PLEASE READ THIS AGREEMENT AND SAVE IT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT AND TO FOLLOW ALL APPLICABLE LAWS, YOU SHOULD LEAVE THE HEARTOUT APP OR WEBSITE AND/OR DISCONTINUE USE OF THE SERVICES IMMEDIATELY. IF YOU WISH TO CREATE A PROFILE AND BECOME A MEMBER TO MAKE USE OF THE SERVICES, WHEN YOU REGISTER AS A MEMBER, YOU ARE INDICATING YOUR AGREEMENT WITH THESE TERMS AS THEY APPLY TO REGISTERED MEMBERS. IF YOU DO NOT SO AGREE YOU MAY NOT BECOME A REGISTERED USER. YOU MUST BE EITHER 18 YEARS OF AGE OR IF UNDER 18, MUST HAVE PARENT OR LEGAL GUARDIAN CONSENT.
By accessing and using the Services, you acknowledge and agree to be bound by these Terms, and any specific terms and conditions that may be applicable to specific services that you may elect to use while accessing the Services, which together contain the entire agreement between you and us pertaining to your use of the Services, and supersede all prior versions hereof.
We reserve the right, in our sole discretion, to make revisions, changes or modifications to this Agreement at any time and we may add supplemental terms, conditions, and other provisions herein from time to time and these are hereby expressly incorporated herein by reference. You shall be given general notification about any such changes with a date alert on these Terms stating, “Last Updated on August 27, 2020”, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these Terms to stay informed of any and all updates. You will be subject to and will be deemed to have been made aware of and to have accepted the changes in any revised Terms, by your continued use after the date of such revised Terms have been posted.
If you are accessing the Services without becoming a registered user, your use of the limited Services provided to non-subscribers is nonetheless still governed by these Terms. If you do not agree with these Terms, you may not access the services at all.
The Services provided herein are not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Services from such other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
2. USE OF THE SERVICES:
(a) Age Restriction. The Services are intended for use by persons 18 years of age or older. Children under the age 18 may use the Services only with the verifiable consent of a parent or legal guardian who has agreed to be bound by these Terms.
(b) Service Content Intellectual Property Rights. All source code, databases, functionality, software, website designs, audio, video, text, photographs, graphics, materials and content contained within the Services, and the trademarks, service marks, logos, slogans or taglines contained therein (the “Marks”), including the User Content (defined in Section 4(a) below, (collectively herein referred to as the “Content”) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, international copyright laws, and international conventions. The Content and the Marks are provided on HeartOut “AS IS” for your information and personal use only.
(c) Services Downloads. (i) Certain functionality of the Services may expressly permit you to download an application or copy Content or other materials files from the Services (“Services Downloads”).
(ii) You agree that:
A. Services Downloads are licensed to you only for personal, noncommercial use pursuant to Paragraph (d) below; B. The delivery of Services Downloads to you does not transfer to you any commercial or promotional use rights in the Services Downloads; C. You may not transfer or license your rights in any Services Download to any other person; D. You may not alter, modify, incorporate with other media, or otherwise create a derivative work of any Services Downloads; and E. You may not use a Services Download as a phone ringtone or ring-back tone (collectively, the “Services Downloads Usage Rules”). You may copy and store Services Downloads in connection with an unlimited number of devices as reasonably necessary but only in accordance with the foregoing Services Downloads Usage Rules. Any use of a Services Download other than in accordance with the Services Downloads Usage Rules may constitute copyright infringement.
(d) Service Downloads, Services, and Content Use License. Subject to these Terms and only to the extent expressly permitted by the functionality of the Services, you are granted a limited, non-exclusive, revocable, non-assignable, and non-transferable right to use the Service Downloads, use the Services and access and interact with the Content. No Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, sold, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, sold, licensed, exploited for any commercial purpose whatsoever or otherwise used in any form or by any means, in whole or in part, except as expressly provided in these Terms, and (ii) nothing herein should be construed as granting you any license or right to use any Content, including trademarks, service marks, logos, slogans or taglines belonging to us, or any other user of the Services, or any software or code relating thereto. You understand that the Services and Content is for your personal and non-commercial use only.
(e) Abuse and Infringement. You agree that you will not use the Services in any manner that is abusive, fraudulent, or unlawful, that infringes the copyright, trademark, or other intellectual property rights of any person or entity, that is inconsistent with these Terms, or that could damage, disable, overburden or impair the Services, in each case as determined in our sole discretion.
Without limitation, you agree, represent, and warrant that:
- You will use the Services in compliance with all applicable laws and this policy;
- You will not use the Services to infringe the copyright, trademark, or other intellectual property rights
of any person or entity;
- You will not make any unauthorized use of the Services, including collecting usernames and/or email
addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses;
- You will not use automated scripts to collect information from, access, or otherwise interact with the
- You will not upload, post, email, transmit or otherwise make available any content that we deem to be
harmful, threatening, abusive, harassing, vulgar, obscene, hateful, or racially, ethnically, or otherwise objectionable;
- You will not impersonate any person or entity, or falsely state or otherwise misrepresent yourself or your
affiliation with any person or entity;
- You will not upload, post, email, transmit or otherwise make available any unsolicited or unauthorized
advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
- You will not use “spam,” “blast-faxes,” or recorded telephone messages to market or promote any materials
relating to you on the Services or in connection with the Services.
- You will not use or purchase third party services, which are marketed or used to artificially increase
your exposure in the Services. Use of these services, or similar services, will result in the immediate termination of your account.
- You will not upload, post, email, transmit, or otherwise make available any material that contains
software viruses, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- You will not use the Services to solicit, advertise, provide, sell, or offer, any third-party site or
services, or similar or competing products or services;
- You will not solicit Services users to register or sign up with another website, platform, or other
service or entity;
- You will not use or attempt to use another user’s account without authorization from us or create a false
identity using the Services;
- You will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to
discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through, the Services or any software, documentation, or data related to the Services;
- You will not remove any proprietary notices or labels from the Services or modify, translate, or create
derivative works based on the Services;
- You will not systematically retrieve data or other content from the Services to create or compile,
directly or indirectly, a collection, compilation, database, or directory;
- You will not use a buying agent or purchasing agent to make purchases on the Services;
- You will not use the Services to advertise or offer to sell goods and services;
- Circumvent, disable, or otherwise interfere with security-related features of the Services, including
features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Services and/or the Content contained therein;
- You will not engage in unauthorized framing of or linking to the Services;
- You will not trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive
account information such as User passwords;
- You will not make improper use of our support services or submit false reports of abuse or misconduct;
- You will not engage in any automated use of the system, such as using scripts to send comments or
messages, or using any data mining, robots, or similar data gathering and extraction tools;
- You will not interfere with, disrupt, or create an undue burden on the Services, or the networks or
services connected to the Services;
- You will not sell or otherwise transfer your profile;
- You will not use any information obtained from the Services in order to harass, abuse, or harm another
- You will not use the Services as part of any effort to compete with us or otherwise use the Services
and/or the Content for any revenue-generating endeavor or commercial enterprise;
- You will not attempt to bypass any measures of the Services designed to prevent or restrict access to the
Services, or any portion of the Services;
- You will not Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing
any portion of the Services to you;
- You will not delete the copyright or other proprietary rights notice from any Content;
- You will not copy or adapt the Services’ software, including but not limited to Flash, PHP, HTML,
- You will not upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other
material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Services or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Services;
- You will not upload or transmit (or attempt to upload or to transmit) any material that acts as a passive
or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”);
- Except as may be the result of standard search engine or internet browser usage, you will not use, launch,
develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Services, or using or launching any unauthorized script or other software;
- You will not disparage, tarnish, or otherwise harm, in our opinion, us and/or the Services;
- You will not use the Services in a manner inconsistent with any applicable laws or regulations.
(g) Mobile In-App Purchases. The Services may offer “in-app” purchase options for its mobile apps (the “In-App Purchases”). If In-App Purchases are available to you, you acknowledge and agree that all billing and transaction processes related to In-App Purchases are handled and processed through the Google Play or iTunes app store from which you originally downloaded the application (“the App Store Provider”). All In-App Purchases are governed by the App Store Provider’s terms and conditions. You may access the applicable In-App Purchases terms and conditions directly from the App Store Provider. If you have any payment related issues with In-App Purchases, then you need to contact the App Store Provider directly.
3. PROFILE REGISTRATION:
(a) In order to use certain parts of the Services, you must register a profile as a user member and create an account on the Services. As part of the registration process, you will provide a username, password, email address, and other information and materials (the “Registration Information”) for your Services account. You may also be able to register as a user of the Services with certain third-party social networking Services (e.g., Facebook, Twitter, YouTube, etc.) (a “Third-Party Account”), and in connection therewith, you allow us to access, store, and use content or information relating to your Third-Party Account, and any content or information in your Third-Party Account used on the Services or with the Services shall be “Registration Information” hereunder. We may accept or reject your user registration in our sole discretion. Please note that if you elect to register using a Third-Party Account you may be subject to that third party’s terms and conditions, privacy policies or any other such terms, which may or may not differ from ours. If you register for a Services account though a Third-Party Account, you do so at your own risk and peril.
(b) You alone are responsible for maintaining the security of your Registration Information and for all uses of the Services in the name of your account. Upon registration, you will have a “Dashboard” page on the Services where you can manage your use of the Services (your “Dashboard”).
(d) You are responsible for maintaining access to the email address associated with your account. We are unable to restore access to your account if you lose access to the email address associated with the account.
(e) You are responsible for keeping your account active. If a user does not log in to an account for twelve (12) months or more from the date of the last log in, the account may be considered inactive. Inactive accounts may be permanently removed without notice.
4. CONTENT SUBMITTED BY YOU:
(a) User Content.
- You are solely responsible for all materials and content that are submitted by you or through your account for auditioning, posting, publication, display, distribution, or other use on the Services or in connection with any Service, including without limitation your auditions, performances, sound recordings, videos, music, musical works, compositions, videos or other sound and/or visual effects, services, or performances, photographs, pictures, graphics, names, likenesses, images, copyrights, trademarks, service marks, logos, biographical information, chat, messages, files, code, data, metadata, text, software, links, your Registration Information, content from your Third-Party Account, and any other information or materials of every kind made pursuant to your use of the Services (“User Content”).
- We do not provide file back-up services and therefore are not responsible for any User Content that may be lost or unrecoverable through your use of the Services, and you are encouraged to archive your User Content regularly and frequently.
- You must submit User Content to the Services in compliance with our submission specifications. Our submission specifications are available on the Services. We reserve the right to refuse to accept and/or cause the removal of any User Content for any reason and at our sole discretion and without notice to you.
- You hereby acknowledge and agree that we may, at our sole discretion, disclose User Content in order to: (A) comply with law enforcement, court orders, or the legal process; (B) protect the rights and safety of individuals; or (C) settle disputes over intellectual property ownership. You understand and agree that in connection with the rights granted herein, we have the right, but no obligation, to remove, monitor, market, promote, advertise, or otherwise use your User Content.
- We may add additional functionalities in the future that may allow you to chat, contribute to, or participate in blogs, message boards, online forums, and other functionalities, and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast additional User Content and materials, all of which shall constitute User Content pursuant to the terms and conditions of the Terms.
(b) Grant of Exclusive Rights and Assignment to the Intellectual Property Rights in the User Content.
(i) By submitting User Content to the Services or in connection with any Service, you acknowledge and agree that any User Content provided by you to us are non-confidential and your hereby grant and assign to HeartOut all rights of every kind and the complete, unconditional, exclusive, perpetual, unencumbered title throughout the universe in and all results and products of your User Content hereunder, throughout the universe, and in any manner and media now known or hereafter developed, to prepare, review, copy, reproduce, convert, host, distribute, transmit, stream, publicly perform, display, modify, adapt, excerpt (in whole or in part), publish, promote, advertise, market, create derivative works from, and otherwise use all or any portion of the User Content, and to grant and authorize sublicenses of the foregoing, in connection with the Services and the functionality thereof, and use the same separately or in combination with any other material for any purpose in any manner, under any label, trademark, or other identification and by any means or method, whether known or not now known, invented, used or contemplated, and to refrain from all or any part thereof, including all intellectual property rights therein, and we shall be entitled to the unrestricted use and dissemination of for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you in any manner and media now known or hereafter developed . Except as may be specifically provided in connection with any particular Service, we have no obligation to pay you or anyone else any amounts, including master recording, synchronization or publishing royalties, performance fees, license fees, or union, guild, or collective bargaining fees, for the distribution, public performance, or other uses of your User Content as authorized in these Terms. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your User Content.
(ii) To the extent that under applicable law, the above rights may not be assigned, you hereby agree to grant an exclusive, perpetual, irrevocable, and unconditional license throughout the universe, and in any manner and media now known or hereafter developed, to prepare, review, copy, reproduce, convert, host, distribute, transmit, stream, publicly perform, display, modify, adapt, excerpt (in whole or in part), publish, promote, advertise, market, create derivative works from, and otherwise use all or any portion of the User Content, and to grant and authorize sublicenses of the foregoing, in connection with the Services and the functionality thereof. Except as may be specifically provided in connection with any particular Service, we have no obligation to pay you or anyone else any amounts, including master recording, synchronization or publishing royalties, performance fees, license fees, or union, guild, or collective bargaining fees, for the distribution, public performance, or other uses of your User Content as authorized in these Terms.
(iii) To the extent that under applicable law, the above rights may not be exclusively licensed, you hereby agree to grant a non-exclusive, perpetual, irrevocable, and unconditional license throughout the universe, and in any manner and media now known or hereafter developed, to prepare, review, copy, reproduce, convert, host, distribute, transmit, stream, publicly perform, display, modify, adapt, excerpt (in whole or in part), publish, promote, advertise, market, create derivative works from, and otherwise use all or any portion of the User Content, and to grant and authorize sublicenses of the foregoing, in connection with the Services and the functionality thereof. Except as may be specifically provided in connection with any particular Service, we have no obligation to pay you or anyone else any amounts, including master recording, synchronization or publishing royalties, performance fees, license fees, or union, guild, or collective bargaining fees, for the distribution, public performance, or other uses of your User Content as authorized in these Terms.
(iv) To the extent that under applicable law, the above rights may not be assigned or licensed you hereby agree to execute and deliver to us any and all documents or instruments which we may request in order to confirm our acquisition and/or title to the User Content (including the copyright) as described herein. In the event you fail to execute any such documents or instruments you hereby irrevocably grant to us power of attorney, coupled with an interest, to execute all such documents of conveyance of the User Content.
(ii) The foregoing grant of rights includes, without limitation, our right to (but not obligation to):
A. use User Content, including but not limited to auditions, names, pictures, likenesses, images, voices, performances, biographical materials, and web links to websites that you control, in each case in connection with marketing, advertising, or promoting User Content, you, the Services, or us;
B. submit or transmit User Content to organizations and third parties in connection with any applicable Services or program offered by us, in any format (e.g., MP3, streaming, or otherwise) in accordance with the functionality of such Service or program;
C. display any and all lyrics associated with a musical composition embodied in User Content in connection with the Services or program offered by us;
D. edit or modify User Content in our sole discretion in connection with the Services or program offered by us and without any approval rights by you; and
E. publicly perform and transmit your auditions, sound recordings and musical compositions in connection with the Services or a program offered by us, including, but not limited to, by interactive and non-interactive streaming on the Services or via a Service. If you have affiliated with a performance rights organization (“PRO”) with respect to your public performance rights, such as BMI, ASCAP, or SESAC, then you may be prohibited from granting the same rights to us, or a grant of public performance rights to us may prevent a PRO from collecting royalties on your behalf. In certain situations, a PRO may require that you provide the PRO with notice if you are granting public performance rights to another party. If you have an agreement with a PRO that includes such a provision, you are solely responsible for providing such notice to the PRO. You understand that no fees or payment of any kind whatsoever shall be due to any PRO or music publisher for use of your User Content as authorized in these Terms.
(iii) Certain functionality of the Services and certain Services allow you to make User Content, such as your auditions, available to be downloaded from our Services, and by using such features, you automatically grant to us an irrevocable, perpetual, exclusive, transferable, royalty free, license throughout the universe to use such Services Downloads but only for personal, noncommercial use and in accordance with the Services Downloads Usage Rules in Section 2(c) above.
(iv) The grant of rights in this Section 4(b) will survive your removal of User Content from the Services, the termination of your use of the Services, or any other termination of these Terms unless we receive written notice of termination of this license from you, at which point this license will expire and we will stop using the specified User Content within thirty (30) days; provided, however, that with respect to Services Downloads, the grant of rights to end users will survive your removal of such User Content from the Services indefinitely.
(c) Without limitation of the rights granted herein, we and you may enter into additional agreements to confirm the rights granted herein, expand scope of rights granted to us, or otherwise with respect to the User Content, and to the extent such other agreements conflict with these Terms, these Terms shall control.
(d) Representations and Warranties. By submitting User Content to the Services or in connection with any Service, you acknowledge, represent, and warrant that:
- All registration information you submit is truthful and accurate;
- You are: (i) 18 years of age or older; or (ii) you are under the age of 18 and have received consent from a parent or legal guardian to use the Services. Your profile may be deleted and your membership may be terminated without warning if we believe: (i) you are under 18 years of age, yet you represented yourself as 18 or older; or (iii) you are under 18 years of age and have not obtained parent or legal guardian consent to use the Services; or (iv) for any other misrepresentation about yourself regardless of the nature of the misrepresentation;
- You are the creator and owner of your User Content, or have the written consent, release, and/or permission of each and every identifiable individual person in your User Content, if any, to use and to authorize us to use the name and/or likeness of each and every such identifiable individual person, in any manner contemplated by us;
- The exercise of the rights granted by you herein shall not violate any laws or otherwise infringe upon the rights of any person or entity, including copyright, trademark, privacy, publicity, or other personal or proprietary rights, or contain libelous, defamatory or otherwise unlawful materials;
- To the extent you do not own any of the underlying musical compositions, sound recordings, samples, publicity rights, or other materials or content in your User Content, it is your obligation to secure all appropriate permissions, clearances, licenses, or other authorizations and agreements, and, as applicable, to pay directly all third-party fees and royalties as may be required, including, but not limited to, with respect to artists, band members, authors, co-authors, copyright owners and co-owners, publishers, producers, or any other person who performed in the making of your User Content, if any, and in connection with mechanical royalties, digital phonograph delivery royalties, public performance royalties, payments that may be required under any collective bargaining agreements or statutory schemes, or any other royalties, fees, and/or sums payable with respect to your User Content, and at our request you shall provide us with confirmation of such authorizations and payments;
- Your User Content are not false, inaccurate, or misleading;
- Your User Content does not contain unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation;
- Your User Content is not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable (as determined by us);
- Your User Content do not ridicule, mock, disparage, intimidate, or abuse anyone;
- Your User Content do not advocate the violent overthrow of any government or incite, encourage, or threaten physical harm against another;
- Your User Content do not violate any applicable law, regulation, or rule;
- Your User Content do not violate the privacy or publicity rights of any third party;
- Your User Content do not contain any material that solicits personal information from anyone under the age of 18 or exploits people under the age of 18 in a sexual or violent manner;
- Your User Content do not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors;
- Your User Content do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap;
- Your User Content do not otherwise violate, or link to material that violates, any provision of these Terms, or any applicable law or regulation;
- Without limitation, any use of the Services in violation of the foregoing or other violations in our sole discretion violates these Terms and may result in, among other things, termination or suspension of your rights to use the Services.
You agree to fully indemnify and hold us and our subsidiaries, affiliates, directors, officers, agents, contractors, partners, affiliates, employees, contractors, co-branders, advertisers, and other partners (collectively, the “Related Parties”) harmless, and to defend us and/or the Related Parties, from and against any and all losses, liabilities, damages, claims, costs, expenses, or demands (including reasonable attorneys’ fees and costs), due to or arising out of (i) your use of the Services; (ii) your violation or breach of any representation, warranties or other terms in these Terms; (iii) your violation of any rights of any third party; and (iv) any dispute between you and any other user of the Services. Without limitation, you agree to reimburse us and our Related Parties on demand for any payments made in resolution of any liability or claim that is subject to indemnification under this Section. We shall promptly notify you of any such claim, and you may assume control of the defense of such claim with counsel subject to our reasonable approval, provided that you obtain and post an appropriate bond for our benefit, and we shall have the right in all events to participate in the defense thereof. In accordance with Section 7(c) below, if a claim is made, we will have the right to withhold payment of any monies due you in an amount reasonably related to the claim and potential expenses. Notwithstanding the foregoing, your sole remedy for breach or alleged breach by us of these Terms is limited to your discontinuing your use of the Services
6. LIMITATIONS AND DISCLAIMERS:
THE SERVICES AND THE CONTENT THEREON ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. WE MAKE NO, AND EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICES AND/OR THE SERVICES.
Without limiting the foregoing:
(a) We and the Related Parties are not responsible for any incorrect or inaccurate information in the Content. We and the Related Parties are not responsible for the content of, accuracy of, or statements or opinions expressed by third parties in any Content, including any User Content or in advertisements or solicitations, or any third-party content hosted through our Services. We are not responsible for the conduct, whether online or offline, of any user of the Services. Content is not investigated, monitored, or checked for accuracy or completeness by us. We do not make editorial decisions related to User Content. Inclusion of any Content, including links to other websites, does not imply approval or endorsement of the Content by us.
(b) Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You agree that we and the Related Parties shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between you and any third party, you understand and agree that we are under no obligation to become involved.
(c) The Services may be temporarily unavailable from time to time for maintenance or other reasons. We are not responsible for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, the Services. We are not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment or software, or the failure of email on account of technical problems or traffic congestion on the Internet or at any websites or blocking from the destination mail servers, including injury or damage to any person’s computer related to or resulting from participating or downloading materials in connection with the Services. Under no circumstances will we be responsible for any loss or damage, including personal injury or death, resulting from anyone’s use of the Services or any Content.
(d) By using the Services, you hereby release us and the Related Parties from claims, demands, and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to your use of the Services. If you are a California resident, you represent that you are familiar with Section 1542 of the California Civil Code and you hereby waive and relinquish any right and benefit to which you may have under Section 1542 to the full extent that you may lawfully do so in connection with the subject matter hereof. Section 1542 states:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
(e) IN NO EVENT WILL WE AND THE RELATED PARTIES BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR ANY LOST PROFITS AS A RESULT OF YOUR USE OF THE SERVICES, EVEN IF WE ARE AWARE OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(f) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT WILL THE AGGREGATE OF OUR AND THE RELATED PARTIES’ LIABILITY TO YOU FOR ANY CAUSE, LOSS, COST, DAMAGE, OR CLAIM WHATSOEVER, INCLUDING ATTORNEYS’ FEES AND COSTS AND EXPERT WITNESS FEES AND COSTS, AND REGARDLESS OF THE FORM OF THE ACTION, EXCEED THE LESSER OF: (A) THE AMOUNT PAID, IF ANY, BY YOU TO US FOR THE SERVICES FOR THE PRECEDING THREE (3) MONTHS; AND (B) TWO HUNDRED FIFTY DOLLARS ($250.00 U.S.). YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK. THIS ALLOCATION OF RISK AND THE DISCLAIMER OF WARRANTIES HEREIN ARE A FUNDAMENTAL ELEMENT OF THESE TERMS.
You acknowledge and agree that in the course of using certain Services you may become aware of certain otherwise confidential information related to our business and business practices. Except to the extent that such information is otherwise generally available to third parties or is required to be divulged by operation of law, you agree to keep such information confidential.
We may include software for use in connection with our services. If such software is accompanied by an end user license agreement (“EULA”), the terms of the EULA will govern your use of the software. If such software is not accompanied by a EULA, then we grant to you a non-exclusive, revocable, personal, and non-transferable license to use such software solely in connection with our services and in accordance with these Terms. Any Software and any related documentation is provided “as is” without warranty of any kind, either express or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, or non-infringement. You accept any and all risk arising out of use or performance of any Software. You may not reproduce or redistribute any software except in accordance with the EULA or these Terms.
9. MOBILE APPLICATION LICENSE Use License
If you access the Services via its mobile application, HeartOut, then we grant you a revocable, non-exclusive, non-transferable, limited right to install and use the mobile application on wireless electronic devices owned or controlled by you, and to access and use the mobile application on such devices strictly in accordance with the terms and conditions of this mobile application license contained in these Terms. You shall not: (1) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the application; (2) make any modification, adaptation, improvement, enhancement, translation, or derivative work from the application; (3) violate any applicable laws, rules, or regulations in connection with your access or use of the application; (4) remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) posted by us or the licensors of the application; (5) use the application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (6) make the application available over a network or other environment permitting access or use by multiple devices or users at the same time; (7) use the application for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the application; (8) use the application to send automated queries to any website or to send any unsolicited commercial e-mail; or (9) use any proprietary information or any of our interfaces or our other intellectual send automated queries to any website or to send any unsolicited commercial e-mail; or (9) use any proprietary information or any of our interfaces or our other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the application.
Apple and Android Devices
The following terms apply when you use a mobile application obtained from either the Apple Store or Google Play (each an “App Distributor”) to access the Services: (1) the license granted to you for our mobile application is limited to a non-transferable license to use the application on a device that utilizes the Apple iOS or Android operating systems, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor’s terms of service; (2) we are responsible for providing any maintenance and support services with respect to the mobile application as specified in the terms and conditions of this mobile application license contained in these Terms or as otherwise required under applicable law, and you acknowledge that each App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the mobile application; (3) in the event of any failure of the mobile application to conform to any applicable warranty, you may notify the applicable App Distributor, and the App Distributor, in accordance with its terms and policies, may refund the purchase price, if any, paid for the mobile application, and to the maximum extent permitted by applicable law, the App Distributor will have no other warranty obligation whatsoever with respect to the mobile application; (4) you represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country and (ii) you are not listed on any U.S. government list of prohibited or restricted parties; (5) you must comply with applicable third-party terms of agreement when using the mobile application, e.g., if you have a VoIP application, then you must not be in violation of their wireless data service agreement when using the mobile application; and (6) you acknowledge and agree that the App Distributors are third-party beneficiaries of the terms and conditions in this mobile application license contained in these Terms, and that each App Distributor will have the right (and will be deemed to have accepted the right) to enforce the terms and conditions in this mobile application license contained in these Terms against you as a third-party beneficiary thereof.
10. THIRD-PARTY WEBSITES AND CONTENT
the Services may contain (or you may be sent via the Services) links to other websites (“Third-Party Websites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties (“Third-Party Content”). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Websites accessed through the Services or any Third-Party Content posted on, available through, or installed from the Services, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Services and access the Third-Party Websites or to use or install any Third-Party Content, you do so at your own risk, and you should be aware these Terms no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Services or relating to any applications you use or install from the Services. Any purchases you make through Third-Party Websites will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party. You agree and acknowledge that we do not endorse the products or services offered on Third-Party Websites and you shall hold us harmless from any harm caused by your purchase of such products or services. Additionally, you shall hold us harmless from any losses sustained by you or harm caused to you relating to or resulting in any way from any Third-Party Content or any contact with Third- Party Websites.
11. SITE MANAGEMENT
We reserve the right, but not the obligation, to: (1) monitor the Services for violations of these Terms; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms, including without limitation, reporting such User to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your Contributions or any portion thereof; (4) in our sole discretion and without limitation, notice, or liability, to remove from the Services or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the Services in a manner designed to protect our rights and property and to facilitate the proper functioning of the Services.
(a) You may terminate your use of the Services at any time. You may terminate these Terms with respect to any Service by sending us and email to firstname.lastname@example.org. (b) We may cancel your user registration and terminate your use of the Services at any time with or without cause, in our sole discretion, and with or without notice, including for your breach of your representations, warranties, and covenants in these Terms; provided, however, that we have no obligation to monitor your use of the Services. (c) We may delete any of your User Content, information, or other data from the Services at any time, and we have no obligation to maintain copies of any deleted information. (d) Any provisions of these Terms that by their nature should continue after termination of your use of the Services will continue to apply even after the expiration or termination of these Terms or your use of the Services.
13. GOVERNING LAW:
Notwithstanding applicable principles of conflicts of laws, these Terms shall be governed by and construed in accordance with the laws of the State of Florida, and as to matters affecting copyrights, trademarks and patents, by applicable Florida and U.S. federal law. Those who use the Services from other jurisdictions do so at their own risk and are responsible for compliance with local laws applicable to them. Any dispute or claim arising out of, or in connection with, these Terms shall be finally settled by binding arbitration in Miami, Florida, conducted in accordance with the rules of the American Arbitration Association (“AAA”). Judgment on any award rendered by the arbitrator may be confirmed, reduced to judgment and entered in any court of competent jurisdiction. The arbitrator shall have the authority to award the prevailing party its costs and reasonable attorneys’ fees. Notwithstanding the foregoing, arbitration hereunder may only be employed to resolve individual claims, and the arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated. In the event that the forgoing arbitration provision is held invalid or unenforceable, then any dispute with respect to these Terms shall be brought and heard in a court of appropriate subject matter jurisdiction located in Miami-Dade, applying the laws specified above. In such event, you consent in personam jurisdiction and venue of any such courts. You agree that service of process upon you in any such action may be made if delivered in person, by courier service, facsimile or by first class mail, and shall be deemed effectively given upon receipt.
All notices required by these Terms shall be in writing and shall be
(i) by you to email@example.com.
(ii) by us to your email address of record; and notice shall be effective on the date it is sent. For questions regarding these Terms, please contact: firstname.lastname@example.org
// Last Updated on August 27, 2020 //