Heedify

Terms

Please read these terms of service and our Privacy Notice (together, these “Terms”) carefully as they form a contract between the Customer and Heedify Inc. and its Group Companies (collectively “Heedify” or “Provider“) and govern use of and access to the Service(s) and Websites by Customer, Customer’s Affiliates, Users and End-Users. In the event of a conflict between these terms of service and our Privacy Notice, these terms of service shall prevail.

By accessing or using the Service(s) or Websites or authorizing or permitting any User or End-User to access or use the Service(s) or Websites, Customer agree to be bound by these Terms. If the Customer is entering into these Terms on behalf of a company, organization or another legal entity (an “Entity”), Customer agrees to these Terms for that Entity and representing to Provider that Customer has the authority to bind such Entity and its Affiliates to these Terms, in which case the terms, “Customer” or related capitalized terms used herein shall refer to such Entity and its Affiliates. If Customer does not have such authority, or if Customer does not agree with these Terms, Customer must not accept these Terms and may not access or use the Service(s) or Websites.

Customer, as an individual, must be 18 years or older to access or use the Websites and the Service(s).

Customer and Provider are individually referred to as “Party” and collectively as “Parties”.

The Parties agree as follows:

 

 1. Responsibilities of Provider

Provider will (a) make the Service(s) available to Customer pursuant to the applicable SOF (or online registration through the Website(s)) and Documentation, (b) use commercially reasonable efforts to make the Service(s) available in accordance with its service levels, and (c) provide the Service(s) in accordance with laws and government regulations applicable to locations where Provider hosts the Service(s). Subject to Customer’s compliance with the Terms and solely during the Subscription Term (and any renewals thereof in accordance with Section 8.1 of the Terms), Provider grants to Customer a limited, non-exclusive, non-transferrable, and revocable right to access and use the Service(s) for its internal business purposes, including the right to download, install and use the Mobile Applications.

 

2. Responsibilities of Customer

2.1 Customer Account: Customer shall be solely responsible for the confidentiality of Service Data and login information. Notwithstanding Provider’s obligations under Section 9 of the Terms, Customer shall be responsible for use of the Service(s) through Customer’s Account by any third party. Customer shall use best efforts to prevent unauthorized access to, or use of, the Service(s), and notify Provider promptly of any such unauthorized access or use of which Customer becomes aware. Provider and its Affiliates shall not be liable for any damage or loss that may result from Customer’s failure to protect Customer’s login information.

2.2 Use of the Service(s):  Customer agrees not to (i) use the Service(s) To Process data on behalf of any third party other than Customer’s Users and End-Users; (ii) use the Service(s) to send unsolicited communications, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (iii) use the Service(s) in any unlawful manner, including but not limited to violation of any person’s privacy rights; (iv) use the Service(s) to store or transmit any content that infringes upon any person’s intellectual property rights; (v) use the Service(s) in any manner that interferes with or disrupts the integrity or performance of the Service(s) and its components; (vi) use the Service(s) to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (vii) use the Service(s) to post, transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (viii) use the Service(s) for the purposes of cookie tracking, ad exchanges, ad networks, data brokerages, or sending electronic communications (including e-mail) in violation of applicable law (ix) use the Service(s) to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103 unless expressly agreed to otherwise in a signed writing by Provider; or (x) use the Service(s) to store or transmit any “Payment Card Industry” data as that term is defined by Payment Card Industry Data Security Standards unless expressly agreed to otherwise in a signed writing by Provider.

2.3 General Restrictions: Customer shall not (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service(s) available to any third party, other than Users and End-Users in furtherance of its internal business purposes as expressly permitted by the Terms; (ii) modify, adapt, or hack the Service(s) or otherwise attempt to gain or gain unauthorized access to the Service(s) or related systems or networks; (iii) falsely imply any sponsorship or association with Provider; (iv) attempt to decipher, decompile, reverse engineer, disassemble, reproduce, or copy or otherwise access or discover the source code or underlying program of any Software making up the Service(s); (v) establish a link to the Website(s) in such a way as to suggest any form of association, approval or endorsement on Provider’s part where none exists; or (vi) try to use, or use, the Service(s) in violation of the Terms. Without limiting the foregoing, Customer is solely responsible for ensuring that Customer’s use of the Service(s) is compliant with all applicable laws and regulations.

 

2.5 Security Responsibilities:  Customer shall be responsible for maintaining the security of access to Customer’s Account (“Security Access”).  Any loss of data or attempted or actual access or use of the Service(s) resulting from a breach of Security Access shall be the sole responsibility of Customer.

 

3.Access to Service(s)

3.1. Agents: Access and use of the Service(s) is restricted to the specified number of individual agents/Users (i) permitted under the applicable SOF or (ii) registered for use via the online registration through the Website(s).

3.2 Downtime: Customer may not be able to access or use the Service(s) (a) during planned downtime for upgrades and maintenance to the Service(s) (of which Provider will use commercially reasonable efforts to notify Customer in advance through the Service(s)), or (b) during any unavailability caused by circumstances beyond Provider’s reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Provider’s reasonable control (including, without limitation, inability to access the internet), or acts undertaken by third parties, including, without limitation, distributed denial of service attacks (“Force Majeure Event”). Customer acknowledges that in the event of Force Majeure Event, Provider shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event hinders the performance of said obligations (or part thereof). Provider will make reasonable efforts to mitigate the effects of the Force Majeure Event.

 

4. Changes to the Service(s)

Provider may update the Service(s) from time to time and Customer may receive notifications of such upgrades, enhancements, or updates (“Updates”). Any new or modified features added to, augmenting, or otherwise modifying the Service(s) or other Updates, modifications or enhancements to the Service(s) are also subject to the Terms and Provider reserves the right to deploy Updates at any time. Customer agrees that its purchase of the Service(s) is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by Provider with respect to future functionality or features.

 

5.Ownership of IPR

5.1 Ownership of IPR: All rights, title, and interest in and to (i) Documentation; (ii) Software and Provider’s API; and (iii) all of Provider’s patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights in or related to the Service(s), including the Website(s), and any part of the Service(s) (collectively, “Intellectual Property Rights”) or any derivatives thereto shall belong to and remain exclusively with Provider. Provider is the owner or the licensee of all Intellectual Property Rights in the Website(s), and the content or material published on the Website(s).

5.2 License to Marks: Each Party owns all rights, title, and interest in its product and service names, logos, and registered or unregistered trademarks (collectively, “Marks”). Customer hereby grants Provider a limited license to use, reproduce, publish, and distribute Customer’s Marks to identify Customer as a user of the Service(s). By way of example, use includes, without limitation, response to RFPs/bids, testimonials, websites, marketing materials, and press releases/earnings announcements.

 

6. Other Services

Certain other services such as third-party Apps are made available to Customer through the Market Place or other forums (“Third-Party Services”). These Third-Party Services are developed for their integration with the Service(s) and are governed by their own terms and privacy policies. By enabling the Third-Party Services, Customer understands and agrees that Provider is neither responsible for Customer’s use of these Third-Party Services, nor does it provide any warranties whatsoever for these Third-Party Services. Provider is also not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access or use of any such Third Party Services, or Customer’s reliance on the privacy practices, data security processes or other policies of such Third Party Services. Customer understands that Provider is not responsible for providing technical support for the Third-Party Services and that Provider is not responsible for the data hosting and data transfer practices followed by providers of such Third-Party Services.

7. Billing, Plan Modifications and Payment

7.1 Charges: All charges associated with Customer’s Account (“Subscription Charges”) are set forth in the applicable SOF or on the Website(s) and due in full and payable in advance upon Customer’s receipt of Provider’s invoice in accordance with Section 7.2. Payment obligations are non-cancelable, and except as expressly permitted in the Terms, fees paid are non-refundable.

7.2 Payment methods: Customer shall pay the Subscription Charges through an accepted payment method as specified in the applicable SOF or on the Website(s).

7.3 Renewal: Customer’s subscription to the Service(s) will renew automatically for a Subscription Term in accordance with the renewal terms and conditions set forth in Section 8.1.

7.4 Late Payments/Non-payment of Subscription Charges: If the Subscription Charges are more than thirty (30) days overdue, then, following a notification of suspension, Provider may suspend Customer’s access to the Service(s), including, without limitation, Customer’s Account, until such unpaid Subscription Charges are paid in full. Customer further acknowledges that Provider is not required to serve notices for late payments of Subscription Charges.

7.5 Upgrades:  Subject to the Terms, Customer may upgrade Customer’s Account at any time during the Subscription Term (or any renewals thereof in accordance with Section 8.1) via an executed SOF or through the Website(s); provided, however, that Customer acknowledges that the number of Users may not be decreased. When Customer upgrades its Account, the new Subscription Charges become immediately applicable and the new Subscription Charges for the subsisting month will be charged on a pro-rated basis.

7.6 Applicable Taxes: Except as set forth in the applicable SOF or on the Website(s), the Subscription Charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Customer agrees to pay applicable direct or indirect Taxes associated with its purchases hereunder.  If Customer has an obligation to withhold any amounts under any law or tax regime (other than U.S. income tax law), Customer shall gross up the payments so that the Provider receives the amount actually quoted and invoiced.  If the Provider has the legal obligation to pay or collect Taxes for which Customer is responsible for this section, the appropriate amount shall be invoiced and paid by the Customer, unless the Customer provides Provider with a valid tax exemption certificate authorized by the appropriate taxing authority.

8. Term, Termination, and Suspension

8.1 Term: These Terms shall be deemed effective for Customers the date of sign up and shall continue through the Subscription Term. Service Plans commence on the start date specified in the relevant SOF (or for online Customers the date of sign up) and continue for the Subscription Term specified therein. Unless a Party gives written notice of non-renewal at least sixty (60) days prior to the expiration of the relevant Subscription Term, Service Plans will automatically renew for a period equal to the previous Subscription Term and such renewal plan shall be at the then current subscription rates. Provider reserves the right to increase the subscription fees on an annual basis at the beginning of each Subscription Term.

8.2 Suspension:  Provider may suspend Customer’s access to the Service(s), including, without limitation, Customer’s Account, on the following grounds: (i) late payment/non-payment of Subscription Charges; (ii) non-renewal of the Service(s) by Customer; or (iii) breach of the Terms. Provider shall notify Customer of any such suspension. Customer must remedy such violations prior to Provider restoring full access to and use of the Service(s). Such suspension will in no way affect Customer’s other obligations under the Terms.

8.3 Termination:  Provider reserves the right to terminate these Terms and any Service(s) hereunder in addition to suspension, if; (i) a breach by Customer remains uncured for more than ten (10) days from the breach; or (ii) if Provider believes that Customer’s breach of the Terms cannot be cured. Upon such termination, Customer must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. Either Party may terminate these Terms by written notice to the other Party in the event that (i) such other Party materially breaches the Terms and does not cure such breach within thirty (30) days of such notice, or (ii) immediately in the event the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

8.4 Free Trial Customers: Upon the expiration of Customer’s free trial, Provider may immediately suspend Customer’s access to the Service(s), including, without limitation, Customer’s Account. Customer must export Service Data before the end of the free trial or Service Data will be permanently lost. Provider shall have no obligation to maintain, store or otherwise retain Service Data beyond the end of the free trial period.

 

9. Confidentiality

9.1 If Customer chooses, or Customer is provided with, a user identification code, password, or any other piece of information as part of Provider’s security procedures, Customer must treat such information as confidential. Customer must not disclose it to any third party. Provider has the right to disable any user identification code/user login or password, whether chosen by Customer or allocated by Provider, at any time, if in Provider’s reasonable opinion, Customer has failed to comply with any of the provisions of the Terms.

9.2 Confidentiality obligations: Each of the Parties will protect the other’s Confidential Information from unauthorized use, access, or disclosure in the same manner as each of the Parties protects its own Confidential Information, and in any event, no less than reasonable care. Except as otherwise expressly permitted pursuant to the Terms, each of the Parties may use the other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under the Terms and shall disclose such Confidential Information solely to those of its respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound in writing to maintain the confidentiality of, and not misuse, such Confidential Information; provided, however, that Provider may use feedback and Customer (or Customer’s End-Users) data to provide Customer reports on Customer’s usage/implementation of the Service(s), or for Provider’s product development. The provisions of this sub-section shall supersede any non-disclosure agreement by and between the Parties entered into, prior to the Terms that would purport to address the confidentiality of Service Data and such agreement shall have no further force or effect with respect to Service Data.

9.3 Data Security: Provider will use appropriate technical and organizational measures to protect the Service Data. Provider’s measures are designed to provide a level of security appropriate to the risk of Processing the Service Data. Customer understands that Provider and its Affiliates shall process Service Data in accordance with Applicable Data Protection Law(s) and in accordance with its Privacy Notice which is incorporated into the Terms by reference.

 

10. Data Export

10.1 Data Export:  Provider strongly recommends that Customer export all Service Data before Customer terminates Customer’s Account. Customer agrees following the termination of Customer’s Account either by Customer or Provider, Service Data will be retained or deleted in accordance with Supplemental Terms, as applicable to Customer. Where the Service Data is retained and can be exported, Customer may contact Provider within such Data Retention Period to export Customer’s Service Data. Service Data cannot be recovered once it is deleted.

 

11.Disclaimer of Warranties

PROVIDER WARRANTS THAT THE SERVICE(S) WILL PERFORM IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH THE DOCUMENTATION. THE THIRD-PARTY SERVICE(S), ALL SERVER, NETWORK COMPONENTS, APPS, APIs, AND DATA MIGRATION ARE PROVIDED “AS IS”. EXCEPT AS SET FORTH HEREIN, ALL REPRESENTATIONS AND WARRANTIES, INCLUDING ALL LIMITED WARRANTIES SUCH AS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS, FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE HEREBY EXCLUDED.

CUSTOMER ACKNOWLEDGES THAT PROVIDER DOES NOT WARRANT THAT THE ACCESS TO THE SERVICE(S), WHICH IS PROVIDED OVER INTERNET AND VARIOUS TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND PROVIDER’S CONTROL, WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE.

 

12. Limitation of Liability

SUBJECT TO APPLICABLE LAW AND NOTWITHSTANDING ANYTHING ELSE IN THE TERMS, IN NO EVENT WILL PROVIDER BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DOWNTIME COSTS, LOSS OF DATA, RESTORATION COSTS, LOST PROFITS, OR COST OF COVER) REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER LEGAL THEORY. PROVIDER’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THE SERVICE(S), WILL NOT EXCEED AN AMOUNT EQUAL TO THE SUBSCRIPTION CHARGES PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.

THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE CUSTOMER FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.