Terms of Service
General Terms and Incorporation of External Agreements
1. Your Agreement to the Terms
The following Terms and Conditions of Use ("Terms") apply to the enumerated items as follows (collectively, the "Service"):
- The iOS app named HeartCloud Sync
- The web site located at https://www.heartcloud.io
- The web site located at https://www.practices.heartcloud.io (HeartCloud for Health Practices)
- All other web sites that are subdomains of the heartcloud.io domain
- and any online features and/or applications offered by HeartCloud, and well as to any text, graphics, photos, material, data, and any other information uploaded, downloaded, or appearing on the Service (collectively, the "Content").
Please read the Terms in their entirety, as they explain your rights and obligations whenever you access or use the Service.
The Service is intended solely for users who are 13 years of age or older. Any registration or use of the Service by anyone under age 13 is unauthorized, unlicensed, and in violation of these Terms. By registering for or using the Service, you represent that you are 18 years of age or older, or you are at least 13 years of age and have your parent’s or legal guardian’s consent to the Terms.
BY REGISTERING FOR OR USING THE SERVICE, YOU AGREE TO BE BOUND BY ALL OF THESE TERMS. IF YOU DO NOT AGREE TO ANY PORTION OF THESE TERMS, YOU ARE NOT AUTHORIZED TO REGISTER FOR OR USE THE SERVICE.
2. Incorporation of External Contracts
Applicable To Users Of The The HeartCloud Sync iOS App: This document incorporates the "LICENSED APPLICATION END USER LICENSE AGREEMENT" (available at: https://www.apple.com/legal/internet-services/itunes/dev/stdeula/), as applicable to users of the as they apply to users who download and use the HeartCloud HeartCloud Sync from the Apple App Store. By agreeing to these Terms, you also agree to the Apple LICENSED APPLICATION END USER LICENSE AGREEMENT, which you are encouraged to read in its entirety.
3. Site Ownership
Provided that you are authorized to use the Service and agree to the Terms, HeartCloud hereby grants you a personal, non-exclusive, non-transferable, non-commercial, limited privilege to access and use the Service in accordance with these Terms. Any rights not expressly granted to you under these Terms are reserved by HeartCloud. You do not own the Service or any of its Content.
4. Right to Modify Terms at Any Time
HeartCloud reserves the right, at its sole discretion, to change these Terms at any time and for any reason. It is your responsibility to check these Terms periodically for any changes. When the Terms are modified, HeartCloud will post the updated Terms and indicate the date of revision, at which point the new Terms take effect immediately ("Effective Date"). If the changes are reasonably material, HeartCloud will notify you by email or posting a notice on the Service, and provide a reasonable amount of time for you to review the new Terms, before the Effective Date. BY CONTINUING TO ACCESS OR USE THE SERVICE ON OR AFTER THE EFFECTIVE DATE, YOU AGREE TO BE BOUND BY THE TERMS, AS MODIFIED.
5. Not a Substitute for Medical Advice
You should not use any information found on the Service to replace a relationship with a physician or other healthcare professional. Use of the Service or any Content is not intended in any way to be a substitute for professional medical advice. Always seek the advice of your physician or other qualified healthcare provider with any questions you may have regarding a medical condition, and before starting, stopping, or modifying any treatment or medication. Neither the Service nor any Content offered by or communicated to you through the Service is intended to be relied upon for medical diagnosis or treatment. Never delay obtaining medical advice or disregard medical advice or treatment because of something you have or have not read on the Service. In the case of a health emergency, seek immediate assistance from emergency personnel.
6. No Physician-Patient Relationship Formed By Your Use of HeartCloud or HeartCloud for Health Practices
While laws pertaining to specific factual scenarios mays differ between jurisdictions, a physician-patient relationship is generally formed when a medical doctor (or a legal equivalent, such as a doctor of osteopathic medicine) affirmatively acts to provide, or agrees to provide, a diagnosis, examination, treatment, prescription, or other medical function to an individual (the patient).
HeartCloud, Inc. does not practice medicine, nor does it provide medical care or advice to any person. HeartCloud, Inc. instead provides a platform, HeartCloud, for individuals to utilize their health, activity, and workout session data, and to optionally share such data with other medical professionals and/or medical entities that use HeartCloud for Health Practices.
As a condition of your use of the Service, you expressly acknowledge and agree that neither HeartCloud, Inc. nor any of its employees, consultants, or agents acting on behalf of HeartCloud, Inc. are acting or agreeing to act with respect to your use of the Service (or use that you authorize with your account and/or data on the Service) such that a physician-patient relationship is established between between you and HeartCloud, Inc. and/or you and an employee, consultant, or other agent acting on behalf of HeartCloud, Inc.
While patients and their physician(s) may elect to use all or some software offered by HeartCloud, Inc. under a physician-patient relationship, HeartCloud, Inc. has not, does not, and shall not undertake or agree to undertake actions sufficient to form, or be party to, a physician-patient relationship or to engage in the practice of medicine.
1. Content Available Through the Service
The Service is offered to you as a convenience. By merely providing access to the Service, HeartCloud and its affiliates, subsidiaries, officers, directors, agents, employees, licensors, creators, suppliers, contractors, owners, and investors (collectively, the "HeartCloud Entities") do not represent or warrant that: (i) the Content is accurate, complete, up-to-date, or current; (ii) HeartCloud has any obligation to update any Content; (iii) the Content is free from technical inaccuracies or typographical errors; (iv) the Content does not infringe on the intellectual property rights of any third party; (v) the Content is free from changes caused by a third party; and/or (vi) your access to the Service and any Content stored on or accessed through the Service will be free from interruptions, errors, corruption, loss, computer viruses, or other harmful components. You are responsible for backing up any Content that you store or access through the Service. The Content is made available on an "as is" basis.
HeartCloud and the HeartCloud Entities shall not be liable for the actions or inactions of any third party services used or provided in conjunction with the Service, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted, linked from, or otherwise accessible through the Service.
You agree that you are solely responsible for your use and reuse of any Content made available through the Service, including sharing it with any health care providers. You should review your specific requirements, including, but not limited to, applicable laws, regulations, permits and licenses, before you use the Content. To the extent you choose to access and use the Service, or store Content by means of the Service, you remain responsible for compliance with any and all applicable laws.
NEITHER HEARTCLOUD NOR ANY OF THE HEARTCLOUD ENTITIES MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE CONTENT OF THE SERVICE OR ANY INFORMATION FURNISHED BY OR THROUGH THE SERVICE AND SPECIFICALLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, COMPLETENESS, TIMELINESS, CORRECTNESS, NONINFRINGEMENT, AND FITNESS FOR ANY PARTICULAR USE, APPLICATION, OR PURPOSE.
2. Content Supplied by You
You represent, warrant, and agree that any material, data, and information posted or otherwise shared by you on or through the Service (collectively, "Your Content") does not: (i) violate or infringe upon the rights of any third party, including, but not limited to, copyright, trademark, personal rights, proprietary rights, and breaches or conflicts with any obligations; and (ii) contain unlawful material or violate any local, state, national, or international laws in any jurisdiction to which you are subject.
Auto-Renewable Subscription to Use the Service
1. Fees and Renewal
In order to use the Service, you must first purchase an auto-renewable subscription ("Subscription") and pay the applicable fee for the selected Subscription ("Subscription Fee"). You may select either a monthly or yearly Subscription. The monthly Subscription Fee is $9.99/month plus any applicable taxes. The yearly Subscription Fee is $99/year plus any applicable taxes. You will be charged the applicable Subscription Fee, every month (under a monthly Subscription) or every year (under a yearly Subscription), until you cancel your Subscription or it is otherwise terminated.
UNLESS YOU CANCEL YOUR SUBSCRIPTION BEFORE THE NEXT SUBSCRIPTION FEE IS CHARGED, YOU UNDERSTAND AND AFFIRMATIVELY AGREE THAT YOUR SUBSCRIPTION WILL AUTOMATICALLY CONTINUE (MONTHLY OR YEARLY, DEPENDING ON THE SELECTED SUBSCRIPTION) AND YOU AUTHORIZE HEARTCLOUD (WITHOUT NOTICE TO YOU, UNLESS REQUIRED BY APPLICABLE LAW) TO COLLECT THE THEN-APPLICABLE SUBSCRIPTION FEE AND ANY TAXES, USING ANY ELIGIBLE PAYMENT METHOD HEARTCLOUD HAS ON RECORD FOR YOU.
Your Subscription will continue until canceled. You may cancel your Subscription at any time by visiting your account and adjusting your Subscription settings. If all eligible payment methods HeartCloud has on file for you are declined for payment of your Subscription Fee, you must provide a new eligible payment method promptly or your Subscription will be canceled and you will be solely responsible for any loss of Your Content that results.
3. Suspension and Termination
By HeartCloud: HeartCloud may limit, suspend, or terminate your Subscription and/or access to any portion of the Service at any time and for any reason, without notice to you. HeartCloud will not provide any refund if the suspension or termination is related to conduct that HeartCloud suspects or determines, in its sole discretion, violates these Terms or any applicable law; involves fraud or misuse of the Service, the Content, or your Subscription; or is harmful to HeartCloud’s interests or another user. In the event HeartCloud terminates your Subscription for any other reason, HeartCloud will issue you a prorated refund based on the number of days remaining in your Subscription as of the date of the termination.
By you: If you wish to terminate any obligation you have under these Terms, you may do so at any time by cancelling your Subscription, closing your account and the accounts of any users (if applicable) that you have created through the Service, and immediately ceasing all access and use of the Service. In the event of termination by you, HeartCloud will issue you a prorated refund based on the number of days remaining in your Subscription as of the date of the termination. Should you elect to terminate your use of the Service, you are solely responsible for downloading any of Your Content you require before terminating your obligation to comply with any clauses in these Terms.
Automatic upon breach: Your right to access and use the Service terminates automatically upon your breach of any of the Terms. In the event of termination upon your breach of any of the Terms, you are not entitled to any refund or extract of Your Content.
The Disclaimer of Warranties, Limitation of Liability, Indemnification, Choice of Law, and Dispute Resolution provisions will survive any termination of your use of the Service, whether elective or not.
1. Self Representation
You must be 13 years or older to use the Service, and you must provide your legal name, a valid email address, and valid information for your account details. Your login may only be used by one person, and your login may not be used by "bots" or other automated methods. Violating Laws And Rights: You may not: (1) use the Service for any illegal purpose or in violation of any local, state, national, or international laws; (2) violate or encourage others to violate any rights of or obligations to a third party in relation to use of the Service; (3) otherwise solicit the performance of any illegal activity or other activity that infringes upon the rights of HeartCloud or others. For the purposes of these Terms, you stipulate that your jurisdiction is determined by the physical location from which you access the Service.
You may not use the Service or any information provided through the Service for the transmission of advertising or promotional materials, including but not limited to junk mail, spam, chain letters, pyramid schemes, or any other form of unsolicited or unwelcome solicitation to any person, entity, business, government, or otherwise any recipient.
You may not use the Service in any manner that could disable, overburden, damage, or impair the Service, or interfere with any other party’s use of the Service, including but not limited to: (1) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code that impacts the information security of the Service; (2) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service; (3) violating any regulation, policy, or procedure of any network, equipment, or server; (4) conducting any unauthorized vulnerability, penetration, or load stress testing on the Service without explicit, written authorization from HeartCloud.
4. Harming Others:
You may not post or transmit Content on or through the Service that is harmful, offensive, obscene, abusive, invasive of any privacy rights, defamatory, hateful, or otherwise discriminatory, false or misleading, or incites an illegal act; you may not intimidate or harass another through the Service; and you may not post or transmit any personally identifiable information about persons under 18 years of age on or through the Service.
5. Impersonation Or Unauthorized Access:
When using the Service, you may not: (1) illicitly or without lawful authorization pretend that you are, or that you represent, someone else, or impersonate any other individual or entity on the Service; (2) misrepresent your affiliate with a person or entity; (3) use or attempt to use the account or personal information of any person, entity, business, government of the Service; (4) attempt to gain unauthorized access to the Service, or the computer systems or networks connected to the Service, through any security intrusion, hacking, password mining, social engineering, or any other means; nor (5) utilize or manipulate any device (mechanical, electronic, or otherwise), hardware, middleware, software to attempt to interfere or interfere with the proper and normal functionality of the Service, or any transaction being conducted on the Service, or with any other party’s use of the Service.
6. Content Monitoring:
You may not utilize any "deep-link," "spider," "page scrape(r)," "robot," or any other automatic device, program, methodology, algorithm, or any similar, equivalent, or manual process to search for, acquire, access, copy, monitor, or obtain any portion(s) of the Service or any Content through any means or methods not purposely and directly made available through the Service. At its sole discretion, HeartCloud reserves the right to monitor and ban the source of such activity from accessing and using the Service or the company’s other resources.
All text, photographs, graphics, user interfaces, visual interfaces, HeartCloud trademarks, logos, sounds, artwork and computer code (collectively, the "Service IP"), including, but not limited to, the design, structure, functionality, selection, coordination, expression, "look and feel," practice, and spatial arrangement of the Service IP on the Service is owned, controlled or licensed by or to, respectively, HeartCloud, and is respectively protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.
Except as expressly permitted in these Terms, no component, aspect, or portion of the Service and/or Content proprietary to HeartCloud may be replicated, republished, reproduced, distributed in any way, including "mirroring," "scraping," or by any means mechanical or electronic including, but not limited to, any other person, electronic or mechanical computer device, web, database or other server type, web site, or another medium or method of commercial enterprise or venture without the explicit, written consent of an authorized HeartCloud representative or agent.
2. Accounts and Information Security
Certain products, services, features, or enhancements offered or promoted on or through the Service may require you to create an account. You are solely and entirely responsible for maintaining the confidentiality, availability, and integrity of your account information, including your username, password, security questions, and for all activity that occurs under your account (hereafter "Account Credentials and Activity"). HeartCloud shall bear no liability for your failure to keep your Account Credentials and Activity confidential. HeartCloud or its licensees, partners, and subsidiaries, owners or any other user, visitor, or administrator of the Service, due to the abuse or misuse of your Account Credentials and Activity, may hold you liable as a result of your failure to keep such information secure and confidential.
You hereby agree to notify HeartCloud immediately and exclusively of any information security vulnerabilities found in the Content or the Service. You should contact us at [email protected] You may not in any way use or share your username, password, or security questions on the Service in connection with your use of the Service with any other individual or entity. Your visitation and use of the Service constitutes acknowledgement and agreement that data or resources and information you use, access, upload, download, and any communications you make and commercial transactions cannot be guaranteed secure and private, even withstanding the security measures implemented by HeartCloud and third parties.
3. Copyright Complaints
HeartCloud prohibits users of the Service from submitting, uploading, posting, or otherwise transmitting any Content on the Service that violates another person’s or company’s proprietary rights, and HeartCloud makes its best effort to avoid using any Content that violates such rights.
To report allegedly infringing Content hosted on a website owned or controlled by HeartCloud, send a Digital Millenium Copyright Act ("DMCA") Notice to:
DMCA Agent: Alex Podobas, JD
11620 Wilshire Boulevard, Suite #210
Los Angeles, California
1. Medical Disclaimers
HEARTCLOUD DOES NOT RENDER MEDICAL ADVICE OR CREATE A PHYSICIAN-PATIENT RELATIONSHIP THROUGH THE SERVICE. USE OF THE SERVICE OR ANY OF ITS CONTENT IS NOT INTENDED IN ANY WAY TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. NEITHER THE SERVICE NOR ANY CONTENT OFFERED BY OR COMMUNICATED TO YOU THROUGH THE SERVICE IS INTENDED TO BE RELIED UPON FOR MEDICAL DIAGNOSIS OR TREATMENT. NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING PROFESSIONAL MEDICAL ADVICE OR TREATMENT BECAUSE OF SOMETHING YOU HAVE OR HAVE NOT READ ON THE SERVICE.
YOU ARE SOLELY RESPONSIBLE FOR AND ASSUME ALL LIABILITY FOR SHARING YOUR CONTENT OR ANY DATA PROVIDED ON THE SERVICE WITH YOUR PHYSICIAN OR OTHER HEALTHCARE PROFESSIONAL. HEARTCLOUD SPECIFICALLY DISCLAIMS ALL LIABILITY FOR THE ACTS OR OMISSIONS OF ANY PHYSICIANS OR HEALTHCARE PROFESSIONALS PROVIDING MEDICAL CARE TO YOU IN RELIANCE ON THE SERVICE OR ANY CONTENT PROVIDED THROUGH THE SERVICE. HEARTCLOUD DOES NOT ASSUME LIABILITY FOR ANY INJURIES, LOSS, OR, DAMAGE DUE TO RELIANCE ON THE SERVICE OR ANY CONTENT PROVIDED THROUGH THE SERVICE.
2. General Disclaimers
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEARTCLOUD AND/OR ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS OFFER THE SERVICE (INCLUDING ALL CONTENT AVAILABLE ON OR THROUGH THE SERVICE) ON AN "AS-IS" BASIS AND AN "AS AVAILABLE" BASIS AND EXPRESSLY DISCLAIMS ALL WARRANTIES, AND MAKES NO REPRESENTATIONS, OF ANY KIND CONCERNING THE SERVICE, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
HEARTCLOUD AND/OR ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS FURTHERMORE DO NOT WARRANT, REPRESENT, OR IN ANY MATTER GUARANTEE, AND HEREBY DISCLAIMS LIABILITY AS TO THE FOLLOWING, THAT: (1) ANY INFORMATION PRESENTED OR RECEIVED BY YOU FROM OR RESULTING FROM YOUR USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED, SECURE, OR ERROR-FREE; (2) THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED; (3) THAT CONTENT, DATA, OR RESULTS AVAILABLE THROUGH THE SERVICE WILL BE ACCURATE OR RELIABLE; (4) THAT THE SERVICE WILL BE FREE FROM DATA LOSS, CORRUPTION, BREACH, ATTACK, OR OTHER SECURITY INTRUSIONS.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPLICITLY UNDERSTAND AND AGREE THAT IN NO EVENT WILL HEARTCLOUD AND/OR ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY DAMAGES INCLUDING, BUT NOT LIMITED TO, INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, ACTUAL, HEDONIC, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR OTHER DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR INCOME, LOST PROFITS, PAIN AND SUFFERING, EMOTIONAL DISTRESS, DEATH, COST OF SUBSTITUTE GOODS OR SERVICES, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES OR SIMILAR DAMAGES SUFFERED OR INCURRED BY YOU OR ANY THIRD PARTY THAT ARISE IN CONNECTION WITH THE SERVICE (OR THE TERMINATION THEREOF FOR ANY REASON), EVEN IF HEARTCLOUD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM: (1) YOUR USE OR INABILITY TO USE THE SERVICE; (2) ANY CHANGES MADE TO ANY ASPECT OF THE SERVICE; (3) OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SERVICE OR ANY PART THEREOF; (4) ANY FAILURE TO SEND OR RECEIVE DATA ON OR THROUGH THE SERVICE; (5) DELETION, CORRUPTION, OR VULNERABILITY OF DATA STORED OR TRANSMITTED THROUGH THE SERVICE; (6) STATEMENTS OR CONDUCT OF HEARTCLOUD OR ANY THIRD PARTY ON THE SERVICE; AND (VI) ANY OTHER MATTER RELATING TO THE SERVICE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEARTCLOUD IS NOT RESPONSIBLE OR LIABLE WHATSOEVER IN ANY MANNER FOR ANY CONTENT POSTED ON, OTHERWISE STORED ON, TRANSMITTED THROUGH, OR AVAILABLE THROUGH THE SERVICE (INCLUDING CLAIMS OF INFRINGEMENT RELATED TO THAT CONTENT), FOR YOUR USE OF THE SERVICE, OR FOR THE CONDUCT OF THIRD PARTIES ON OR THROUGH THE SERVICE.
YOU AGREE THAT HEARTCLOUD MAY REMOVE, LIMIT, OR ENHANCE THE FUNCTIONALITY OF THE SERVICE FROM TIME TO TIME, FOR ANY PERIOD OF TIME, OR CANCEL THE SERVICE IN ACCORANCE WITH THESE TERMS.
YOU AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE RECEIVED BY YOUR USE OF THE SERVICE IS AT YOUR OWN DISCRETION AND ASSUMPTION OF RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE, COMPUTER, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
YOU AGREE THAT THE SERVICE IS NOT SUITABLE FOR USE, AND ARE EXPRESSLY WARNED AGAINST, USING THE SERVICE IN AN ENVIRONMENT OR CIRCUMSTANCE IN WHICH THE ACCURACY, CONTENT, OR ANY TIME DELAYS IN TRANSMITTING OR RECEIVING DATA MADE AVAILABLE BY THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY, INJURY TO PROPERTY, OR OTHER FORMS OF TORTIOUS OR CRIMINAL HARM.
CERTAIN JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF PARTICULAR WARRANTIES OR LIMITATION(S) OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. THEREFORE, SOME OF THE DISCLAIMERS OR LIMITATIONS ABOVE MAY NOT APPLY TO YOU. IN THESE JURISDICTIONS, THE FOREGOING EXCLUSIONS AND LIMITATIONS WILL BE ENFORCED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
To the extent permitted by law, you agree to defend, indemnify and hold HeartCloud and the HeartCloud Entities harmless from and against any and all claims, demands, suits, proceedings, liabilities, judgments, losses, damages, expenses, and costs (including without limitation reasonable attorneys’ fees) assessed or incurred by HeartCloud, directly or indirectly, with respect to or arising out of: (i) your failure to comply with these Terms; (ii) your breach of your obligations under these Terms; (iii) your use of the Service; (iv) your use of the Content, whether made available by you or made available to you through the Service; (v) your use of the rights granted under these Terms, including without limitation any claims made by any third parties; and/or (vi) your violation of any third party right, including without limitation any copyright, property, or privacy right.
This indemnity provision applies to all violations described in, or contemplated by, the Terms. It shall survive the termination or expiration of these Terms and/or your use of the Service.
You agree to defend, indemnify, and hold harmless HeartCloud from and against any and all claims and demands arising from your use of the Service, regardless of whether or not such usage is expressly authorized by you. You acknowledge and agree that you are solely responsible for your use of the Service and that the Terms apply to any and all use of the Service by you. You agree that you are responsible at all times with complying with the laws, regulations, rules, and restrictions of your jurisdiction when accessing and using the Service.
If, notwithstanding the other provisions in these Terms, HeartCloud and/or the HeartCloud Entities are found to be liable to you for any damage or loss with respect to or arising out of your use of the Service or any Content, the total liability of HeartCloud and/or the HeartCloud Entities, whether in contract, warranty, tort (including negligence), or otherwise, will not exceed the last Subscription Fee you paid. This limitation of liability will apply to the fullest extent permitted by law and will survive cancellation or termination of your Subscription.
1. Binding Arbitration
You agree that any dispute, claim or controversy arising out of or relating to the Service, these Terms, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be referred to and resolved by binding arbitration in accordance with the JAMS International Arbitration Rules. The tribunal will consist of three arbitrators and the seat of the arbitration will be located in Orange County, California. You agree that the decision of the arbitrators shall be final and binding on you, and that judgment upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Any such arbitration shall be conducted by an arbitrator experienced in information technology, software development, and environmental compliance and shall include a written record of the arbitration hearing. HeartCloud reserves the right to object to any individual who shall be employed by or affiliated with a competing practice or entity. If, for any reason, a claim must be settled through judicial means, and not arbitration, then such claim(s) will be subject to jurisdiction and venue in the state and federal courts in Orange County, California.
2. Violation of Terms
If HeartCloud does take any legal action against you as a result of your violation of these Terms, HeartCloud will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to HeartCloud. You agree that HeartCloud will not be liable to you or to any third party for termination, restriction, or suspension of your access to the Service as a result of any violation of these Terms.
3. Complaint Limitation
Any claim against HeartCloud must be brought within one month after the cause of action arises, or such claim or cause of action shall be barred and voided. No recovery may be sought or received for damages other than out-of-pocket expenses, except that the prevailing party will be entitled to costs and attorney’s fees.
4. Amicable Attempt
In the event of any controversy, cause of action, or dispute between HeartCloud and you arising out of or in connection with your use of the Service, both parties shall first attempt, within a reasonably immediate time and in good faith, to amicably resolve any discontent or dispute.
5. Governing Law
You agree that all matters relating to or arising out of these Terms or your use of the Service, including all disputes and complaints, will be governed by and construed by the laws of the United States and the State of California, without regard to its conflicts or choice of laws provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in Orange County, California. You hereby waive any objection to such jurisdiction or venue, as well as any objections on the grounds of forum non-convenience or any similar grounds.
Disclosure of Information
HeartCloud reserves the right to disclose any information we have about you (including your identity) if we deem that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Service, or to identify, contact, or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) HeartCloud’s rights or property, or the rights or property of others who use the Service. HeartCloud reserves the right at all times to disclose any information that HeartCloud deems necessary to comply with any applicable law, regulation, legal process, or law enforcement or governmental request. HeartCloud also may disclose your information when HeartCloud determines that applicable law requires or permits such disclosure, including exchanging information with other companies and practices for fraud protection purposes.
You acknowledge and agree that HeartCloud may, at its sole discretion, preserve any transmittal, data, attachments, messages, or other communication by you with HeartCloud through the Service, and may also disclose such data if required to do so by law or if HeartCloud determines that such preservation or disclosure is reasonably necessary to: (i) comply with a legal process; (ii) enforce these Terms; (iii) respond to claims that any such data violates the rights of others; or (iv) protect the rights, property or personal safety of HeartCloud, the HeartCloud Entities, users of or visitors to the Service, and the public.
Any feedback or opinions you provide to HeartCloud regarding the Service is deemed non-confidential information. HeartCloud reserves the right to utilize and disclose such information at its sole discretion on an unrestricted basis.
1. No Waiver
HeartCloud’s failure to enforce or insist on strict performance of these Terms shall not be construed as a waiver by HeartCloud of any provision or any right it has to enforce these Terms, nor shall any course of conduct between HeartCloud and you or any other party be deemed to modify any provision of these Terms. These Terms shall not be interpreted or construed to confer any rights or remedies on any third parties.
If any of the provisions of these Terms are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms, so that these Terms shall remain in full force and effect.
3. No Agency Relationship
The parties agree that no joint venture, partnership, employment, or agency relationship exists between you and HeartCloud as a result of the Terms or from your use of the Service.