HeavyConnect Terms of Service
HEAVYCONNECT - TERMS OF SERVICE
LAST UPDATED: MARCH 26, 2020
YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE "ACCEPT TERMS" BUTTON, REGISTERING FOR A HEAVYCONNECT ACCOUNT, DOWNLOADING OF THE APPLICATION OR ANY APPLICATION UPGRADES, USING THE APPLICATION ON YOUR MOBILE DEVICE, OR ACCESSING OR USING THE HEAVYCONNECT SERVICE, OR BY DOWNLOADING, SUBMITTING OR POSTING ANY CONTENT FROM, OR ON, OR THROUGH THE HEAVYCONNECT SERVICE, OR BY ENTERING INTO A STATEMENT OF WORK WITH HEAVYCONNECT, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE HEAVYCONNECT SERVICE OR SITE CONTENT. If you accept or agree to these Terms of Service on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Service and, in such event, "you" and "your" will refer and apply to that company or other legal entity.
"Content" means text, graphics, photos, music, software, audio, video, information or other materials.
"Corporate Member" means a Member that is a company or other legal entity, rather than an individual.
"HeavyConnect Content" means Content that HeavyConnect makes available through the Site or HeavyConnect Service, including any Content licensed to HeavyConnect from a third party, but excluding Member Content.
"Member" means a person or entity who completes HeavyConnect's account registration process, as described under "Account Registration" below.
"Member Content" means Content that a Member posts, uploads, publishes, submits or transmits to be made available through the HeavyConnect Service, including, without limitation, comments to the HeavyConnect blog.
"Site Content" means HeavyConnect Content and Member Content.
HeavyConnect reserves the right, at its sole discretion, to modify, discontinue or terminate the HeavyConnect Service or to modify these Terms of Service, at any time and without prior notice. If we modify these Terms of Service, we will post the modification on the Site or provide you with notice of the modification. We will also update the "Last Updated Date" at the top of these Terms of Service or on the Site or Application. By continuing to access or use the HeavyConnect Service after we have posted a modification on the Site or Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms of Service. If the modified Terms of Service are not acceptable to you, your only recourse is to cease using the HeavyConnect Service.
Certain portions of the HeavyConnect Service may, or may in the future, have different terms and conditions posted on the Site or may require you to agree with and accept additional terms and conditions. HeavyConnect may, in its sole discretion, make premium or different applications, software or services available to you that is subject to different terms and conditions and narrower licenses than as set forth therein. If there is a conflict between these Terms of Service and terms and conditions posted for a specific portion of the HeavyConnect Service, the latter terms and conditions shall take precedence with respect to your use of or access to that portion of the HeavyConnect Service.
STATEMENT OF WORK
If you are a party to a Statement of Work or quote between you and HeavyConnect (a "Statement of Work"), these Terms of Service shall begin on the Effective Date of the Statement of Work and, unless terminated pursuant to a Termination for Cause (as such term is defined below), shall continue through the term set forth in the Statement of Work (the "SOW Term") and will automatically renew for a successive one (1) year term following the end of each SOW Term, unless you notify HeavyConnect in writing, not less than ninety (90) days prior to the end of the then current SOW Term, of your intention not to renew.
Either party to a Statement of Work may, by written notice, request any changes, additions, deletions, or modifications to any Statement of Work. No changes to a Statement of Work will be effective until a written amendment has been signed by both Parties. If any such change affects the amount due or the time of performance thereunder, the Parties shall negotiate in good faith a mutually acceptable appropriate adjustment.
In the event of conflict or inconsistency between these Terms of Service and those of any Statement of Work, the Statement of Work shall control.
By accessing or using the HeavyConnect Service you represent and warrant to HeavyConnect that: (i) you are of legal age to form a binding contract, or, if you are a minor, you have your parent's permission to use the HeavyConnect Service, and your parent has read and agrees to these Terms of Service on your behalf; (ii) all registration information you submit is accurate, current and complete; (iii) you will maintain the accuracy and completeness of such information; (iv) if you are accepting these Terms of Service on behalf of a company or other legal entity, you have the authority to bind that company or legal entity to these Terms of Service. You also certify that you are legally permitted to use and access the HeavyConnect Service and take full responsibility for the selection and use of and access to the HeavyConnect Service. These Terms of Service are void where prohibited by law, and the right to access the HeavyConnect Service is revoked in such jurisdictions.
In order to access the HeavyConnect Service, you must register to create an account ("Account") and become a Member. When registering with HeavyConnect you agree to: (a) provide true, accurate, current and complete information about yourself (or, if applicable, the Corporate Member you represent) as prompted by the HeavyConnect Service's registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account and refuse any and all current or future use of the HeavyConnect Service (or any portion thereof).
You may not authorize any third party (other than, if applicable, the employees, consultants or agents of the Corporate Member you represent) to access or use the HeavyConnect Service on your behalf. You are responsible for maintaining the confidentiality of the user ID and password, and are fully responsible for all activities that occur under your user ID or password. You agree to immediately notify HeavyConnect of any unauthorized use of your user ID or password or any other breach of security. HeavyConnect cannot and will not be liable for any loss or damage arising from any unauthorized use of your account.
By providing us with your email address, you agree to receive all required notices electronically, to that email address. From time to time, HeavyConnect will use this email address to send you notifications about product updates and improvements, company news and events, and updates from our community.
FEES AND PAYMENT
Signing up for the HeavyConnect paid service or providing payment information to HeavyConnect after being prompted to do so, you agree to the pricing, payment and billing policies as set forth (a) herein, (b) on the Site and/or (c) if applicable, in a separately executed or accepted purchase order. All fees paid for the HeavyConnect Service are non-refundable and non-transferable except as expressly provided in these Terms of Service. All fees and applicable taxes, if any, are payable in United States dollars. You are solely responsible for the payment of, and shall pay when due, all applicable sales and use taxes and similar fees now in force, enacted or imposed in the future on the delivery of HeavyConnect Service and/or any related transactions (except for taxes assessed on HeavyConnect's net income or personal property). If for any reason HeavyConnect pays any such taxes, duties or excises, you will reimburse HeavyConnect for such taxes, duties or excises, other than taxes on HeavyConnect's net income.
HeavyConnect Service packages have a default term of 12 months. If your selected HeavyConnect Service package requires a recurring subscription fee, your HeavyConnect Service package will automatically renew, unless you change your billing settings to month-to-month, we terminate it, or you notify us by email (support@HeavyConnect.com) of your decision to terminate your current HeavyConnect Service package. You must cancel any automatically renewing HeavyConnect Service package before it renews in order to avoid billing of subscription fees for the renewal term to your credit card. All fees and charges are nonrefundable and there are no refunds or credits for partially used periods. If your HeavyConnect Service package is for a term of 12 months or longer, your subscription is deemed to have begun during the month in which you were first billed by HeavyConnect for the HeavyConnect Service package (or, in the event that you add more Users to your HeavyConnect Service package after beginning your subscription, from the month in which you were first billed for those additional Users). You may terminate HeavyConnect Service packages with terms of 12 months or longer at any time; however, because such HeavyConnect Service packages may qualify for reduced rate pricing, upon termination HeavyConnect will bill you for an amount equal to the difference between the reduced rate you actually paid, and the amount you would have paid under a standard rate HeavyConnect Service package.
LICENSE GRANTED BY HEAVYCONNECT
Subject to your compliance with these Terms of Service, HeavyConnect grants you a limited non- exclusive, non-transferable license to download and install a copy of the Application on your mobile device and run such copy of the Application solely for your own personal or business use. Furthermore, with respect to any App Store Sourced Application (defined below in the Section entitled "Accessing and Downloading the Application from iTunes"), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (operating system software provided by Apple) and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service. HeavyConnect reserves all rights in the Application not expressly granted to you by these Terms of Service.
HeavyConnect Service. HeavyConnect shall own and retain all right, title, and interest in and to the HeavyConnect Service (except for any licensed content and software components included therein). Member agrees not to reverse engineer, decompile, distribute, license, sell, transfer, disassemble, copy, alter, modify, or create derivative works of the HeavyConnect Service or otherwise use the HeavyConnect Service in any way that violates the use restrictions contained in these Terms of Service. HeavyConnect does not grant to Member any license, express or implied, to the intellectual property of HeavyConnect or its licensors. Member further acknowledges and agrees that any information regarding the design, "look and feel", specifications, components, functionality or operation and payment terms and pricing (if applicable) of the HeavyConnect Service is considered the confidential and proprietary information of HeavyConnect (collectively "HeavyConnect Confidential Information").
Member Data. Subject to the section below labeled "Assignment of Certain Member Data", Member shall retain all right, title and interest in and to (a) all graphics, images, files, data and other information transmitted by Member to HeavyConnect in connection with its use of the HeavyConnect Service and (b) reports and other materials generated by the HeavyConnect Service following such transmission (collectively, "Member Data"), provided, however, that Member hereby grants to HeavyConnect a worldwide, royalty-free, non-exclusive license to use (i) data generated as a result of Member's use of the HeavyConnect Service solely for purposes of (x) maintaining and improving the HeavyConnect Service and (y) providing Member with access to special product offers and promotions and (ii) non- identifiable, anonymous, aggregated data regarding Member's use of the HeavyConnect Service compiled by HeavyConnect solely for marketing purposes or distribution to third party research firms.
Assignment of Certain Member Data. Notwithstanding the foregoing, upon your submission of an productivity report to a Corporate Member or any other Member, you hereby transfer all right, title, and interest in and to any transferred Member Data to the applicable Corporate Member or Member, provided, however, that such Corporate Member or Member hereby grants to you a worldwide, perpetual, royalty-free, non-exclusive license to maintain and utilize copies of such transferred Member Data (including any productivity reports) for personal recordkeeping purposes.
HeavyConnect Logos and Designs. HeavyConnect's graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, trademarks or trade dress of HeavyConnect in the U.S. and/or other countries. HeavyConnect's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without HeavyConnect's prior written permission.
Member Art. Member shall retain all right, title and interest in and to all of Member's logos, promotional graphics and related marketing designs (collectively, the "Member Art"), provided, however, that Member hereby grants to HeavyConnect a worldwide, royalty-free, non-exclusive license to use the Member Art, as well as Member's corporate and/or trade name, for purposes of fulfilling its obligations hereunder and marketing HeavyConnect's products and services to third parties, subject to Member's right in each instance to approve the manner and form of such use (which approval shall be in writing and shall not be unreasonably withheld or delayed).
Derived Data. You shall own and retain all right, title, and interest in and to any data derived from your use of the HeavyConnect Service or that of any individual authorized by you to utilize the HeavyConnect Service (your "Users"), as defined below)(collectively, the "Derived Data"); provided, however, that you hereby grant to HeavyConnect a worldwide, royalty-free, non-exclusive license to use data generated as a result of your use of the HeavyConnect Service solely for purposes of (x) maintaining and improving the HeavyConnect Service, (y) providing you and/or your Users with access to and information about customized features, new functionality, and partner integrations, and (z) sharing with our partners such data in anonymized, aggregated form.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the HeavyConnect Service ("Feedback"). You may submit Feedback by emailing us at customersuccess@HeavyConnect.com or through the "Help" section of the HeavyConnect Service. You acknowledge and agree that all Feedback will be the sole and exclusive property of HeavyConnect and you hereby irrevocably assign to HeavyConnect and agree to irrevocably assign to HeavyConnect all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At HeavyConnect's request and expense, you will execute documents and take such further acts as HeavyConnect may reasonably request to assist HeavyConnect to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of HeavyConnect and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than disclosure to your authorized employees and agents who are bound to maintain the confidentiality of Confidential Information. You shall promptly notify HeavyConnect in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Company upon termination of this Agreement for any reason whatsoever. The term "Confidential Information" shall mean any and all of Company's trade secrets, confidential and proprietary information and all other information and data of Company that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical, financial, strategic and other proprietary and confidential information relating to Company's business, operations and properties, including information about Company's Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
You agree not to do any of the following:
Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
Use, display, mirror or frame the HeavyConnect Service, or any individual element within the HeavyConnect Service, HeavyConnect's name, any HeavyConnect trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without HeavyConnect's express written consent;
Access, tamper with, or use non-public areas of the HeavyConnect Service, HeavyConnect's computer systems, or the technical delivery systems of HeavyConnect's providers;
Attempt to probe, scan, or test the vulnerability of any HeavyConnect system or network or breach any security or authentication measures;
Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as of privacy and publicity) of any other use of the HeavyConnect Service or staff member of HeavyConnect.
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by HeavyConnect or any of HeavyConnect's providers or any other third party (including another user) to protect the HeavyConnect Service or Site Content;
Attempt to access or search the HeavyConnect Service or Site Content or download Site Content from the HeavyConnect Service through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by HeavyConnect or other generally available third party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail or junk messages, spam, chain letters or other form of solicitation (including sending invitations to use the HeavyConnect Service to the mobile numbers of people you do not know);
Use or disclose any HeavyConnect Confidential Information, except as otherwise explicitly set forth herein.
Use any meta tags or other hidden text or metadata utilizing a HeavyConnect trademark, logo URL or product name without HeavyConnect's express written consent;
Use the HeavyConnect Service or Site Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms of Service;
Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the HeavyConnect Service or Site Content to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the HeavyConnect Service or Site Content;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the HeavyConnect Service;
Collect or store any personally identifiable information from the HeavyConnect Service from other users of the HeavyConnect Service without their express written permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual or entity to do any of the foregoing.
HeavyConnect will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. HeavyConnect may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Service. You acknowledge that HeavyConnect has no obligation to monitor your access to or use of the HeavyConnect Service, or to review or edit any Member Content, but has the right to do so for the purpose of operating the HeavyConnect Service, to ensure your compliance with these Terms of Service, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.
DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible through the HeavyConnect Service, please notify HeavyConnect's copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 (DMCA). For your complaint to be valid under the DMCA, you must provide the following information in writing:
An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
Identification of the copyrighted work that you claim is being infringed;
Identification of the material that is claimed to be infringing and where it is located on the Services;
Information reasonably sufficient to permit HeavyConnect to contact you, such as your address, telephone number, and email address;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
HeavyConnect's Designated Copyright Agent to receive notifications of claimed infringement can be reached as follows:
Attention: Copyright Agent
150 Main Street Salinas, CA 93901
LINKS TO THIRD-PARTY WEBSITES
If you choose to use our referral service to tell a friend about HeavyConnect, you must seek your friend's consent to our use of your friend's name and email address to contact them about the HeavyConnect Service. By providing us with your friend's name and email address, you warrant that your friend consents to such contact.
TERMINATION AND ACCOUNT CANCELLATION
If you breach any of these Terms of Service, HeavyConnect will have the right to suspend, disable or terminate your Account or terminate these Terms of Service, at its sole discretion and without prior notice to you. HeavyConnect reserves the right to revoke your access to and use of the HeavyConnect Service at any time, with or without cause. In the event HeavyConnect terminates these Terms of Service for your breach, you will remain liable for any and all amounts due hereunder. Contact a customer success specialist at (833) 722-5727 if you wish to cancel your account.
If you are party to a Statement of Work, you may terminate your obligations under these Terms of Service (a "Termination for Cause") in the event HeavyConnect fails to perform or observe any material term or condition under these Terms of Service and fails to cure such breach within thirty (30) days after receipt of written notice of such breach.
THE HEAVYCONNECT SERVICE AND SITE CONTENT ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, HEAVYCONNECT EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. HEAVYCONNECT MAKES NO WARRANTY THAT THE HEAVYCONNECT SERVICE OR SITE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. HEAVYCONNECT MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, HEAVYCONNECT SERVICE OR SITE CONTENT PURCHASED OR OBTAINED THROUGH THE HEAVYCONNECT SERVICE OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE HEAVYCONNECT SERVICE. HEAVYCONNECT DOES NOT WARRANT THE RESULTS OF USE OF THE HEAVYCONNECT SERVICE, AND CLIENT ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. CLIENT SHOULD NOTE THAT IN USING THE HEAVYCONNECT SERVICE, SENSITIVE INFORMATION WILL TRAVEL THROUGH THIRD PARTY INFRASTRUCTURES WHICH ARE NOT UNDER HEAVYCONNECT'S CONTROL (SUCH AS A THIRD PARTY SERVERS AND THE INTERNET). HEAVYCONNECT MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD PARTY INFRASTRUCTURES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HEAVYCONNECT OR THROUGH THE HEAVYCONNECT SERVICE, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE HEAVYCONNECT SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE HEAVYCONNECT SERVICE. YOU UNDERSTAND THAT HEAVYCONNECT DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE HEAVYCONNECT SERVICE, NOR DOES HEAVYCONNECT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE HEAVYCONNECT SERVICE. HEAVYCONNECT MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE HEAVYCONNECT SERVICE OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE HEAVYCONNECT SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE HEAVYCONNECT SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE HEAVYCONNECT SERVICE, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
You agree to defend, indemnify, and hold HeavyConnect, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the HeavyConnect Service, or your violation of these Terms of Service, including without limitation any breach of any representations or warranties herein, any infringement by you of HeavyConnect's intellectual property rights, and any claim by a third party that the Member Data or Member Art infringes such third party's intellectual property rights.
HeavyConnect will defend indemnify and hold you (and in the case of a Corporate Member, your directors, officers, employees and affiliates) harmless from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable attorneys' fees), resulting from any claim, suit, action or proceeding alleging that the HeavyConnect Service or any portion thereof infringes any patent, copyright or other intellectual property, proprietary, or other right of any third party.
LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE HEAVYCONNECT SERVICE AND SITE CONTENT REMAINS WITH YOU. EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH HEREIN, UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SYSTEM FAILURE OR NETWORK OUTAGE, WILL EITHER HEAVYCONNECT OR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE HEAVYCONNECT SERVICE OR SITE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, HEAVYCONNECT SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR HEAVYCONNECT SERVICE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF HEAVYCONNECT SERVICE OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR SITE CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE HEAVYCONNECT SERVICE OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE HEAVYCONNECT SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT HEAVYCONNECT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH HEREIN, IN NO EVENT WILL HEAVYCONNECT'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF HEAVYCONNECT SERVICE OR FROM THE USE OF OR INABILITY TO USE THE HEAVYCONNECT SERVICE OR SITE CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO HEAVYCONNECT FOR USE OF THE HEAVYCONNECT SERVICE OR CONTENT. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HEAVYCONNECT AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You may not use, export, re-export, import, or transfer the Application except as authorized by United States law, the laws of the jurisdiction in which you obtained the Application, and any other applicable laws. In particular, but without limitation, the Application may not be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Application, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Application for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.
Accessing and Downloading the Application from iTunes
The following applies to any Application accessed through or downloaded from the Apple App Store ("App Store Sourced Application"):
You acknowledge and agree that (i) these Terms of Service are concluded between you and HeavyConnect only, and not Apple, and (ii) HeavyConnect, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between HeavyConnect and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of HeavyConnect.
You and HeavyConnect acknowledge that, as between HeavyConnect and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and HeavyConnect acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party's intellectual property rights, as between HeavyConnect and Apple, HeavyConnect, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Service.
You and HeavyConnect acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of these Terms of Service as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
Without limiting any other terms of these Terms of Service, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
CONTROLLING LAW AND JURISDICTION
These Terms of Service and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms of Service will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
These Terms of Service constitute the entire and exclusive understanding and agreement between HeavyConnect and you regarding the HeavyConnect Service and Site Content, and these Terms of Service supersede and replace any and all prior oral or written understandings or agreements between HeavyConnect and you regarding the HeavyConnect Service.
You may not assign or transfer these Terms of Service, by operation of law or otherwise, without HeavyConnect's prior written consent. Any attempt by you to assign or transfer these Terms of Service, without such consent, will be null and of no effect. HeavyConnect may assign or transfer these Terms of Service, at its sole discretion, without restriction. Subject to the foregoing, these Terms of Service will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms of Service, will be in writing and given: by HeavyConnect (i) via email (in each case to the address that you provide) or (ii) by posting to the Application or Site. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
The failure of HeavyConnect to enforce any right or provision of these Terms of Service will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of HeavyConnect. Except as expressly set forth in these Terms of Service, the exercise by either party of any of its remedies under these Terms of Service will be without prejudice to its other remedies under these Terms of Service or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms of Service invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms of Service will remain in full force and effect.
If you have any questions about these Terms of Service, please contact HeavyConnect at contact@HeavyConnect.com or 150 Main Street Suite 130 Salinas, CA 93901. You acknowledge and agree that when contacting HeavyConnect, whether by email, chat, or otherwise, you will not include any personally identifiable information in your communications, and that if such information is included in your communications with HeavyConnect, HeavyConnect will have no legal obligation or liability with regard to such information.