YOUR PERSONAL DATA MAY BE PROCESSED IN THE COUNTRY WHERE IT WAS COLLECTED AS WELL AS OTHER COUNTRIES (INCLUDING THE UNITED STATES) WHERE LAWS REGARDING PROCESSING OF PERSONAL DATA MAY BE LESS STRINGENT THAN THE LAWS IN YOUR COUNTRY AND BY USING THE SERVICES OR SUBMITTING PERSONAL DATA THROUGH THE SERVICES, YOU ARE EXPRESSLY CONSENTING TO SUCH TRANSFERS AND PROCESSING.
1. TYPES OF DATA WE COLLECT
Company collects Personal Data and Anonymous Data from you when you visit our site, when you send us information or communications, and/or when you use our Services. “Personal Data” means data that allows someone to identify or contact you, including, for example, your name, address, telephone number, e-mail address, as well as any other non-public information about you that is associated with or linked to any of the foregoing data. “Anonymous Data” means data that is not associated with or linked to your Personal Data; Anonymous Data does not permit the identification of individual persons. We collect Personal Data and Anonymous Data, as described below.
1.1 Personal Data You Provide to Us
The Personal Data that you may submit to us voluntarily includes, but is not limited to, the following:
You may choose what Personal Data you voluntarily share with us, however if you choose to withhold any Personal Data requested by us, it may not be possible for you to gain access to certain aspects or features of the Site and Services.
1.2. Data Collected Via Technology
The “opt out” of the collection of information through cookies or some other tracking technology may in some cases be managed through the settings on your browser or mobile device or other technology. Please refer to your browser’s or mobile device’s technical information for instructions on how to delete and disable cookies, and other tracking/recording tools. To learn more about cookies, clear gifs/web beacons and related technologies and how you may opt-out of some of this tracking, you may wish to visit http://www.networkadvertising.org. Depending on your mobile device or other factors, you may not be able to control tracking technologies through your settings. Please note that certain features will not be available once cookies are disabled.
If you are unable to “opt out” of this Data collection and do not wish to provide this Data, do not use the Site and Services.
1.3 Personal Data Collected via Technology
1.4 Personal Data That We Collect from You About Others.
We may receive Personal Data about you from outside the Site, such as telephone, fax, mail, shipping address or from third parties that provide services for us that are related to the Site and Services. We may add this information to the information we have already collected from you via the Services. If you interact with some third party services, such as social media companies, as part of our Services, particularly where you have an account with the third party, they may collect Data separate from Company.
2. USE OF YOUR DATA
2.1 General Use.
In general, Personal Data you submit to us or which we collect or receive is used to:
2.2 Creation and Use of Anonymous Data
We may create Anonymous Data records from Personal Data by excluding information (such as your name) that make the data personally identifiable to you. We use this Anonymous Data for many reasons, including to analyze request and usage patterns so that we may enhance the content of our Services and improve site navigation. Company reserves the right to use and disclose Anonymous Data in its discretion, including to third parties.
2.3. Statistical Analysis; Advertising
We perform statistical analyses of visitors, including their purchasing patterns, for our own purposes as well as to generally inform advertisers about the nature of our customer base. We use the information we collect from you to allow advertising to be targeted to the visitors for whom such advertising is most pertinent. This means visitors see advertising that is most likely to interest them, and advertisers send their messages to people who are most likely to be receptive, improving both the viewer's experience and the effectiveness of the ads. We also may choose to allow advertisers to display advertising on our Site or in conjunction with the Services. Advertiser or advertising companies may use technology such as cookies to gather information about your activities on multiple sites in order to provide you advertising based upon your activities and interests. You may be able to opt out of the collection of this information through cookies or other tracking technology through the settings in your browser or mobile device, or through the advertising companies. Please review your browser or mobile device information for instructions on how to delete and disable cookies, and other tracking/recording tools (to learn more about cookies, clear gifs/web beacons and related technologies, you may wish to visit http://www.allaboutcookies.org and/or the Network Advertising Initiative’s online resources, at http://www.networkadvertising.org).
2.4 Legal Requirements
Where required by applicable law, we process and retain Personal Data in accordance with requirements concerning the necessity for a lawful basis for any processing and regarding the period of retention of your Personal Data. We generally retain Personal Data for as long as your account is active or otherwise for a limited period of time as needed to fulfill the purposes for which it has been collected, unless otherwise required by law.
3. DISCLOSURE OF YOUR PERSONAL DATA
3.1 Third Party Companies
We may enter into agreements with Third Party Companies. A Third Party Company may want access to Personal Data that we collect from its customers. As a result, we may provide your Personal Data to a Third Party Company; however, we will not disclose your contact information to Third Party Companies for the Third Party Companies’ own direct marketing purposes, unless you have “opted-in” by following the instructions we provide to allow such disclosure. If you have opted-in to receive e-mail communications from a Third Party Company and later wish to discontinue receipt of these e-mails, please contact the Third Party Company directly to update your preferences. The privacy policies of our Third Party Companies may apply to the use and disclosure of your Personal Data that we collect and disclose to such Third Party Companies. Because we do not control the privacy practices of our Third Party Companies, you should read and understand their privacy policies.
3.2 Notice to California Residents - Your California Privacy Rights (As Provided by California Civil Code section 1798.83).
A California resident who has provided Personal Data to a business with whom he/she has established a business relationship for personal, family, or household purposes (a “California Customer”) may request information about whether the business has disclosed personal information to any third parties for the third parties’ direct marketing purposes. In general, if the business has made such a disclosure of Personal Data, upon receipt of a request by a California Customer, the business is required to provide a list of all third parties to whom Personal Data was disclosed in the preceding calendar year, as well as a list of the categories of Personal Data that were disclosed. California Customers may request further information about our compliance with this law by e-mailing email@example.com. Please note that we are required to respond to one request per California Customer each year, and we are not required to respond to requests made by means other than through this e-mail address.
3.4 Other Disclosures
Regardless of any choices you make regarding your Personal Data (as described below), Company may disclose Personal Data if it believes in good faith that such disclosure is necessary to (a) comply with relevant laws or to respond to subpoenas or warrants served on Company; (b) necessary to enforce any agreements between Company and you; or (c) protect or defend the security and integrity of the site, rights or property of Company or users of the Services.
3.5 User Content
Occasionally you may see areas on the Services where you can post information or communicate with us or other users. These areas may be in the form of social media posts, bulletin boards, comment areas, billboards, forums, postings sections or similar communications facilities. You will keep all ownership or license rights in your User Content (as defined below), including the right to grant additional licenses to your User Content. There are no restrictions on your ownership and license rights in your User Content unless you otherwise agree in writing. However, when you provide your User Content to us, you grant Heartwork certain rights to use it as detailed below and in accordance with the Agreement. When you submit, distribute, transmit, or post any communications or any other material to Heartwork (either through the Services, through our pages on third party sites, such as Instagram, Twitter and Facebook, or through email communications - this is collectively “User Content”), you give us a right and license to use, copy, reproduce, process, adapt, modify, publish, transmit, display, and distribute your User Content in any and all media formats or distribution channels. You agree that this license includes the right for Heartwork to use your User Content to provide, promote, and improve the Services. You agree that this license is irrevocable, non-exclusive, perpetual, worldwide, transferable, sublicensable, fully paid, royalty-free, and will survive termination of your account. Please note that we may use User Content without compensation of any kind to you, including if we use User Content for advertising or promotional purposes. You also agree that if your User Content contains any ideas, concepts, know-how, or techniques, we can use the User Content and anything it contains for any purpose including, but not limited to, developing, manufacturing, and marketing products. You also represent and warrant that your User Content does not violate the any of the prohibitions set forth in Section 4.2 in the Agreement (the “Acceptable Use Policy”). In addition to giving Heartwork a license, you also give each user of the Services an irrevocable, non-exclusive, perpetual, worldwide, transferable, sublicensable, fully paid, and royalty-free right and license to access your User Content through the Services and to use, edit, modify, publish, reproduce, distribute, prepare derivative works of, display, perform, adapt, and promote such submissions, including after any termination of your account. We may also disclose testimonials in accordance with the Agreement.
3.6 Disclosure to Third Party Service Providers.
Except as otherwise stated in this policy, we do not generally sell, trade, share, or rent the Personal Data collected from our services to other entities. However, we may share your Personal Data with third party service providers to provide you with the Services that we offer you through our website; to conduct quality assurance testing; to facilitate creation of accounts; to provide technical support; or to provide specific services, such as synchronization of your contacts with other software applications, in accordance with your instructions. These third party service providers are required not to use your Personal Data other than to provide the services requested by Company. You expressly consent to the sharing of your Personal Data with our contractors and other service providers.
4. YOUR CHOICES AND RIGHTS REGARDING YOUR PERSONAL DATA
4.2 Changes to Personal Data
You may change any of your Personal Data in your account by editing your profile within the Product application. You may request deletion of your Personal Data by us, but please note that we may be required (by law or otherwise) to keep this information and not delete it (or to keep this information for a certain time, in which case we will comply with your deletion request only after we have fulfilled such requirements). When we delete any information, it will be deleted from the active database, but may remain in our archives.
4.3 Your Privacy Rights
You may have the right under an applicable law to certain privacy rights in your jurisdiction, including the right to access or delete Personal Data or rights described under Section 3.2 for California residents. If you wish to exercise one of these rights, please contact us. If we are operating as a processor for a third party with respect to your Personal Data, we will redirect your inquiry to the third party as appropriate.
5. PRIVACY OF MINORS
We do not intentionally collect or maintain information from persons under the age of 13. If you are under the age of 18, you should use this website only with the involvement of a parent or guardian and should not submit any Personal Data to us. If we discover that a person under the age of 13 has provided us with any Personal Data, we will use commercially reasonable efforts to delete such person's Personal Data.
6. SECURITY OF YOUR PERSONAL DATA
Company is committed to protecting the security of your Personal Data. We use a variety of industry-standard security technologies and procedures to help protect your Personal Data from unauthorized access, use, or disclosure. We may also require you to enter a password to access your account information. Please do not disclose your account password to unauthorized people. Despite these measures, you should know that Company cannot fully eliminate security risks associated with Personal Data and mistakes may happen. We do not ensure or guarantee the security of any information you transmit to us or guarantee that your information on the Site or in conjunction with the Services may not be accessed, disclosed, altered or destroyed by breach of any of our safeguards.
Company may create links to other web sites. Company is not responsible for the content, or privacy or security practices, of those sites or services. Additionally, many other sites that are not associated or authorized by Company may have links leading to our site. Company cannot control these links and Company is not responsible for any content appearing on these sites.
8. CONTACT INFORMATION
Address: 29 W 30th St. Suite 301
New York, NY 10001
9. DISPUTE RESOLUTION
If you believe that Company has not adhered to this Statement, please contact Company by e-mail at firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
10. SUCCESSORS AND ASSIGNS
The website located at www.heartwork.com (the “Site”) is a copyrighted work belonging to Heartwork Inc (“Company”, “us”, “our”, and “we”). Company provides furniture, accessories and other items for individuals, small businesses, start-ups and others (collectively, with all other services provided through the Site, the “Services”). Certain features of the Services or Site may be subject to additional guidelines, terms, or rules, which will be posted on the Services or Site in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into this Agreement.
YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES OR ACCEPT THE AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SITE OR SERVICES.
1.1 Account Creation
In order to use certain features of the Site (e.g., to use the Services), you may be asked to register for an account with Company (“Company Account”) and provide certain information about yourself as prompted by the Site registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. Company may suspend or terminate your Company Account in accordance with Section 11.
1.2 Account Responsibilities
You are responsible for maintaining the confidentiality of your Company Account login information and are fully responsible for all activities that occur under your Company Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Company Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
2. PAYMENT TERMS
2.1 Ordering Services
You may order the Services by following the directions on the Site. Company may change the pricing for the Services (from time to time in its sole discretion) by updating the Site and without any additional notice to you. Outstanding quotes provided by Company via email will be honored within 30 days of date of quote. If a price displayed on the Site is mispriced or otherwise in error, Company retains the right to update the price and cancel any orders placed at the incorrect price. In the event a product is out of stock or otherwise unavailable to fulfill your order, Company may cancel your order. The online order confirmation does not signify acceptance of the order or confirmation of an offer to sell. Your sole remedy for a price error, unavailable product or order cancellation by Company is the return of any fee paid.
2.2 Payment Terms
If you order the Services, you agree to pay the then-current applicable Service fees listed on the Site at www.heartwork.com. Company accepts credit card and also, in some cases, check. If you choose to pay by credit card, Company will automatically bill your credit card submitted in ordering the Services on the date purchase is confirmed either via the website, www.heartwork.com, over the phone and/or via email. You here by authorize Company to bill your credit card as described above. If any fee cannot be charged to your credit card for any reason, Company may provide you notice via e-mail of such non-payment and a link for you to update your payment information. If such nonpayment is not remedied within seven (7) days after receiving such notice of non-payment, then Company may terminate the order for your applicable Services.
2.3 Services Fulfillment
Company shall not be liable to you for any delay or failure to perform its obligations hereunder if such delay or failure arises from (a) any cause or causes beyond the reasonable control of Company or (b) results from the acts of a third party, including but not limited to any shipping company utilized even if such third party is selected by Company. The title and risk of loss for purchases of physical items sent pursuant to shipment contracts pass to you upon delivery to the carrier.
Subject to the terms of this Agreement, Company grants you a non-transferable, nonexclusive, license to use the Site and Services (excluding physical items which are shipped for you to own, hereinafter “Shipped Items”) for your personal, noncommercial use.
3.2 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 the Site or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build a similar or competitive service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site or Services content must be retained on all copies thereof. In addition, you agree not to use the Site or Services to: (i) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site or Services, through password mining or other means; (vi) harass or interfere with another user’s use and enjoyment of the Site or Services; or (vi) introduce software or automated agents or scripts to the Site or Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Site or Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, and in all cases only to the extent permitted by any robots.txt or other similar exclusion file that may be implemented for the Site or Services from time to time).
Company reserves the right, at any time, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof, except and if otherwise expressly set forth in Section 11.
3.4 No Support or Maintenance
You acknowledge and agree that Company will have no obligation to provide you with any support or maintenance in connection with the Site or Services.
Excluding your User Content (defined below) and Shipped Items, you acknowledge that all the intellectual property rights, including copyrights, patents, trade marks, and trade secrets, in the Site and Services are owned by Company or Company’s licensors. The provision of the Site and Services does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. Company and its suppliers reserve all rights not granted in this Agreement.
3.6 Electronic Communications.
When you use the Site or Services, or send e-mails, text messages, and other communications from your desktop or mobile device to Company, you may be communicating with us electronically. You consent to receive communications from us electronically, such as e-mails, texts, mobile push notices, or notices and messages on this site or through the Services, and you can retain copies of these communications for your records. You agree that all agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications be in writing and that your electronic acceptance in any indicated form is the legal equivalent of your manual signature on such agreements.
If you are under the age of 18, you should use this Site and Services only with the involvement of a parent or guardian and should not submit any personal information to Company. Your parent or guardian should submit all orders for Services.
4. USER CONTENT
4.1 User Content
“User Content” means any and all information and content that a user creates, submits, posts, or provides to Company through the Site or Services or other communication (e.g., content in the user’s profile or postings or user generated content). 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 any of the prohibitions set forth in Section 4.3 below (the “Acceptable Use Policy”). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Company. Because you alone are responsible for your User Content (and not Company), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Company is not obligated to backup any User Content and User Content may be deleted at anytime. You are solely responsible for creating backup copies of your User Content if you desire.
You hereby grant, and you represent and warrant that you have the right to grant, to Company an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Site and Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
4.3 Acceptable Use Policy
You agree not to use the Site or Services to collect, upload, transmit, display, or distribute any User Content (a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (c) that is harmful to minors in any way; or (d) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
4.4 Other Users
Each Site or Services user is solely responsible for any and all of its User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content. Your interactions with other Site or Service users are solely between you and such user. You agree that Company will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site or Service user, we are under no obligation to become involved
We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person. Such acts may include removing or modifying your User Content, terminating your Company Account in accordance with Section 11, and/or reporting you to law enforcement authorities.
If you provide Company any feedback or suggestions regarding the Site or Services (“Feedback”), you hereby assign to Company all rights in the Feedback and agree that Company shall have the right to use such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
4.7 Order Information
If you provide information to Company to order Shipped Items (“Order Information”), you hereby assign to Company all rights in the Order Information to the maximum extent permitted by applicable law and agree that Company shall have the right to use such Order Information and related information in any manner it deems appropriate, subject to any restrictions placed on Company by applicable law.
You agree to indemnify and hold Company (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Site or Services, (b) your User Content, (c) your violation of this Agreement; or (d) your violation of applicable laws or regulations. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
6. THIRD PARTY SITES & ADS
6.1 Third Party Sites & Ads.
The Site might contain links to third party websites, services, and advertisements for third parties (collectively, “Third Party Sites & Ads”). Such Third Party Sites & Ads are not under the control of Company and Company is not responsible for any Third Party Sites & Ads. Company provides these Third Party Sites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites & Ads. You use all Third Party Sites & Ads at your own risk. When you interact with a Third Party Site & Ad, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites & Ads.
You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Site or Services users or Third Party Sites & Ads.
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.”
7. ORDERS AND RETURNS
You agree that your orders through the Site or for any Services are subject to our policies, including but not limited to order cancellation, product damage and return policies. Pursuant to these policies, you may cancel within forty-eight (48) hours of the time your order is placed, and you may not thereafter cancel your order. You are not permitted to return your item or order, or receive a refund, for any reason, including but not limited to damage. In the event of damage to your item, please contact us for repair or replacement at our sole discretion. Although Company attempts to be as accurate as possible, Company does not warrant that product descriptions or other content is accurate, complete, reliable, current, or error-free.
THE SITE AND SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE (AND OUR 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. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE OR SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
10. LIMITATION ON LIABILITY
IN NO EVENT SHALL WE (AND OUR 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 YOUR USE OF, OR INABILITY TO USE, THE SITE OR SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE AND SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY U.S. DOLLARS (U.S.$50) OR (B) AMOUNTS YOU’VE PAID COMPANY IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
THE PRECEDING APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. 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.
11. TERM AND TERMINATION
Subject to this Section, this Agreement will remain in full force and effect while you use the Site or Services. We may (a) suspend your rights to use the Site and/or Services (including your Company Account) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Site or Services in violation of this Agreement. Upon termination of this Agreement, your Company Account and right to access and use the Site and Services will terminate immediately. You understand that any termination of your Company Account may involve the deletion of any content that you may have stored on our servers through the Services (including without limitation User Content). Company will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Company Account or deletion of your User Content. Notwithstanding anything to the contrary, if Company terminates this Agreement other than due to your violation of this Agreement or discontinues the Services, Company will provide you a refund of your payment for any Services not received. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 3.2-3.5, 4 –13.
12. COPYRIGHT POLICY
Company respects the intellectual property of others and asks that users of our Site and Services do the same. In connection with our Site and Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site and Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site and Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Site. Any changes to this Agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or Services. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Site or Services 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. This Agreement may not otherwise be amended, modified or changed, nor shall any waiver of any provision hereof be effective, except by an instrument in writing and signed by both parties.
13.2 Dispute Resolution
(a) Governing Law and Venue. This Agreement shall be governed by the laws of the State of New York without giving effect to any conflict of laws principles that may require the application of the law of another jurisdiction. Any action or proceeding relating to a claim or controversy at law or equity that arises out of or relates to this Agreement or the Site or Services (a “claim”) must be brought in a federal or state court located in New York City, NY and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding, unless such claim is submitted to arbitration as set forth below. Notwithstanding anything to the contrary, Company may seek injunctive relief in any court having jurisdiction to protect its intellectual property or confidential or proprietary information.
(b) Contact Company First. If a dispute arises between you and Company, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that you will notify us about any dispute you have with Company regarding our Site or Services by emailing email@example.com.
(c) BINDING ARBITRATION AND CLASS ACTION WAIVER. ANY DISPUTE, CONTROVERSY OR CLAIM ARISING UNDER, OUT OF OR RELATING TO THIS AGREEMENT AND ANY SUBSEQUENT AMENDMENTS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ITS FORMATION, VALIDITY, BINDING EFFECT, INTERPRETATION, PERFORMANCE, BREACH OR TERMINATION, AS WELL AS NON-CONTRACTUAL CLAIMS, SHALL BE SUBMITTED TO ARBITRATION BEFORE THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH THE AAA COMMERCIAL ARBITRATION RULES. THE PLACE OF ARBITRATION SHALL BE NEW YORK CITY, NY . THE LANGUAGE TO BE USED IN THE ARBITRAL PROCEEDINGS SHALL BE ENGLISH. THE PARTIES MAY APPLY TO ANY COURT OF COMPETENT JURISDICTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION, OR OTHER INTERIM OR CONSERVATORY RELIEF AS NECESSARY, WITHOUT BREACH OF THIS SECTION AND WITHOUT ABRIDGMENT OF THE POWERS OF THE ARBITRATOR. THE ARBITRATOR MAY AWARD ANY FORM OF INDIVIDUAL OR EQUITABLE RELIEF, INCLUDING INJUNCTIVE RELIEF. ANY AWARD WILL BE FINAL AND CONCLUSIVE TO THE PARTIES AND MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION. YOU AGREE TO THE ENTRY OF INJUNCTIVE RELIEF TO STOP ANY LAWSUIT OR TO REMOVE YOU AS A PARTICIPANT IN SUCH A SUIT. THIS AGREEMENT DOES NOT CONSTITUTE A WAIVER OF ANY OF YOUR RIGHTS AND REMEDIES TO PURSUE A CLAIM INDIVIDUALLY IN BINDING ARBITRATION, BUT NOT AS A CLASS ACTION. THIS PROVISION PREVENTING YOU FROM BRINGING, JOINING OR PARTICIPATING IN CLASS ACTION LAWSUITS IS AN INDEPENDENT COVENANT. YOU MAY OPT-OUT OF THIS SECTION BY PROVIDING WRITTEN NOTICE OF YOUR DECISION WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU FIRST USE THE SITE.
(d) Improperly Filed Claims. All claims between you and Company must be resolved in accordance with this Section 13.2. All claims filed or brought contrary to this Section shall be considered improperly filed. Should you file a claim contrary to this Section, Company may recover attorneys’ fees and costs up to $1,000, provided that Company has notified you in writing of the improperly filed claim, and you fail to promptly withdraw the claim. Similarly, should Company file a claim contrary to this Section, you may recover attorneys’ fees and costs up to $1,000, provided that you have notified Company in writing of the improperly filed claim, and Company fails to promptly withdraw the claim. The remedies in this subsection will not limit any other remedies that either party may have in law or in equity.
13.3 Entire Agreement
This Agreement constitutes the entire agreement between you and us regarding the use of the Site and Services. 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. 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. Your relationship to Company 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, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees. This Agreement may not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing not made a part of the Agreement by its express terms.
13.4 Copyright/Trademark Information
Copyright © 2020, Heartwork Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
13.5 Contact Information:
Address: 29 W 30th St. Suite 301
New York, NY 10001
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