These Terms of Use (collectively
the “Terms”) set forth the legally binding terms and conditions which are
applicable to your use of any of the Applications (“App”or “Apps”) from HeartBeat
Ltd. In this policy, HeartBeat may also refer to “HeartBeat”, “We” or “Us”.
Please be reminded that the Terms
constitute an agreement between you and Us. Therefore, we encourage you to
carefully familiarize yourself with the Terms. By installing, accessing or
using the Apps you confirm that you have read and understood the Terms and any
other documents referred to herein, including without limitation our Privacy
Policy, and that you agree to be bound by the Terms. You represent and warrant
that you have the right, authority and capacity to accept these Terms and to
abide by them and that you have fully read and understood the Terms. Your use
of the App constitutes your acceptance of the Terms. Consequently, if you do
not accept or understand the Terms, please do not use, install, access or
register with the App (including any software or application forming part of
the App). If you do not agree to these Terms, you are not entitled to use the
App, in which case you must promptly uninstall and delete all copies thereof.
From time to time, we may modify
or amend the Terms. If we make changes to these Terms, we will provide notice
of such changes by posting a notice inside the Application and updating the
“Last Updated” date above. If you continue to use the App following such a
posting, you accept any such change or modification.
Agreement
1.1 License
Subject to the terms of this
Agreement, HeartBeat grants you a non-transferable, non-exclusive, license to
(a) use for your personal use, and (b) copy, for the purpose of downloading,
installing and executing, the number of copies for which you are authorized by
the download site of each App on a mobile device that you own or control for
your use (the “License”).
1.2 Certain Restrictions
The rights granted to you in this
Agreement are subject to the following restrictions: (a) you shall not license,
sell, rent, lease, transfer, assign, distribute, host, or otherwise
commercially exploit any App; (b) you shall not modify, translate, adapt,
merge, make derivative works of, disassemble, decompile, reverse compile or reverse
engineer any part of Apps, except to the extent the foregoing restrictions are
expressly prohibited by applicable law; (c) you shall not access any App in
order to build a similar or competitive service or application; (d) except as
expressly stated herein, no part of any App may be copied, reproduced,
distributed, republished, downloaded, displayed, posted or transmitted in any
form or by any means, or (e) you shall not remove or destroy any copyright
notices or other proprietary markings contained on or in any App. Any future
release, update, or other addition to functionality of any App (including
in-App purchases, additional levels, and gameplay enhancements) shall be
subject to the terms of this Agreement, unless otherwise provided in terms associated
with such addition. All copyright and other proprietary notices on any App
content must be retained on any copies.
1.3 Local Laws
You are solely responsible for
compliance with all applicable laws, including without limitation export and
import regulations.
1.4 Modification
HeartBeat reserves the right, at
any time, to modify, suspend, or discontinue the Apps or any part thereof with
or without notice. You agree that HeartBeat will not be liable to you or to any
third party for any modification, suspension, or discontinuance of any App or
any part thereof.
1.5 Ownership
Apps provided to you are licensed
to you and not sold. HeartBeat (and its licensors, where applicable) own all
right, title and interest, including all related intellectual property rights,
in and to all Apps, excluding your User Content (defined below). This Agreement
is not a sale and does not convey to you any rights of ownership in or related
to any App. The HeartBeat name, logo, and the product names associated with the
Apps belong to HeartBeat (or its licensors, where applicable), and no right or
license is granted to use them by implication, estoppel or otherwise. HeartBeat
(and its licensors, where applicable) reserve all rights not granted in this
Agreement.
2. User Content
2.1 User Content
“User Content” of a user means
any and all content that such user creates, uploads, distributes, or otherwise
provides via any App. You are solely responsible for your User Content. You
assume all risks associated with use of your User Content, including any
reliance on its accuracy, completeness or usefulness by others, or any
disclosure of your User Content that makes you or any third party personally
identifiable. You hereby represent and warrant that your User Content does not
violate the Acceptable Use Policy (defined below). HeartBeat is not obligated
to backup any User Content and User Content may be deleted at any time. You are
solely responsible for creating backup copies of your User Content if you
desire.
2.2 License
By uploading, distributing, or
otherwise using your User Content with any App, you automatically grant, and
you represent and warrant that you have the right to grant, to HeartBeat an
irrevocable, nonexclusive, royalty-free and fully paid, worldwide license, with
the right to grant sublicenses, to reproduce, distribute, publicly display,
publicly perform, prepare derivative works of, incorporate into other works,
and otherwise use your User Content, solely to display your User Content on any
App.
2.3 Feedback
If you provide HeartBeat any
feedback or suggestions (“Feedback”), you hereby assign to HeartBeat all rights
in the Feedback and agree that HeartBeat shall have the right to use such
Feedback and related information in any manner it deems appropriate. HeartBeat
will treat any Feedback you provide to HeartBeat as non-confidential and
non-proprietary. You agree that you will not submit to HeartBeat any
information or ideas that you consider to be confidential or proprietary.
2.4 Acceptable Use Policy
The following sets forth HeartBeat’s¬
“Acceptable Use Policy”:
2.5 Enforcement
We reserve the right (but have no
obligation) to review any User Content in our sole discretion. We may remove or
modify your User Content at any time for any reason in our sole discretion with
or without notice to you.
3. Term and Termination
3.1 This Agreement commences on
the date you accept this Agreement (as described in the preamble) and will remain
in full force and effect while you use the App, unless earlier terminated in
accordance with this Agreement.
3.2 Notwithstanding the forgoing,
if you used any App prior to the date you accepted this Agreement (as described
in the preamble), you hereby acknowledge and agree that this Agreement
commences on the date you first use any App (which ever is earlier and which
may be prior to the Agreement Version Date) and will remain in full force and
effect while you use any App, unless earlier terminated in accordance with this
Agreement.
3.3 We may (a) suspend your
rights to use any App, and/or any related services or (b) terminate this
Agreement, at any time for any reason at our sole discretion with or without
notice to you, including if we in good faith believe you have violated the
Acceptable Use Policy or any other provision of this Agreement. Without
limiting the foregoing, HeartBeat reserves the right to terminate its Agreement
with any user who repeatedly infringes third party copyright rights upon prompt
notification to HeartBeat by the copyright owner or the copyright owner’s legal
agent.
3.4 Upon termination of this
Agreement, your right to use the App will automatically terminate immediately.
You understand that any termination may involve deletion of your User Content
associated therewith from our live databases. HeartBeat will not have any
liability whatsoever to you for any termination of this Agreement, including
deletion of your User Content. Even after this Agreement is terminated, the
following provisions of this Agreement will remain in effect: Sections 1.2,
1.3, 1.4, 1.5, 2, 3.4, 4, 5, 6, 7, 8 and 9.
4. Indemnity
You agree to defend, indemnify
and hold harmless HeartBeat (and its suppliers) from and against any claims, suits,
losses, damages, liabilities, costs, and expenses (including reasonable
attorneys’ fees) brought by third parties resulting from or relating to: (i)
your use of any App, (ii) your User Content, or (iii) your violation of this
Agreement. HeartBeat reserves the right, at your expense, to assume the
exclusive defense and control of any matter for which you are required to
indemnify HeartBeat and you agree to cooperate with our defense of these
claims. You agree not to settle any matter without the prior written consent of
HeartBeat. HeartBeat will use reasonable efforts to notify you of any such
claim, action or proceeding upon becoming aware of it.
5. Third Parties
5.1 Application Stores.
You acknowledge and agree that
the availability of the App is dependent on the third party from which you
received App, e.g., the Apple App Store or Android stores (“Application
Store”). You acknowledge that this Agreement is between you and HeartBeat and
not with the Application Store. The Application Store is not responsible for
the App, the content thereof, maintenance, support services, and warranty
therefor, and addressing any claims relating thereto (e.g., product liability,
legal compliance, or intellectual property infringement). You agree to pay all
fees charged by the Application Store in connection with App (if any). You
agree to comply with, and your license to use App is conditioned upon your
compliance with, all applicable third party terms of agreement (e.g., the
Application Store’s terms and policies) when using App. You acknowledge that
the Application Store (and its subsidiaries) are third party beneficiaries of
this Agreement and will have the right to enforce this Agreement.
5.2 Third Party Services
HeartBeat may permit certain third
party applications to provide content through the App (“Third Party Services”).
The App may be used to send content provided by the Third Party Service between
users who have the Third Party Service installed on their device. When you do
so, HeartBeat will share information with the Third Party Service as described
in the HeartBeat’s Privacy Policy. HeartBeat is not responsible for and does
not control Third Party Services. HeartBeat provides these Third Party Services
only as a convenience to you. HeartBeat has no obligation to review or monitor,
and does not approve, endorse, or make any representations or warranties with
respect to Third Party Services. You use all Third Party Services at your own
risk. When you access a Third Party Service, the applicable third party’s terms
and policies apply, including the third party’s privacy policies. You should
make whatever investigation you feel necessary or appropriate before proceeding
with any transaction in connection with any Third Party Services.
5.3 Other Users
An App may contain User Content
provided by other users of the App. HeartBeat is not responsible for and does
not control User Content. HeartBeat has no obligation to review or monitor, and
does not approve, endorse, or make any representations or warranties with
respect to User Content. You use all User Content and interact with other users
at your own risk. Your interactions with other users are solely between you and
the other user and we are under no obligation to become involved. You agree
that HeartBeat will not be responsible for any liability incurred as the result
of any such interactions.
5.4 Release
You hereby irrevocably and
unconditionally release and forever discharge HeartBeat (and its suppliers)
from any and all claims, demands, and rights of action, whether now known or
unknown, which relates to any interactions with, or act or omission of, any
Third Party Service, other Apps users, or Third Party Advertisers. IF YOU ARE A
CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN
CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND
TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
6. Disclaimers
6.1 APPS ARE PROVIDED “AS-IS” AND AS AVAILABLE AND HeartBeat (AND ITS
SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER
EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR
NON-INFRINGEMENT. HeartBeat (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT ANY APP:
(A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE
AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C)
WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE.
6.2 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO
THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
7. Limitation on Liability
7.1 IN NO EVENT SHALL HeartBeatf
(OR ITS SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR
ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES
ARISING FROM OR RELATING TO THIS AGREEMENT OR HeartBeat’S PRIVACY PRACTICES,
ANY APP, EVEN IF HeartBeat HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ACCESS TO, AND USE OF, ANY APP ARE AT YOUR OWN DISCRETION AND RISK, AND YOU
WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE
DEVICE OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED HEREIN, HeartBeat’S¬ LIABILITY TO YOU FOR ANY DAMAGES
ARISING FROM OR RELATED TO THIS AGREEMENT OR HeartBeat’S¬ PRIVACY PRACTICES
(FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT
ALL TIMES BE LIMITED TO THE AMOUNT YOU’VE PAID HeartBeat IN THE PRIOR 12 MONTHS
(IF ANY). IN NO EVENT SHALL HeartBeat’S SUPPLIERS HAVE ANY LIABILITY ARISING
OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
7.2 SOME JURISDICTIONS DO NOT
ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL
DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY
ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
8. Fees
You agree to pay the applicable
fee (to us or the applicable distributor) for the Apps you download and for any
in-App purchases (such as virtual currency, in-App products, subscribtions) you
make.
9. General
9.1 Changes to this Agreement
This Agreement is subject to
occasional revision, and if we make any substantial changes, we may notify you
by prominently posting update of the changes on our Site. These changes will be
effective immediately for new users of our Apps. Continued use of our Apps
following notice of such changes shall indicate your acknowledgement of such
changes and agreement to be bound by the terms and conditions of such changes.
The date on which the latest update was made is indicated at the top of this
document. We recommend that you print a copy of this Agreement for your
reference and revisit this webpage from time to time to ensure you are aware of
any changes.
9.2 Notice
Any notice provided to HeartBeat
pursuant to this Agreement should be sent to: info@HeartBeat.com
9.3 Severability
If any provision of this
Agreement is, for any reason, held to be invalid or unenforceable, the other
provisions of this Agreement will be unimpaired and the invalid or
unenforceable provision will be deemed modified so that it is valid and
enforceable to the maximum extent permitted by law.
9.4 Entire Agreement
This Agreement is the final,
complete and exclusive agreement of you and HeartBeat with respect to the
subject matters hereof (including all Apps) and supersede and merge all prior
discussions and agreements between the parties with respect to such subject
matters (including any prior End
User License Agreements and Terms
of Service or Privacy Policy). Our failure to exercise or enforce any right or
provision of this Agreement shall not operate as a waiver of such right or
provision. The section titles in this Agreement are for convenience only and
have no legal or contractual effect. The word including means including without
limitation. Your relationship to HeartBeat is that of an independent
contractor, and neither party is an agent or partner of the other. This
Agreement, and your rights and obligations herein, may not be assigned by you
without HeartBeat’S prior written consent, and any attempted assignment in
violation of the foregoing will be null and void. HeartBeat may assign this
Agreement in connection with a merger, acquisition, reorganization or sale of all
or substantially all of its assets, or other operation of law, without your
consent. The terms of this Agreement shall be binding upon assignees.
9.5 Governing Law and Resolution of Disputes
The laws of Finland, without
regard to or Apps of its conflict of law provisions, will govern these Terms,
and any claim, cause of action or dispute arising out of or relating to these
Terms will be brought solely in the district court of Helsinki, Finland. You
hereby consent to the jurisdiction of and venue in such court and waive any
objection as to inconvenient forum.