Last Updated: December 10, 2018
1. Your Acceptance
2. User Accounts and Sign-up
Portions of the Platform may require you to create a login or sign-up for an account. You must fully complete the registration process by providing us with your current, complete, truthful, and accurate information as prompted by the applicable registration form. Where required, Heartbeat may also assign you a username and password. You are entirely responsible for maintaining the confidentiality of your password and account and for any and all activities that occur under your account. You agree to notify Heartbeat immediately of any unauthorized use of your account or any other breach of security. Heartbeat will not be liable for any losses you incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by Heartbeat or another party due to someone else using your account or password. You may not use anyone else's account at any time, without the permission of the account holder. Companies may register via the Platform but may only have one user account. If you are registering on behalf of your company, you represent and warrant that you are authorized by your company to create an account on your company’s behalf and you represent and warrant that you are authorized by your company to incur financial obligations and enter into legally binding agreements on behalf of your company. Heartbeat has the sole discretion in granting or denying any accounts.
3. The Platform and Heartbeat Services
The Heartbeat Platform constitutes a social media management platform that enables Clients to manage and initiate social media campaigns (“Campaign”), and allows Clients to find social media influencers (“Influencer(s)”) that assist Client in its Campaign. Client may be able to choose from subscription plans made available on the Platform including a DIY Plan (defined below) and an FS Plan (defined below). Client agrees that all Influencers are independent third party contractors and any Influencer Services are solely offered by Influencer. CLIENT ACKNOWLEDGES THAT HEARTBEAT IS MERELY A CAMPAIGN MANAGEMENT PLATFORM AND FOR ANY DIY PLANS (defined below) HEARTBEAT DOES NOT PERFORM THE CAMPAIGNS AND DOES NOT RECOMMEND OR ENDORSE ANY INFLUENCER. FOR ANY DIY PLANS, HEARTBEAT MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES FOR THE SUCCESS OF ANY CAMPAIGNS AND YOU RELEASE US ANY LIABILITY ARISING OUT OF YOUR USE OF THE PLATFORM, THE HEARTBEAT SERVICES, ANY CAMPAIGNS, AND ANY INFLUENCER SERVICES. Heartbeat has no liability to you for your use of the Platform including but not limited to any User Content or Influencer Content (defined below); information, copy, images, URL names, or Heartbeat Services; or any Campaigns.
Aside from Campaigns, the Platform may offer additional services including but not limited to brand pages, surveying tools, communication tools with Influencers, engagement reporting, and third party software integrations (“Heartbeat Services”). Any Heartbeat Services offered via the Platform may change at any time, and we reserve the right to change, update, add, remove, or suspend our Platform, any portions of our Platform, or the Heartbeat Services at our sole discretion. We may, but are not required to provide you any notice where we make a change to the Heartbeat Services. We will not be liable to you or any third party for any modification, price change, suspension or discontinuance of any portion of our Platform or any Heartbeat Services. Please be aware that any Heartbeat Services are “as-is” and “as-available.” Additionally any information or content delivered by the Heartbeat Services, including any notifications, reports, or tools provided, are offered only for informational purposes only.
4. Third Party Integrations
6. Access to the Platform
After properly registering for the Platform you shall be granted access to the Platform. Please be aware that you do not receive any ownership interest in the Platform; you merely receive the aforementioned access. You agree to abide by the following restrictions listed below:
You may not decompile, reverse engineer, disassemble, modify, rent, sell, lease, loan, distribute, or create derivative works or improvements to the Platform or any portion of the Platform.
You may not share your access with any other parties unless permitted by us in writing.
You may not violate any laws, rules or procedures of the United States.
You may not violate any of our additional policies.
You may not use our Platform except through specific channels provided by us.
You may not use the Platform on a computer that is used to operate nuclear facilities, life support, or other mission critical applications where life or property may be at stake.
You may not sell, lease, loan, distribute, transfer, or sublicense your access to the Platform.
Please be aware that this is not an all-encompassing list of restrictions, if you breach any of these restrictions, we may revoke your access to our Platform, at our discretion. Additionally, we may revoke or restrict your access to our Platform if we believe that your actions may harm or have harmed Heartbeat or the Platform itself. Failure by us to revoke your access does not act as a waiver of your conduct.
7. Your Conduct While Using The Platform
When accessing or using our Platform, you are solely responsible for your use and for any use of the Heartbeat Platform made using your account. You agree to abide by the following rules of conduct:
You will not copy, distribute or disclose any part of the Platform in any medium, including without limitation by any automated or non-automated “scraping”;
You will not attempt to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from the servers running the Platform;
You will not use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Platform or to extract or export data collected through the Platform;
You will not take any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
You agree not to use the Platform to stalk, harass, bully or harm another individual;
You agree that you will not hold Heartbeat responsible for your use of the Platform;
You may not post any Client Content that is violent, distasteful, contains sexual nudity or sex acts, or is otherwise not up to community standards;
You agree not to violate any requirements, procedures, policies or regulations of networks connected to Heartbeat;
You agree not to interfere with or disrupt the Platform;
You agree to not violate any US federal or state laws while using the Platform; and
You agree not to use the Platform in any way that is: misleading, unlawful, defamatory, obscene, invasive, threatening, or harassing.
If you are discovered to be undertaking any of the aforementioned actions or if we believe that any of your actions may harm Heartbeat’s Platform or business interests your privileges to use our Platform may at our sole discretion be terminated, revoked, or suspended. Generally, we will provide an explanation for any suspension or termination of your use of any of our Platform, but Heartbeat reserves the right to suspend or terminate any account at any time without notice or explanation.
8. Platform Availability and Modification
Although we will attempt to provide continuous Platform availability to you, we do not guarantee that the Platform will always be available, work, or be accessible at any particular time. We make no uptime guarantees. We reserve the right to alter, modify, update, or remove our Platform at any time. We may conduct such modifications to our Platform for security reasons, intellectual property, legal reasons, or various other reasons at our discretion, and we are not required to explain such modifications. For example, we may provide updates to fix security flaws, or to respond to legal demands. Please note that this is a non-binding illustration of how we might exercise our rights under this section, and nothing in this section obligates us to take measures to update the Platform for security, legal, or other reasons.
9. Client Content
Any Client Products (defined below) and Client’s ability to submit or transmit any information through the Platform, including but not limited to text, audio messages, videos, photos, images, Client trademarks, Client intellectual property, or any other information will be referred to as “Client Content” throughout this Agreement. All Client Content you submit to the Platform will be owned by you. Please be aware that we are not required to host, display, migrate, or distribute any of your Client Content and we may refuse to accept or transmit any Client Content. You agree that you are solely responsible for any Client Content submitted and you release us from any liability associated with any Client Content submitted. Although we use industry standard security, you understand that we cannot guarantee the absolute safety and security of any such Client Content. Any Client Content found to be in violation of this Agreement or that we determine to be harmful to the Platform may be modified, edited, or removed at our discretion. Heartbeat may at its discretion verify, monitor, or restrict any Client Content submitted.
When you submit any Client Content to us, you grant the Heartbeat, its partners, affiliates, users, representatives and assigns a non-exclusive, fully-paid, royalty-free, revocable, world-wide, universal, transferable, assignable license to display, publicly perform, distribute, store, broadcast, transmit, reproduce, modify, prepare derivative works and otherwise use and reuse all or part of your Client Content for the duration of this Agreement. It is important for you to grant us this license so that we may transmit your Client Content to the Influencers on our Platform. Where any Client Content contains personal contact information, Heartbeat agrees that it shall not use such Client Content to directly market to or sell such Client Content to third parties. Additionally, although you own all Client Content submitted by you, we own all layouts, arrangement, metadata and images that are used to render your Client Content through our Platform.
10. Client Contacts
Through the Platform, Client may upload Client Content that contains personal information including but not limited to social media information, email addresses, or usernames (“Client Contact(s)”). Where any Client Contacts have been uploaded by Client, Heartbeat agrees that it shall not use such Client Contact information to directly market to such Client Contacts. However, Client permits Heartbeat to use the Client Contacts for the limited purpose of sending such Client Contacts an initial and follow up email to sign up and use the Platform. Further, Heartbeat shall not sell or disclose the Client Contacts to third parties without the consent of Client. Heartbeat will only use Client Contacts to provide the Heartbeat Services. Once any Client Contacts have joined the Heartbeat Platform, they may join other brand communities at their discretion.
11. Client Content Guidelines
We reserve the right to remove, delete, modify, screen, edit, or refuse any Client Content for any reason or no reason, and with or without notice to you. Please be aware that all Client Content may be viewed by third parties, thus we cannot guarantee the confidentiality of any Client Content.
When submitting any Client Content you agree to the following:
You agree that Client Content shall not provide or claim to provide any medical advice;
You agree not to submit any Client Content that contains any confidential information;
You agree not to submit any Client Content that contains nudity, or sexual, or explicit content;
You agree not to submit any Client Content that depicts gratuitous violence, animal or child abuse, or encourages violence against others;
You agree not to submit any Client Content contains hate speech or promotes or condones violence against individuals or groups based on race or ethnic origin, religion, disability, gender, age, nationality, veteran status, or sexual orientation/gender identity ;
You agree not to submit any Client Content that is considered spam or politically controversial; and
You agree not to submit any Client Content that may be considered: misleading, unlawful, defamatory, obscene, invasive, threatening, or harassing.
If you have violated any of our Client Content Guidelines or if you we believe that any Client Content may harm the Platform, your access to the Platform may be suspended or terminated.
12. Client Content Representations and Warranties
Client represents and warrants the following: (1) Client owns or has properly licensed all Client Content provided; (2) the Client Content does not and will not infringe on any copyright, moral right, trademark or other intellectual property right and will not violate any right of privacy or right of publicity; (3) the Client Content offered does not violate any US state or federal laws or any third party agreements; (4) Client has the sole, exclusive and unencumbered ownership of all rights of every kind and character throughout the universe in and to the Client Content and has clear title to any other subsidiary materials contained in the Client Content; (5) Client has the absolute right to grant to Heartbeat, all rights, licenses and privileges granted to or vested in Heartbeat under this Agreement; (6) Client has obtained all clearances and paid all monies necessary for Heartbeat to exercise the license granted herein and there will not be any other rights to be cleared or any payments required to be made by Heartbeat as a result of any use of the Client Content pursuant to the rights and licenses herein granted (including without limitation, payments in connection with contingent participations, residuals, clearance rights, moral rights, union fees, and music rights). All of the individuals and entities connected with the production of the Client Content, and all of the individuals and entities whose names, voices, photographs, likenesses, appearance, works, services and other materials appear or have been used in the Client Content, have authorized and approved Client’s use thereof, and Heartbeat shall have the right to use all names, voices, photographs, likenesses, appearance and performances contained in the Client Content in connection with the exploitation, promotion, and use of the license granted herein; (7) there are no existing, anticipated, or threatened claims or litigation that would adversely affect or impair the use of any of the Client Content.
13. Client Content Placement
Client understands and agrees that its Client Content may be placed on social media channels controlled by independent third party Influencers. Client authorizes and consents to all such placements. Client agrees that all placements of Client Content shall conclusively be deemed to have been approved by Client unless Client produces contemporaneous documentary evidence showing that Client expressly disapproved of any such specific placements. Where provided for through functionality of the Platform, Client may control which Influencers place its Client Content or modify the placement of Client Content via tools provided. Please be aware that if Client wishes to supply additional information (“Instructions”) related to the Client Content, Client must submit such information contemporaneously when submitting the Client Content. Where no Instructions are submitted by Client, Client agrees that any reasonable use of the Client Content by the Influencers is consented to and authorized. Client understands that the Influencers may their reasonable discretion when deciding on the usage of Client’s Content.
14. Influencer Services
Heartbeat allows social media influencers (“Influencer(s)”) to access the Platform and participate in Campaigns initiated by a Client. Each Influencer may offer social media services via the Platform, including but not limited to social media posts, like aggregation, and distribution of Client Content (collectively referred to as “Influencer Service(s)”).
HEARTBEAT EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY DAMAGE, LOSS OR INJURY ARISING OUT OF: ANY INTERACTIONS BETWEEN INFLUENCER AND CLIENT, THE ACTIVITIES OF ANY INFLUENCERS, AND ANY LOSS OR INJURY ARISING OUT OF ANY ACT OR OMISSION OF ANY INFLUENCER, AND CLIENT’S USE OF ANY INFLUENCER SERVICES. CLIENT HEREBY ACKNOWLEDGES AND AGREES THAT WHILE HEARTBEAT MAY PROVIDE INFORMATION ABOUT AN INFLUENCER, BASED ON LOCATION, FOLLOWING, ENGAGEMENT, OR RELEVANCY; SUCH INFORMATION IS BASED SOLELY ON DATA THAT IS SUBMITTED BY THE INFLUENCER, AND HEARTBEAT PROVIDES SUCH INFORMATION SOLELY FOR THE CONVENIENCE OF ALL CLIENTS AND THIS IS NOT AN INTRODUCTION OR ENDORSEMENT BY HEARTBEAT OF ANY INFLUENCER OF ANY INFLUENCER’S SERVICES. HEARTBEAT IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES, NEGLIGENCE OR MISCONDUCT OF ANY INFLUENCERS OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM OR OTHERWISE ARISING FROM YOUR USE OF THE PLATFORM, AN INFLUENCER’S USE OF ANY CLIENT CONTENT, OR YOUR USE OF THE INFLUENCER SERVICES. ANY legal remedy or liability that you seek to obtain for actions or omissions of INFLUENCERS or other third parties will be limited to a claim against the particular INFLUENCER or other third parties who caused you harm and you agree not to attempt to impose liability on, or seek any legal remedy from HEARTBEAT with respect to such actions or omissions. YOU ARE SOLELY RESPONSIBLE FOR ALL INTERACTIONS WITH ANY INFLUENCERS.
Any opinions, advice, or information expressed by any Influencer are those of the individual and the individual alone and they do not reflect the opinions of Heartbeat. While Heartbeat works closely with Pro Full-Service clients to provide and enforce specific brand guidelines and requirements for Influencers, Heartbeat is not an employer, has no control over, makes no representations, and does not guarantee the quality, safety or legality of the Influencer or any Influencer Services provided. Heartbeat technology can guarantee approved posts meet hashtag requirements as specified by the client.
Any content derived from any Influencer Services (“Influencer Content”) is the sole property of such Influencer, and such Influencer shall retain all title, right, and interest in such Influencer Content. Where Client participates in an Early Adopter, DIY Plan or Pro Plan, Client shall receive a limited, royalty free, transferable, assignable, non-exclusive license to use any Influencer Content from any Client Campaigns solely in an electronic media or digital format for purposes of online advertising and marketing. Such license does not permit Client to reproduce, create, distribute, broadcast, create derivative works, or transmit the licensed content in any real world or physical formats including but not limited print, television, physical media, radio, recordings, physical products, billboards, apparel, or other durable goods without permission from Heartbeat.
15. Shipping of Physical Products
Where Client has physical products (“Client Product(s)”) that it wishes to distribute to any Influencers, Client agrees that it shall make its own shipping arrangements with the Influencers that are participating in the Campaign. Unless specified in a contract that Heartbeat will manage shipping through its fulfillment and shipping partner, 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 Influencers. Where a Client Product is required for any Client Campaign, Client agrees that Heartbeat may postpone the Campaign Start Date for reasonable period of time to ensure that Influencers have received the Client Product. Aside from the physical product provided by Client, “Client Products” also refer to any product packaging, labeling, intellectual property rights related to the product, and any other physical product or content attached to the physical product.
16. Location-Based Campaigns
Heartbeat may offer location-based Campaigns via the Platform. Where Client selects a location-based Campaign, aside from any functionality offered by the Platform, 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 for all Influencers. Client’s responsibility includes but is not limited to, 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. Client agrees to exercise caution in all interactions with Influencers, particularly if Client and Influencer meet in person at a specific location. CLIENT AGREES THAT IT IS SOLELY RESPONSIBLE FOR ALL PHYSICAL INTERACTIONS WITH ANY INFLUENCERS. CLIENT UNDERSTANDS THAT HEARTBEAT DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS ON ITS INFLUENCERS OR OTHERWISE INQUIRE INTO THE BACKGROUND OF ITS INFLUENCERS. HEARTBEAT MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF ANY INFLUENCERS.
Client acknowledges and agrees that in order for Heartbeat to make the Platform available, it must receive fees for the Campaigns transacted. In consideration for making the Platform available to Client, Client agrees that for a period of twelve (12) months following the moment you initiate a Campaign or identify an Influencer on the Platform, you must use the Platform as your exclusive method to request, initiate, and pay for any social media campaigns that involve the Influencer identified or used, whether directly or indirectly. You agree to notify Heartbeat immediately if another person improperly contacts you or suggests making or receiving payments outside of the Platform.
Through the Platform, Client may choose a paid subscription plan to access the Heartbeat Services or to initiate a Campaign. Heartbeat currently offers a DIY plan (“DIY Plan”) and a full service plan (“FS Plan”), both of which provide access to the Platform tools. All plans are subject to this Agreement and any other terms or restrictions contained within the Platform. Heartbeat reserves the right to restrict, change, update, remove, or, modify any plans or pricing offered without notice.
Heartbeat Platform Plus Do-It-Yourself Campaign Builder Plan (DIY) - Client shall be charged a pre-determined monthly fee, as outlined in this agreement. This rate constitutes payment for platform tools including surveys, demographic segments, brand page, and community overview. If Client chooses to run user-generated content campaigns using the DIY platform Campaign Builder tools, Client agrees to pay the ambassadors’ pre-determined payrate for each post they complete.
FS (Full Service) Pro Plan - In addition to the services offered in the DIY plan, Heartbeat shall assist Client in managing its use of the Heartbeat Services. Client may work with its dedicated account management team to run Pro campaigns throughout the year. To run Pro campaigns, Client will incur additional costs, as outlined by Heartbeat, depending on the scope of campaign needs.
Client shall be charged on a monthly basis (“Monthly Fee”) for the plan selected. Client agrees that we may charge your payment method on file and you agree to pay all such fees. Failure to pay in a timely manner may result in the pausing or removal of your Campaign from the Platform and the immediate disabling of the Heartbeat Platform Services. Where you have failed to pay in a timely manner, Heartbeat shall have no liability to you for your failure to access the Heartbeat Services or your Campaigns. Your credit card information or other payment method will be processed and stored by our secure third party payment processors.
As all plans are paid on an ongoing basis, Heartbeat cannot offer any refunds. If you have any questions relating to any charges, please contact us at: email@example.com.
You may terminate your account at any time, but Termination of this Agreement does not relieve Client from any obligation to pay Heartbeat for the agreed-upon services. Upon termination you will not be entitled to any refunds or proration of any fees paid except as stated in this Agreement. Additionally, where a Campaign is currently active you shall owe any additional fees including any and all charges upon termination. We may terminate your account or this Agreement with you if we determine that: (1) you have violated any applicable laws while using our Platform; (2) if you have violated this Agreement or any other of our Platform policies; (3) if your account has remained inactive for an extended period of time; or (4) if we believe that any of your actions may harm Heartbeat, at our sole decision or discretion. In the event of termination, we will strive to provide you with a timely explanation; however, we are not required to do so. Where termination has occurred, portions of this Agreement shall survive and remain in full force as stated in the “Survival” section of this Agreement.
Depending on the laws of your jurisdiction you may be taxed for any payments or purchases. Therefore, at the time of payment we may collect all applicable taxes related to your use of the Platform. In the event that we do not collect the applicable taxes, you agree that you are still responsible for any applicable taxes. Although no taxes may be collected by us you agree that you will pay any applicable taxes or fees to the tax agencies having jurisdiction over you. In the event we do not collect the relevant taxes owed by you, you agree that we are not responsible for collecting, transmitting, or advising on taxes, duties, or other levies by the government regarding your payments.
If we believe that you have participated in a fraudulent chargeback we will pursue our claims against you to the fullest extent allowed by law. In the event that we believe that a user has submitted a fraudulent chargeback, we will forward your information to the applicable law enforcement agency and your fraudulent chargeback may result in either a civil fine or jail time.
25. 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 that you not send us your ideas, you agree to the following: (1) your Submissions and their contents will automatically become the property of Heartbeat, without any compensation to you; (2) Heartbeat may use or redistribute the Submissions and their contents for any purpose and in any way; (3) there is no obligation for Heartbeat to review the Submission; and (4) there is no obligation to keep any Submissions confidential.
26. Intellectual Property
The name “Heartbeat,” the design of the Heartbeat Platform 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 Platform. You agree to not engage in the use, copying, or distribution of the Marks or anything else contained within the Platform unless we have given you express written permission. All rights not expressly granted are hereby reserved.
27. Representations and Warranties
THE PLATFORM AND ALL INFLUENCER SERVICES ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER HEARTBEAT, NOR ANY OF THEIR EMPLOYEES, MANAGERS, OFFICERS, ASSIGNS OR AGENTS MAKE ANY REPRESENTATIONS, GUARANTEES, WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO: (A) THE PLATFORM AND THE HEARTBEAT SERVICES; (B) ANY INFORMATION PROVIDED VIA THE PLATFORM; (C) ANY INFLUENCER SERVICES AVAILABLE OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO HEARTBEAT OR VIA THE PLATFORM. EXCEPT AS EXPLICITLY STATED WITHIN SECTION 17 OF THIS AGREEMENT, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS. THE INCLUSION OF ANY INFLUENCER OR ANY INFLUENCER SERVICES ON THIS PLATFORM DOES NOT CONSTITUTE ANY ENDORSEMENT OR RECOMMENDATION BY HEARTBEAT.
HEARTBEAT DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE PLATFORM OR THE SERVER THAT MAKES THE PLATFORM AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS. HEARTBEAT DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE PLATFORM ARE ACCURATE, COMPLETE, OR USEFUL. HEARTBEAT DOES NOT WARRANT THAT YOUR USE OF THE PLATFORM IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND HEARTBEAT SPECIFICALLY DISCLAIMS ANY SUCH WARRANTIES.
28. Limitation of Liability
THE INFLUENCERS PROVIDING INFLUENCER SERVICES ON THIS PLATFORM ARE INDEPENDENT CONTRACTORS AND NOT AGENTS OR EMPLOYEES OF HEARTBEAT. IN NO EVENT SHALL HEARTBEAT, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO (I) YOUR USE OR INABILITY TO USE THE PLATFORM, THE HEARTBEAT SERVICES, OR ANY ERRORS, MISTAKES, OR INACCURACIES FOUND WITHIN THE PLATFORM, (II) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR PLATFORM OR FROM ANY INFLUENCERS OR INFLUENCER SERVICES, (III) ANY INTERRUPTION,MISINFORMATION, INCOMPLETE INFORMATION, OR CESSATION OF TRANSMISSION TO OR FROM OUR PLATFORM TO YOU, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR PLATFORM VIA A THIRD PARTY, (V) ANY FAILURES OR DISRUPTIONS WHETHER INTENTIONAL OR UNINTENTIONAL, (VI) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERSRELATED TO YOUR CLIENT CONTENT, (VII) ANY INJURY OR CLAIM THAT OCCURS OUT OF THE USE OF ANY CLIENT CONTENT BY ANY INFLUENCERS OR (VIII) ANY POTENTIAL OR ACTUAL LOSS OR DAMAGE TO PERSON OR PROPERTY THAT MAY OCCUR WHILE USING THE PLATFORM. 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 OUR LIABILITY TO YOU IS NO MORE THAN THE AMOUNT YOU PAID IN THE PAST SIX MONTHS FOR SERVICES OR ONE-HUNDRED US DOLLARS, WHICHEVER IS GREATER.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY BETWEEN JURISDICTIONS. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by Heartbeat’s negligence or that of any of its offic ers, employees or agents; (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future. The foregoing limitations on liability and any other limitations of liability set forth herein are not applicable to residents of New Jersey. With respect to residents of New Jersey, Heartbeat shall not be liable for any damages arising out of your access to or use of the Platform, unless such damages are the result of our negligent or reckless acts or omissions; provided, however, that we shall not be liable for consequential, indirect or punitive damages.
You agree to defend, indemnify and hold harmless Heartbeat, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from:
your use of and access to the Heartbeat Platform;
your violation of any term of this Agreement;
your negligence and willful misconduct; and
any claim that your use of the Platform harmed another user or third party.
This defense and indemnification obligation will survive this Agreement and your use of the Heartbeat Platform. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, 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.
30. Age Compliance
Heartbeat and its Platform may only be used by persons 18 years and older.
31. Intellectual Property and Copyrights
We take copyright infringement very seriously. If you believe that any copyrighted material owned by you has been infringed upon by someone using our Platform, please send us a message which contains:
The name of the party whose copyright has been infringed, if different from your name.
The name and description of the work that is being infringed
The location on our Platform of the infringing copy.
A statement that you have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law.
A statement that you swear, under penalty of perjury, that the information contained in this notification is accurate and that you are the copyright owner or have an exclusive right in law to bring infringement proceedings with respect to its use.
You must sign this notification and send it to our Copyright Agent: Copyright Agent of Heartbeat, firstname.lastname@example.org
In the event that you receive a notification from Heartbeat stating content posted by you has been subject to a DMCA takedown, you may respond by filing a counter-notice pursuant to the DMCA. Your counter-notice must contain the following:
Your name, address, email and physical or electronic signature.
The notification reference number (if applicable).
Identification of the material and its location before it was removed.
A statement under penalty of perjury that the material was removed by mistake or misidentification.
Your consent to the jurisdiction of a federal court in the district where you live (if you are in the U.S.), or your consent to the jurisdiction of a federal court in the district where your service provider is located (if you are not in the US).
Your consent to accept service of process from the party who submitted the takedown notice.
Please be aware that we may not take any action regarding your counter-notice unless your notification strictly complies with the foregoing requirements. Please send this counter-notice to: email@example.com
32. Choice of Law
This Agreement shall be governed by the laws in force in the state of California. The offer and acceptance of this contract is deemed to have occurred in California.
By using this Platform, you agree that: (1) any claim, dispute, or controversy you may have against us, Heartbeat or the Platform arising out of, relating to, or connected in any way with this Agreement shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA (“Rules and Procedures”); (2) the claim or dispute must be brought within one (1) year of the first date of the event giving rise to such action and the arbitration shall be held in Santa Monica, CA, or at such other location as may be mutually agreed upon by you and Heartbeat ( the foregoing time limitation is not applicable to residents of New Jersey) ; (3) the arbitrator shall apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (4) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only your and/or Heartbeat’s individual claims; and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (5) both parties will bear their own costs of representation and filing for the dispute; (6) where possible and allowed for under the AAA Rules and Procedures, Heartbeat shall be entitled to appear electronically or telephonically for all proceedings; and (7) with the exception of subpart (4) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (4) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither user nor Heartbeat shall be entitled to arbitrate their dispute. For more information on AAA and its Rules and Procedures, users may visit the AAA website at http://www.adr.org . In the event that any portion of this arbitration provision is found to be unenforceable or void, both parties agree to settle any disputes arising out of this Agreement in a court of competent jurisdiction located in Los Angeles County, CA. You and Heartbeat each agree that the following claims are exceptions to this arbitration clause and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
34. Class Action and Jury Trial
You and Heartbeat agree that any proceedings to resolve or litigate any dispute whether through a court of law or arbitration shall be solely conducted on an individual basis. You agree that you will not seek to have any dispute heard as a class action, representative action, collective action, or private attorney general action. You and Heartbeat acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable disputes.
35. Relationship of Parties
Client agrees that Heartbeat is acting as an independent contractor in performing any services contemplated under this Agreement and that the relationship between the Heartbeat and Client shall not constitute a partnership, joint venture or agency. Neither Heartbeat nor any of Heartbeat's employees or agents (i) is an employee, agent or legal representative of Client, or (ii) shall have any authority to represent Client or to enter into any contracts or assume any liabilities on behalf of Client. Neither Client nor Client’s employees or agents (i) is an employee, agent or legal representative of Heartbeat, or (ii) shall have any authority to represent Heartbeat or to enter into any contracts or assume any liabilities on behalf of Heartbeat.
36. Force Majeure
You agree that we are 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.
37. Statements By Employees
Please be aware that Heartbeat may offer employees or other staff to assist you with our Platform. Any statements made or actions undertaken by our employees are non-binding in nature. Unless stated explicitly stated otherwise, Heartbeat employees and staff do not have the authority to execute an agreement or contractually bind Heartbeat to any agreements between Client and Heartbeat.
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.
If two or more provisions of this Agreement or any other agreement you may have with Heartbeat are deemed to conflict with each other’s operation, you agree that Heartbeat shall have the sole right to elect which provision remains in force.
We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, content provisions, Client representations and warranties, payment provisions, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.
42. Additional Agreements
We may amend this Agreement from time to time. When we amend this Agreement, we will update this page and indicate the date that it was last modified or we may email you. You may refuse to agree to the amendments, but if you do, you must immediately cease using our Platform.
44. 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: firstname.lastname@example.org
Lastly, 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.
45. Electronic Communications
The communications between you and Heartbeat use electronic means, whether you visit the Platform or send Heartbeat e-mails, or whether Heartbeat posts notices on the Platform or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Heartbeat in an electronic form; and (2) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Heartbeat provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
46. Additional Terms For Full Service Clients
Clients using the Heartbeat FS Plan shall be subject to such additional terms (“Additional Terms”) in sections 46-56of this Agreement, listed below. Where such Additional Terms conflict with any other terms of this Agreement, the Additional Terms shall control.
47. FS Plan Term
The term of Client’s FS Plan shall be listed in Client’s account. Where Client’s account does not list a term, the initial term for the FS Plan shall be one (1) year (“Initial Term”) from the date of which Client accepts the Statement of Work (defined below) or begins a Campaign, whichever is earlier.
48. Termination of an FS Plan
Where Client wishes to terminate an FS Plan during its Initial Term, Client shall provide Heartbeat with thirty (30) days written notice and shall pay seventy-five (75%) percent of the last Monthly Fee paid for each additional monthly period remaining within the Initial Term.
49. Client Campaigns
Through the FS Plan, Client may be eligible for assistance with the Heartbeat Services and its Campaigns. Any additional Campaign terms shall be contained in a statement of work (“Statement of Work”) which describes the managed Campaign specifics and may be found on the Platform order page, Client’s account Campaign page, or other communication that is sent from Heartbeat. Once Client has accepted the Statement of Work, Client shall be notified upon acceptance of the Campaign with a Campaign Confirmation Report. Please be aware that no contractual obligations for any Campaigns are incurred by Heartbeat until Heartbeat accepts a Client’s Campaign. Acceptance shall only occur after a Client receives a Campaign Confirmation Report or Client’s method of payment on file is charged. Where Client wishes to initiate an additional Campaign, Client shall follow the same process as described within this Section and such additional Campaigns shall be subject to this Agreement, each Campaign forms a separate agreement between Client and Heartbeat and is subject to this Agreement.
50. Campaign Period
Upon acceptance of Client’s Campaign, the Campaign Period shall commence beginning on the payment date or on a later date where agreed upon between Client and Heartbeat (“Campaign Start Date”). The Campaign Period shall run continuously until the Campaign Period ends as listed in the Statement of Work (“Campaign End Date”) or where all Posts as stated on the Statement of Work have been fulfilled. Upon the full completion of all Posts during the Campaign Period, Client shall receive a Campaign Completion Report. If Client wishes to extend the current Campaign, Client must notify Heartbeat before the Campaign End Date, where a Campaign extension occurs all additional billing will be done on a pro-rata basis of the total cost of Client’s Campaign. Client’s payment method on file shall be charged fifty-percent (50%) of the Campaign Budget at the initiation of the Campaign (the “Initial Charge”). Once paid, the Initial Charge is non-refundable, unless otherwise stated or as noted in the Statement of Work. Thirty days after the Campaign Start Date, Client shall be charged for the remaining fifty-percent of the Campaign Budget.
51. Pausing a Campaign
After initiation of a Campaign, Client shall not be able to pause the Campaign during the Initial Charge phase of the Campaign except where permitted by the Platform. After half of the Campaign has concluded (“Final Period”) any pausing of the Campaign shall be subject to a fifteen (15%) percent pause fee (“Pause Percentage”), such pause fee shall be calculated by multiplying the Pause Percentage by the Campaign Budget. Heartbeat shall have the right to pause the Campaign where any payment is due and owing by the Client or at Heartbeat’s sole discretion.
52. Campaign Objectives
Campaigns may be structured by objectives (“Objective(s)”) as offered by the Platform and as listed on the Client’s Statement of Work, Objectives may include number of posts (“Posts”), total reach (“Reach”) or engagement (“Engagement”). During the initiation of a Campaign, Client may select specific Objective(s) that it wishes to include in any Campaign. All Objectives shall be displayed on the Client Statement of Work. For the purposes of this Agreement, “Posts” shall mean all posts by any Influencer participating in a Client Campaign that has featured Client Content or a Client Product on any social media platform including but not limited to Instagram, Twitter, Facebook, Pinterest, or Snapchat. “Reach” is defined as the number as described within the Statement of Work, typically the total follower count goal based on the number of participants. “Engagement” is defined as the aggregate total of likes and comments for all Posts by Influencers during the entire Client Campaign on all social media platforms. Additionally, Heartbeat may offer an “Engagement Rate”, which is defined as the Engagement divided by Reach of all Influencers participating (Engagement/Reach).
Aside from any Objectives listed within the Statement of Work and this Section, Heartbeat makes no representations, warranties, or guarantees for any FS Plan Client Campaigns. Where any Objective is not met before the Campaign End Period, Client’s sole remedy for any unmet Objectives is to request either a refund for the pro-rata portion of unmet Objectives or to extend the Client Campaign (subject to any additional fees where applicable) until such Objectives are met.
53. Additional Fees
Where Client is subscribed to the FS Plan but is not currently engaged in a Campaign, Client shall be charged a Monthly Fee to continue using the Platform tools in accordance with the terms of this Agreement.
In order to initiate a Campaign under the FS Plan, Client shall be required to pay any Initial Charges where applicable. During the Campaign additional charges may be incurred in accordance with this Agreement, the Statement of Work, and our billing and payment practices. Client agrees that we may charge your payment method on file and you agree to pay all such fees. Failure to pay in a timely manner may result in the pausing or removal of your Campaign from the Platform and the immediate disabling of the Heartbeat Services. Your credit card information or other payment method will be processed and stored by our third party payment processors.
At Heartbeat we want you to be satisfied with any Campaigns offered via the Platform. Where any Post Guarantees are not accomplished by the Campaign End Date, such unachieved Post Guarantees that have been previously paid for shall be refunded at a pro-rata rate and taken from the payments made by Client to Heartbeat. If you wish to request a refund after your Campaign End Date, please contact us at email@example.com.
56. Influencer Content
Where Client has fully paid the applicable FS Plan fees, Heartbeat grants to Client a non-exclusive, fully-paid, royalty-free, revocable, world-wide, universal, transferable, assignable license to display, publicly perform, distribute, store, broadcast, transmit, reproduce, modify, prepare derivative works and otherwise use and reuse all or part of the Influencer Content that has been used in such applicable Campaign. Heartbeat does not represent and warrant that the Influencer Content is non-infringing and disclaims all express and implied representations and warranties related to or arising out of the grant of this license to Client.