TERMS OF SERVICE
Last Updated: August 30, 2019
These Terms of Service (“Terms of Service,” “Agreement”) governs your (“Customer,” “User,” “your,” or “you”) use of Heap’s Services. The Terms of Service is a legally binding agreement between the User and Heap Inc., (“Heap,” “we,” “us,” or “our”).
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE SERVICE OFFERED BY HEAP.
PLEASE NOTE THAT THIS AGREEMENT CONTAINS A BINDING AND MANDATORY CUSTOMER ARBITRATION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES AND LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES. ANY DISPUTES RELATING TO THE AGREEMENT, YOUR ACCOUNT OR THE SERVICES PROVIDED BY US MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS. PLEASE SEE SECTION 13.8 FOR FURTHER DETAILS.
THIS AGREEMENT ALSO CONTAINS AN AUTORENEWAL CLAUSE. PLEASE REVIEW SECTION 8.1 TO UNDERSTAND THE COMPLETE EXTENT OF YOUR RIGHTS AND OBLIGATIONS UNDER THE AUTORENEWAL CLAUSE.
2. ACCEPTANCE OF THE TERMS OF SERVICE
WHEN YOU CREATE AND REGISTER AN ACCOUNT WITH US ON OUR WEBSITE I.E., LOCATED AT WWW.HEAP.IO (“WEBSITE”) OR BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH US WHICH REFERENCE THESE TERMS (EACH, AN “ORDER”) OR BY ACCESSING OR USING THE SERVICE IN ANY MANNER, YOU AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT (A) YOU ARE ATLEAST 18 YEARS OF AGE; (B) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT; AND (C) IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERMS “CUSTOMER,” “YOU” AND “YOUR” SHALL REFER TO SUCH AN ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
3. SERVICE & LICENSE
3.1 Services. Heap provides “Services” to its Customers. For the purpose of the Agreement, “Services” is defined as the software services provided by Heap to the Customer and as fully described under an applicable “Order” (as defined under Section 3.3). Subject to Heap’s receipt of the applicable Fees (as detailed under an Order) from the Customer, Heap will use commercially reasonable efforts to make the Services available to Customer, in compliance with the terms of this Agreement and an applicable Order.
3.2 License to Heap Services. Heap hereby grants the Customer, for the Term (as defined under Section 8.1), a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable right to access and use the Services. Any such use of the Services by Customer is authorized solely for Customer’s internal business and is subject to Customer’s compliance with any additional limitations and restrictions as may be specified under an applicable Order.
3.3 Order. For the purposes of this Agreement, an “Order” is defined as an order form or other similar document (including but not limited to an online order form) that details the Services being provided hereunder and the applicable Fees to be paid by the Customer to Heap. The Order may also provide details regarding the service level terms (if any). In the event of a conflict between the Order and the Terms of Service, the Order will prevail.
3.4 Trials. If Customer is accessing or making use of the Service on a trial basis or on an evaluation basis as identified in the corresponding Order (the “Trial”), Customer may use the Services during the Trial provided such use does not to exceed the service levels set forth in the corresponding Order. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE TRIAL IS PROVIDED ON AN “AS-IS” BASIS AND THE TRIAL IS PROVIDED WITHOUT ANY INDEMNIFICATION, SUPPORT, OR WARRANTIES OR REPRESENTATION OF ANY KIND. Further, Trial may be subject to certain additional restrictions, limitations and differing terms all as specified in the corresponding Order. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, FOR PURPOSES OF A TRIAL, THE SERVICE IS PROVIDED “AS-IS” WITHOUT ANY REPRESENTATIONS, WARRANTIES AND/OR INDEMNITEES.
3.5 No-fee Access. If Customer is accessing or making use of the Service on a no-fee basis (the “Limited Use”), Customer may use the Services during the Limited Use provided such use does not to exceed the Service levels specified on the Heap website with respect to Limited Use. Customer acknowledges and agrees that the Limited Use is provided on an “as-is” basis, and the Limited Use is provided without any indemnification, support, or warranties or representation of any kind. Additionally, Customer acknowledges and agrees that Heap may terminate the Limited Use at any time and for any reason or modify the applicable terms by publishing a notice on the Heap website.
3.6 Support Services. During the Term, Heap may also provide Customers with support services (“Support Services”). Customer acknowledges that such Support Services may be subject to additional Fees as provided for under an applicable Order. If Heap is proving the Customer with Support Services, it will be detailed under an applicable Order.
3.7 Service Suspensions. Heap may suspend Customer’s access to or use of the Services as follows: (a) immediately if Heap reasonably believes Customer’s use of the Services may pose a security risk to or may adversely impact the Services; (b) immediately if Customer become insolvent, has ceased to operate in the ordinary course, made an assignment for the benefit of creditors, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (c) following thirty (30) days written notice if Customer is in breach of this Agreement or any Order (and has not cured such breach, if curable, within the thirty (30) days of such notice); or (d) Customer has failed to pay Heap the Fees with respect to the Services.
4. RESTRICTIONS & RESERVATIONS
4.1 Restrictions. Customer will use the Services only in accordance with all applicable laws, including, but not limited to, laws related to data protection and privacy (whether applicable within the United States, the European Union, or otherwise). Customer agrees not to (and will not allow any third party to): (i) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discover the underlying structure, ideas, or algorithms of the Services or any software used to provide or make the Services available; or (iii) rent, resell or otherwise allow any third party access to or use of the Services.
4.2 Reservations. You acknowledge and agree that the Services are provided under license (as described under Section 3.2), and not sold, to you. Except to the extent necessary to access and use the Services, nothing in this Agreement grants any title or ownership interest in or to any copyrights, patents, trademarks, trade secrets or other proprietary rights in or relating to the Services whether expressly, by implication, estoppel or otherwise. Heap and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Services, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
5. PROPRIETARY RIGHTS
5.1 Ownership. Heap retains all right, title, and interest whether pre-existing or otherwise, in and to the Services, and any software, products, works or other intellectual property created, used, provided or made available by Heap under or in connection with the Services under this Agreement. Additionally, Heap owns the “Service Software” i.e., embedded in the Services. For the purposes of this Agreement, “Service Software” is defined as the any Heap or third-party software code, computer program, documentations, new versions, updates, enhancements, upgrades, revisions, improvements and modifications of the foregoing that Heap has embedded into the Services and is proprietary to Heap and Heap provides to the Customer under this Agreement. Customer acknowledges and understands that Heap owns all Service Software and all rights related thereto. Subject to the terms and conditions of this Agreement, including but not limited to receipt of all applicable Fees, to the extent Heap makes Service Software available to the Customer, Heap hereby grants to the Customer, and Customer hereby accepts from Heap, a limited, non-exclusive, non-transferable, non-assignable and non-sub-licensable license to: run such Service Software solely as necessary to make use of the Services.
5.2 Restrictions. Customer agrees that, it shall not: (a) exceed the scope of the licenses granted in Section 5.1; (b) make copies of the Service Software; (c) distribute, sublicense, assign, delegate, rent, lease, sell, time-share or otherwise transfer the benefits of, use under, or rights to, the license granted in Section 3.2 and Section 5.1; (d) reverse engineer, decompile, disassemble or otherwise attempt to learn the source code, structure or algorithms underlying the software, except to the extent required to be permitted under applicable law; (e) modify, translate or create derivative works of the Service Software; (f) remove any copyright, trademark, patent or other proprietary notice that appears on the Service Software or copies thereof; or (g) combine or distribute any of the Service Software with any third party software that is licensed under terms that seek to require that any of the software (or any associated intellectual property rights) be provided in source code form (e.g., as “open source”), licensed to others to allow the creation or distribution of derivative works, or distributed without charge.
5.3 Feedback. Customer may from time to time provide suggestions, comments or other feedback to Heap with respect to the Services (“Feedback”). Customer shall, and hereby does, grant to Heap a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.
5.4 Disclaimer. Nothing in this Agreement will impair Heap’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
6. DATA PRIVACY
6.2 Customer Data. Customer Data is, or shall be, and shall remain the property of the Customer. For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Services. Customer, not Heap, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer hereby grants Heap a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license to use, collect, transfer and process the Customer Data for the sole purpose of providing the Services to the Customer under the terms of the applicable Order and this Agreement.
6.3 Aggregated Data. Customer further understands and acknowledges that Heap may generate “Aggregated Data,” (as defined below) from the Customer Data. For the purposes of this Agreement, “Aggregated Data” means data submitted to, collected by, or generated by Heap from the Customer Data in connection with Customer’s use of the Services, but only in aggregated, anonymized and de-identified form which is not specifically linked to the Customer or any individual. Customer hereby agrees and understands that Heap may freely use Aggregated Data for its internal business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Heap’s products and services).
6.4 Customer Responsibility; Customer Data. Customer is solely responsible for Customer Data including, but not limited to: (a) compliance with all applicable laws and this Agreement; (b) any claims relating to Customer Data; (c) any claims that Customer Data infringes, misappropriates, or otherwise violates the rights of any third party; and (d) backing up and maintaining Customer Data.
6.5 GDPR Reference. If Heap processes Customer’s “Personal Data,” under this Agreement and such Personal Data is subject to the EU General Data Protection Regulation (the “GDPR”), the Customer may require Heap to enter into a Data Processing Agreement (“DPA”) with it. Under such a DPA, Heap shall be the data “Processor” and the Customer shall be the data “Controller.” Please note that the processing of Personal Data pursuant to this Agreements shall be subject to the Heap’s DPA. You may request to enter into the Heap DPA by sending a request to: firstname.lastname@example.org. All capitalized terms not defined herein i.e., under this Section 6.5 shall have the same meaning as ascribed to them under Article 4 of GDPR.
6.6 Heap’s Responsibility; Customer Data. Heap shall use commercially reasonable efforts to maintain the security and integrity of the Services and all Customer Data controlled by Heap. Heap is not responsible for unauthorized access to Customer Data or the unauthorized use of the Services unless such access is directly due to Heap’s gross negligence or willful misconduct. Customer is responsible for the use of the Services by any person to whom Customer has given access to the Services, even if Customer did not authorize such use. Heap reserves the right to retain Customer Data for up to thirty (30) days following the termination or expiration of the corresponding Order. Thereafter, Customer agrees and acknowledges that Customer Data may be irretrievably deleted.
7. FEES, ORDERS, AND TAXES
7.1 Fees. Customer shall pay to Heap the fees as set forth in each applicable Order(s) (collectively, the “Fees”). Customer acknowledges that it shall have no right to return the Services and that all Fees shall be non-refundable. All amounts payable to Heap under this Agreement shall be paid in United States dollars and shall be due thirty (30) days from the date of invoice. Notwithstanding any other rights of Heap, in the event of late payment by Customer, Heap shall be entitled to interest on the amount owing at a rate of 1% per month or the highest rate allowed by applicable law, whichever is less. If Heap is required to initiate legal action due to nonpayment of fees, Customer shall bear all costs resulting from the collection of such fees.
7.2 Additional Services. Customer may place Orders for additional Services or to extend the term of the existing Services by specifying such order details in an Order form agreed to in writing by the parties referencing the terms and conditions of this Agreement.
7.3 Taxes. If Heap has the legal obligation (under applicable law) to pay or collect taxes for which the Customer is responsible, including but not limited to, sales, use, transfer, privilege, excise, and all other taxes and duties that are levied or imposed by reason of performance of the Services by Heap under this Agreement, the appropriate amount shall be invoiced to and paid by the Customer, unless Customer provides Heap with a valid tax exemption certificate authorized by the appropriate taxing authority. All amounts payable to Heap under this Agreement shall be without set-off and without deduction of any taxes, levies, imposts, charges, withholdings and/or duties of any nature which may be levied or imposed, including without limitation, value added tax, customs duty and withholding tax.
8. TERM AND TERMINATION
8.1 Term. The term of this Agreement shall commence on the “Effective Date” and unless terminated earlier according to this Section 8, will end on the last day of the term specified in a last Order (the “Term”). Effective Date is defined as the date the Customer enters into this Agreement, signs an Order, and/or starts using our Services under the Trial. Each Order will renew automatically at the end of the applicable term unless either party provides to the other advance written notice with respect to non-renewal at least ninety (90) days prior to the end of the then current term.
8.2 Termination for Breach. This Agreement and the Orders hereunder may be terminated: (a) by either party if the other has materially breached this Agreement, within thirty (30) calendar days after written notice of such breach to the other party if the breach is remediable or immediately upon notice if the breach is not remediable; or (b) by Heap upon written notice to Customer if Customer (i) has made or attempted to make any assignment for the benefit of its creditors or any compositions with creditors, (ii) has any action or proceedings under any bankruptcy or insolvency laws taken by or against it which have not been dismissed within sixty (60) days.
8.3 Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall (i) immediately cease use of the Service, and (ii) return all Heap Confidential Information, and Heap provided software, and other materials and information provided by Heap. Any termination or expiration shall not relieve Customer of its obligation to pay all Fees accruing prior to termination. If the Agreement is terminated by Heap pursuant to Section 8.2 (a), Customer shall pay to Heap all of the Fees for the entire term set forth in the corresponding Order(s).
8.4 Survival. The following provisions will survive termination of this Agreement: Sections 5.1 (Ownership), 8.3 (Effect of Termination), Section 8.4 (Survival), Section 9 (Confidentiality), Section 10.1 (Indemnification by Customer), Section 11 (Limitation of Liability), Section 13 (Miscellaneous).
During the term of this Agreement, either party may provide the other party with confidential and/or proprietary materials and information (“Confidential Information”). All materials and information provided by the disclosing party and identified at the time of disclosure as “Confidential” or bearing a similar legend, and all other information that the receiving party reasonably should have known was the Confidential Information of the disclosing party, shall be considered Confidential Information. This Agreement is Confidential Information, and all pricing terms are Heap Confidential Information. The receiving party shall maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of the disclosing party. The receiving party will only use the Confidential Information internally for the purposes contemplated hereunder. The obligations in this Section shall not apply to any information that: (a) is made generally available to the public without breach of this Agreement, (b) is developed by the receiving party independently from and without reference to the Confidential Information, (c) is disclosed to the receiving party by a third party without restriction, or (d) was in the receiving party’s lawful possession prior to the disclosure and was not obtained by the receiving party either directly or indirectly from the disclosing party. The receiving party may disclose Confidential Information as required by law or court order; provided that, the receiving party provides the disclosing with prompt written notice thereof and uses the receiving party’s best efforts to limit disclosure. At any time, upon the disclosing party’s written request, the receiving party shall return to the disclosing party all disclosing party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof.
10.1 Indemnification by Customer. Customer will defend, indemnify, and hold Heap, its affiliates, suppliers and licensors harmless and each of their respective officers, directors, employees and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim with respect to: (a) Customer Data; (b) breach of this Agreement or violation of applicable law by Customer; or (c) alleged infringement or misappropriation of third-party’s intellectual property rights resulting from Customer Data or caused and contributed by the Customer.
10.2 Indemnification by Heap. Heap will defend, indemnify, and hold Customer harmless from and against any third party claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from claims by a thirty party that Customer’s use of the Service directly infringes or misappropriates a third party’s United States (or Berne Convention signatory country) intellectual property rights (an “Infringement Claim”). Notwithstanding any other provision in this Agreement, Heap shall have no obligation to indemnify or reimburse Customer with respect to any Infringement Claim to the extent arising from: (a) the combination of any Customer Data with the Service; (b) the combination of any products or services, other than those provided by Heap to Customer under this Agreement, with the Service; or (c) non-discretionary designs or specifications provided to Heap by Customer that caused such Infringement Claim. Customer agrees to reimburse Heap for any and all damages, losses, costs and expenses incurred as a result of any of the foregoing actions.
10.3 Notice of Claim and Indemnity Procedure. In the event of a claim for which a party seeks indemnity or reimbursement under this Section 10 (each an “Indemnified Party”) and as conditions of the indemnity, the Indemnified Party shall: (a) notify the indemnifying party in writing as soon as practicable, but in no event later than thirty (30) days after receipt of such claim, together with such further information as is necessary for the indemnifying party to evaluate such claim; and (b) the Indemnified Party allows the indemnifying party to assume full control of the defense of the claim, including retaining counsel of its own choosing. Upon the assumption by the indemnifying party of the defense of a claim with counsel of its choosing, the indemnifying party will not be liable for the fees and expenses of additional counsel retained by any Indemnified Party. The Indemnified Party shall cooperate with the indemnifying party in the defense of any such claim. Notwithstanding the foregoing provisions, the indemnifying party shall have no obligation to indemnify or reimburse for any losses, damages, costs, disbursements, expenses, settlement liability of a claim or other sums paid by any Indemnified Party voluntarily, and without the indemnifying party’s prior written consent, to settle a claim. Subject to the maximum liability set forth in Section 12, the provisions of this Section 10 constitute the entire understanding of the parties regarding each party’s respective liability under this Section 10, including but not limited to Infringement Claims (including related claims for breach of warranty) and each party’s sole obligation to indemnify and reimburse any Indemnified Party.
11.1 Warranty. The Services, when used by Customer in accordance with the provisions of this Agreement and in compliance with the applicable specifications will perform, in all material respects, the functions described in the Order (the “Specification”), during the term in the corresponding Order.
11.2 Exclusive Remedies. Customer shall report to Heap, pursuant to the notice provision of this Agreement, any breach of the warranty set forth in this Section 11. In the event of a breach of warranty by Heap under this Agreement, Customer’s sole and exclusive remedy, and Heap’s entire liability, shall be prompt correction of any material non-conformance in order to minimize any material adverse effect on Customer’s business.
11.3 Disclaimer of Warranty. Heap does not represent or warrant that the operation of the Service (or any portion thereof) will be uninterrupted or error free, or that the Service (or any portion thereof) will operate in combination with other hardware, software, systems or data not provided by Heap, except as expressly specified in the applicable Specification. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11.1, HEAP MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICE OR SERVICES, OR THEIR CONDITION. HEAP IS FURNISHING THE WARRANTY SET FORTH IN SECTION 11.1 IN LIEU OF, AND HEAP HEREBY EXPRESSLY EXCLUDES, ANY AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, WHETHER UNDER COMMON LAW, STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
12. LIMITATIONS OF LIABILITY
12.1 Exclusion of Incidental and Consequential Damages. EXCEPT FOR BREACH OF SECTION 10 (“CONFIDENTIALITY”) OF THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY OR ANY OF ITS AFFILIATES, EMPOYEES, DIRECTORS, OFFICERS, LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY LOST DATA, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT SERVICE OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES.
12.2 Cap on Monetary Liability. HEAP’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTH PERIOD PRECEEDING THE CLAIM.
13.1 Export Control. Customer hereby certifies that Customer will comply with all current US Export Control laws. Customer agrees to defend, indemnify and hold Heap harmless from any liability for Customer’s violation of U.S. Export Control laws.
13.2 Compliance with Laws. Customer shall comply with all applicable laws and regulations in its use of any Service, including without limitation the unlawful gathering or collecting, or assisting in the gathering or collecting of information in violation of any privacy laws or regulations. Customer shall, at its own expense, defend, indemnify and hold harmless Heap from and against any and all claims, losses, liabilities, damages, judgments, government or federal sanctions, costs and expenses (including attorneys’ fees) incurred by Heap arising from any claim or assertion by any third party of violation of privacy laws or regulations by Customer or any of its agents, officers, directors or employees.
13.3 Assignment. Neither party may transfer and assign its rights and obligations under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, Heap may transfer and assign its rights under this Agreement without consent from the other party in connection with a change in control, acquisition or sale of all or substantially all of its assets.
13.4 Force Majeure. Neither party shall be responsible for failure or delay in performance by events out of their reasonable control, including but not limited to, acts of God, Internet outage, terrorism, war, fires, earthquakes and other disasters (each a “Force Majeure”). Notwithstanding the foregoing: (i) Customer shall be liable for payment obligations for Service rendered; and (ii) if a Force Majeure continues for more than thirty (30) days, either party may to terminate this agreement by written notice to the other party.
13.5 Notice. All notices between the parties shall be in writing and shall be deemed to have been given if personally delivered or sent by registered or certified mail (return receipt), or by recognized courier service.
13.6 Independent Contractor. Heap is an independent Contractor and both parties agree that no agency, partnership, joint venture, or employment is created as a result of this Agreement. Customer does not have any authority of any kind to bind Heap.
13.7 Governing Law. This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the State of California, United States, without regard to its conflict of law provisions. The federal courts of the United States in the Northern District of California and the state courts of the State of California shall have exclusive jurisdiction to adjudicate disputes arising out of or relating to this Agreement, for any actions that are not subject to the Binding Arbitration provision under Section 13.8. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or any Purchase Order issued under this Agreement.
13.8 Binding Arbitration. Any unresolved controversy or claim arising out of or relating to this Agreement, except as (i) otherwise provided in this Agreement, or (ii) any such controversies or claims arising out of either party’s intellectual property rights for which a provisional remedy or equitable relief is sought, will be submitted to mandatory and binding arbitration by one arbitrator mutually agreed upon by the parties, and if no agreement can be reached within thirty (30) days after names of potential arbitrators have been proposed by the American Arbitration Association (the “AAA”), then by one arbitrator having reasonable experience in corporate finance transactions of the type provided for in this Agreement and who is chosen by the AAA. The arbitration will take place in \HeaSan Francisco, California, in accordance with the AAA rules then in effect, and judgment upon any award rendered in such arbitration will be binding and may be entered in any court having jurisdiction thereof. Unless otherwise agreed to in writing by all of the parties, there will be limited discovery prior to the arbitration hearing as follows: (i) one set of interrogatories; (ii) one set of admissions, (iii) exchange of witness lists and copies of documentary evidence and documents relating to or arising out of the issues to be arbitrated, and (iv) depositions of all party witnesses. Depositions will be conducted in accordance with the California Code of Civil Procedure, the arbitrator will be required to provide in writing to the Parties the basis for the award or order of such arbitrator, and a court reporter will record all hearings, with such record constituting the official transcript of such proceedings.
13.9 Marketing. Customer hereby grants Heap the right to identify Customer as a Heap Customer, and use Customer’s name, mark and/or logo on Heap’s website and/or in Heap’s marketing materials in connection with the Customer’s use of the Service.
13.10 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. Any term or provision of this Agreement held to be illegal or unenforceable shall be, to the fullest extent possible, interpreted so as to be construed as valid, but in any event the validity or enforceability of the remainder hereof shall not be affected. In the event of a conflict between this Agreement and the Order document, the terms of this Agreement shall control, other than terms expressly modified in any Order with respect to such Order.
Last Updated: August 30, 2019