version 2020.2| Updated as of June 30, 2020 | Archived versions
Hearken, Inc. (“Hearken”, “We”, “us”, “our”) provides and makes available this Website, subject to the Terms of Service (“Terms”, “Agreement”, “TOS”, “TOU”). These Terms create a contractual agreement between you (“user,” “you,” “your”) and Hearken regarding your use of this Website. Please note that Hearken may update, modify, or amend the Terms 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. You agree to be bound by such modified, altered and updated terms if you access or use this Website after Hearken has posted notice of modifications, alterations or updates.
DO NOT USE THIS WEBSITE IF YOU DO NOT AGREE WITH THESE TERMS.
As used in this Agreement, and in addition to any other terms defined herein, the following defined terms will have the following meanings:
“Affiliate” means a person or entity that directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the specified person or entity. “Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person or entity, whether through the ownership of more than fifty percent (50%) of the shares or voting securities, by contract or otherwise. Any such person or entity shall be considered an Affiliate for only such time as such control is maintained.
“Agreement” means the terms of this Agreement document, including the Data Processing Addendum and any Order Form, and other mutually agreed upon document stating that it is subject to, governed by or made part of this Agreement.
“AUP” means Hearken’s Acceptable Use Policy set forth in Section 3.4.2, below.
“Confidential Information” means: (a) information of a Party in all forms which derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, including the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, and product plans and designs, and business processes disclosed by such Party; as well as (b) other information that is provided to or obtained by one Party and that is valuable to the other Party and not generally known by the public, in each Party’s case as to (a) and (b), whether disclosed orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances surrounding disclosure. Under any circumstances, even if not marked as such, in the case of Hearken, Confidential Information includes the non-public-facing elements of the Service, Documentation, Hearken IP (defined below) and all elements and components and elements thereof, regardless of form, each of which consist of and comprise trade secrets of Hearken. Confidential Information does not include User Content.
“Device” means any mobile phone (smartphone), tablet, computer or any other electronic system having access to the Internet.
“Documentation” means the electronic “Help” features of the Service (and the Hearken Platform) made available by Hearken describing the functionality or operation of the Service, including the Hearken Platform.
“Effective Date” means the effective date of this Agreement, as indicated in the initial Order Form, subject to acceptance by Hearken.
“Hearken Platform” means the Hearken EMS platform AND/OR CMS platform(“Hearken Platform”) made available under Your auspices and sponsorship for downloading and installation on Users’ Devices as part of the Service to aid in creating User Content and through which User Content is posted to the Service.
“Hearken Terms of Service” means the Hearken Terms of Service which must be accepted by Users for Users to access the Hearken Platform on a Device, and thereby use the Service.
“Maintenance” means the provision by Hearken of maintenance services, including Updates, related to the Service as described in the Order Form
“Order Form” means a web page order form, or shopping cart information page or other document submitted by You to Hearken or otherwise agreed to between You and Hearken by which You order any Hearken Services, including Hearken Professional Services, and any agreed upon amendments or addenda to such documents. Your submission of an Order Form to Hearken constitutes Your agreement to and understanding of the terms of the Order Form. An Affiliate of Yours may also submit to Hearken or otherwise agree to an Order Form, in which case such Affiliate agrees to be bound by the terms of this Agreement as if it were an original Party to this Agreement. All Order Forms submitted to Hearken or otherwise agreed to hereunder shall be subject to the terms of this Agreement and deemed incorporated herein, subject to acceptance by Hearken.
“Personal Data” means personally identifying information (sometimes referred to as “PII”) pertaining to an individual.
“Professional Services” means professional services including implementation and/or configuration of the Service for Your operations, as may be offered and performed by Hearken as set forth on an applicable Order Form or which may be included in the applicable fee.
“Service” means the online, hosted computer software application, its website interfaces and portals, the Hearken Platform and its component Modules, and the features and functionality of each of the foregoing known as “Hearken,” as described in the applicable Order Form, including all related Documentation, Updates, and all components and elements thereof, tangible and intangible, in computer software and other form and the Hearken intellectual property (IP) embodied therein. Reference to the Service in the context of Your obligations shall refer to the Service in its entirety and any part thereof.
“Support” means the provision by Hearken of technical support services to You related to the Service and the provision of technical support service by You to Users.
“Term” means the period of time during which an applicable Term remains valid.
“You” or “Your” refers to the legal entity which has entered into this Agreement with Hearken.
“Your Website” means Your website from which the Service and Hearken Platform are made available or from which Your Users are directed to download the Hearken Platform in order to use the Service or connect directly to the Service or the sub-domain page of Hearken which presents the service to Your Users.
“Updates” means updates, corrections, modifications and/or functional enhancements to the Service, Hearken Platform and/or Documentation, including new versions thereof.
“User” In regard to the EMS Platform this means an individual person authorized by You to access or use the Service under your account with Hearken by means of a specific User ID and password used exclusively by that individual, regardless of the location from which the Service is accessed. Users must first agree to the Hearken Terms of Service and Your User Agreement. You will be responsible for the acts and omissions of Users as if they were Your acts and omissions and for any damages resulting from use, disclosure, duplication or otherwise with respect to the Service or any part thereof under Your account with Hearken or resulting from its possession by any person or entity which You permit to access or use the Service.
In regard to the CMS Platform this means an individual person accessing or using the Service under an account with Hearken by means of a specific User ID and password used exclusively by that individual, regardless of the location from which the Service is accessed. Users must first agree to the Hearken Terms of Service.
“Admin” In regard to the CMS platform means a User who has the ability to edit, modify, or delete Users and/or edit, modify, or delete Users’ content that is not their own. Admins will be responsible for the acts and omissions of other Admins and Users as if they were Your acts and omissions and for any damages resulting from use, disclosure, duplication or otherwise with respect to the Service or any part thereof under Your account with Hearken or resulting from its possession by any person or entity which You permit to access or use the Service.
“User Agreement” means the terms of service or other legal agreement between You and each User governing the relationship between You and each such User with regard to Your Users’ use of the Service, User Content and related issues.
“User Content” means pictures, images, photographs, videos, text, audio, code, reviews, responses, profile entries, posts, questions or any other content or data, regardless of form, which You or Your Users post, upload, download, distribute, or otherwise transmit to, through or from the Service or create, in whole or in part, using the Service. User Content does not include any component or element of the Service itself, nor any of the foregoing items created by Hearken.
“Work Product” means any software, documentation or other materials developed and provided to You by Hearken as part of the Professional Services.
2. The Service
Hearken grants You a non-exclusive, non-transferable (except as set forth in this Agreement), limited, revocable license, for the duration of the Term specified in the applicable Order Form, to use the Service, including the Hearken Platform, and make its features and functions available to Your Users solely for its intended purpose as described in the Documentation and as permitted by this Agreement and Your User Agreement with Your Users, to enable Users to create User Content on their own Devices, and post, distribute, or otherwise transmit such User Content to, through or from the Service and Your account with Hearken.
2.2 User IDs and Logins
You are responsible and liable for all access to and use of the Service through any user login or other ID and password used by You or any of Your Users to access the Service (collectively, “Access Credentials”). You shall notify Hearken immediately (via email at email@example.com) of any unauthorized use of any Access Credentials, or any other actual or suspected breach of security related to the Service of which You become aware. All Access Credentials are and shall remain the property of Hearken, are hereby assigned to Hearken and constitute Confidential Information of Hearken, which must be safeguarded as such.
No Use of Service By Anyone Under 13
The Service, including the Hearken Platform, may not be used by any person or User under thirteen (13) years old. You agree to use reasonable means to verify that any User is at least 13 years old before permitting any such User to use or access the Service, including the Hearken Platform. Any User under the age of 18 in the United States must have his or her parent or guardian’s consent to such use and to the User Agreement and the Hearken Terms of Service. If You reside in or operate Your organization in a jurisdiction that would restrict the use of the Service or the Hearken Platform 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.
Maintenance and Hearken Technical Support are included at no additional charge for the duration of each Term. You agree to serve as a first point of contact for Users and to use commercially reasonable efforts to respond, during Your normal business hours to technical support inquiries submitted via email from Users related to the use and operation of the Hearken Platform and the Service. Updates to the Hearken Platform will be made available through the website sub-domain, as applicable, when Hearken makes them available to its customers and users generally. Hearken shall be under no obligation to make Updates available.
Limitations on Usage.
Use of the Service shall be subject to limitations on disk storage space, memory, and data transfer (“in” and “out”) based on volume of User Content associated with Your account .
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, and Your use of the Service and/or Hearken Platform constitutes your agreement to same.
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, 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. In the exercise by Hearken of its right to act immediately under this paragraph, Hearken shall provide such advance notice as is reasonably practicable under the circumstances. If advance notice is not reasonably practicable, Hearken shall provide subsequent notice promptly thereafter. You shall promptly cooperate with Hearken in attempting to resolve the issue giving rise to any suspension or disablement of Your access to and use of the Service. The foregoing shall be in addition to the termination rights of either Party hereunder.
Links to Third Party Services.
Hearken Does Not Review and Has No Responsibility For User Content.
Hearken is a service provider to You enabling You to make the Service available to Your Users. You agree that any use by You and/or or Your Users of any User Content, either within the Service or outside of the Service, is entirely at Your and Your Users’ 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. As between You and Hearken, You and Your Users have responsibility and liability for User Content and for ensuring that User Content does not violate Hearken’s AUP set forth below. 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 or Your Users’ Devices, computers or network. Your and Your Users’ use of User Content is entirely at Your and their 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 indemnify, defend and hold harmless Hearken and Sponsor with respect to any claims with respect to User Content and/or Your use of User Content or any other content, and to provide the indemnity set forth in this Agreement. In the event of any inconsistency or conflict between this Agreement and Your User Agreement, with regard to the Service and User Content, and Hearken’s liability, this Agreement shall govern to the extent of such inconsistency or conflict.
Changes to the Service.
As a multi-tenant SaaS vendor, Hearken reserves the right to make enhancements and other changes to the Service, including occasional reduction or removal of certain features and functionality.
From time to time, Hearken may make portions of the Service available for evaluation, demonstration, testing or other purposes where such use is outside a production environment (whether by using an API sandbox or some other non-production service environment). By using the Service on such a non-production basis, You accept the Service on an “as is” basis and acknowledges that Hearken provides no express or implied warranties, indemnities or security-related or other commitments, and will have no liability, in connection with such use. Hearken will make commercially reasonable effort to notify You via email, at least thirty (30) days in advance of any scheduled changes Hearken believes are likely to have a material, adverse impact on Your use of the Service.
3. Your Responsibilities
Internet Access; Computing Environment
You and Your Users, and not Hearken, are responsible for obtaining, installing, maintaining, and operating all Devices, computer hardware, software, and Internet access services necessary to use or access any aspect of the Service, and Hearken will not be responsible or liable for any errors or issues that arise from the malfunction or failure of any of the foregoing.
Your Contact Information
You agree to provide Hearken accurate billing and other contact information for each Order Form at all times during the Subscription Term, including the name of Your applicable legal entity, street address, email address, and name and telephone number of an authorized billing contact, and represent and warrant that the information provided in this Agreement is current and accurate. You agree to update this information within thirty (30) days after any changes to your billing contact information via email to Hearken’s Accounts Receivable team at accounting@weareHearken.com or other billing contact information provided by Hearken. You shall also designate and maintain at least one individual in Your organization who is a current employee and is authorized to administer Your use of the Service (e.g., by creating accounts and resetting passwords).
Your Agreement With Your Users; Hearken Terms of Service and Embedded Content; Deletion of User Content.
Hearken Embedded Content.
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, and Your Users’ use of the Service is subject to Your and Your Users’ 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. 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:
- that infringes or misappropriates a third party’s intellectual property or proprietary rights, including patents, copyrights, trade secrets and trademarks;
- that discloses confidential or trade secret information or materials in breach of a legal obligation not to disclose such information or materials;
- 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;
- 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
You acknowledge that the User Content may consist of Personal Data provided by Users. You acknowledge that in certain cases, You may be the data controller and Hearken is the data processor; and that in other cases, You may be the data processor and Hearken is the data controller, as such terms are defined under the EU Directive 95/46/EC (or General Data Protection Regulation or GDPR) and all other laws and regulations of the European Union, the European Economic Area (EEA) and their member states, and understood under the laws of the U.S., including the EU-U.S. Privacy Shield, the Swiss-U.S. Privacy Shield, the California Consumer Privacy Act of 2018 (CCPA), the Personal Information Protection and Electronic Documents Act (PIPEDA), and the Nevada Act Relating to Internet Privacy (SB 220), applicable to the processing of Personal Data (collectively, “Applicable Privacy Laws”), as they apply to Personal Data of individuals located within the EU which may be included within the User Content or otherwise transmitted through the Service. You agree to implement reasonable and appropriate technical and organizational safeguards and security measures in accordance with Applicable Privacy Laws and consistent with prevailing information technology data security and privacy standards to minimize the risk of accidental, unauthorized or unlawful destruction, loss, alteration, disclosure or access to the User Content and any Personal Data therein. You agree to comply with all applicable laws regarding the foregoing, including without limitation, requirements to implement security safeguards to protect the privacy of Personal Data contained in the User Content and to notify individuals to whom the Personal Data pertains who are affected by any breach or suspected breach of the security or privacy of the User Content. In such event, You shall also as promptly as reasonably possible notify Hearken by e-mail followed by notice in writing provide reasonable cooperation and assistance to Hearken and any affected Parties in order to address and remedy the situation. Hearken will use Personal Data only as necessary to provide the Service and as permitted by Applicable Privacy Laws and this Agreement; provided, however, that if compliance with Applicable Privacy Laws would, in Hearken’s sole determination, materially change Hearken’s costs or risks in providing the Service (including by requiring that any data centers used by Hearken to provide the Service be located outside the U.S., or requiring Hearken to operate in violation of any U.S. laws), each Party will have the right to terminate this Agreement upon at least thirty (30) days prior written notice to the other Party. In the event of such a termination under this section, Your sole right, and Hearken’s sole liability resulting from such termination will be for Hearken to promptly refund to You on a pro rata basis any Fees paid under any Client Agreements then in effect that are unused as of the termination effective date.
5. Professional Services
Hearken’s performance of Professional Services may be requested by You or necessary to configure and/or implement the Service for Your optimal use. Such Professional Services, if any, shall be described in an agreed upon Order Form governed by this Agreement and performed at the prices set forth therein.
Supervision and Cooperation
Hearken has the sole right and obligation to supervise, manage, contract, direct, procure, perform, or cause to be performed all agreed upon Professional Services unless otherwise provided herein. You agree to cooperate with Hearken and provide Hearken access to complete and accurate information and data from Your officers, agents, and employees; office accommodations and facilities; equipment assistance; and suitably configured computer products in a timely fashion and as reasonably required by Hearken to perform its duties hereunder. You agree that Your cooperation and performance of Your responsibilities hereunder and timely provision of information and access to Your personnel and, possibly, Your computing environment, are essential to Hearken’s ability to perform the Professional Services and that Hearken shall be entitled to rely on Your decisions and approvals in connection with the Professional Services. In the event the Professional Services require Hearken to access or use any third party software products in Your possession or control, You warrant that You have all rights and licenses of third parties necessary for Hearken to access or use such third party products and agree to produce evidence of such rights and licenses upon request. You agree to indemnify, hold harmless and defend Hearken and any of its personnel or subcontractors from and against any claims, actions, demands, lawsuits, damages, liabilities, settlements, penalties, fines, costs and expenses (including reasonable attorneys’ fees) to the extent arising from Hearken’s access to or use of such third party products.
If any relevant requirements, project plans, schedules, scopes, specifications, designs, software, hardware products, or related system environments or architecture that are either set forth in an Order Form or otherwise necessary to perform the Professional Services are changed by You or any other person not authorized by Hearken, Hearken shall not be responsible for the change or the completion of Professional Services affected by the change unless You and Hearken specifically consent to the change, scheduling, and additional charges, if any, in writing.
Professional Services Fees and Expenses
You agree to pay to Hearken the fees (if any) for the Professional Services specified in the applicable Order Form in accordance with the terms specified therein. All Professional Services will be provided on a time and materials basis, unless otherwise stated, and any amounts stated as estimates shall be non-binding and shall not constitute either a “fixed fee” or “not-to-exceed” agreement, unless specifically stated to be such. For any Professional Services that Hearken performs pursuant to the Parties’ informal agreement or understanding for which fees are not specified on the Order Form, such Professional Services shall be paid for at Hearken’s then prevailing time and materials rates unless otherwise agreed by the Parties in writing. Unless otherwise noted on an Order Form, You shall reimburse Hearken for out-of-pocket expenses reasonably incurred in rendering the Professional Services, including reasonable travel and transportation expenses, lodging, and meals.
6. Warranties; Remedies
Hearken represents and warrants, during each applicable Subscription Term, solely for Your benefit, as follows:
- It has the full right and authority to enter into this Agreement and owns all rights, title and interest in and to the Service, or has the right to make the Service available to You;
- From the Acceptance Date through the duration of each Subscription: (a) the performance of the Service shall substantially conform to the applicable descriptions contained in Hearken’s Documentation for same; and (b) for a period of thirty (30) days from the performance of Professional Services, such Professional Services shall have been performed in a workmanlike and professional manner consistent with industry standards.
You represent and warrant, during each applicable Subscription Term, as follows:
- You have the full right and authority to enter into this Agreement, and Your Website, and Your and Your Users’ use of the Service will comply with all applicable laws and regulations;
- You: (a) are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; (b) are not listed on any U.S. Government list of prohibited or restricted parties; and (c) will not make the Service or the Hearken App available to any User regarding whom the representations and warranties stated in (a) and (b) cannot truthfully be made.
Neither Your nor Your Users’ use of the Service, nor any User Content or other content posted, uploaded, downloaded, distributed, or otherwise transmitted to, through or from the Service or created using the Service, by You or Your Users nor any other act or omission by You and/or Your Users, as the case may be, involving the Service shall violate, misappropriate or infringe on the rights of any third party, including, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights, and that You and/or Your Users, as the case may be, will pay all royalties, fees, damages, expenses and any other monies resulting from any of the foregoing acts or omissions associated with the User Content and/or Your and Your Users’ use of the Service.
Hearken’s warranties do not apply: (a) if You are or were in breach of this Agreement at the time the claim for breach of warranty was made; (b) with regard to any element of the Service which has been altered, misused or damaged in any way by You or any of Your Users; or (c) if the claimed breach is caused by changes in, or modifications to, the operating characteristics of any Device or computer hardware or software within Your computing environment or which occur as a result of the use of the Service in conjunction with incompatible Devices, hardware or software.
Hearken’s entire liability and Your sole and exclusive remedy for Hearken’s breach of the above representations and warranties shall be as follows: (a) in the case of Hearken’s breach of the first point in “By Hearken” above, Hearken shall provide the indemnity to You stated in the Section entitled “Infringement by Hearken” if a Claim is made, and use commercially reasonable efforts to correct such breach or, at Hearken’s option, terminate this Agreement and refund any prepaid fees covering the remainder of the Subscription Terms for all Order Forms after the effective date of termination; (b) in the case of Hearken’s breach of section (a) of the second point in “By Hearken” above regarding the Service, Hearken shall use commercially reasonable efforts to correct such breach or, at Hearken’s option, terminate this Agreement and refund any prepaid fees covering the remainder of the Subscription Terms for all Order Forms after the effective date of termination; and (c) in the case of Hearken’s breach of section (b) of the second point in “By Hearken” above regarding Professional Services, Hearken shall use commercially reasonable efforts to re-perform such Services or, at Hearken’s option, terminate this Agreement and refund any prepaid fees covering the remainder of the Subscription Terms for all Order Forms after the effective date of termination.
To receive the foregoing remedies, You must report any alleged breach of warranty to Hearken in writing and in reasonable detail within the warranty period (if any). In all cases where Hearken terminates this Agreement pursuant to this paragraph, Hearken’s refund obligations shall be contingent upon receipt from You of certification that You have deleted all copies of the Hearken App on all Devices in Your possession or control, and that You have instructed Your Users to do the same. Termination by Hearken under this paragraph shall not relieve You of Your obligation to pay any fees owed to Hearken for the period prior to the effective date of termination.
No Other Warranties. EXCEPT TO THE EXTENT EXPRESSLY STATED IN THIS AGREEMENT: (A) HEARKEN AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED (IN FACT OR BY OPERATION OF LAW), REGARDING THE SERVICE, PROFESSIONAL SERVICES, OR ANY MATTER WHATSOEVER; AND (B) HEARKEN AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE OR ANY PROFESSIONAL SERVICES ARE OR WILL BE ERROR-FREE, MEET CUSTOMER’S REQUIREMENTS, OR BE TIMELY OR SECURE. HEARKEN AND ITS LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICE AND ANY PROFESSIONAL SERVICES, AND CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON TO ANY THIRD PARTY ANY REPRESENTATION OR WARRANTY BY HEARKEN. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET OR ELECTRONIC COMMUNICATIONS. HEARKEN IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE, LOSS OR LIABILITY RESULTING FROM SUCH PROBLEMS NOT CAUSED BY HEARKEN. CUSTOMER AGREES THAT ITS SUBSCRIPTION TO THE SERVICE AND FEES DUE OR PAID UNDER THIS AGREEMENT ARE NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES, NOR BASED ON ANY ORAL OR WRITTEN COMMENTS REGARDING ANY FUTURE FUNCTIONALITY OR FEATURES.
7. Ownership; License Rights
As between You and Hearken, for purposes of this Agreement, Your Users shall be considered the owner of all rights, title, and interest in and to User Content, subject to the license rights granted to Hearken and to You under the Hearken Client Agreement; provided, however, that such license rights granted to You shall terminate upon the termination or expiration of this Agreement. Hearken license rights in the User content are intended for Your use and Hearken holds no separate rights to display User Content publicly or to sublicense User Content to anyone other than You or Your affiliates.
Upon written approval by you, Hearken may use in perpetuity, worldwide and free of charge, any version of Your Website, or any portion thereof, for the limited purpose of Hearken’s marketing and promotional activities. This may include featuring Your Website or screen capture images from Your Website on Hearken’s customer page on Hearken’s website, on Hearken’s social media sites, and on Hearken’s Google Play and Apple Store pages. You waive any claims against Hearken relating to any moral rights, artists’ rights or any other similar rights worldwide that You may have in or to Your Website, and any right of inspection or approval of any such use of Your Website. In addition to the foregoing, Hearken may, license, sell and otherwise use or dispose of, in any manner, aggregated and anonymized statistical data regarding Your and Hearken’s other customers’ use of the Service and information that may be gleaned from such aggregated and anonymized statistical data, provided that neither You nor any User are identifiable by name in any such data. Hearken shall own all rights, title, and interest in and to such aggregated and anonymized statistical data.
The Service; Hearken Materials
The Service, including the Hearken Platform and Website and all computer software in source code, object code or other form, databases, indexing, search, and retrieval methods and routines, hypertext markup language code, active server pages, intranet pages, and similar materials, and all intellectual property and other rights, title, and interest therein, including copyrights, trade secrets, rights in patents, compilations, inventions, modifications, Updates, extensions, enhancements, configurations, derivative works, discoveries, improvements, processes, methods, designs and know-how, whether or not copyrightable or patentable, pertaining to any of the foregoing (all of which shall be deemed part of the Service), whether conceived by Hearken alone or in conjunction with others (collectively, “Hearken IP”), constitute Hearken trade secrets and Confidential Information and the valuable intellectual property and proprietary material of Hearken and/or its licensors and are protected by applicable intellectual property laws of the United States and other countries. Except for the rights expressly granted to You in this Agreement, all rights in the Service and all Hearken IP, including any deliverables and Work Product resulting from Professional Services or otherwise to the extent consisting of or containing any element of the Service, including any configuration or modification thereof, and all intellectual property and proprietary rights thereto, are and shall remain solely owned by Hearken and its respective licensors and are hereby assigned to Hearken. Hearken retains the right to use and provide software Professional Services and products (hosted or otherwise), Professional Services, Work Product and all other Hearken IP, which may be similar to those provided to You hereunder, and to use for itself or others any knowledge, skills, experience, ideas, concepts, know-how and techniques used or gained in the performance of Professional Services or the development of Work Product or Hearken IP or which may be embodied or reflected therein. Hearken reserves all rights not expressly granted to You in this Agreement.
8. Price and Payment
You shall pay Hearken the Subscription and Professional Services fees and expenses (if applicable) and other specified charges set forth in the applicable Order Form or Client Agreement (or Order Form for Professional Services, if any). Unless otherwise set forth in the applicable Order Form, all Subscription fees shall be due upon execution of this Agreement and are non-refundable except as expressly provided herein. All other fees shall be due and payable the first Monday of every month and Hearken may charge the credit card number provided by You on this date. Payment obligations cannot be canceled, regardless of actual usage of the Service. Hearken reserves the right to suspend Your use of the Service at any time until all past due fees are paid in full. Hearken reserves the right to adjust its pricing at any time upon written notice. You agree to pay a late charge of one and one-half percent (1.5%) per month or the highest amount allowed by law, whichever is less, on all amounts not paid to Hearken when due hereunder. In addition, if any amount You owe to Hearken under this Agreement is thirty (30) or more days past due (or in the case of amounts which You have authorized Hearken to charge to a credit or debit card, ten (10) or more days past due), Hearken may, without limiting its other rights and remedies: (a) accelerate Your unpaid fee obligations hereunder such that they shall be immediately due and payable; and (b) suspend its provision of the Service to You until such amounts are paid in full. Hearken will provide You with not less than ten (10) days’ prior notice before suspending provision of the Service to You unless You have authorized Hearken to charge payments owed to a credit or direct debit and such charges have been rejected or declined. You shall reimburse Hearken for all reasonable costs incurred (including reasonable attorneys’ fees) in collecting past due amounts. Nothing in this paragraph shall affect Hearken’s rights Suspension of Access.
The fees and all other amounts due to Hearken as set forth in this Agreement are net amounts to be received by Hearken, exclusive of all taxes, duties, and assessments, including all sales, withholding, VAT, GST, excise, ad valorem, and use taxes, (collectively, “Taxes”) and are not subject to offset or reduction because of any Taxes incurred by You or otherwise due as a result of this Agreement. You shall be responsible for and shall pay directly, any and all Taxes relating to the performance of this Agreement, provided that this paragraph shall not apply to taxes based solely on Hearken’s income.
Hearken shall have the right to access Your instance, account and other technical implementations of the Service and User Content associated with your account (“Your Account”) during the normal course of this Agreement as necessary to make the Service available to You and Your Users and to perform administrative assistance, Support, Maintenance and other activities. In addition, during the term of this Agreement and for one (1) year thereafter, Hearken (itself or in conjunction with independent auditors retained by it and subject to obligations of confidentiality) shall have the right to examine Your Account and other records and information relating to Your use of the Service, in order to confirm Your compliance with this Agreement. Hearken shall not in the conduct of its examination unreasonably interfere with Your business operations. If this examination reveals that You have used the Service in violation of this Agreement, such conduct shall be considered a material breach of this Agreement, which You shall immediately cure (if capable of cure) upon notice from Hearken. If You are unable to do so, Hearken may terminate this Agreement upon notice without further opportunity to cure, notwithstanding the Termination Section, invoice You for any fees due as a result of such material breach or unauthorized use of the Service based upon Hearken’s standard fees in effect at the time the examination is completed. If the amount of unpaid fees exceeds five percent (5%) of the amount actually owed, You shall also pay Hearken’s reasonable costs of conducting the examination.
9. Term and Termination
The term of this Agreement shall commence on the Effective Date and shall continue in force and effect for the Subscription Term indicated on the Order Form or Client Agreement Except as otherwise provided in any given Order Form or Client Agreement, the Subscription Term shall commence on the start date indicated in the Order Form or Client Agreement and, unless earlier terminated in accordance with the Termination Section, shall continue for the period specified therein or until all Professional Services to be provided thereunder have been completed.
UNLESS AND UNTIL TERMINATED BY EITHER PARTY PURSUANT TO THE TERMINATION SECTION BELOW OR EITHER PARTY PROVIDES WRITTEN NOTICE OF NON-RENEWAL TO THE OTHER PARTY AT LEAST THIRTY (30) DAYS PRIOR TO THE SCHEDULED END OF THE THEN-CURRENT SUBSCRIPTION TERM, THE SUBSCRIPTION TERM OF EACH LICENSEE ORDER FORM SHALL AUTOMATICALLY RENEW AND BE EXTENDED UPON ITS EXPIRATION (REGARDLESS OF WHETHER PREVIOUSLY RENEWED OR EXTENDED), FOR A PERIOD OF THE SAME DURATION AS THE SUBSCRIPTION TERM SPECIFIED ON SUCH LICENSEE ORDER FORM. THE SUBSCRIPTION PRICE APPLICABLE TO ANY RENEWED OR EXTENDED SUBSCRIPTION TERM SHALL BE THE SAME AS THAT OF THE IMMEDIATELY PRECEDING SUBSCRIPTION TERM UNLESS Hearken PROVIDES LICENSEE WITH WRITTEN NOTICE AT LEAST THIRTY (30) DAYS PRIOR TO ANY SUCH RENEWED OR EXTENDED SUBSCRIPTION TERM OF AN APPLICABLE PRICE INCREASE.
This Agreement and the right to use the Service, and/or any Exhibit hereunder, may be terminated as follows: (a) by Hearken immediately, at its option, upon written notice to You in the event of a material breach by You of the confidentiality, license, restrictions or other terms protecting the Service or a violation or misappropriation by You of Hearken’s intellectual property or rights therein or in the event of an incurable breach of the type above; (b) by either Party upon thirty (30) days prior written notice to the other Party in the event of a material breach by the other Party of any terms of this Agreement, and the failure to cure such material breach during such thirty (30) day period, except in the case of Your failure to pay any amount when due under this Agreement, in which case the cure period shall be fifteen (15) days; (c) by either Party immediately upon written notice to the other Party in the event the other Party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency or reorganization pursuant to bankruptcy laws or laws of debtor’s moratorium; or (d) in accordance with the Automatic Renewal Section above.
Effects of Termination
Upon termination of this Agreement, all rights and licenses granted hereunder with regard to the Service and otherwise shall terminate immediately. Immediately upon such termination, You shall: (a) cease all use of the Service; and (b) return to Hearken or destroy and permanently delete all copies of any Confidential Information of Hearken, including any elements of the Service on any computer or storage media in your possession or under your control, and ensure that Your Users do the same with regard to their Devices. Termination of this Agreement shall not relieve You of any unmet payment obligations.
Upon termination or expiration of this Agreement for any reason, the following Sections shall continue and survive in full force and effect: Definitions, No Other Warranties, Ownership, Payment, Compliance, Effects of Termination, Survival, Confidentiality, Limited Liability, Indemnification by You, Access to Your Data After Termination or Expiration, and General Provisions, each to the extent of any limited survival period as may be expressly set forth therein, in addition to such provisions which by their nature are intended to survive termination or expiration of this Agreement.
Effective retroactive to the date a Party first disclosed Confidential Information to the other, each Party (“recipient”) will hold in confidence and, without the consent of the other Party (“disclosing Party”), will not use, reproduce, distribute, transmit, or disclose, directly or indirectly, the Confidential Information of the disclosing Party except as expressly permitted hereunder. The recipient of Confidential Information may only disclose the Confidential Information to its employees, agents and independent contractors with a need to know the information in connection with the performance of this Agreement, provided that any such employees, agents and independent contractors shall first be subject to written obligations of confidentiality to protect Confidential Information in a manner consistent with this Agreement and the recipient shall be responsible to the disclosing Party for any damages for unauthorized use, disclosure, duplication or other misuse of the Confidential Information resulting from its possession by a third party. Without limiting the foregoing, the recipient of the Confidential Information agrees that it will exercise at least the same standard of care in protecting the confidentiality of the disclosing Party’s Confidential Information as it does with its own Confidential Information of a similar nature, but no less than a reasonable degree of care. User Content shall not constitute Confidential Information and Hearken shall not be liable for breach of its obligations of confidentiality hereunder resulting from unauthorized intrusion into, disclosure of or access to the Service or User Content, or any security breach affecting User Content.
Except with respect to the Service and all components and elements thereof which shall remain Confidential Information of Hearken, Confidential Information shall not include information if and only to the extent that the recipient establishes that the information: (a) is or has become a part of the public Service through no act or omission of the recipient; (b) was in the recipient’s lawful possession prior to the disclosure and had not been obtained by the recipient either directly or indirectly from the disclosing Party; (c) was lawfully disclosed to the recipient by a third party without restriction on disclosure; or (d) was independently developed by the recipient without reference to the disclosing Party’s Confidential Information. If required by a lawful, validly issued subpoena, order of a court of competent jurisdiction, or request for information from a governmental agency, the recipient may disclose only that part of the Confidential Information of the disclosing Party which it is legally required to disclose, in the opinion of the recipient’s legal counsel, and shall notify the disclosing Party prior to such disclosure in order to provide the disclosing Party an opportunity to seek an appropriate protective order or other judicial relief to prevent such disclosure. Notwithstanding the foregoing, the recipient shall cooperate (at the disclosing Party’s expense) in all efforts of the disclosing Party to prevent disclosure of the disclosing Party’s Confidential Information. A copyright notice on the Service or any part thereof or on other materials shall not be deemed evidence of publication or public disclosure.
Notwithstanding the foregoing, either Party may disclose Confidential Information of the other Party to its third party legal or financial advisors under existing legal obligations of confidentiality or in connection with litigation or other dispute resolution attempts between the Parties. To the extent any such recipient may not be under an existing legal obligation of confidentiality, such recipient shall sign an appropriate form of confidentiality agreement containing obligations of confidentiality substantially the same as those set forth herein.
Both Parties acknowledge that any use or disclosure of the other Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the other Party irreparable damage for which remedies other than injunctive relief may be inadequate, and each Party agrees that the other Party shall be entitled to receive from a court of competent jurisdiction injunctive or other equitable relief to restrain such use or disclosure in addition to other appropriate remedies.
Each Party’s obligations under this Section shall survive the termination of this Agreement for a period of ten (10) years, except with respect to trade secrets of a Party, in which case such obligations with respect to Confidential Information constituting a trade secret shall survive the termination of this Agreement for a period of ten (10) years thereafter plus such additional period of time as such trade secret remains a trade secret under applicable law.
TO THE FULLEST EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE TOTAL AGGREGATE LIABILITY, FOR ANY AND ALL CLAIMS, OF HEARKEN, ITS AFFILIATES, SUBSIDIARIES, PARENT AND ANY OF THEIR RESPECTIVE LICENSORS, SUBCONTRACTORS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, DISTRIBUTORS, MARKETING PARTNERS, OR RESELLERS, UNDER THIS AGREEMENT OR OTHERWISE, FOR ANY AND ALL CLAIMS OR LIABILITIES, BASED ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, WHETHER RELATING TO THE SERVICE OR ANY PART THEREOF, INCLUDING ANY PROFESSIONAL SERVICES, SUPPORT, MAINTENANCE OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF APPLICABLE FEES PAID TO HEARKEN UNDER THE APPLICABLE ORDER FORM RELATED TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE ACT, OMISSION OR OCCURRENCE PRIMARILY GIVING RISE TO SUCH LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL HEARKEN, ITS AFFILIATES, SUBSIDIARIES, PARENT AND ANY OF THEIR RESPECTIVE LICENSORS, SUBCONTRACTORS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, DISTRIBUTORS, MARKETING PARTNERS, OR RESELLERS, UNDER THIS AGREEMENT OR OTHERWISE, FOR ANY AND ALL CLAIMS OR LIABILITIES, BASED ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, WHETHER RELATING TO THE SERVICE OR ANY PART THEREOF, INCLUDING ANY PROFESSIONAL SERVICES, SUPPORT, MAINTENANCE OR OTHERWISE, BE LIABLE UNDER THIS AGREEMENT OR OTHERWISE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING RESULTING FROM UNAUTHORIZED ACCESS TO, OR THE ALTERATION, DELETION, DESTRUCTION, DAMAGE, LOSS, DISCLOSURE, UNAVAILABILITY OR FAILURE TO STORE USER CONTENT OR OTHER DATA OR USER CONTENT, NOR FROM DELAYS, LOSS OF PROFIT, INTERRUPTION OF SERVICE OR INABILITY TO ACCESS OR USE THE SERVICE OR ANY PORTION THEREOF, INCLUDING CESSATION OR MODIFICATION OF ANY ASPECT OF THE SERVICE OR LOSS OF BUSINESS OR ANTICIPATORY PROFITS, BASED ON ANY THEORY OF LIABILITY, WHETHER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF HEARKEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY OF ITS ESSENTIAL PURPOSE.
THE PROVISIONS OF THIS SECTION ARE FUNDAMENTAL AND SPECIFIC REQUIREMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND HEARKEN AND HEARKEN WOULD NOT BE ABLE TO ENTER INTO THIS AGREEMENT WITHOUT SUCH PROVISIONS.
Infringement by Hearken
Hearken shall defend, indemnify, and hold You harmless from and against any claims, actions, and other proceedings, and shall pay all losses, damages, liabilities, settlements, judgments, awards, interest, civil penalties, and reasonable expenses (collectively, “Losses,” and including reasonable attorneys’ fees and court costs), to the extent arising out of any claims (each, a “Claim”) by any third party that the Service (excluding any User Content, and other material provided by You or Your Users) infringes upon any U.S. copyright or U.S. patent granted as of the date of the applicable Order Form. In the event of such a Claim, Hearken may, in its discretion, either procure the right to enable You to continue to use the allegedly infringing item or develop or obtain a non-infringing substitute of substantially equivalent functionality and performance. If Hearken determines that neither of the foregoing options is commercially reasonable or practicable, then, notwithstanding anything to the contrary elsewhere in this Agreement, Hearken may immediately terminate this Agreement or the applicable Order Form. Notwithstanding the foregoing, Hearken shall have no obligation to indemnify, defend, or hold You harmless from any Claim to the extent that it is based upon: (a) a modification by You or any User (or by anyone under Your or any User’s direction or control or using user IDs or passwords associated with Your Subscriptions) to the Service, including the Hearken App; (b) a modification made to the Service, including the Hearken App, by Hearken pursuant to Your order or specification or in reliance on materials or information provided by You; or (c) use by You or any User (or by anyone under Your or any User’s direction or control or using user IDs or passwords associated with Your Subscriptions) of the Service, including the Hearken App, or the results thereof, other than in accordance with this Agreement, or in the event You are in breach of this Agreement or any User is in violation of any obligation owed to Hearken with regard to the Service. Subject to the Limited Liability Section, this Section sets forth Your sole and exclusive remedy, and Hearken’s entire liability, for any Claim.
Indemnification by You
Except for Claims subject to indemnification under the previous section, You shall defend, indemnify, and hold Hearken, its Affiliates, subsidiaries, parent and any of their respective licensors, subcontractors, directors, managers, employees, agents, distributors, marketing partners, or resellers, its employees and subcontractors (the “Hearken Indemnitees”) harmless from and against all Claims, and shall pay all Losses, to the extent arising out of or related to: (a) Your and/or any of Your Users’ use or modification of the Service or any part thereof; (b) the violation of any rights of any third party in connection with Your and/or any of Your User’s use of the Service or any part thereof; (c) the User Content; (d) any act or omission by you; (e) any breach by you of this Agreement, including any breach by you of any covenant, representation or warranty made by you; and/or (f) Your and/or any of Your Users’ violation of any laws, rules or regulations applicable to Your and/or any of Your Users’ use of the Service. This indemnification obligation shall survive any termination of this Agreement.
With regard to any Claim subject to indemnification pursuant to this Section, the indemnified Party shall grant the indemnifying Party the right to assume full defense and control of such Claim and shall reasonably cooperate with the indemnifying Party regarding such Claim. Nevertheless, the indemnified Party may reasonably participate in such defense, at its sole expense, but shall not settle any such Claim without the indemnifying Party’s prior written consent. The indemnifying Party shall not settle or compromise any Claim in a manner other than the payment of monies by the indemnifying Party without the prior written consent of the indemnified Party, such consent not to be unreasonably withheld or delayed.
12. U.S. Government Restricted Rights
If the Service is used in any manner by for the benefit of the U.S. Government, its agencies or instrumentalities, whether through agreement, subcontract or by any other authority or means, the following shall apply: The Service is provided with RESTRICTED RIGHTS and constitute “Restricted Computer Service.” “Restricted Computer Service,” as used in this clause, means computer software developed at private expense and that is a trade secret; is commercial or financial and is confidential or privileged; or is unpublished copyrighted computer software, including minor modifications of any such computer software. Use, duplication or disclosure by the U.S. Government, its agencies and/or instrumentalities, is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer software clause at 48 C.F.R. 252.227-7013 or subparagraphs (i) (1) and (2) of the Commercial Computer Service Restricted Rights of 48 C.F.R. 52.227-b19, as applicable, or their respective successor provisions. In addition, or alternatively, at Hearken’s option, all software and software-related items licensed herein are “Commercial Computer Service” or “Commercial Computer Software Documentation” as defined in FAR 12.212 for civilian agencies and DFARS 227.7202 for military agencies, as applicable, or their respective successor provisions. The intent of the Parties is that no intellectual property rights or confidentiality of the Service is lost, diminished or transferred as a result of the execution of this Agreement. For purposes of this Agreement, all computer code underlying the Service is unpublished – all rights reserved under the Copyright Laws of the United States.
13. Access to Your Data After Termination or Expiration
For a period of thirty (30) days after the date of termination or expiration of this Agreement, Hearken shall make available to You within a reasonable time after Your request within such period, a copy of User Content for download or export as it exists on the date of termination or expiration of this Agreement. Thereafter, Hearken shall have no obligation to preserve, maintain, store or make User Content available and may delete or destroy User Content and all copies on its systems or otherwise in its possession or control, except to the extent prohibited by law.
15. General Provisions
Neither Party may assign, delegate, or otherwise transfer this Agreement or any of its rights or obligations hereunder, either voluntarily or by operation of law, without the prior written consent of the other Party (such consent not to be unreasonably withheld); provided, however, that either Party may assign this Agreement without the other Party’s consent in the event of a sale of all or substantially all of its assets or in the event of a merger, corporate reorganization or business consolidation of the Party (but excluding any assignment by You to a competitor of Hearken or any of its Affiliates.). For avoidance of doubt, in the event of a permitted assignment by You of this Agreement, the Subscriptions purchased by You hereunder would continue to be subject to the restrictions and limitations specified herein and in the applicable Order Form, including any limits focused on a specific business line, group, division or department of You. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
Compliance with Laws
Unless expressly stated herein, You shall not use or export (electronically or otherwise) the Service or any component thereof outside of the U.S. other than in compliance with all applicable U.S. export laws, rules, and regulations. You shall be solely responsible for such compliance. You agree to keep such books and records and to take such other actions as may be required by such applicable laws, rules and regulations.
No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed to constitute a waiver of such right or any other rights hereunder. No consent to a breach of any express or implied term of this Agreement shall constitute a consent to any prior or subsequent breach.
All notices under this Agreement shall be in writing. Notices shall be given personally, electronically via email, or sent by traceable postal service mail, e.g., certified or registered mail, or express courier (e.g., FedEx, UPS or DHL). Notices shall be deemed given and received: (a) upon delivery, if given personally; (b) as indicated in the applicable tracking information when an express courier is used; (c) two (2) business days after deposit by the sender with its national postal service (or the recipient’s national postal service if the sender elects) with the proper postage affixed, if sent by mail (or as otherwise indicated in the national postal service’s tracking information, if applicable); or (d) upon transmission if sent by email. Notices to Hearken can be mailed to Hearken at:
Email notices shall be sent to the organization account representatives.
If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.
Except for payment obligations hereunder, and notwithstanding anything in this Agreement to the contrary, neither Party will be liable or deemed to be in default for any delay or failure in performance hereunder to the extent resulting from causes beyond the Party’s reasonable control, including the acts or omissions of third parties, the acts or omissions of the other Party or any delay or failure of the other Party to fulfill its obligations hereunder, acts of God, terrorism, war, civil insurrection, strikes or other organized labor interruption, communications, mechanical, electronic, Internet or other utility interruptions or failures, including denial of service and other cyber-attacks or unauthorized or malicious data or system intrusions, including computer viruses or other malicious code, fire, explosions, floods or other natural disasters, or any similar cause.
Governing Law; Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the [STATE] without reference to its choice of law rules and as if wholly performed within [STATE]. Any judicial action or proceeding between the Parties relating to this Agreement must be brought in the federal or state courts located in [COUNTY]. Each Party consents to the jurisdiction of such courts, agrees to accept service of process by mail, and hereby waives all jurisdictional and venue defenses otherwise available to it.
This Agreement supersedes in full all prior discussions and agreements, oral and written, between the Parties relating to the subject matter hereof, and constitutes the entire understanding of the Parties. No additional terms proposed by You, whether electronically or otherwise or associated with any purchase order or other document You send to Hearken, shall be applicable to this Agreement or any Hearken products or services at present or in the future, absent the express manual written consent thereto by Hearken. If Hearken has commenced work at Your request in connection with the matters described in any Order Form for Professional Services, or request for proposal, all provisions of this Agreement as originally proposed by Hearken shall apply to such activities even if this Agreement has not been formally executed by both Parties.
Hearken may update and modify this Agreement from time to time by posting a modified or replacement version on the Hearken website. The modified Agreement will become effective and binding on the next business day after it is posted unless otherwise stated therein and You agree that such posting constitutes sufficient notice of the modification. If a modification, in Hearken’s sole determination, is material, Hearken will notify You, which notice may be sent by email. By continuing to access or use the Service after the modified Agreement becomes effective, You agree to be bound by the modified Agreement; provided, however, that, if You do not agree to the modified Agreement, You must notify Hearken in writing within fifteen (15) days of the applicable effective date of the Modified Agreement. If You provide such notice, Your Subscription Term will continue to be governed by the terms and conditions prior to modification for the remainder of Your current Subscription Term.
No Third Party Benefit
The provisions of this Agreement are for the sole benefit of the Parties hereto, and this Agreement neither confers any rights, benefits, or claims upon any person or entity not a Party hereto nor precludes any actions against, or rights of recovery from, any persons or entities not Parties hereto, except that Hearken shall be a third party beneficiary to such agreements as you enter into with Your Users with regard to use of the Service.
Hearken may publish Your name and logo on Hearken’s Website and refer to You as a customer in Hearken’s online, print and other advertising and materials, but only in a factually accurate manner.
In the event of any dispute between the Parties, prior to any Party commencing an action in court for damages, each Party shall meet in person or by phone in a good-faith attempt to resolve their differences. In the event that the Parties are unable to resolve their dispute in such meeting or such meeting does not occur within thirty (30) days of the initial notice being provided by the complaining Party, then either Party shall be free to pursue other available judicial remedies at law. Notwithstanding the foregoing, this paragraph shall not prevent or delay a Party from seeking any legal and/or equitable remedies available to such Party.
During the course of this Agreement or otherwise, You may provide, or Hearken may solicit, input regarding the Service, including comments, feedback or suggestions regarding the possible creation, modification, configuration, correction, improvement or enhancement of the Service, Hearken’s web site or any of Hearken’s or Hearken’s Affiliates’ products or services, or their operation, functions or features (collectively, “Feedback”). Any information Hearken discloses to You related to or in response to Feedback shall be protected as Confidential Information of Hearken subject to the protections the Confidentiality Section. For the consideration provided to You in the form of the right to use the Service, You agree that Hearken shall own all rights, title, and interest in and to the Feedback, even if You have designated the Feedback as confidential. Hearken and its Affiliates will be entitled to use the Feedback without restriction. You hereby irrevocably assign to Hearken all rights, title, and interest in and to the Feedback and agree to provide Hearken any reasonable assistance Hearken may require to document, perfect, and maintain its rights in the Feedback.
Relationship of The Parties
For purposes of this Agreement, neither party is an agent of the other, and neither party has any express or implied authority to act on behalf of, or make any representations whatsoever on behalf of, the other. Each party is an independent contractor with respect to the other and neither party shall have the power or authority to bind the other party to any contract or obligation.
The defined terms in this Agreement shall apply equally to both the singular and the plural forms of the terms defined. The term “person” includes individuals, corporations, partnerships, trusts, other legal entities, organizations and associations, and any government or governmental agency or authority. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The words “approval,” “consent” and “notice” shall be deemed to be preceded by the word “written.” The word “term” shall be deemed to refer to any term, condition or other type of provision under this Agreement. The word “will” shall be deemed synonymous with “shall” when referring to the acts or obligations of a Party. References to this Agreement in the context of any requirement of either Party to perform in accordance with this Agreement shall be interpreted to refer to the terms of this document, and such other terms as are contained in any Exhibit.
Each Party acknowledges that it has had the opportunity to have this Agreement reviewed by legal counsel and that the rule of construction to the effect that any ambiguities are to be resolved against the drafting Party shall not be employed in the interpretation of this Agreement or any other document executed and delivered by either Party in connection with the transactions contemplated by this Agreement. The captions in this Agreement are for convenience of reference only and shall not be used to interpret this Agreement. All dollar amounts stated in this Agreement are in U.S. dollars.