Disclaimer
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THAT THE SERVICES INCLUDING WITHOUT LIMITATION THE CAMPAIGNS, AMBASSADOR SERVICES AND CONTENT RELATED THERETO 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, RESULTS AND/OR ADVICE THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE. NEITHER HEARTBEAT, NOR ANY OF ITS EMPLOYEES, MANAGERS, OFFICERS, ASSIGNS AND/OR AGENTS MAKE ANY REPRESENTATIONS, GUARANTEES, WARRANTIES 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, ANY AMBASSADOR SERVICES AND/OR ANY SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO HEARTBEAT OR VIA THE SERVICES.
20. Limitation of Liability
YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION THE CAMPAIGNS, AMBASSADOR SERVICES, AMBASSADOR CONTENT, INTERACTIONS BETWEEN CLIENT AND AMBASSADORS, ACTS AND/OR OMISSIONS OF AMBASSADORS, CLIENT ASSETS, 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, AMBASSADOR SERVICES, AMBASSADOR CONTENT, INTERACTIONS BETWEEN CLIENT AND AMBASSADORS, ACTS AND/OR OMISSIONS OF AMBASSADORS, CLIENT ASSETS, 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 which might give rise to a claim against Heartbeat. In the event of a claim such as the one described in this indemnity section, 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.
22. 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, 723 Ocean Front Walk, Venice, CA 90291 (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. All other inquiries directed to the Copyright Agent will not be responded to.
23. Dispute Resolution
b. Choice of Law
d. 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 (a) 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, (b) any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack), or (c) any claim that qualifies in small claims court in Los Angeles, California.
e. How to Opt-Out of Arbitration
24. Relationship of Parties
25. 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.
26. Statements By Employees
27. Severability & Non-waiver
30. 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.
32. Entire Agreement