Terms of Service
Heartex Free Trial Period
Last Updated: September 30, 2022
Heartex has developed and makes available SaaS-based data labeling tools (collectively, the “Heartex Product”). To be eligible to register for and use the Heartex Product, you must review and accept these terms and conditions (the “Terms”) by indicating your agreement to these Terms using the mechanism provided by Heartex. PLEASE REVIEW THESE TERMS CAREFULLY. BY ACCEPTING THESE TERMS OR USING THE HEARTEX PRODUCT, YOU AGREE TO THESE TERMS WITH HEARTEX, INC. (“HEARTEX”). IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT INDICATE YOUR AGREEMENT TO THESE TERMS AND YOU SHOULD NOT USE THE HEARTEX PRODUCT.
In these Terms, “Customer” will refer to you. If you are registering to use the Heartex Product on behalf of an entity or other organization, you are agreeing to these Terms for that entity or organization and representing to Heartex that you have the authority to bind that entity or organization to these Terms (in which case, the term “Customer” will refer to that entity or organization).
- The following terms, when used in these Terms will have the following meanings:
“Authorized User” means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Heartex Product under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Heartex Product has been purchased hereunder.
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is available to the public through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Heartex for the Heartex Product.
“Non-Heartex Product” means a third party or Customer web-based, mobile, offline or other software application that integrates with the Heartex Product (other than third party data hosting services used by Heartex). For clarity, the Heartex Product excludes Non-Heartex Products.
“Order Form” means an order form or order page (including any online order form or order page) that sets forth the specific Heartex Product, applicable payment plan therefor (including in relation to overages), permitted number of user seats, trial period (if applicable) and subscription term, and that references these Terms.
- Heartex Product
- Provision of Heartex Product. Subject to these Terms and the applicable Order Form, Heartex will make the Heartex Product available to Customer through Customer’s account, and hereby grants Customer a non-exclusive, non-transferrable right to access and use the Heartex Product for its internal business purposes and solely for use by Authorized Users.
- Data Security. Customer shall not, and shall not permit any Authorized User to, upload or caused to be uploaded any Customer data (“Customer Data”) to the Heartex Product. Heartex will maintain the administrative, physical, and technical safeguards that it deems reasonable or necessary in accordance with applicable industry practice to protect the Heartex Product and prevent accidental loss or unauthorized access, use, alteration, or disclosure of Customer Data under its control during the Term. Except for limited personal information that Customer provides to Heartex in connection with the creation or administration of its Heartex account, such as first and last name and email address of an Authorized User or Customer’s billing contact (“Account Data”), Heartex does not require personal information for Customer’s access and use of the Heartex Product. Customer shall limit personal information in Account Data to only that necessary for the creation and administration of its Heartex accounts.
- Usage Data. Heartex may process information about Customer’s configuration and use of the Heartex Product (“Usage Data”), Customer Data, and Account Data: (a) to manage Customer’s account and (b) to provide and improve the Heartex Product and Support, including to address requests for Support and troubleshoot other issues. Heartex may also Process Usage Data that has been aggregated and/or anonymized (including, for clarity, that does not allow a third party to identify Customer as the source of the information): (i) to develop new services and features and (ii) to promote Heartex’s services, including, for example, through analyses of patterns and trends. Heartex’s Processing of Usage Data, Customer Data, and Account Data shall always be subject to Heartex’s obligations under this Agreement, including those of security and confidentiality.
- Customer Limitations. The rights granted herein are subject to the following restrictions (the “License Restrictions”). Customer will not, and will not permit any Authorized User to, directly or indirectly:
- upload any personal data or personally identifiable information to the Heartex Product;
- reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Heartex Product;
- attempt to probe, scan or test the vulnerability of the Heartex Product, breach the security or authentication measures of the Heartex Product without proper authorization or willfully render any part of the Heartex Product unusable;
- use or access the Heartex Product to develop a product or service that is competitive with Heartex’s products or services or engage in competitive analysis or benchmarking;
- transfer, distribute, resell, lease, license, or assign the Heartex Product or otherwise offer the Heartex Product on a standalone basis; or
- otherwise use the Heartex Product in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.
- Customer Responsibilities.
- Customer acknowledges that Heartex’s provision of the Heartex Product is dependent on Customer providing all reasonably required cooperation (including the prompt provision of access to Customer’s systems, personnel, cooperation and materials as reasonably required and any other access as may be specified by Heartex), and Customer will provide all such cooperation in a diligent and timely manner.
- Customer will (i) be responsible for all use of the Heartex Product under its account, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Heartex Product and notify Heartex promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the Heartex Product and (iii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Heartex Product, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software and services, and Heartex will have no liability for such failure (including under any service level agreement).
- Fees. This trial period is provided free of charge to the Customer during the Term. Customer and Heartex may enter into a new agreement for paid services to be continued following the Term.
- Proprietary Rights and Confidentiality
- Proprietary Rights. As between the parties, Heartex exclusively owns all right, title and interest in and to the Heartex Product, System Data, and Heartex’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data, insights produced specifically for Customer via the use of the Heartex Product by Customer (which will constitute Customer Data for purposes hereof) and Customer’s Confidential Information. “System Data” means Usage Data and other data collected by Heartex regarding the Heartex Product that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Heartex Product.
- Feedback. Customer and its Authorized Users may from time to time provide Heartex suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Heartex Product. Heartex will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Heartex will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
- Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of these Terms and it will not disclose the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of these Terms; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose these Terms to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors, or acquirers. Each party agrees to protect and safeguard the confidentiality of the other party’s Confidential Information with at least the same degree of care as the receiving party would protect its own Confidential Information but in no event with less than a commercially reasonable degree of care. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in these Terms.
- Warranties and Disclaimers
- Customer. Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Heartex to use the same as contemplated hereunder.
- DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY OR GUARANTEE OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, EXPRESS, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE HEARTEX PRODUCT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS TO THE FULLEST EXTENT PERMITTED BY LAW. HEARTEX DOES NOT REPRESENT OR WARRANT THAT THE HEARTEX PRODUCT WILL MEET CUSTOMER’S REQUIREMENTS, BE ERROR-FREE, OR OPERATE WITHOUT INTERRUPTION. CUSTOMER ACKNOWLEDGES THAT THE INSIGHTS PROVIDED BY THE HEARTEX PRODUCT DO NOT CONSTITUTE PROFESSIONAL ADVICE OR COUNSEL, AND HEARTEX EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION WITH THE HEARTEX PRODUCT. HEARTEX IS NOT RESPONSIBLE OR LIABLE FOR ANY NON-HEARTEX PRODUCTS, DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH, AND MAY CEASE MAKING ANY SUCH INTEGRATION AVAILABLE IN ITS DISCRETION.
Customer will defend, indemnify and hold Heartex and its affiliates harmless against any actual or threatened claim, loss, liability, proceeding, governmental investigation or enforcement action arising out of or relating to Customer’s or any Authorized User’s activities under these Terms (a “Claim”). Heartex and its affiliates will cooperate as fully as reasonably required in the defense of any Claim, at Customer’s expense. Heartex reserves the right, at Customer’s expense, to retain separate counsel for itself in connection with any Claim or, if Customer has not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any Claim in which Customer is named a party and that is otherwise subject to indemnification under this Section. Customer will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against Heartex in connection with any Claim. Customer will also be liable to Heartex for any costs and attorneys’ fees Heartex incurs to successfully establish or enforce Heartex’s right to indemnification under this Section.
- Limitation of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL HEARTEX BE LIABLE TO CUSTOMER FOR ANY (A) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF HEARTEX HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF ONE HUNDRED U.S. DOLLARS. THE FOREGOING PROVISIONS ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
- Term. These Terms will become effective on the date these Terms are accepted by Customer and continue for the period set forth in the applicable Order Form or if no Order Form is entered into by the parties, for a period of 30 days (the “Term”).
- Termination and Suspension. Customer may terminate its account at any time by emailing firstname.lastname@example.org. Heartex may terminate or suspend Customer’s account in the event Customer or any Authorized User commits any material breach of any provision of these Terms and fails to fix that breach within five (5) days after written notice of that breach. Heartex may also terminate or suspend Customer’s account immediately for cause if: (a) there is reason to believe the traffic created from Customer’s or any Authorized User’s use of the Heartex Product is fraudulent or negatively impacting the operating capability of Heartex; (b) Heartex determines, in its sole discretion, that providing the Heartex Product is prohibited by law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Heartex Product; or (c) subject to applicable law, upon Customer’s liquidation, commencement of dissolution proceedings, disposal of Customer’s assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if Customer becomes the subject of bankruptcy or similar proceeding. If Heartex suspends Customer’s account, Heartex will make a reasonable attempt to notify Customer. Note that no refund will be provided in the event of any suspension or termination of Customer’s account.
- Survival. Upon expiration of the Term or termination of Customer’s account, all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights, confidentiality, disclaimers, indemnification, limitations of liability, termination and the general provisions below.
- Export Compliance. Each party will comply with the export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the Heartex Product.
- Assignment; Delegation. Customer may not assign or otherwise transfer its rights under these Terms, in whole or in part, without Heartex’s prior written consent, except that Customer may assign its rights under these Terms without consent from Heartex to a successor to all or substantially all of its assets or business related to these Terms. Heartex may freely assign its rights and obligations under these Terms. Any attempted assignment, delegation, or transfer by Customer in violation hereof will be null and void. Subject to the foregoing, these Terms will be binding on Customer and its successors and assigns.
- Waiver. No waiver of any rights hereunder will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of these Terms will not be deemed a waiver of future enforcement of that or any other provision.
- Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
- Unenforceability. If a court of competent jurisdiction determines that any provision of these Terms is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of these Terms will remain in full force and effect and bind the parties according to its terms.
- Governing Law. These Terms will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
- Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the parties must be sent to the respective address set forth in the signature blocks below, or such other address designated pursuant to this Section.
- Entire Agreement. These Terms comprise the entire agreement between Customer and Heartex with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Heartex, its agents or employees will create a warranty or in any way increase the scope of the warranties in these Terms.
- Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, pandemic, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber-attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
- Government Terms. Heartex provides the Heartex Product, including related software and technology, for ultimate federal government end use solely in accordance with these Terms. If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Heartex Product, or any related documentation of any kind, including technical data, software, and manuals, is restricted by these Terms. If Customer is using the Heartex Product on behalf of the federal government and these terms fail to meet the federal government’s needs or are inconsistent in any respect with federal law, Customer must immediately discontinue use of the Heartex Product. All other use is prohibited and no rights than those provided in these Terms are conferred. The Heartex Product was developed fully at private expense.
- Interpretation. For purposes of this Agreement, the words "include," "includes," and "including" are deemed to be followed by the words "without limitation" and the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole. Unless the context otherwise requires, references to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
- Changes. Heartex may revise these Terms from time to time. If Heartex does revise these Terms, the revised Terms will supersede prior versions. Unless Heartex says otherwise, revisions will be effective upon the effective date indicated at the top of these Terms, and Customer’s continued access or use of the Heartex Product constitutes Customer’s acceptance of any revisions, provided that if Customer has purchased a paid subscription to a Heartex Product, then such revisions will be effective with respect to that paid subscription at the next renewal of the applicable subscription term and will automatically apply as of the renewal date unless Customer elects not to renew as set forth herein. Heartex will provide Customer advance notice of any material revisions. This notice will be provided via the account portal and/or via an email to the email address Heartex has on file. For other revisions, Heartex will update the effective date of these Terms at the top of the page. Heartex encourages Customer to check the effective date of these Terms whenever Customer visits Heartex’s website. If Customer does not agree to the revisions, Customer should stop using the Heartex Product (and, in the case of a paid subscription, elect not to renew such subscription as set forth herein).