END USER LICENSE AGREEMENT AND TERMS AND CONDITIONS
IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY AND PRINT IT OR GO TO http://www.heartbeatrm.com/terms TO OBTAIN A DOWNLOADABLE COPY OF THE CURRENT VERSION OF THIS AGREEMENT FOR YOUR RECORDS. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS
This agreement governs the Licensor’s Terms and Conditions and your acquisition and use of the Software and Services directly from the Licensor or indirectly through a Licensor authorized reseller or distributor (a “Reseller”).
By installing, copying, or otherwise using the Software or Services, Licensee agrees to be bound by the terms and conditions set forth in this EULA. If Licensee does not agree to the terms and conditions set forth in this EULA, then Licensee may not download, install, or use the Software or Services.
Any dispute or claim relating in any way to the Licensee’s use of the Software or Services, or to any of the Licensor’s vendors or 3rd parties, will be resolved by binding arbitration, rather than in court. The Federal Arbitration Act and federal arbitration law apply to this agreement. Each party agrees that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration the Licensee and Licensor each waive any rights to a jury trial.
1. Grant of License
1.1) Scope of License. Subject to the terms of this EULA, Licensor hereby grants to Licensee a limited, personal, non-transferable, non-exclusive licence to possess, install and use the Software and access the Services for which the Licensee have paid the required fees.
1.2) Installation and Use. Licensee may install and use the Software on machines (for example a PC, laptop, mobile or tablet) under the Licensee’s control. Licensee is responsible for ensuring all devices meet the minimum requirements of the Software and Services.
2. Title to Software. Licensor represents and warrants that is has the legal right to enter into and perform its obligations under this EULA, and that use by the Licensee of the Software and Services, in accordance with the terms in this EULA, will not infringe upon the intellectual property rights of any third parties. The Licensor does not transfer the title of the Software and Services to the Licensee.
3. Subscription. Licensee understands and agrees that the Software and Services are acquired through a Software as a Service (SaaS) subscription model. Licensee is granted access to use the Software and Services during the term of the Licensee’s subscription with the limitations set forth by said subscription and this agreement and only as the subscription status remains active and any and all fees are paid in full and not past due.
3.1 Licensee agrees to pay the Licensor all applicable amounts when due in accordance with the subscription’s terms, regardless of whether such Software or Services are actively used.
3.2 Licensee agrees to be responsible for payment for all activity by third parties who access or use the Software or Services through the Licensee or on the Licensee’s account regardless of whether such activity was authorized by licensee.
3.3 All payment obligations are non-cancelable and all amounts paid are non refundable and non convertible.
3.4 Licensee understands that they may be offered discount pricing for subscriptions, Services, or Software for paying upfront in full for subscription lengths for predetermined amounts of time and all amounts paid are non refundable and non convertible.
3.5 If Licensee pays a company other than the Licensor, then the charges and billing terms may be stated by the other company to the extent different then set forth herein. Licensee is responsible for all incidental charges related to using the Software or Services.
3.6. All pricing terms are confidential information of the Licensor.
3.7 The Licensor may assess a late charge in the amount of the lesser of 3% for any unpaid amount each month or the maximum rate that is permitted by law. Licensee agrees to pay for all reasonable costs the Licensor or third parties incur to collect any past due amounts which costs may include reasonable attorneys’ fees the Licensor and its vendors may incur.
3.8 The Licensor’s and its users rights to use the Software or Services may be suspended, canceled, or otherwise terminated in whole or part if the Licensee fails to pay any and all fees in full on time with the Licensor.
3.9 Any charges and amounts applied to the Licensor’s credit card(s) or invoice(s) in error must be brought to the attention of the Licensor in writing within ninety (90) days after receipt of said charge(s) or invoice(s). If the Licensee fails to notify the Licensor within this time, the Licensor will not be required to correct the error and/or make adjustments to the Licensee’s account the Licensee waives any claim with respect to such charge(s) or invoice(s).
4. Taxes. All prices are exclusive of all taxes, fees, levies, duties or similar charges arising out of or relating to this agreement, and the Licensee is responsible for such payments, excluding taxes based solely on the Licensor or 3rd parties’ income.
5. Subscription Changes. Licensor may increase or decrease the fee(s) for all or any portion of the Software or Services acquired on a subscription basis. Any such changes shall become effective at the expiration of the current subscription terms. If the Licensee does not wish to pay the adjusted fees, they may select to terminate the subscription at the expiration of their current subscription terms.
6. Trials. If the Licensee is participating in any trial period offer, the Licensee must cancel the subscription and Services with the Licensor by the end of the trial period or the Licensee agrees to be charged at the standard rates.
7. Payment Methods. Licensee agrees to maintain a valid and up to date credit card on file with the Licensor and 3rd parties used to charge any fees related to the Software or Services and authorize the Licensor to charge any credit card provided by Licensee all amounts due under this agreement. If at any time the credit card on file with the Licensor or 3rd parties used to charge fees for the Software or Services cannot be verified, fails to charge outstanding amounts, is expired or otherwise invalid or is not otherwise acceptable, the Software or Services may be suspended or cancelled by the Licensor without notice in part or in full.
8. Currency. Unless stated otherwise, all fees and charges are to be paid in United States dollars (USD).
9. Tracking. Licensee understands and agrees that the Software and Services track the number of deployed copies of the Software, the location where the Software and Services are used, and the activities of the system and user(s) the Software and Services are used.
10. Restrictions. Licensee agrees to the following restrictions:
10.1. General. Your acknowledge that the Software and Services contain trade secrets of Licensor or its suppliers or licensors. You agree not to disclose, provide, or otherwise make available trade secrets contained within the Software or Services in any form to any third party and you further agree to reasonably protect such trade secrets. Your license to the Software and rights to the Services may terminate, without notice, in the event of a material breach by Licensee under this agreement.
10.2. No Competitors. You agree that you may not access or use the Software or Services if you are a competitor of Licensor or if you are working in conjunction with or on behalf of a competitor.
10.3. You are not permitted to:
A) Edit, alter, modify, adapt, translate or otherwise change the whole or any part of the Software nor permit the whole or any part of the Software to be combined with or become incorporated in any other software, nor decompile, disassemble, reverse engineer, translate, observe, test the functioning of or attempt to learn the source code of the Software and Services (or any part thereof), except and only to the extent that such restriction is prohibited under applicable law.
B) Reproduce, copy, distribute, resell or otherwise use the Software for any commercial purpose except where permitted by prior written agreement from Licensor
C) Allow any third party to use the Software on behalf of or for the benefit of any third party
D) Use the Software and Service in any way which breaches any applicable local, national or international law
E) Use the Software and Service for any purpose that Licensor considers is a breach of this EULA agreement
F) Use the Software and Service for any purpose with any country subject to embargo or sanctions by the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”)
G) Use the Software or Service for any purpose without a valid and active subscription with the Licensor
11. Intellectual Property. All now known or hereafter known tangible and intangible rights, title, interest, copyrights and moral rights in and to the Software and Services, including but not limited to all images, photographs, animations, video, audio, music, text, data, computer code, algorithms, and information, are owned by Licensor. The Software is protected by all applicable copyright laws and international treaties.
12. No Support. Licensor has no obligation to provide support services for the Software and Services except where expressly agreed upon in written form between the Licensor with the Licensee.
13. Duration. This EULA is perpetual or until:
13.1 Automatically terminated or suspended if Licensee fails to comply with any of the terms and conditions set forth in this EULA; or
13.2 Terminated or suspended by Licensor, with or without cause.
14. Termination. In the event this EULA is terminated, you must cease use of the Software and Services and destroy all copies of the Software.
15. Jurisdiction. This EULA shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of Washington, without regard to conflicts of laws provisions thereof. Any legal action or proceeding relating to this EULA shall be brought exclusively in courts located in Bellingham, WA, and each party consents to the jurisdiction thereof. The prevailing party in any action to enforce this EULA shall be entitled to recover costs and expenses including, without limitation, attorneys’ fees. This EULA is made within the exclusive jurisdiction of the United States, and its jurisdiction shall supersede any other jurisdiction of either party’s election.
16. Non-Transferable. This EULA is not assignable or transferable by Licensee without prior written consent of Licensor, and any attempt to do so shall be void.
17. Severability. No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power or any rights hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. If any provision of this EULA shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this EULA shall otherwise remain in full force and effect and enforceable.
18. WARRANTY DISCLAIMER. LICENSOR, AND AUTHOR OF THE SOFTWARE, HEREBY EXPRESSLY DISCLAIM ANY WARRANTY FOR THE SOFTWARE. THE SOFTWARE AND SERVICES 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. LICENSEE ACCEPTS ANY AND ALL RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE.
19.1 The Licensor does not warrant that the use of the Software and Services will be uninterrupted or error-free. The Licensee accepts that Software and Services in general is prone to bugs and flaws within an acceptable level as determined in the industry.
20.2 The Licensor makes no warranty expressed or implied regarding the fitness of the Software and Services for a particular purpose or that the Software and Services will be suitable or appropriate for the specific requirements of the Licensee.
21. Force Majeure. The Licensor will be free of liability to the Licensee where the Licensor is prevented from executing its obligations under this agreement in whole or in part due to Force Majeure, such as earthquake, typhoon, flood, fire, and war or any other unforeseen and uncontrollable event where the Licensor has taken any and all appropriate action to mitigate such an event.
22. Reliability. Licensor, its vendors and 3rd parties, are not responsible for any delays, delivery failures, security breaches or other damage resulting from problems inherent in the use of the internet and electronic communications. Neither party shall be entitled to any indirect, special, incidental, punitive, and consequential damages; damages for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, or for negligence or misrepresentation; for for any other pecuniary or other loss whatsoever exception as description in this agreement. Licensee understands and agrees that the Software and Services is not designed, manufactured, or intended for use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or applications in which the failure of the Software or Services could lead to death; personal injury, property or environmental damage.
23. LIMITATION OF LIABILITY. LICENSOR SHALL NOT BE LIABLE TO LICENSEE, OR ANY OTHER PERSON OR ENTITY CLAIMING THROUGH LICENSEE ANY LOSS OF PROFITS, LOSS OF INCOME, LOSS OF SAVINGS, LOSS OF REVENUE, LOSS OF DATA, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, DIRECT OR INDIRECT DAMAGE, WHETHER ARISING IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. THESE LIMITATIONS SHALL APPLY REGARDLESS OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. UNDER NO CIRCUMSTANCES SHALL LICENSOR’S AGGREGATE LIABILITY TO LICENSEE, OR ANY OTHER PERSON OR ENTITY CLAIMING THROUGH LICENSEE, EXCEED THE FINANCIAL AMOUNT ACTUALLY PAID BY LICENSEE TO LICENSOR FOR THE SOFTWARE AND SERVICES. LICENSEE WILL INDEMNIFY, HOLD HARMLESS, AND DEFEND LICENSOR, ITS EMPLOYEES, AGENTS AND DISTRIBUTORS AGAINST ANY AND ALL CLAIMS, PROCEEDINGS, DEMAND AND COSTS RESULTING FROM OR IN ANY WAY CONNECTED WITH YOUR USE OF LICENSOR’S SOFTWARE OR SERVICES.
24. Viruses and Malware. Licensee agrees to use, and ensure that their users and systems, care and diligence to avoid introducing any software virus or other contaminant (including any adware, bugs, cracks, worms, logic bombs, trojan horses or any other self-propagating or other such program) that may infect or cause damage to the Software, the Services, or the Licensor’s systems, or otherwise disrupt the Licensor’s Service or operations.
25. Security. Licensee understands and agrees to notify the Licensor immediately both by email and telephone if the Licensee believes or suspects any of the following are or become true:
25.1 that the security of their account, network, third party services used in conjunction with the Software or Services, or system has been compromised in any way.
25.2 that the Software or Services are used in any way in violation of this agreement.
25.3 has any concerns about the security, reliability, and functionality of the Software or Services provided by the Licensor or its vendors.
26. Representation. The Licensor’s name, logo and graphics file that represents the Software or Services shall not be used in any way to promote or defame products and services developed and provided by Licensor. Licensor retains sole and exclusive ownership of all right, title and interest in and to the Software and Services and all Intellectual Property rights relating thereto.
27. Relationship. This agreement does not create or imply any relationship in agency or partnership between the Licensor and the Licensee.
28. Headers are inserted for convenience of the parties only and are not to be considered when interpreting this agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine gender include the feminine gender and vice versa. Words in the neuter gender include the masculine gender and the feminine gender and vice versa.
29. Collection of Data. Licensee understands and agrees that the Licensor, the Software, and Services gather system and user details and activities of which are reported to the Licensor and the Licensor’s Services for purposes of, but not limited to, generating system and user analytics, reporting, generating and sending alerts, remotely viewing, and transmitting to third parties as required to perform said actions by the Licensor. The Licensee hereby grants to the Licensor a non-exclusive, worldwide, royalty-free, fully-paid, transferable license to host, cache, record, copy, view, and display system and user and customer data for the purpose of providing the Software and Services including, but not limited to, use by the Licensor, any purpose related to billing, subscription management or maintenance, troubleshooting the Software or Services, any purpose permitted by any applicable law, and may be transferred and stored outside the Licensee’s country in accordance to the needs and requirements of the Software or Service.
30. Consent of Use of Data. Licensee agrees that Licensor may collect and use information gathered in any manner as part of the Software, Services, and support services provided to Licensee, if any, related to the Software or Services. Licensor may also use this information to provide notices to Licensee to which may be of use or interest to Licensee or may further the development or troubleshooting of the Software or Services.
31. Confidentiality. The Licensee and Licensor agrees to hold the other party’s confidential information in confidence and not to use it for any purpose other than to provide, receive, enhance, or debug the Software and Services under this agreement as applicable. Confidential information of the Licensee’s and Licensor’s may only be disclosed to the employees, contractors and advisors of the Licensee or the Licensor, as applicable, on a need-to-know basis and who agree to be bound by confidentiality restrictions in this agreement; provided, that nothing shall prevent or prohibit a party from using or disclosing confidential information as may be required by law, rule, regulation or legal process. Confidential information remains at all times the property of the disclosing party. Unless otherwise explicitly set forth herein, no licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied with respect to confidential information.
32. Entire Agreement. This EULA constitutes the entire agreement between Licensor and Licensee and supersedes all prior understandings of Licensor and Licensee, including any prior representation, statement, condition, or warranty with respect to the subject matter of this EULA.