Administrator Terms of Services

version 2021.1 | Published January 11, 2021

Hearken, Inc. and its associated entity Hearken NEU, ApS (together referred to as “Hearken”, “We”, “us”, “our”) provides and makes available the Engagement Management System (“EMS”, “Service”, “Application”, “App”), subject to the Terms of Use (“Terms”, “Agreement”, “TOU”). These Terms create a contractual agreement between You (“User,” “You,” “Your”) and Hearken regarding Your use of EMS administration service and data collected through it.

This Agreement supplements the terms contained in the purchase contract between Hearken and the organization or entity (“Buyer”, “Client”, “Customer”) that  purchased  the license that permits Your use of the Service.

Please note that Hearken may update, modify, or amend the Terms on Hearken’s Website from time to time as Hearken deems necessary, in its sole discretion, and without prior written notice to You. Such modifications, alterations, and updates to the Terms shall be effective immediately upon posting upon the Website. However, the terms and conditions of the Software-as-a-Service Agreement shall prevail in the event of a conflict.If You do not agree to such updated terms, You may terminate this Agreement upon written notice to Hearken and Customer.

The Information provided on the Service is 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 Service from 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.

DO NOT USE THE SERVICE IF YOU DO NOT AGREE WITH THESE TERMS.

2. The Service

2.1. Access to the Service

Provided that You are eligible to use the Service, You are granted a limited license to access and use the Service and to download or print a copy of any portion of the User Content to which You have properly gained access solely for the purpose for which the User Content was collected.

Your access to the Service is granted based on Your affiliation to the Buyer and is limited to the duration of the term for which the Buyer has purchased an EMS license from Hearken.

Your access may be revoked or modified at any time by Hearken or an authorized representative of the Buyer at their discretion.

We reserve all rights not expressly granted to You in and to the Service, the Content and the Marks.

2.2. User IDs and Logins

You are responsible for securely storing and safeguarding Your user ID, password, API keys or any other mechanism (collectively, “Access Credentials”) that may be used to access the Service.

You shall notify Hearken immediately (via email at privacy@wearehearken.com) of any unauthorized use or loss of any Access Credentials, or any other actual or suspected breach of security related to the Service of which You become aware.

2.3. No Use of Service By Anyone Under 16

The Service may not be used by any person or User under sixteen (16) years old. By accepting the Terms, You agree that You are 16 years or older.

You agree to use reasonable means to verify that the user is at least 16 years old before inviting or permitting any such user to use or access the Service.

Any User under the age of 18 in the United States must have his or her parent or guardian consent to such use and to the Agreement. If You reside in or operate Your organization in a jurisdiction that would restrict the use of the Service or any other feature or function

of the Service because of the age of the User, You must abide by such age limits, rules, laws or regulations and You must not permit use of the Service by any Users legally prohibited from using it in that jurisdiction.

2.4. Included Third Party Software.

Certain features of the Service may be implemented by included third party software. Hearken may be required to publish the terms, disclaimers and notices applicable to such third party software. If so, they will be made accessible through the Service and/or Hearken Platform.

2.5. Suspension of Access.

Hearken may immediately suspend or disable Your access to and use of the Service if, as a result of Your use of the Service or breach of this Agreement, or the AUP, or Hearken reasonably believes: (a) Hearken is likely to be subject or exposed to criminal or civil sanctions, prosecution or suit; (b) such use or breach is likely to cause harm to Hearken or Hearken’s other customers or their respective employees or interfere with the integrity, operations or security of the Service; or (c) Hearken’s network or systems or those with which Hearken is interconnected, or interfere with another customer’s use of any of the foregoing. Hearken may also suspend or disable Your access to and use of the Service if required in order to comply with a court order or government notice.

2.6. Links to Third Party Services.

The Service may contain links to or integrate with various third party services, applications, functions, websites and otherwise (collectively, “Third Party Services”), not under Hearken’s control. Accordingly, You agree that Hearken shall not be responsible for the quality, safety, security, availability, completeness, accuracy, or nature of the User

Content or any other aspect of such Third Party Services, nor can Hearken make any guarantee or warranty with regard to Third Party Services.

Any such links or integration are provided solely as a convenience to You and shall not be regarded as an endorsement by Hearken of these Third Party Services, the companies which own or provide them, their User Content or their services, applications, functions, products or otherwise. Your use of Third Party Services may be subject to the separate policies, privacy practices, terms of use and/or fees imposed by their operators, is entirely at Your own risk, and Hearken disclaims any and all representations, warranties and liability with respect to Third Party Services.

2.7. Contributing and publishing content

As an EMS User, You may have access to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials on the EMS, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, “Contributions”).

Contributions may be viewable by other users of the Service and through third-party websites. As such, any Contributions You transmit may be treated in accordance with the Service Privacy Policy.

When You create or make available any Contributions, You thereby represent and warrant that:

  1. The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of Your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
  2. You are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize us, the Service, and other users of the Service to use Your Contributions in any manner contemplated by the Service and these Terms of Use.
  3. You have the written consent, release, and/or permission of each and every identifiable individual person in Your Contributions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of Your Contributions in any manner contemplated by the Service and these Terms of Use.
  4. Your Contributions are not false, inaccurate, or misleading.
  5. Your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
  • Your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable under a reasonable person standard. 
  • Your Contributions do not ridicule, satire disparage, intimidate, or abuse anyone.
  • Your Contributions are not used to harass or threaten (in the legal sense of those terms) any other person and to promote violence against a specific person or class of people.
  • Your Contributions do not violate any applicable law, regulation, or rule.
  • Your Contributions do not violate the privacy or publicity rights of any third party.
  • Your Contributions 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 Contributions do not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors.
  • Your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
  • Your Contributions do not otherwise violate, or link to material that violates, any provision of these Terms of Use, or any applicable law or regulation.

Any use of the Service in violation of the foregoing violates these Terms of Use and may result in, among other things, termination or suspension of Your rights to use the Service.

14.8. Hearken Does Not Review and Has No Responsibility For User Content.

Hearken is a service provider to the Buyer to enable the Buyer to solicit information and content (“User Content”) from its users or audience. You agree that any use of any User Content by You, either within the Service or outside of the Service, is entirely at Your and the Buyer’s own risk and Hearken shall have no responsibility or liability for such use.

Hearken is not responsible or liable to You or any third party with regard to any information or material or data, including video, audio or other content, contained within User Content, nor for violation or infringement of intellectual property rights, privacy rights or other legal rights, nor for Your Users’ failure to obtain model releases, property releases, or any other required waiver or release, nor for any other violation of law related to User Content or its subject matter, whether posted or distributed by Your Users or other users of the Service. Hearken has no responsibility to review or filter User Content and cannot reasonably do so.

Hearken is not the publisher of User Content. Because Hearken will not and cannot review User Content, it is possible the Service may contain User Content that violates the AUP, is offensive or objectionable, contains errors, violates intellectual property, privacy, publicity or other rights of third parties, or is harmful to Your Devices, computers or network. Your use of User Content is entirely at Your own risk, and Hearken disclaims any and all representations, warranties and liability with respect to User Content. You are responsible for implementing safeguards and taking precautions necessary to protect Your organization, Devices, computers and networks from any possible harm resulting from access to User Content. You agree to delete or hide such content when possible or notify Hearken when removal of such content may not be possible.

14.9.Using and transferring content

As an EMS User, You have access to copy, download or share User Content and data with third-party services. You agree that Hearken shall not be responsible for the quality, safety, security, or availability of the Content once it leaves Hearken’s systems.

You agree to use the User Content only for the purpose it was collected for and in accordance with any Applicable Privacy Laws that the use of such content may be subjected to.

14.10. Communication and notification

By using the Service, you consent to receiving notifications and communication from Hearken and any affiliates that are required for us to continue to operate the Service. You may also opt-in to receive additional notifications, and newsletters and other communications by updating your preferences within the Service.

Restrictions

General

You agree that the Service contains content, information and material proprietary to Hearken and/or its licensors that is protected by applicable intellectual property laws and other laws, including copyright laws, as more fully described below and that You will not use the Service except in accordance with this Agreement and as permitted by its included functionality. No portion of the Service may be reproduced in any form or by any means. You agree not to decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service or any part thereof, or rent, rent, lease, loan, sell, distribute, or create derivative works based on the Service, in any manner, nor use or exploit the Service in any unauthorized way, whether by trespass, “data mining,” “data scraping,” unduly burdening network capacity, or in any other manner prohibited under Hearken’s AUP or otherwise in violation of this Agreement. You further agree that neither You nor Your Users will use the Service for framing or linking to other websites or locations on the Internet, without Hearken’s prior written consent, nor attempt to circumvent or defeat the Service’s security features or hack into parts of the Service that are not expressly authorized for Your or Your Users’ use.

Acceptable Use Policy (AUP)

Your use of the Service is subject to Your compliance with Hearken’s Acceptable Use Policy set forth in this Section (the “AUP”). Hearken may change this AUP by posting an updated version at www.wearehearken.com.  However, the Software-As-A-Service Agreement between Hearken and Customer shall prevail in the event of a conflict. The updated AUP will be effective upon posting. You may not use the Service, nor permit any User to use the Service, to create, upload, store, process, display, transmit or distribute material, information or User Content:

  1. that infringes or misappropriates a third party’s intellectual property or proprietary rights, including patents, copyrights, trade secrets and trademarks;
  2. that discloses confidential or trade secret information or materials in breach of a legal obligation not to disclose such information or materials;
  3. that violates or encourages conduct that would violate any applicable laws, including any criminal laws, or any third party rights, including confidentiality, publicity or privacy rights;

4. that constitutes Protected Health Information (PHI) under the U.S. Health Insurance Portability and Accountability Act of 1996 (HIPAA), and its associated rules and regulations;

  • that is obscene or excessively profane;
  • that may be harmful to minors;
  • that promotes or advocates hatred or violence, or promotes or encourages discrimination against or intolerance of any person or group based on race, ethnicity, religion, sex, sexual orientation or on any other basis which would constitute a violation of law;
  • that advocates or provides instructions regarding computer hacking or cracking;
  • that advocates or provides instructions for use of illegal weapons or weapons of mass destruction;
  • intended to recruit individuals to join a terrorist organization or which otherwise furthers the agenda of a terrorist organization;
  • related to phishing or other methods of identity theft;
  • related to drug paraphernalia;
  • related to or consisting of illegal or malicious malware such as viruses, worms, time bombs, trojan horses and other harmful or malicious files, scripts, agents or programs;
  • that is false and defamatory;
  • material or information constituting “fake news,” i.e., information of public interest depicted to be actual or true but known to be false, or which should reasonably be known to be false, for political or other purposes, except for satire; or
  • unsolicited commercial email (spam), including: (i) sending communications or email in violation of the CAN-SPAM Act or any other applicable anti-spam law or regulation; (ii) spoofing, imitating or impersonating Hearken, another person or his, her or its email address, or creating false accounts for the purpose of sending spam; (iii) data mining, scraping or harvesting any web property (including any part of the Service) to find email addresses or other user account information; (iv) sending unauthorized email via open, third-Party servers; (v) sending email to users who have requested to be removed from a mailing list; (vi) selling to, exchanging with, sharing with or distributing to a third party Personal Data, including the email addresses of any person without such person’s knowing and continued consent to such disclosure; or (vii) sending spam to significant numbers of email addresses belonging to individuals and/or entities with whom You have no preexisting relationship.

Any violations of this AUP will constitute a material breach of the Agreement and may result in termination of this Agreement or suspension of Your account and/or termination or suspension of access to the Service by any User involved in such violation.

Data Security and Privacy

As an EMS user, You agree that we may access, store, process, and use any information and personal data that You provide.

When You use our Service, we store an audit of Your activities in our database and may share it with third-party services that we use as sub-processors. This data is collected to prevent any unauthorized access, provide accountability and to prevent misuse of the Service. This data may be retained for as long as it is necessary to provide continued service to the Buyer and is exempt from deletion or modification under applicable privacy laws’ right to know, modify or delete.

Any request to access, delete or modify such information will be shared with the Buyer.

Hearken will use your personal data only as necessary to provide the Service and as permitted by applicable privacy laws and this Agreement.

In the event of a data security incident or breach that affects Your personal data, Hearken will notify and work with the Buyer to address and remedy the situation. Hearken will make reasonable efforts to notify You directly at the contact information provided.

Dispute Resolution

Any dispute arising out of or in connection with Your use of the Service will be referred to and finally resolved in accordance with the Agreement between Hearken and the Buyer.

Indemnification

The indemnification provisions of  the Software-as-a-Service Agreement  or Purchase Agreement define Customer’s and Hearken’s indemnification obligations. 

User Representation

By using the Service, You represent and warrant that: (1) You have the legal capacity and You agree to comply with these Terms of Use; (2) You are not a minor in the jurisdiction in which You reside; (3) You will not use the Service for any illegal or unauthorized purpose; and (5) Your use of the Service will not violate any applicable law or regulation.

If You provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate Your account and refuse any and all current or future use of the Service (or any portion thereof).

 

Hearken, Inc. (“Hearken”, “We”, “us”, “our”) provides and makes available the Engagement Management System (“EMS”, “Service”, “Application”, “App”), subject to the Terms of Use (“Terms”, “Agreement”, “TOU”). These Terms create a contractual agreement between You (“User,” “You,” “Your”) and Hearken regarding Your use of EMS administration service and data collected through it.

This Agreement supplements the terms contained in the purchase contract between Hearken and the organization or entity (“Buyer”, “Client”, “Customer”) that  purchased  the license that permits Your use of the Service.

Please note that Hearken may update, modify, or amend the Terms on Hearken’s Website from time to time as Hearken deems necessary, in its sole discretion, and without prior written notice to You. Such modifications, alterations, and updates to the Terms shall be effective immediately upon posting upon the Website. However, the terms and conditions of the Software-as-a-Service Agreement shall prevail in the event of a conflict.If You do not agree to such updated terms, You may terminate this Agreement upon written notice to Hearken and Customer.

The Information provided on the Service is 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 Service from 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.

DO NOT USE THE SERVICE IF YOU DO NOT AGREE WITH THESE TERMS.

The Service

2.1. Access to the Service

Provided that You are eligible to use the Service, You are granted a limited license to access and use the Service and to download or print a copy of any portion of the User Content to which You have properly gained access solely for the purpose for which the User Content was collected.

Your access to the Service is granted based on Your affiliation to the Buyer and is limited to the duration of the term for which the Buyer has purchased an EMS license from Hearken.

Your access may be revoked or modified at any time by Hearken or an authorized representative of the Buyer at their discretion.

We reserve all rights not expressly granted to You in and to the Service, the Content and the Marks.

2.2.User IDs and Logins

You are responsible for securely storing and safeguarding Your user ID, password, API keys or any other mechanism (collectively, “Access Credentials”) that may be used to access the Service.

You shall notify Hearken immediately (via email at privacy@wearehearken.com) of any unauthorized use or loss of any Access Credentials, or any other actual or suspected breach of security related to the Service of which You become aware.

2.3.No Use of Service By Anyone Under 16

The Service may not be used by any person or User under sixteen (16) years old. By accepting the Terms, You agree that You are 16 years or older.

You agree to use reasonable means to verify that the user is at least 16 years old before inviting or permitting any such user to use or access the Service.

Any User under the age of 18 in the United States must have his or her parent or guardian consent to such use and to the Agreement. If You reside in or operate Your organization in a jurisdiction that would restrict the use of the Service or any other feature or function

of the Service because of the age of the User, You must abide by such age limits, rules, laws or regulations and You must not permit use of the Service by any Users legally prohibited from using it in that jurisdiction.

2.4.Included Third Party Software.

Certain features of the Service may be implemented by included third party software. Hearken may be required to publish the terms, disclaimers and notices applicable to such third party software. If so, they will be made accessible through the Service and/or Hearken Platform.

2.5. Suspension of Access.

Hearken may immediately suspend or disable Your access to and use of the Service if, as a result of Your use of the Service or breach of this Agreement, or the AUP, or Hearken reasonably believes: (a) Hearken is likely to be subject or exposed to criminal or civil sanctions, prosecution or suit; (b) such use or breach is likely to cause harm to Hearken or Hearken’s other customers or their respective employees or interfere with the integrity, operations or security of the Service; or (c) Hearken’s network or systems or those with which Hearken is interconnected, or interfere with another customer’s use of any of the foregoing. Hearken may also suspend or disable Your access to and use of the Service if required in order to comply with a court order or government notice.

2.6.Links to Third Party Services.

The Service may contain links to or integrate with various third party services, applications, functions, websites and otherwise (collectively, “Third Party Services”), not under Hearken’s control. Accordingly, You agree that Hearken shall not be responsible for the quality, safety, security, availability, completeness, accuracy, or nature of the User

Content or any other aspect of such Third Party Services, nor can Hearken make any guarantee or warranty with regard to Third Party Services.

Any such links or integration are provided solely as a convenience to You and shall not be regarded as an endorsement by Hearken of these Third Party Services, the companies which own or provide them, their User Content or their services, applications, functions, products or otherwise. Your use of Third Party Services may be subject to the separate policies, privacy practices, terms of use and/or fees imposed by their operators, is entirely at Your own risk, and Hearken disclaims any and all representations, warranties and liability with respect to Third Party Services.

2.7.Contributing and publishing content

As an EMS User, You may have access to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials on the EMS, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, “Contributions”).

Contributions may be viewable by other users of the Service and through third-party websites. As such, any Contributions You transmit may be treated in accordance with the Service Privacy Policy.

When You create or make available any Contributions, You thereby represent and warrant that:

  1. The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of Your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
  2. You are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize us, the Service, and other users of the Service to use Your Contributions in any manner contemplated by the Service and these Terms of Use.
  3. You have the written consent, release, and/or permission of each and every identifiable individual person in Your Contributions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of Your Contributions in any manner contemplated by the Service and these Terms of Use.
  4. Your Contributions are not false, inaccurate, or misleading.
  5. Your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
  • Your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable under a reasonable person standard. 
  • Your Contributions do not ridicule, satire disparage, intimidate, or abuse anyone.
  • Your Contributions are not used to harass or threaten (in the legal sense of those terms) any other person and to promote violence against a specific person or class of people.
  • Your Contributions do not violate any applicable law, regulation, or rule.
  • Your Contributions do not violate the privacy or publicity rights of any third party.
  • Your Contributions 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 Contributions do not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors.
  • Your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
  • Your Contributions do not otherwise violate, or link to material that violates, any provision of these Terms of Use, or any applicable law or regulation.

 Any use of the Service in violation of the foregoing violates these Terms of Use and may result in, among other things, termination or suspension of Your rights to use the Service.

14.8. Hearken Does Not Review and Has No Responsibility For User Content.

Hearken is a service provider to the Buyer to enable the Buyer to solicit information and content (“User Content”) from its users or audience. You agree that any use of any User Content by You, either within the Service or outside of the Service, is entirely at Your and the Buyer’s own risk and Hearken shall have no responsibility or liability for such use.

Hearken is not responsible or liable to You or any third party with regard to any information or material or data, including video, audio or other content, contained within User Content, nor for violation or infringement of intellectual property rights, privacy rights or other legal rights, nor for Your Users’ failure to obtain model releases, property releases, or any other required waiver or release, nor for any other violation of law related to User Content or its subject matter, whether posted or distributed by Your Users or other users of the Service. Hearken has no responsibility to review or filter User Content and cannot reasonably do so.

Hearken is not the publisher of User Content. Because Hearken will not and cannot review User Content, it is possible the Service may contain User Content that violates the AUP, is offensive or objectionable, contains errors, violates intellectual property, privacy, publicity or other rights of third parties, or is harmful to Your Devices, computers or network. Your use of User Content is entirely at Your own risk, and Hearken disclaims any and all representations, warranties and liability with respect to User Content. You are responsible for implementing safeguards and taking precautions necessary to protect Your organization, Devices, computers and networks from any possible harm resulting from access to User Content. You agree to delete or hide such content when possible or notify Hearken when removal of such content may not be possible.

14.9.Using and transferring content

As an EMS User, You have access to copy, download or share User Content and data with third-party services. You agree that Hearken shall not be responsible for the quality, safety, security, or availability of the Content once it leaves Hearken’s systems.

You agree to use the User Content only for the purpose it was collected for and in accordance with any Applicable Privacy Laws that the use of such content may be subjected to.

14.10. Communication and notification

By using the Service, you consent to receiving notifications and communication from Hearken and any affiliates that are required for us to continue to operate the Service. You may also opt-in to receive additional notifications, and newsletters and other communications by updating your preferences within the Service.

Restrictions

General

You agree that the Service contains content, information and material proprietary to Hearken and/or its licensors that is protected by applicable intellectual property laws and other laws, including copyright laws, as more fully described below and that You will not use the Service except in accordance with this Agreement and as permitted by its included functionality. No portion of the Service may be reproduced in any form or by any means. You agree not to decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service or any part thereof, or rent, rent, lease, loan, sell, distribute, or create derivative works based on the Service, in any manner, nor use or exploit the Service in any unauthorized way, whether by trespass, “data mining,” “data scraping,” unduly burdening network capacity, or in any other manner prohibited under Hearken’s AUP or otherwise in violation of this Agreement. You further agree that neither You nor Your Users will use the Service for framing or linking to other websites or locations on the Internet, without Hearken’s prior written consent, nor attempt to circumvent or defeat the Service’s security features or hack into parts of the Service that are not expressly authorized for Your or Your Users’ use.

Acceptable Use Policy (AUP)

Your use of the Service is subject to Your compliance with Hearken’s Acceptable Use Policy set forth in this Section (the “AUP”). Hearken may change this AUP by posting an updated version at www.wearehearken.com.  However, the Software-As-A-Service Agreement between Hearken and Customer shall prevail in the event of a conflict. The updated AUP will be effective upon posting. You may not use the Service, nor permit any User to use the Service, to create, upload, store, process, display, transmit or distribute material, information or User Content:

  1. that infringes or misappropriates a third party’s intellectual property or proprietary rights, including patents, copyrights, trade secrets and trademarks;
  2. that discloses confidential or trade secret information or materials in breach of a legal obligation not to disclose such information or materials;
  3. that violates or encourages conduct that would violate any applicable laws, including any criminal laws, or any third party rights, including confidentiality, publicity or privacy rights;

4. that constitutes Protected Health Information (PHI) under the U.S. Health Insurance Portability and Accountability Act of 1996 (HIPAA), and its associated rules and regulations;

  • that is obscene or excessively profane;
  • that may be harmful to minors;
  • that promotes or advocates hatred or violence, or promotes or encourages discrimination against or intolerance of any person or group based on race, ethnicity, religion, sex, sexual orientation or on any other basis which would constitute a violation of law;
  • that advocates or provides instructions regarding computer hacking or cracking;
  • that advocates or provides instructions for use of illegal weapons or weapons of mass destruction;
  • intended to recruit individuals to join a terrorist organization or which otherwise furthers the agenda of a terrorist organization;
  • related to phishing or other methods of identity theft;
  • related to drug paraphernalia;
  • related to or consisting of illegal or malicious malware such as viruses, worms, time bombs, trojan horses and other harmful or malicious files, scripts, agents or programs;
  • that is false and defamatory;
  • material or information constituting “fake news,” i.e., information of public interest depicted to be actual or true but known to be false, or which should reasonably be known to be false, for political or other purposes, except for satire; or
  • unsolicited commercial email (spam), including: (i) sending communications or email in violation of the CAN-SPAM Act or any other applicable anti-spam law or regulation; (ii) spoofing, imitating or impersonating Hearken, another person or his, her or its email address, or creating false accounts for the purpose of sending spam; (iii) data mining, scraping or harvesting any web property (including any part of the Service) to find email addresses or other user account information; (iv) sending unauthorized email via open, third-Party servers; (v) sending email to users who have requested to be removed from a mailing list; (vi) selling to, exchanging with, sharing with or distributing to a third party Personal Data, including the email addresses of any person without such person’s knowing and continued consent to such disclosure; or (vii) sending spam to significant numbers of email addresses belonging to individuals and/or entities with whom You have no preexisting relationship.

Any violations of this AUP will constitute a material breach of the Agreement and may result in termination of this Agreement or suspension of Your account and/or termination or suspension of access to the Service by any User involved in such violation.

Data Security and Privacy

As an EMS user, You agree that we may access, store, process, and use any information and personal data that You provide.

When You use our Service, we store an audit of Your activities in our database and may share it with third-party services that we use as sub-processors. This data is collected to prevent any unauthorized access, provide accountability and to prevent misuse of the Service. This data may be retained for as long as it is necessary to provide continued service to the Buyer and is exempt from deletion or modification under applicable privacy laws’ right to know, modify or delete.

Any request to access, delete or modify such information will be shared with the Buyer.

Hearken will use your personal data only as necessary to provide the Service and as permitted by applicable privacy laws and this Agreement.

In the event of a data security incident or breach that affects Your personal data, Hearken will notify and work with the Buyer to address and remedy the situation. Hearken will make reasonable efforts to notify You directly at the contact information provided.

Dispute Resolution

Any dispute arising out of or in connection with Your use of the Service will be referred to and finally resolved in accordance with the Agreement between Hearken and the Buyer.

Indemnification

The indemnification provisions of  the Software-as-a-Service Agreement  or Purchase Agreement define Customer’s and Hearken’s indemnification obligations. 

User Representation

By using the Service, You represent and warrant that: (1) You have the legal capacity and You agree to comply with these Terms of Use; (2) You are not a minor in the jurisdiction in which You reside; (3) You will not use the Service for any illegal or unauthorized purpose; and (5) Your use of the Service will not violate any applicable law or regulation.

If You provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate Your account and refuse any and all current or future use of the Service (or any portion thereof).

Hearken, Inc. (“Hearken”, “We”, “us”, “our”) provides and makes available the Engagement Management System (“EMS”, “Service”, “Application”, “App”), subject to the Terms of Use (“Terms”, “Agreement”, “TOU”). These Terms create a contractual agreement between You (“User,” “You,” “Your”) and Hearken regarding Your use of EMS administration service and data collected through it.

This Agreement supplements the terms contained in the purchase contract between Hearken and the organization or entity (“Buyer”, “Client”, “Customer”) that  purchased  the license that permits Your use of the Service.

Please note that Hearken may update, modify, or amend the Terms on Hearken’s Website from time to time as Hearken deems necessary, in its sole discretion, and without prior written notice to You. Such modifications, alterations, and updates to the Terms shall be effective immediately upon posting upon the Website. However, the terms and conditions of the Software-as-a-Service Agreement shall prevail in the event of a conflict.If You do not agree to such updated terms, You may terminate this Agreement upon written notice to Hearken and Customer.

The Information provided on the Service is 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 Service from 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.

DO NOT USE THE SERVICE IF YOU DO NOT AGREE WITH THESE TERMS.

The Service

2.1. Access to the Service

Provided that You are eligible to use the Service, You are granted a limited license to access and use the Service and to download or print a copy of any portion of the User Content to which You have properly gained access solely for the purpose for which the User Content was collected.

Your access to the Service is granted based on Your affiliation to the Buyer and is limited to the duration of the term for which the Buyer has purchased an EMS license from Hearken.

Your access may be revoked or modified at any time by Hearken or an authorized representative of the Buyer at their discretion.

We reserve all rights not expressly granted to You in and to the Service, the Content and the Marks.

2.2.User IDs and Logins

You are responsible for securely storing and safeguarding Your user ID, password, API keys or any other mechanism (collectively, “Access Credentials”) that may be used to access the Service.

You shall notify Hearken immediately (via email at privacy@wearehearken.com) of any unauthorized use or loss of any Access Credentials, or any other actual or suspected breach of security related to the Service of which You become aware.

2.3.No Use of Service By Anyone Under 16

The Service may not be used by any person or User under sixteen (16) years old. By accepting the Terms, You agree that You are 16 years or older.

You agree to use reasonable means to verify that the user is at least 16 years old before inviting or permitting any such user to use or access the Service.

Any User under the age of 18 in the United States must have his or her parent or guardian consent to such use and to the Agreement. If You reside in or operate Your organization in a jurisdiction that would restrict the use of the Service or any other feature or function

of the Service because of the age of the User, You must abide by such age limits, rules, laws or regulations and You must not permit use of the Service by any Users legally prohibited from using it in that jurisdiction.

2.4.Included Third Party Software.

Certain features of the Service may be implemented by included third party software. Hearken may be required to publish the terms, disclaimers and notices applicable to such third party software. If so, they will be made accessible through the Service and/or Hearken Platform.

2.5. Suspension of Access.

Hearken may immediately suspend or disable Your access to and use of the Service if, as a result of Your use of the Service or breach of this Agreement, or the AUP, or Hearken reasonably believes: (a) Hearken is likely to be subject or exposed to criminal or civil sanctions, prosecution or suit; (b) such use or breach is likely to cause harm to Hearken or Hearken’s other customers or their respective employees or interfere with the integrity, operations or security of the Service; or (c) Hearken’s network or systems or those with which Hearken is interconnected, or interfere with another customer’s use of any of the foregoing. Hearken may also suspend or disable Your access to and use of the Service if required in order to comply with a court order or government notice.

2.6.Links to Third Party Services.

The Service may contain links to or integrate with various third party services, applications, functions, websites and otherwise (collectively, “Third Party Services”), not under Hearken’s control. Accordingly, You agree that Hearken shall not be responsible for the quality, safety, security, availability, completeness, accuracy, or nature of the User

Content or any other aspect of such Third Party Services, nor can Hearken make any guarantee or warranty with regard to Third Party Services.

Any such links or integration are provided solely as a convenience to You and shall not be regarded as an endorsement by Hearken of these Third Party Services, the companies which own or provide them, their User Content or their services, applications, functions, products or otherwise. Your use of Third Party Services may be subject to the separate policies, privacy practices, terms of use and/or fees imposed by their operators, is entirely at Your own risk, and Hearken disclaims any and all representations, warranties and liability with respect to Third Party Services.

2.7.Contributing and publishing content

As an EMS User, You may have access to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials on the EMS, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, “Contributions”).

Contributions may be viewable by other users of the Service and through third-party websites. As such, any Contributions You transmit may be treated in accordance with the Service Privacy Policy.

When You create or make available any Contributions, You thereby represent and warrant that:

  1. The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of Your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
  2. You are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize us, the Service, and other users of the Service to use Your Contributions in any manner contemplated by the Service and these Terms of Use.
  3. You have the written consent, release, and/or permission of each and every identifiable individual person in Your Contributions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of Your Contributions in any manner contemplated by the Service and these Terms of Use.
  4. Your Contributions are not false, inaccurate, or misleading.
  5. Your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
  • Your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable under a reasonable person standard. 
  • Your Contributions do not ridicule, satire disparage, intimidate, or abuse anyone.
  • Your Contributions are not used to harass or threaten (in the legal sense of those terms) any other person and to promote violence against a specific person or class of people.
  • Your Contributions do not violate any applicable law, regulation, or rule.
  • Your Contributions do not violate the privacy or publicity rights of any third party.
  • Your Contributions 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 Contributions do not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors.
  • Your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
  • Your Contributions do not otherwise violate, or link to material that violates, any provision of these Terms of Use, or any applicable law or regulation.

 Any use of the Service in violation of the foregoing violates these Terms of Use and may result in, among other things, termination or suspension of Your rights to use the Service.

14.8. Hearken Does Not Review and Has No Responsibility For User Content.

Hearken is a service provider to the Buyer to enable the Buyer to solicit information and content (“User Content”) from its users or audience. You agree that any use of any User Content by You, either within the Service or outside of the Service, is entirely at Your and the Buyer’s own risk and Hearken shall have no responsibility or liability for such use.

Hearken is not responsible or liable to You or any third party with regard to any information or material or data, including video, audio or other content, contained within User Content, nor for violation or infringement of intellectual property rights, privacy rights or other legal rights, nor for Your Users’ failure to obtain model releases, property releases, or any other required waiver or release, nor for any other violation of law related to User Content or its subject matter, whether posted or distributed by Your Users or other users of the Service. Hearken has no responsibility to review or filter User Content and cannot reasonably do so.

Hearken is not the publisher of User Content. Because Hearken will not and cannot review User Content, it is possible the Service may contain User Content that violates the AUP, is offensive or objectionable, contains errors, violates intellectual property, privacy, publicity or other rights of third parties, or is harmful to Your Devices, computers or network. Your use of User Content is entirely at Your own risk, and Hearken disclaims any and all representations, warranties and liability with respect to User Content. You are responsible for implementing safeguards and taking precautions necessary to protect Your organization, Devices, computers and networks from any possible harm resulting from access to User Content. You agree to delete or hide such content when possible or notify Hearken when removal of such content may not be possible.

14.9.Using and transferring content

As an EMS User, You have access to copy, download or share User Content and data with third-party services. You agree that Hearken shall not be responsible for the quality, safety, security, or availability of the Content once it leaves Hearken’s systems.

You agree to use the User Content only for the purpose it was collected for and in accordance with any Applicable Privacy Laws that the use of such content may be subjected to.

14.10. Communication and notification

By using the Service, you consent to receiving notifications and communication from Hearken and any affiliates that are required for us to continue to operate the Service. You may also opt-in to receive additional notifications, and newsletters and other communications by updating your preferences within the Service.

Restrictions

General

You agree that the Service contains content, information and material proprietary to Hearken and/or its licensors that is protected by applicable intellectual property laws and other laws, including copyright laws, as more fully described below and that You will not use the Service except in accordance with this Agreement and as permitted by its included functionality. No portion of the Service may be reproduced in any form or by any means. You agree not to decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service or any part thereof, or rent, rent, lease, loan, sell, distribute, or create derivative works based on the Service, in any manner, nor use or exploit the Service in any unauthorized way, whether by trespass, “data mining,” “data scraping,” unduly burdening network capacity, or in any other manner prohibited under Hearken’s AUP or otherwise in violation of this Agreement. You further agree that neither You nor Your Users will use the Service for framing or linking to other websites or locations on the Internet, without Hearken’s prior written consent, nor attempt to circumvent or defeat the Service’s security features or hack into parts of the Service that are not expressly authorized for Your or Your Users’ use.

Acceptable Use Policy (AUP)

Your use of the Service is subject to Your compliance with Hearken’s Acceptable Use Policy set forth in this Section (the “AUP”). Hearken may change this AUP by posting an updated version at www.wearehearken.com.  However, the Software-As-A-Service Agreement between Hearken and Customer shall prevail in the event of a conflict. The updated AUP will be effective upon posting. You may not use the Service, nor permit any User to use the Service, to create, upload, store, process, display, transmit or distribute material, information or User Content:

  1. that infringes or misappropriates a third party’s intellectual property or proprietary rights, including patents, copyrights, trade secrets and trademarks;
  2. that discloses confidential or trade secret information or materials in breach of a legal obligation not to disclose such information or materials;
  3. that violates or encourages conduct that would violate any applicable laws, including any criminal laws, or any third party rights, including confidentiality, publicity or privacy rights;

4. that constitutes Protected Health Information (PHI) under the U.S. Health Insurance Portability and Accountability Act of 1996 (HIPAA), and its associated rules and regulations;

  • that is obscene or excessively profane;
  • that may be harmful to minors;
  • that promotes or advocates hatred or violence, or promotes or encourages discrimination against or intolerance of any person or group based on race, ethnicity, religion, sex, sexual orientation or on any other basis which would constitute a violation of law;
  • that advocates or provides instructions regarding computer hacking or cracking;
  • that advocates or provides instructions for use of illegal weapons or weapons of mass destruction;
  • intended to recruit individuals to join a terrorist organization or which otherwise furthers the agenda of a terrorist organization;
  • related to phishing or other methods of identity theft;
  • related to drug paraphernalia;
  • related to or consisting of illegal or malicious malware such as viruses, worms, time bombs, trojan horses and other harmful or malicious files, scripts, agents or programs;
  • that is false and defamatory;
  • material or information constituting “fake news,” i.e., information of public interest depicted to be actual or true but known to be false, or which should reasonably be known to be false, for political or other purposes, except for satire; or
  • unsolicited commercial email (spam), including: (i) sending communications or email in violation of the CAN-SPAM Act or any other applicable anti-spam law or regulation; (ii) spoofing, imitating or impersonating Hearken, another person or his, her or its email address, or creating false accounts for the purpose of sending spam; (iii) data mining, scraping or harvesting any web property (including any part of the Service) to find email addresses or other user account information; (iv) sending unauthorized email via open, third-Party servers; (v) sending email to users who have requested to be removed from a mailing list; (vi) selling to, exchanging with, sharing with or distributing to a third party Personal Data, including the email addresses of any person without such person’s knowing and continued consent to such disclosure; or (vii) sending spam to significant numbers of email addresses belonging to individuals and/or entities with whom You have no preexisting relationship.

Any violations of this AUP will constitute a material breach of the Agreement and may result in termination of this Agreement or suspension of Your account and/or termination or suspension of access to the Service by any User involved in such violation.

Data Security and Privacy

As an EMS user, You agree that we may access, store, process, and use any information and personal data that You provide.

When You use our Service, we store an audit of Your activities in our database and may share it with third-party services that we use as sub-processors. This data is collected to prevent any unauthorized access, provide accountability and to prevent misuse of the Service. This data may be retained for as long as it is necessary to provide continued service to the Buyer and is exempt from deletion or modification under applicable privacy laws’ right to know, modify or delete.

Any request to access, delete or modify such information will be shared with the Buyer.

Hearken will use your personal data only as necessary to provide the Service and as permitted by applicable privacy laws and this Agreement.

In the event of a data security incident or breach that affects Your personal data, Hearken will notify and work with the Buyer to address and remedy the situation. Hearken will make reasonable efforts to notify You directly at the contact information provided.

Dispute Resolution

Any dispute arising out of or in connection with Your use of the Service will be referred to and finally resolved in accordance with the Agreement between Hearken and the Buyer.

Indemnification

The indemnification provisions of  the Software-as-a-Service Agreement  or Purchase Agreement define Customer’s and Hearken’s indemnification obligations. 

User Representation

By using the Service, You represent and warrant that: (1) You have the legal capacity and You agree to comply with these Terms of Use; (2) You are not a minor in the jurisdiction in which You reside; (3) You will not use the Service for any illegal or unauthorized purpose; and (5) Your use of the Service will not violate any applicable law or regulation.

If You provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate Your account and refuse any and all current or future use of the Service (or any portion thereof).

Hearken, Inc. (“Hearken”, “We”, “us”, “our”) provides and makes available the Engagement Management System (“EMS”, “Service”, “Application”, “App”), subject to the Terms of Use (“Terms”, “Agreement”, “TOU”). These Terms create a contractual agreement between You (“User,” “You,” “Your”) and Hearken regarding Your use of EMS administration service and data collected through it.

This Agreement supplements the terms contained in the purchase contract between Hearken and the organization or entity (“Buyer”, “Client”, “Customer”) that  purchased  the license that permits Your use of the Service.

Please note that Hearken may update, modify, or amend the Terms on Hearken’s Website from time to time as Hearken deems necessary, in its sole discretion, and without prior written notice to You. Such modifications, alterations, and updates to the Terms shall be effective immediately upon posting upon the Website. However, the terms and conditions of the Software-as-a-Service Agreement shall prevail in the event of a conflict.If You do not agree to such updated terms, You may terminate this Agreement upon written notice to Hearken and Customer.

The Information provided on the Service is 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 Service from 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.

DO NOT USE THE SERVICE IF YOU DO NOT AGREE WITH THESE TERMS.

The Service

2.1. Access to the Service

Provided that You are eligible to use the Service, You are granted a limited license to access and use the Service and to download or print a copy of any portion of the User Content to which You have properly gained access solely for the purpose for which the User Content was collected.

Your access to the Service is granted based on Your affiliation to the Buyer and is limited to the duration of the term for which the Buyer has purchased an EMS license from Hearken.

Your access may be revoked or modified at any time by Hearken or an authorized representative of the Buyer at their discretion.

We reserve all rights not expressly granted to You in and to the Service, the Content and the Marks.

2.2.User IDs and Logins

You are responsible for securely storing and safeguarding Your user ID, password, API keys or any other mechanism (collectively, “Access Credentials”) that may be used to access the Service.

You shall notify Hearken immediately (via email at privacy@wearehearken.com) of any unauthorized use or loss of any Access Credentials, or any other actual or suspected breach of security related to the Service of which You become aware.

2.3.No Use of Service By Anyone Under 16

The Service may not be used by any person or User under sixteen (16) years old. By accepting the Terms, You agree that You are 16 years or older.

You agree to use reasonable means to verify that the user is at least 16 years old before inviting or permitting any such user to use or access the Service.

Any User under the age of 18 in the United States must have his or her parent or guardian consent to such use and to the Agreement. If You reside in or operate Your organization in a jurisdiction that would restrict the use of the Service or any other feature or function

of the Service because of the age of the User, You must abide by such age limits, rules, laws or regulations and You must not permit use of the Service by any Users legally prohibited from using it in that jurisdiction.

2.4.Included Third Party Software.

Certain features of the Service may be implemented by included third party software. Hearken may be required to publish the terms, disclaimers and notices applicable to such third party software. If so, they will be made accessible through the Service and/or Hearken Platform.

2.5. Suspension of Access.

Hearken may immediately suspend or disable Your access to and use of the Service if, as a result of Your use of the Service or breach of this Agreement, or the AUP, or Hearken reasonably believes: (a) Hearken is likely to be subject or exposed to criminal or civil sanctions, prosecution or suit; (b) such use or breach is likely to cause harm to Hearken or Hearken’s other customers or their respective employees or interfere with the integrity, operations or security of the Service; or (c) Hearken’s network or systems or those with which Hearken is interconnected, or interfere with another customer’s use of any of the foregoing. Hearken may also suspend or disable Your access to and use of the Service if required in order to comply with a court order or government notice.

2.6.Links to Third Party Services.

The Service may contain links to or integrate with various third party services, applications, functions, websites and otherwise (collectively, “Third Party Services”), not under Hearken’s control. Accordingly, You agree that Hearken shall not be responsible for the quality, safety, security, availability, completeness, accuracy, or nature of the User

Content or any other aspect of such Third Party Services, nor can Hearken make any guarantee or warranty with regard to Third Party Services.

Any such links or integration are provided solely as a convenience to You and shall not be regarded as an endorsement by Hearken of these Third Party Services, the companies which own or provide them, their User Content or their services, applications, functions, products or otherwise. Your use of Third Party Services may be subject to the separate policies, privacy practices, terms of use and/or fees imposed by their operators, is entirely at Your own risk, and Hearken disclaims any and all representations, warranties and liability with respect to Third Party Services.

2.7.Contributing and publishing content

As an EMS User, You may have access to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials on the EMS, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, “Contributions”).

Contributions may be viewable by other users of the Service and through third-party websites. As such, any Contributions You transmit may be treated in accordance with the Service Privacy Policy.

When You create or make available any Contributions, You thereby represent and warrant that:

  1. The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of Your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
  2. You are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize us, the Service, and other users of the Service to use Your Contributions in any manner contemplated by the Service and these Terms of Use.
  3. You have the written consent, release, and/or permission of each and every identifiable individual person in Your Contributions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of Your Contributions in any manner contemplated by the Service and these Terms of Use.
  4. Your Contributions are not false, inaccurate, or misleading.
  5. Your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
  • Your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable under a reasonable person standard. 
  • Your Contributions do not ridicule, satire disparage, intimidate, or abuse anyone.
  • Your Contributions are not used to harass or threaten (in the legal sense of those terms) any other person and to promote violence against a specific person or class of people.
  • Your Contributions do not violate any applicable law, regulation, or rule.
  • Your Contributions do not violate the privacy or publicity rights of any third party.
  • Your Contributions 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 Contributions do not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors.
  • Your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
  • Your Contributions do not otherwise violate, or link to material that violates, any provision of these Terms of Use, or any applicable law or regulation.

 Any use of the Service in violation of the foregoing violates these Terms of Use and may result in, among other things, termination or suspension of Your rights to use the Service.

14.8. Hearken Does Not Review and Has No Responsibility For User Content.

Hearken is a service provider to the Buyer to enable the Buyer to solicit information and content (“User Content”) from its users or audience. You agree that any use of any User Content by You, either within the Service or outside of the Service, is entirely at Your and the Buyer’s own risk and Hearken shall have no responsibility or liability for such use.

Hearken is not responsible or liable to You or any third party with regard to any information or material or data, including video, audio or other content, contained within User Content, nor for violation or infringement of intellectual property rights, privacy rights or other legal rights, nor for Your Users’ failure to obtain model releases, property releases, or any other required waiver or release, nor for any other violation of law related to User Content or its subject matter, whether posted or distributed by Your Users or other users of the Service. Hearken has no responsibility to review or filter User Content and cannot reasonably do so.

Hearken is not the publisher of User Content. Because Hearken will not and cannot review User Content, it is possible the Service may contain User Content that violates the AUP, is offensive or objectionable, contains errors, violates intellectual property, privacy, publicity or other rights of third parties, or is harmful to Your Devices, computers or network. Your use of User Content is entirely at Your own risk, and Hearken disclaims any and all representations, warranties and liability with respect to User Content. You are responsible for implementing safeguards and taking precautions necessary to protect Your organization, Devices, computers and networks from any possible harm resulting from access to User Content. You agree to delete or hide such content when possible or notify Hearken when removal of such content may not be possible.

14.9.Using and transferring content

As an EMS User, You have access to copy, download or share User Content and data with third-party services. You agree that Hearken shall not be responsible for the quality, safety, security, or availability of the Content once it leaves Hearken’s systems.

You agree to use the User Content only for the purpose it was collected for and in accordance with any Applicable Privacy Laws that the use of such content may be subjected to.

14.10. Communication and notification

By using the Service, you consent to receiving notifications and communication from Hearken and any affiliates that are required for us to continue to operate the Service. You may also opt-in to receive additional notifications, and newsletters and other communications by updating your preferences within the Service.

Restrictions

General

You agree that the Service contains content, information and material proprietary to Hearken and/or its licensors that is protected by applicable intellectual property laws and other laws, including copyright laws, as more fully described below and that You will not use the Service except in accordance with this Agreement and as permitted by its included functionality. No portion of the Service may be reproduced in any form or by any means. You agree not to decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service or any part thereof, or rent, rent, lease, loan, sell, distribute, or create derivative works based on the Service, in any manner, nor use or exploit the Service in any unauthorized way, whether by trespass, “data mining,” “data scraping,” unduly burdening network capacity, or in any other manner prohibited under Hearken’s AUP or otherwise in violation of this Agreement. You further agree that neither You nor Your Users will use the Service for framing or linking to other websites or locations on the Internet, without Hearken’s prior written consent, nor attempt to circumvent or defeat the Service’s security features or hack into parts of the Service that are not expressly authorized for Your or Your Users’ use.

Acceptable Use Policy (AUP)

Your use of the Service is subject to Your compliance with Hearken’s Acceptable Use Policy set forth in this Section (the “AUP”). Hearken may change this AUP by posting an updated version at www.wearehearken.com.  However, the Software-As-A-Service Agreement between Hearken and Customer shall prevail in the event of a conflict. The updated AUP will be effective upon posting. You may not use the Service, nor permit any User to use the Service, to create, upload, store, process, display, transmit or distribute material, information or User Content:

  1. that infringes or misappropriates a third party’s intellectual property or proprietary rights, including patents, copyrights, trade secrets and trademarks;
  2. that discloses confidential or trade secret information or materials in breach of a legal obligation not to disclose such information or materials;
  3. that violates or encourages conduct that would violate any applicable laws, including any criminal laws, or any third party rights, including confidentiality, publicity or privacy rights;

4. that constitutes Protected Health Information (PHI) under the U.S. Health Insurance Portability and Accountability Act of 1996 (HIPAA), and its associated rules and regulations;

  • that is obscene or excessively profane;
  • that may be harmful to minors;
  • that promotes or advocates hatred or violence, or promotes or encourages discrimination against or intolerance of any person or group based on race, ethnicity, religion, sex, sexual orientation or on any other basis which would constitute a violation of law;
  • that advocates or provides instructions regarding computer hacking or cracking;
  • that advocates or provides instructions for use of illegal weapons or weapons of mass destruction;
  • intended to recruit individuals to join a terrorist organization or which otherwise furthers the agenda of a terrorist organization;
  • related to phishing or other methods of identity theft;
  • related to drug paraphernalia;
  • related to or consisting of illegal or malicious malware such as viruses, worms, time bombs, trojan horses and other harmful or malicious files, scripts, agents or programs;
  • that is false and defamatory;
  • material or information constituting “fake news,” i.e., information of public interest depicted to be actual or true but known to be false, or which should reasonably be known to be false, for political or other purposes, except for satire; or
  • unsolicited commercial email (spam), including: (i) sending communications or email in violation of the CAN-SPAM Act or any other applicable anti-spam law or regulation; (ii) spoofing, imitating or impersonating Hearken, another person or his, her or its email address, or creating false accounts for the purpose of sending spam; (iii) data mining, scraping or harvesting any web property (including any part of the Service) to find email addresses or other user account information; (iv) sending unauthorized email via open, third-Party servers; (v) sending email to users who have requested to be removed from a mailing list; (vi) selling to, exchanging with, sharing with or distributing to a third party Personal Data, including the email addresses of any person without such person’s knowing and continued consent to such disclosure; or (vii) sending spam to significant numbers of email addresses belonging to individuals and/or entities with whom You have no preexisting relationship.

Any violations of this AUP will constitute a material breach of the Agreement and may result in termination of this Agreement or suspension of Your account and/or termination or suspension of access to the Service by any User involved in such violation.

Data Security and Privacy

As an EMS user, You agree that we may access, store, process, and use any information and personal data that You provide.

When You use our Service, we store an audit of Your activities in our database and may share it with third-party services that we use as sub-processors. This data is collected to prevent any unauthorized access, provide accountability and to prevent misuse of the Service. This data may be retained for as long as it is necessary to provide continued service to the Buyer and is exempt from deletion or modification under applicable privacy laws’ right to know, modify or delete.

Any request to access, delete or modify such information will be shared with the Buyer.

Hearken will use your personal data only as necessary to provide the Service and as permitted by applicable privacy laws and this Agreement.

In the event of a data security incident or breach that affects Your personal data, Hearken will notify and work with the Buyer to address and remedy the situation. Hearken will make reasonable efforts to notify You directly at the contact information provided.

Dispute Resolution

Any dispute arising out of or in connection with Your use of the Service will be referred to and finally resolved in accordance with the Agreement between Hearken and the Buyer.

Indemnification

The indemnification provisions of  the Software-as-a-Service Agreement  or Purchase Agreement define Customer’s and Hearken’s indemnification obligations. 

User Representation

By using the Service, You represent and warrant that: (1) You have the legal capacity and You agree to comply with these Terms of Use; (2) You are not a minor in the jurisdiction in which You reside; (3) You will not use the Service for any illegal or unauthorized purpose; and (5) Your use of the Service will not violate any applicable law or regulation.

If You provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate Your account and refuse any and all current or future use of the Service (or any portion thereof).

Hearken, Inc. (“Hearken”, “We”, “us”, “our”) provides and makes available the Engagement Management System (“EMS”, “Service”, “Application”, “App”), subject to the Terms of Use (“Terms”, “Agreement”, “TOU”). These Terms create a contractual agreement between You (“User,” “You,” “Your”) and Hearken regarding Your use of EMS administration service and data collected through it.

This Agreement supplements the terms contained in the purchase contract between Hearken and the organization or entity (“Buyer”, “Client”, “Customer”) that  purchased  the license that permits Your use of the Service.

Please note that Hearken may update, modify, or amend the Terms on Hearken’s Website from time to time as Hearken deems necessary, in its sole discretion, and without prior written notice to You. Such modifications, alterations, and updates to the Terms shall be effective immediately upon posting upon the Website. However, the terms and conditions of the Software-as-a-Service Agreement shall prevail in the event of a conflict.If You do not agree to such updated terms, You may terminate this Agreement upon written notice to Hearken and Customer.

The Information provided on the Service is 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 Service from 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.

DO NOT USE THE SERVICE IF YOU DO NOT AGREE WITH THESE TERMS.

The Service

2.1. Access to the Service

Provided that You are eligible to use the Service, You are granted a limited license to access and use the Service and to download or print a copy of any portion of the User Content to which You have properly gained access solely for the purpose for which the User Content was collected.

Your access to the Service is granted based on Your affiliation to the Buyer and is limited to the duration of the term for which the Buyer has purchased an EMS license from Hearken.

Your access may be revoked or modified at any time by Hearken or an authorized representative of the Buyer at their discretion.

We reserve all rights not expressly granted to You in and to the Service, the Content and the Marks.

2.2.User IDs and Logins

You are responsible for securely storing and safeguarding Your user ID, password, API keys or any other mechanism (collectively, “Access Credentials”) that may be used to access the Service.

You shall notify Hearken immediately (via email at privacy@wearehearken.com) of any unauthorized use or loss of any Access Credentials, or any other actual or suspected breach of security related to the Service of which You become aware.

2.3.No Use of Service By Anyone Under 16

The Service may not be used by any person or User under sixteen (16) years old. By accepting the Terms, You agree that You are 16 years or older.

You agree to use reasonable means to verify that the user is at least 16 years old before inviting or permitting any such user to use or access the Service.

Any User under the age of 18 in the United States must have his or her parent or guardian consent to such use and to the Agreement. If You reside in or operate Your organization in a jurisdiction that would restrict the use of the Service or any other feature or function

of the Service because of the age of the User, You must abide by such age limits, rules, laws or regulations and You must not permit use of the Service by any Users legally prohibited from using it in that jurisdiction.

2.4.Included Third Party Software.

Certain features of the Service may be implemented by included third party software. Hearken may be required to publish the terms, disclaimers and notices applicable to such third party software. If so, they will be made accessible through the Service and/or Hearken Platform.

2.5. Suspension of Access.

Hearken may immediately suspend or disable Your access to and use of the Service if, as a result of Your use of the Service or breach of this Agreement, or the AUP, or Hearken reasonably believes: (a) Hearken is likely to be subject or exposed to criminal or civil sanctions, prosecution or suit; (b) such use or breach is likely to cause harm to Hearken or Hearken’s other customers or their respective employees or interfere with the integrity, operations or security of the Service; or (c) Hearken’s network or systems or those with which Hearken is interconnected, or interfere with another customer’s use of any of the foregoing. Hearken may also suspend or disable Your access to and use of the Service if required in order to comply with a court order or government notice.

2.6.Links to Third Party Services.

The Service may contain links to or integrate with various third party services, applications, functions, websites and otherwise (collectively, “Third Party Services”), not under Hearken’s control. Accordingly, You agree that Hearken shall not be responsible for the quality, safety, security, availability, completeness, accuracy, or nature of the User

Content or any other aspect of such Third Party Services, nor can Hearken make any guarantee or warranty with regard to Third Party Services.

Any such links or integration are provided solely as a convenience to You and shall not be regarded as an endorsement by Hearken of these Third Party Services, the companies which own or provide them, their User Content or their services, applications, functions, products or otherwise. Your use of Third Party Services may be subject to the separate policies, privacy practices, terms of use and/or fees imposed by their operators, is entirely at Your own risk, and Hearken disclaims any and all representations, warranties and liability with respect to Third Party Services.

2.7.Contributing and publishing content

As an EMS User, You may have access to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials on the EMS, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, “Contributions”).

Contributions may be viewable by other users of the Service and through third-party websites. As such, any Contributions You transmit may be treated in accordance with the Service Privacy Policy.

When You create or make available any Contributions, You thereby represent and warrant that:

  1. The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of Your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
  2. You are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize us, the Service, and other users of the Service to use Your Contributions in any manner contemplated by the Service and these Terms of Use.
  3. You have the written consent, release, and/or permission of each and every identifiable individual person in Your Contributions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of Your Contributions in any manner contemplated by the Service and these Terms of Use.
  4. Your Contributions are not false, inaccurate, or misleading.
  5. Your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
  • Your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable under a reasonable person standard. 
  • Your Contributions do not ridicule, satire disparage, intimidate, or abuse anyone.
  • Your Contributions are not used to harass or threaten (in the legal sense of those terms) any other person and to promote violence against a specific person or class of people.
  • Your Contributions do not violate any applicable law, regulation, or rule.
  • Your Contributions do not violate the privacy or publicity rights of any third party.
  • Your Contributions 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 Contributions do not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors.
  • Your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
  • Your Contributions do not otherwise violate, or link to material that violates, any provision of these Terms of Use, or any applicable law or regulation.

 Any use of the Service in violation of the foregoing violates these Terms of Use and may result in, among other things, termination or suspension of Your rights to use the Service.

14.8. Hearken Does Not Review and Has No Responsibility For User Content.

Hearken is a service provider to the Buyer to enable the Buyer to solicit information and content (“User Content”) from its users or audience. You agree that any use of any User Content by You, either within the Service or outside of the Service, is entirely at Your and the Buyer’s own risk and Hearken shall have no responsibility or liability for such use.

Hearken is not responsible or liable to You or any third party with regard to any information or material or data, including video, audio or other content, contained within User Content, nor for violation or infringement of intellectual property rights, privacy rights or other legal rights, nor for Your Users’ failure to obtain model releases, property releases, or any other required waiver or release, nor for any other violation of law related to User Content or its subject matter, whether posted or distributed by Your Users or other users of the Service. Hearken has no responsibility to review or filter User Content and cannot reasonably do so.

Hearken is not the publisher of User Content. Because Hearken will not and cannot review User Content, it is possible the Service may contain User Content that violates the AUP, is offensive or objectionable, contains errors, violates intellectual property, privacy, publicity or other rights of third parties, or is harmful to Your Devices, computers or network. Your use of User Content is entirely at Your own risk, and Hearken disclaims any and all representations, warranties and liability with respect to User Content. You are responsible for implementing safeguards and taking precautions necessary to protect Your organization, Devices, computers and networks from any possible harm resulting from access to User Content. You agree to delete or hide such content when possible or notify Hearken when removal of such content may not be possible.

14.9.Using and transferring content

As an EMS User, You have access to copy, download or share User Content and data with third-party services. You agree that Hearken shall not be responsible for the quality, safety, security, or availability of the Content once it leaves Hearken’s systems.

You agree to use the User Content only for the purpose it was collected for and in accordance with any Applicable Privacy Laws that the use of such content may be subjected to.

14.10. Communication and notification

By using the Service, you consent to receiving notifications and communication from Hearken and any affiliates that are required for us to continue to operate the Service. You may also opt-in to receive additional notifications, and newsletters and other communications by updating your preferences within the Service.

Restrictions

General

You agree that the Service contains content, information and material proprietary to Hearken and/or its licensors that is protected by applicable intellectual property laws and other laws, including copyright laws, as more fully described below and that You will not use the Service except in accordance with this Agreement and as permitted by its included functionality. No portion of the Service may be reproduced in any form or by any means. You agree not to decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service or any part thereof, or rent, rent, lease, loan, sell, distribute, or create derivative works based on the Service, in any manner, nor use or exploit the Service in any unauthorized way, whether by trespass, “data mining,” “data scraping,” unduly burdening network capacity, or in any other manner prohibited under Hearken’s AUP or otherwise in violation of this Agreement. You further agree that neither You nor Your Users will use the Service for framing or linking to other websites or locations on the Internet, without Hearken’s prior written consent, nor attempt to circumvent or defeat the Service’s security features or hack into parts of the Service that are not expressly authorized for Your or Your Users’ use.

Acceptable Use Policy (AUP)

Your use of the Service is subject to Your compliance with Hearken’s Acceptable Use Policy set forth in this Section (the “AUP”). Hearken may change this AUP by posting an updated version at www.wearehearken.com.  However, the Software-As-A-Service Agreement between Hearken and Customer shall prevail in the event of a conflict. The updated AUP will be effective upon posting. You may not use the Service, nor permit any User to use the Service, to create, upload, store, process, display, transmit or distribute material, information or User Content:

  1. that infringes or misappropriates a third party’s intellectual property or proprietary rights, including patents, copyrights, trade secrets and trademarks;
  2. that discloses confidential or trade secret information or materials in breach of a legal obligation not to disclose such information or materials;
  3. that violates or encourages conduct that would violate any applicable laws, including any criminal laws, or any third party rights, including confidentiality, publicity or privacy rights;

4. that constitutes Protected Health Information (PHI) under the U.S. Health Insurance Portability and Accountability Act of 1996 (HIPAA), and its associated rules and regulations;

  • that is obscene or excessively profane;
  • that may be harmful to minors;
  • that promotes or advocates hatred or violence, or promotes or encourages discrimination against or intolerance of any person or group based on race, ethnicity, religion, sex, sexual orientation or on any other basis which would constitute a violation of law;
  • that advocates or provides instructions regarding computer hacking or cracking;
  • that advocates or provides instructions for use of illegal weapons or weapons of mass destruction;
  • intended to recruit individuals to join a terrorist organization or which otherwise furthers the agenda of a terrorist organization;
  • related to phishing or other methods of identity theft;
  • related to drug paraphernalia;
  • related to or consisting of illegal or malicious malware such as viruses, worms, time bombs, trojan horses and other harmful or malicious files, scripts, agents or programs;
  • that is false and defamatory;
  • material or information constituting “fake news,” i.e., information of public interest depicted to be actual or true but known to be false, or which should reasonably be known to be false, for political or other purposes, except for satire; or
  • unsolicited commercial email (spam), including: (i) sending communications or email in violation of the CAN-SPAM Act or any other applicable anti-spam law or regulation; (ii) spoofing, imitating or impersonating Hearken, another person or his, her or its email address, or creating false accounts for the purpose of sending spam; (iii) data mining, scraping or harvesting any web property (including any part of the Service) to find email addresses or other user account information; (iv) sending unauthorized email via open, third-Party servers; (v) sending email to users who have requested to be removed from a mailing list; (vi) selling to, exchanging with, sharing with or distributing to a third party Personal Data, including the email addresses of any person without such person’s knowing and continued consent to such disclosure; or (vii) sending spam to significant numbers of email addresses belonging to individuals and/or entities with whom You have no preexisting relationship.

Any violations of this AUP will constitute a material breach of the Agreement and may result in termination of this Agreement or suspension of Your account and/or termination or suspension of access to the Service by any User involved in such violation.

Data Security and Privacy

As an EMS user, You agree that we may access, store, process, and use any information and personal data that You provide.

When You use our Service, we store an audit of Your activities in our database and may share it with third-party services that we use as sub-processors. This data is collected to prevent any unauthorized access, provide accountability and to prevent misuse of the Service. This data may be retained for as long as it is necessary to provide continued service to the Buyer and is exempt from deletion or modification under applicable privacy laws’ right to know, modify or delete.

Any request to access, delete or modify such information will be shared with the Buyer.

Hearken will use your personal data only as necessary to provide the Service and as permitted by applicable privacy laws and this Agreement.

In the event of a data security incident or breach that affects Your personal data, Hearken will notify and work with the Buyer to address and remedy the situation. Hearken will make reasonable efforts to notify You directly at the contact information provided.

Dispute Resolution

Any dispute arising out of or in connection with Your use of the Service will be referred to and finally resolved in accordance with the Agreement between Hearken and the Buyer.

Indemnification

The indemnification provisions of  the Software-as-a-Service Agreement  or Purchase Agreement define Customer’s and Hearken’s indemnification obligations. 

User Representation

By using the Service, You represent and warrant that: (1) You have the legal capacity and You agree to comply with these Terms of Use; (2) You are not a minor in the jurisdiction in which You reside; (3) You will not use the Service for any illegal or unauthorized purpose; and (5) Your use of the Service will not violate any applicable law or regulation.

If You provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate Your account and refuse any and all current or future use of the Service (or any portion thereof).