This Service Agreement is between Heart of Sales, LLC and its affiliates (collectively, "Heart of Sales, LLC"), and "you" (collectively, the "Parties"). This Agreement governs the terms and conditions of your use of Heart of Sales, LLC's proprietary Service (as defined below) known as "Outstand." Definitions. "Agreement" means this Agreement including all terms and conditions set forth herein, as may be unilaterally modified by Heart of Sales, LLC from time to time. "Content" means all audio, video, multimedia, data, text, images, graphics, logos, customer information, documents, computer programs, Information (as defined below) and any other information or materials uploaded by or on behalf of you in connection with your use of the Service. "Information" means any and all identifiable information relating to a Participant or any other person or entity. "Participant" means a third party who interacts with the Service as a result of such party's relationship with you or connection to you. "Service" means the version of Heart of Sales, LLC's hosted application known as "Outstand" that Heart of Sales, LLC may make available to you from time to time. "Web Site" or "Website" means all websites and webpages created by Heart of Sales, LLC and used in providing the Service.
Use of the Service.
2.1. Your Agreement.You agree that this Agreement is like any written negotiated agreement signed by you. By clicking to "accept" this Agreement, you agree to be bound by the terms of this Agreement. Your assent to this Agreement allows you to use the Service. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND AGAINST ANY LEGAL ENTITY ON WHOSE BEHALF YOU HAVE REGISTERED OR USED THE SERVICE, INCLUDING, WITHOUT LIMITATION, YOUR EMPLOYER. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT (OR THE TERMS OF ANY FUTURE CHANGES HERETO) THEN YOU ARE NOT PERMITTED TO USE THE SERVICE AND YOU MUST DISCONTINUE ALL FURTHER USE OF THE SERVICE. YOUR CREATION OF AN "OUTSTAND" ACCOUNT OR ANY OTHER USE OF THE SERVICE SHALL BE DEEMED YOUR ACCEPTANCE OF ALL TERMS AND CONDITIONS CONTAINED HEREIN.
2.2. ModificationsHeart of Sales, LLC may modify, add, or remove any terms or portions of this Agreement or any part of the Service (specifically including the Fee Schedule referenced in Section 6.2) at any time, by updating this posting, by posting such changes on the Web Site, or by an email notice to you. If you do not agree to such amended terms, you are not permitted to use the Service thereafter. Any use of the Service by you following the posting of any changes to the terms of this Agreement shall constitute your acceptance and assent to such changed or additional terms. Heart of Sales, LLC may discontinue or add new services, aspects, or features to the Service ("Features") from time to time at its sole discretion. You are not entitled to use such new Service or Features unless you agree to new or amended terms presented to you by Heart of Sales, LLC, if any.
2.3. Authority.You represent, warrant and affirm that (a) you are at least eighteen (18) years of age, (b) you are fully able and competent and have all necessary right, power and authority to enter into this Agreement and to perform the acts required of you hereunder, (c) you shall abide by and comply with all of the terms of this Agreement, (d) if you are registering or using the Service on behalf of any entity, that you have the ability and legal authority to bind such entity to the terms of this Agreement, (e) all information provided by you as part of the account registration process is true, accurate, current, and complete, and (f) you have a valid license to use any software applications that generate Content and the right to submit Content and your or a Participant's Information in connection with the Service. Heart of Sales, LLC may reject your registration in its sole discretion.
2.4. User Identity.To gain access to and use the Service, you may be required to create a user identity and password or other unique log-in identification information (your "User Identity"). You are responsible for all activity occurring under your User Identity, and you must keep your User Identity confidential and not share your User Identity with third parties. Heart of Sales, LLC has no obligation or responsibility with regard to your use, distribution, disclosure, or management of your User Identity. Notwithstanding the foregoing, Heart of Sales, LLC may require you to change your User Identity if any such information is inconsistent with the terms of this Agreement. You shall keep your User Identity confidential, and shall not disseminate or disclose it to any other parties. You shall use your User Identity solely in accordance with this Agreement. You shall immediately notify Heart of Sales, LLC if you learn of or suspect any loss, theft or unauthorized use of your User Identity information. In the event of such loss, theft, or unauthorized use, Heart of Sales, LLC may impose on you, at Heart of Sales, LLC's sole discretion, additional security obligations. If any unauthorized person obtains access to the Service or Web Site as a result of any act or omission by you, you shall use your best efforts to ascertain the source and manner of acquisition and shall fully and promptly inform Heart of Sales, LLC. You shall otherwise cooperate and assist in any investigation relating to any such unauthorized access. You agree not to: (a) use any incomplete, false or inaccurate biographical information or other information for purposes of registering as a Client; (b) attempt to pose as another person or entity (or as a false person or entity); (c) mislead others about your identity or the origin of a message or other communication; (d) impersonate or otherwise misrepresent your affiliation with any other person or entity; (e) use the Service in any other way that is materially false, misleading, or inaccurate; (f) delete or revise any Content, material or other information of any other user of the Service; or (g) use the Service in any way that materially damages the reputation, brand or commercial relationships of any other user, person or entity.
2.5. Access to Service.You may access and use the Service solely in accordance with this Agreement and any posted policies and procedures that appear on the Web Site. Any use of the Service by you is at your sole risk and responsibility. You agree to comply with all applicable laws (including, without limitation, any applicable export controls) in connection with your use of the Service, and with such further limitations or rules as may be set forth on the Web Site. You acknowledge that your ability to access the Service may require the payment of third party fees (such as telephone toll charges, ISP, or airtime charges) and that you are responsible for paying such fees. Heart of Sales, LLC is not responsible for any equipment you may need to be able to access the Service.
2.6. Prohibited Uses.Except as may be expressly permitted in this Agreement, in connection with your access or use of the Service, you agree not to: (a) introduce a virus, worm, Trojan horse or other harmful software code or similar files that may damage the operation of a third party's computer or property or information; (b) use the Service in any manner that could damage, disable, overburden, or impair any Heart of Sales, LLC server, or the network(s) connected to any Heart of Sales, LLC server or interfere with any other party's use and enjoyment of the Service; (c) attempt to gain unauthorized access to services, materials, other accounts, computer systems or networks connected to any Heart of Sales, LLC server or to the Service, through hacking, password mining, or any other means; (d) obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service; (e) host, on a subscription basis or otherwise, the Service, including any related application to permit a third party to use the Service to create, transmit, or protect any Content, or to conduct conferences or online meeting services for a third party; (f) engage in any systematic extraction of data or data fields, including without limitation e-mail addresses; (g) disclose, harvest, or otherwise collect Information, including e-mail addresses, or other private information about any third party without that party's express consent; (h) transmit junk mail, spam, surveys, contests, pyramid schemes, chain letters, or other unsolicited e-mail or duplicative messages; (i) sell, lease, or rent access to or use of the Service, or otherwise transfer any rights to use the Service under this Agreement (including without limitation, on a timeshare or service bureau basis); (j) defraud, defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others; (k) upload, or otherwise make available, files that contain images, photographs, software, or other material protected by intellectual property laws, including, for example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consent to do the same; (l) take any action that imposes an unreasonable or disproportionately large load on the Web Site's infrastructure; (m) use any device, software or routine to interfere or attempt to interfere with the proper working of the Service or any activity being conducted on the Web Site; (n) use or attempt to use any engine, software, tool, agent or other device or mechanism (including, without limitation, browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Web Site, other than the search engine and search agents available from Heart of Sales, LLC on the Web Site and other than generally available third-party web browsers; or (o) attempt to decipher, decompile, disassemble or reverse-engineer any of the software comprising or in any way making up a part of the Web Site.
2.7. Spamming ProhibitedYou are specifically prohibited from using the Service to send or transmit "spam" or any other unsolicited e-mail, duplicative messages or junk mail such as surveys, contests, pyramid schemes, chain letters, etc. You agree you will not access or otherwise use third party mailing lists or otherwise prepare or distribute unsolicited email, in connection with the Service. Every email message sent in connection with the Service shall contain an "unsubscribe" link that allows the recipient to remove themselves from your mailing list, and no further emails shall be sent through the Service to any recipient who elects to unsubscribe. Heart of Sales, LLC shall have the right to deny the transmission of any email or handle or permanently or temporarily suspend your use of the Service if Heart of Sales, LLC reasonably believes that you are violating these provisions. Limited License to Use the Service. Subject to your compliance with the terms and conditions of this Agreement, including your agreement to pay all of the related fees as described or referenced in Section 6 below, Heart of Sales, LLC grants to you a limited, non-exclusive, non-transferable, revocable right to access and use the Service in accordance with the terms of this Agreement and all future modifications thereto made by Heart of Sales, LLC. Ownership of the Service and Web Site. Except as expressly contemplated under this Agreement, Heart of Sales, LLC shall own all right, title and interest in and to all copyrights, trademarks, service marks, patents, trade secrets or other intellectual property or proprietary rights in and to the Service, the Web Site and all graphics, logos, "Sales Makers," designs, service marks, and trade names, product names, and brand names used by Heart of Sales, LLC in connection with the Service or the Web Site, in all media now known or later devised. Such proprietary property owned by Heart of Sales, LLC includes, without limitation, all templates and designs for greeting and birthday cards, letterhead, websites, business cards, postcards, calendars and other pre-designed templates provided by Heart of Sales, LLC on or within the Service or the Web Site. You are expressly prohibited from using, copying, reproducing or reselling any of Heart of Sales, LLC's templates, designs or other proprietary property, except for uses expressly permitted via the Service. Heart of Sales, LLC reserves the right to place appropriate copyright notices, legal disclaimers or other information on all electronic media or other items transmitted electronically via the Service. You shall not remove, conceal or alter any copyright notice, byline information, disclaimer, restriction or other notice on any such item, the Web Site or any portion thereof. You shall not use or permit any third party to use Heart of Sales, LLC's name, trademarks, trade names, or trade dress, including without limitation, the trademark, OutstandTM.
Term and Termination.
5.1. Term.This Agreement shall commence as of the date that you click to accept this Agreement (or otherwise indicate your assent to the terms of this Agreement) and shall continue until terminated as set forth in this Section.
5.2. Termination.Heart of Sales, LLC may terminate your use of the Service and this Agreement at any time for its convenience without prior notice to you or upon expiration of the Service, any of which will be determined by Heart of Sales, LLC in its sole discretion. You may terminate your use of the Service and this Agreement at any time for your convenience without prior notice to Heart of Sales, LLC.
5.3. Effect of Termination.Upon any termination of this Agreement or your right to use the Service, you must immediately cease using the Service. Heart of Sales, LLC reserves the right to delete any data files associated with Content, Information, or your use of the Service upon termination of the Service to you. 5.4. Temporary Suspension of Service. Heart of Sales, LLC may temporarily suspend your use of the Service (or any portions or aspects of such use) at any time without prior notice to you for Heart of Sales, LLC's convenience or for any reason, or if Heart of Sales, LLC believes that your use of the Service is or may be in violation of any other terms of this Agreement as determined by Heart of Sales, LLC in its sole discretion.
6.1. Fees for Use of Service.During the term of this Agreement, in consideration of your right to use the Service, you agree to pay Heart of Sales, LLC all of the applicable fees as set forth in the Fee Schedule (the "Fee Schedule") posted on the Web Site. Such fees shall include, without limitation, a recurring monthly subscription fee that shall be a minimum fee for your right to access and use the Service. In addition to the monthly subscription fee, you agree to pay the applicable fees as shown on the Fee Schedule for all additional products and services that you may order through the Service. You also agree to pay or reimburse Heart of Sales, LLC for all third-party expenses incurred by Heart of Sales, LLC for products or services ordered or provided on your behalf. Heart of Sales, LLC reserves the right to disable your access to and use of the Service until all outstanding payments are received in full. All fees and other charges are due on the date of order. Any fees or other charges that are not paid when due shall accrue interest at the rate of one and one-half percent (1.5%) per month until paid. You agree to pay all costs of collection and any other expenses incurred by Heart of Sales, LLC to enforce this Agreement including, without limitation, reasonable actual attorneys fees.
6.2. Method of Payment.When you register for the Service, you must pay for the Service via credit card, or other payment method expressly authorized by Heart of Sales, LLC. If you pay by credit card, you will be required to provide a valid credit card number, billing address and other required information when registering to use the Service. You hereby authorize Heart of Sales, LLC to charge your credit card for all applicable fees and other charges incurred by you hereunder. All fees hereunder are payable in U.S. dollars. All fees and other amounts paid hereunder are non-refundable.
6.3. Changes to Fee Schedule.You are responsible for reviewing the Fee Schedule from time to time and remaining aware of the fees charged by Heart of Sales, LLC. The Fee Schedule is subject to change at any time in Heart of Sales, LLC's sole discretion. Heart of Sales, LLC will use good faith efforts to notify you via email prior to the effectiveness of any change to the Fee Schedule. All fees and charges shall be in accordance with the applicable Fee Schedule in effect at the time of order.
7.1. Your Content.You may upload Content to the Service in connection with your use of the Service. You grant Heart of Sales, LLC permission to use the Content as necessary to provide the Service. Heart of Sales, LLC does not verify, endorse, or claim ownership of any Content, and you retain all right, title, and interest in and to the Content. Heart of Sales, LLC does not store Content except as necessary for Heart of Sales, LLC to perform the Service, and Heart of Sales, LLC retains the right to create reasonable limits on the Content, such as limits on file size, storage space, processing capacity, time frames for retention of Content, and similar limitations as otherwise determined by Heart of Sales, LLC in its sole discretion. Heart of Sales, LLC shall make commercially reasonable efforts to block the uploading of Content to the Service that contains viruses detected by using industry standard virus detection software. Notwithstanding anything to the contrary herein, Heart of Sales, LLC has no responsibility or liability for the deletion or accuracy of Content, the failure to store, transmit or receive transmission of Content (whether or not processed by the Service), or the security, privacy, storage, or transmission of other communications originating with or involving use of the Service. Heart of Sales, LLC makes no representations, warranties or covenants regarding, and does not guarantee, the truthfulness, accuracy, or reliability of any Content or other information or material communicated through, or posted to, the Service, whether by you, Heart of Sales, LLC or any other user. Heart of Sales, LLC does not necessarily endorse or condone any opinions expressed by any user of the Web Site. Heart of Sales, LLC shall have the unrestricted right to reject uploading or transmission of any Content, electronic communications or orders deemed by Heart of Sales, LLC to be in violation of this Agreement.
7.2. Your Representations and Warranties Regarding Content.You represent and warrant that (a) you are the owner, licensor, or authorized user of all Content that you upload to the Service or Web Site; and (b) you will not upload, record, publish, post, link to, or otherwise transmit or distribute Content that: (i) advocates, promotes, incites, instructs, assists or otherwise encourages violence or any illegal activities; (ii) infringes or violates the copyright, patent, trademark, service mark, trade name, trade secret, or other intellectual property rights of any third party or Heart of Sales, LLC, or any rights of publicity or privacy of any party; (iii) attempts to mislead others about your identity or the origin of a message or other communication, or impersonates or otherwise misrepresents your affiliation with any other person or entity, or is otherwise materially false, misleading, or inaccurate; (iv) promotes, solicits or comprises inappropriate, harassing, abusive, profane, defamatory, libelous, threatening, obscene, indecent, vulgar, pornographic or otherwise objectionable or unlawful content or activity; (v) is harmful to minors; (vi) contains any viruses, Trojan horses, worms, time bombs, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, Information, or property of another; or (vii) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising).
7.3. Heart of Sales, LLC Access to Content.You acknowledge that the Service is automated and that Heart of Sales, LLC is not responsible for reviewing any Content. Heart of Sales, LLC shall, however, have the unrestricted right (but not obligation) to access, use and view any and all Content for any reason as determined by Heart of Sales, LLC (in its sole reasonable discretion) to provide, perform and administer the Service, and to (a) respond to support requests; (b) detect, prevent, or otherwise address fraud, security, or technical issues; (c) to conform to legal requirements or comply with legal process; or (d) enforce this Agreement. Your submission of any Content to the Service shall constitute your granting to Heart of Sales, LLC and its affiliates, a royalty-free, perpetual, irrevocable, non-exclusive, worldwide right and license to use, reproduce, modify, adapt and display such Content to as necessary to provide, perform and administer the Service, as reasonably determined by Heart of Sales, LLC in its sole discretion. Web Site Security. You are prohibited from violating or attempting to violate the security of the Web Site, including, without limitation, (i) accessing data not intended for you or logging into a server or account that you are not authorized to access; (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (iii) attempting to interfere with service to any user, host or network, including, without limitation, by way of submitting a virus to, or overloading, "flooding", "spamming", "mailbombing" or "crashing", the Web Site; (iv) sending unsolicited email to any user of the Web Site, including promotions and/or advertising of products or services; or (v) forging any part of the header information in any email or posting generated in connection with the Service. Violations of system or network security may result in civil or criminal liability. Heart of Sales, LLC will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. Heart of Sales, LLC reserves the right to review Content and postings on the Web Site, to remove any Content or postings, and to terminate your ability to communicate with, or post or add Content to, the Web Site at any time without notice, in its sole discretion. Heart of Sales, LLC will use commercially reasonable efforts not to disclose any information you communicate with, or post to, the Web Site, but reserves the right to disclose such information to the extent necessary to satisfy any applicable law, regulation, legal process or governmental request, and the right to edit, refuse to post or to remove any information or materials, in whole or in part. Links. Heart of Sales, LLC may provide links to other Web sites or resources as part of the Service as a convenience to you. Heart of Sales, LLC is not responsible for the contents, products or service on any third party site, and the inclusion of any link does not imply that Heart of Sales, LLC endorses the content on such third party sites. You may visit such third party sites solely at your own risk. Operation of Web Site. Heart of Sales, LLC shall not be responsible for any delays or interruptions of, or errors or omissions contained in, the Service or the Web Site. Heart of Sales, LLC reserves the right, but shall not be required, to correct any such delays, interruptions, errors or omissions. Although Heart of Sales, LLC intends to use commercially reasonable efforts to make the Web Site and Service accessible, Heart of Sales, LLC makes no representation, warranty or covenant that the Web Site or Service will be available, uninterrupted or error-free at all times or at any time. Various circumstances may prevent or delay availability, including telecommunications and/or server problems. Heart of Sales, LLC may at any time discontinue the Service or the Web Site in whole or in part, may change or eliminate any transmission method, and may change transmission speeds or other signal characteristics. Heart of Sales, LLC shall not be responsible for any loss, cost, damage or liability that may result from any of the circumstances, actions or inactions described in this Section. Heart of Sales, LLC shall have no obligation to respond or conform to any request by you for fixes or additional functionality. Investigations. Heart of Sales, LLC does not generally monitor user activity occurring in connection with the Service. If Heart of Sales, LLC becomes aware, however, of any possible violations by you of any provision of this Agreement, Heart of Sales, LLC reserves the right to investigate such violations, and Heart of Sales, LLC may, at its sole discretion, terminate immediately your license to use of the Service or change, alter or remove Content, in whole or in part, without prior notice to you. If, as a result of such investigation, Heart of Sales, LLC believes that criminal activity has occurred, Heart of Sales, LLC reserves the right to refer the matter to, and to cooperate with, any and all applicable law enforcement authorities. Heart of Sales, LLC is entitled, except to the extent prohibited by applicable law, to disclose any information, including Content and Information, about you in Heart of Sales, LLC's possession in connection with your use of the Service to law enforcement or other government officials, as Heart of Sales, LLC in its sole discretion believes to be necessary or appropriate.
12.1. Terms.The terms of this Section relate to Heart of Sales, LLC's collection and use of Information in connection with the Service.
12.2. Non-U.S. Residents.You agree and acknowledge that your Information collected through the Service or in connection with the Service may be transferred across national boundaries and stored and processed in any of the countries around the world in which Heart of Sales, LLC maintains offices, including the United States.
12.3. Types of Information Collected.Heart of Sales, LLC may collect certain information regarding your use of the Service, such as the name of the Internet service provider and the Internet Protocol address through which you access the Internet; the time you access the Service; and the Internet address of any referring web site and the Internet address of the web site from which you linked directly to the Web Site. Heart of Sales, LLC uses this information to provide, operate and support the Service.
12.4. Storage and Use of Information.Heart of Sales, LLC stores your Information and the Information of Participants in accordance with Heart of Sales, LLC's then-current storage policies and as necessary to perform the Service. Heart of Sales, LLC may delete, as applicable, all or portions of your Information or Information of Participants upon termination of this Agreement.
12.5. Security.Heart of Sales, LLC intends to use commercially reasonable efforts to implement technical safeguards and procedures to protect communications with the Service including communication of Content and Information. Notwithstanding the foregoing, you are advised that the security of communications sent over the Internet (including by e-mail) is subject to many factors outside of Heart of Sales, LLC's control and, as a result, Heart of Sales, LLC does not guarantee the security or privacy of such communications. Heart of Sales, LLC cannot and does not assume any responsibility or liability for any information submitted to the Service or the Web Site or for the use or misuse of any Content or other information submitted by you or any other person, including, without limitation, any information accessed by a hacker or by any other malicious act. Heart of Sales, LLC shall not be liable for any loss or misuse of data or Content or other damages relating to any unauthorized use of the Service or other malicious act by any "hacker" or other third party.
12.6. Communications from Heart of Sales, LLC.Notwithstanding any communications preferences indicated by you, Heart of Sales, LLC may send to you service-related e-mails regarding service maintenance events or modifications to the functionality or delivery of the Service.
12.7. Information of Participants.As between Heart of Sales, LLC and you, you shall have sole responsibility for any and all Information of Participants used and submitted in connection with the Service, and Heart of Sales, LLC shall have no responsibility in connection thereto. You shall comply with all data protection and privacy laws and rules applicable to Information of Participants. You shall defend, indemnify, and hold harmless Heart of Sales, LLC from any claim, suit or proceeding brought against Heart of Sales, LLC by a Participant in connection with any acts or omissions with regards to such Information of Participants. Emails sent to Participants in connection with the Service may be sent to Participants by you and not by Heart of Sales, LLC. As a result, even though certain Participants may have opted-out from receiving communications from Heart of Sales, LLC, such Participants may receive certain Service-related e-mails sent by you. In addition, Heart of Sales, LLC may send e-mails to Participants in your name as your agent, at your request, and on your behalf. You are solely responsible for such e-mails and the contents thereof. Disclaimer of Warranties; Indemnification.
13.1. Disclaimer of Warranties.You acknowledge and agree that the Service may experience interruptions, delays, errors, or other technical problems at any time and that there may be periods when the Service will not be available or operable for technical or other reasons. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE BASIS" "WITH ALL FAULTS" AND WITHOUT WARRANTY OF ANY KIND. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE FULL EXTENT PERMITTED BY LAW, Heart of Sales, LLC, ON BEHALF OF ITSELF AND ALL OF ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS, CONTRACTORS, SERVICE PROVIDERS, RESELLERS, LICENSORS, CO-BRANDERS, AND ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICE (COLLECTIVELY, THE "Heart of Sales, LLC PARTIES"), HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEM INTEGRATION OR COMPATIBILITY, WORKMANLIKE EFFORT, LACK OF NEGLIGENCE, QUIET ENJOYMENT, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, Heart of Sales, LLC DOES NOT WARRANT OR REPRESENT THAT THE SERVICE WILL BE CONTINUOUS, SECURE, RELIABLE, ACCESSIBLE, UNINTERRUPTED OR ERROR-FREE, OR THAT Heart of Sales, LLC'S SERVERS AND SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT Heart of Sales, LLC'S SECURITY PROCEDURES AND MECHANISMS WILL PREVENT THE LOSS OR ALTERATION OF OR IMPROPER ACCESS TO INFORMATION OR CONTENT BY THIRD PARTIES. FURTHERMORE, THERE IS NO WARRANTY THAT THE SERVICE WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY PARTICIPANT OR OTHER PERSON OR ENTITY.
13.2. Indemnification.YOU HEREBY AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS Heart of Sales, LLC (AND ALL OF THE Heart of Sales, LLC PARTIES) FROM ANY ACTION, CLAIM, DEMAND, EXPENSE, COST (INCLUDING, WITHOUT LIMITATION, REASONABLE ACTUAL ATTORNEYS' FEES) OR OTHER LIABILITY ARISING FORM OR RELATING TO (A) ANY USE OF THE SERVICE BY YOU OR BY ANY PARTICIPANT, (B) YOUR FAILURE TO COMPLY WITH ANY TERM OF THIS AGREEMENT, OR (C) ANY CONTENT UPLOADED OR USED BY YOU REGARDING THE SERVICE. Limitation of Liability.
14.1.NEITHER Heart of Sales, LLC NOR ANY Heart of Sales, LLC PARTY SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE THE SERVICE OR ACCESS DATA, INFORMATION OR CONTENT, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE AND BASED ON ANY THEORY OF LIABILITY INCLUDING STATUTE, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF Heart of Sales, LLC OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
14.2.THE TOTAL LIABILITY OF Heart of Sales, LLC OR ANY Heart of Sales, LLC PARTY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER RELATING TO THIS AGREEMENT OR THE SERVICE WILL BE LIMITED TO ONE UNITED STATES DOLLAR ($1.00). YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
14.3.THE LIMITATIONS ON LIABILITY HEREIN ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
14.4. Release from Claims.Heart of Sales, LLC does not regularly screen or censor any Content or other information or material posted to the Web Site. Although Heart of Sales, LLC makes commercially reasonable efforts to determine the identity of users, Heart of Sales, LLC cannot and does not confirm that any user is who they claim to be or that any user has the qualifications he, she or it claims to have. Because Heart of Sales, LLC does not and cannot be involved in user-to-user dealings or control the behavior of users of the Service, if you have a dispute with one or more users, you hereby release Heart of Sales, LLC (and each of the Heart of Sales, LLC Parties) from claims, demands and damages (actual and consequential, direct and indirect) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Governing Law. The Service is controlled by Heart of Sales, LLC from its offices within the United States of America. By accessing and using the Service, you and Heart of Sales, LLC agree that all matters relating to this Agreement and your access to, or use of, the Service shall be governed by the statutes and laws of the Commonwealth of Virginia, without regard to the conflicts of laws principles thereof. You and Heart of Sales, LLC also agree and hereby submit to the personal jurisdiction and venue of the Lynchburg Circuit Court and the United States District Court for the Western District of Virginia with respect to such matters. The application of UCITA and the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Language. It is the express wish of the Parties that the Agreement and all related documents have been drawn up in English and that the English version of this Agreement shall be the sole version used in interpreting and enforcing this Agreement. Export Control Laws. The export and re-export of certain software and Content are controlled by the United States Export Administration Regulations, and such software and Content may not be exported or re-exported to Cuba, Iran, Libya, North Korea, Sudan, Syria, or any country to which the United States embargoes goods. In addition, certain software and Content may not be distributed to individuals who are on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals. You warrant that you are not a national of Cuba, Iran, Libya, North Korea, Sudan, Syria or any country to which the United States embargoes goods, and that you are not a person on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals. You further warrant that you will abide by U.S. and other applicable export control laws. Miscellaneous Provisions.
18.1. Entire Agreement.This Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and all prior oral or written agreements and understandings, and any and all contemporaneous oral agreements and understandings (excluding any associated agreements required by Heart of Sales, LLC as a condition precedent to your use of the Service), between you and Heart of Sales, LLC regarding the subject matter of this Agreement.
18.2. Amendment.Heart of Sales, LLC may modify or amend this Agreement as set forth in Section 2.2.
18.3. Severability.If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, then such provision shall be deemed null and void, but the remaining provisions shall continue in full force without being impaired or invalidated in any way.
18.4. Mutual Participation.The language of this Agreement shall be deemed to be the language mutually chosen by the parties and no rule of strict construction shall be applied against or in favor of either party hereto.
18.5. Headings.The section headings and other headings contained herein shall not affect the meaning or interpretation of this Agreement.
18.6. Assignment.You may not assign or otherwise transfer (by operation of law or otherwise) any of your rights or duties hereunder unless Heart of Sales, LLC agrees in writing after receiving prior written notice. Any attempted assignment or other transfer without the requisite consent shall be null and void ab initio. Heart of Sales, LLC may assign or otherwise transfer any of its rights or the performance of any of its duties without your consent.
18.7. Waiver.The waiver by Heart of Sales, LLC of a breach or a violation of any provision of this Agreement shall not operate as or be construed to be a waiver of any subsequent breach or violation of any provision of this Agreement.
18.8. Independent Contractors.The parties and their respective personnel are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
18.9. Force Majeure.If the performance of any part of this Agreement by either party (with the exception of any payment obligation) is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that such performance is prevented, hindered or delayed by such causes. This section shall not apply or operate to excuse or delay any payment obligation under this Agreement.
18.10. Capacity.The parties hereby warrant and represent that they have all necessary rights and authority to enter into this Agreement and to fulfill their obligations hereunder.
18.11. Further Assurances.The parties hereto shall, at their own cost and expenses, execute and deliver such other documents artwork, programming code and instruments and shall take such other action as may reasonably be required or appropriate to evidence or carry out the intent and purposes of this Agreement.