TERMS & CONDITIONS – US
Effective as of April 30, 2019
Welcome to HEROW! HEROW is the augmented location company, a leader in location analytics and contextualized mobile engagement. The services outlined herein are provided by HEROW Corporation, a Delaware corporation, and its parents, subsidiaries, and affiliates (collectively “HEROW”).
These Terms may be amended by HEROW from time to time in accordance with the terms below. Customer should review the Terms prior to using the Services. By using the Services, Customer acknowledges that the Services fulfill its requirements and needs and that it has received all necessary advice and information from HEROW when purchasing the Services.
2. Types of Customers to Whom These Terms Apply
These Terms will apply to Customers that receive a license to use the Services through one (or multiple) mobile application(s) they own and/or develop.
- “API” means application program interface, which is a set of routines, protocols, and tools for building software applications.
- “Customer” means HEROW customers who receive a license to use the Services through one (or multiple) mobile application(s) they own and/or develop.
- “Order Form” means any document setting forth the commercial conditions and scope of the contract as agreed between the two parties.
- “Customer Content” means all works and materials including Customer Data uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of the Customer or by any person or application or automated system using the Customer’s account; and otherwise provided by the Customer to HEROW in connection with this Agreement.
- “Customer Data” means any electronic data and information uploaded by or for the Customer via the Services or collected and processed by or for the Customer using the Services. For the avoidance of doubt, this includes all information of the Customer’s customers or users of the Customer’s mobile app which relates to an identified or identifiable natural person or is protected as personal data or personally identifiable information under GDPR or other applicable data protection laws.
- “Force Majeure Event” means any event which prevents a party from performing its obligations under this Agreement, or delays the performance of such obligations due to causes beyond that party’s reasonable control, including acts of God, war, riot, terrorism, embargoes, union disputes and strikes, acts of civil or military authorities, fire, floods, earthquakes or fuel crises, provided that such party gives prompt written notice thereof to the other party and uses its diligent efforts to resume performance.
- “GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
- “Platform” means a location intelligence and user engagement platform composed of different elements of software and services (e.g. algorithms, code etc.). It allows collecting, storing and analyzing data from mobile devices and other data sources.
- “SDK” means “Software Development Kit” and is a set of software development tools used to provide the Services. The SDK is made available to the Customer for installation in its mobile application(s).
- “Services” means all services, products, and components thereof offered by HEROW .
4. HEROW’ Obligations
HEROW shall use good faith effort to deliver the Services in accordance with the service levels set forth below.
Provided Customer has not materially breached these Terms, HEROW grants Customer a non-transferable (except as expressly set forth herein), non-exclusive, worldwide, royalty free, and revocable license to Customers to use the Services, subject to the restrictions set forth in the Acceptable Use Policy, below, as well as any other restrictions set forth in these Terms and for a duration period, as set forth in the Order From.
Updates to the Services
HEROW reserves the right, in its sole discretion, to manage, update, change, modify, suspend, discontinue or upgrade part of or all of the Services at any time, to ensure optimum performance for all Customers, or for any other purpose.
HEROW shall, to the extent possible, inform the Customer within a reasonable timeframe about the nature and the duration any modification or upgrade, update, or other change made to the Services hereunder.
5. Customer’s Rights and Obligations.
Acceptance of Terms
Username and Password
The Customer is responsible for managing and safeguarding its platform account credentials (login and password information). HEROW shall not be liable for any illicit or fraudulent use of the Customer’s account.
The Customer agrees to use and integrate the Mobile SDK and/or API as specified in the Technical Guidelines that are provided by HEROW with the Mobile SDK for mobile application and with the API.
Customer Content Delivery
Customer Content shall be delivered on their mobile application via the Platform. For the avoidance of doubt, HEROW makes no guarantee to Customers that Customer Content shall appear at all times, as the appearance of Customer Content via the Services may be affected by numerous factors, some of which are not directly controlled by HEROW.
Any and all disseminated Customer Content via the Services shall comply with the applicable restrictions on Customer Content as set forth herein (which shall include, for the avoidance of doubt, the Acceptable Use Policy).
6. Customer Data
- If HEROW processes any Customer Data on the Customer’s behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and HEROW shall be a data processor and in any such case:
- The Customer shall own any and all Customer Data and shall be solely responsible for the accuracy and quality of any and all Customer Data and for establishing all terms and conditions applicable to the Customer’s own customers and/or mobile app users.The Customer shall ensure that the Customer is entitled to transfer the Customer Data to HEROW so that HEROW may lawfully use, process and transfer the Customer Data in accordance with this Agreement on the Customer’s behalf.The Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by GDPR and all other applicable data protection legislation. HEROW shall process the Customer Data only in accordance with the terms of this Agreement and any lawful documented instructions reasonably given by the Customer from time to time including with regard to transfers of Customer Data to a third country or an international organization, unless the laws of the state to which HEROW is subject require HEROW to process the data; in such a case, HEROW shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest. Each party shall take appropriate technical and organizational measures in such a manner that processing will meet the requirements of GDPR and ensure the protection of the rights of the Customer’s customers or users. HEROW shall not engage another processor or sub-processor to process Customer Data without prior specific or general written authorization of the Customer. In the case of general written authorization, HEROW shall inform the Customer of any intended changes concerning the addition or replacement of other processors, thereby giving the Customer the opportunity to object to such changes. HEROW and Customer shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, in accordance with Article 32 of GDPR. HEROW shall ensure that persons authorized to process the Customer Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.At the choice of the Customer, HEROW shall delete or return all the Customer Data to the Customer after the end of the provision of Services relating to processing and delete all existing copies unless laws of the European Union and other applicable requires storage of the Customer Data. HEROW shall make available to the Customer all information necessary to demonstrate compliance with the obligations laid down for data processors under GDPR and allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer. HEROW shall immediately inform the Customer if, in its opinion, an instruction infringes GDPR or other European Union or state data protection provisions.
- The Customer hereby grants HEROW a non-exclusive, royalty-free, non- transferable worldwide license during the term to access and use Customer Data solely for the purpose of providing the Service and any applicable professional services in accordance with this Agreement.
- The Customer grants to HEROW a worldwide, perpetual, irrevocable, royalty-free license to use, copy, modify, distribute, create derivative works of and otherwise exploit anonymous usage data derived from the Customer’s, and Platform Users’ use of the Service (Usage Data) as aggregated with usage data from HEROW’ other customers for its own business purposes such as support, operational planning, product innovation and sales and marketing of HEROW’ services. For purposes of clarification, such Usage Data may not include any data that could reasonably identify Customer or any particular customer or end-user of Customer and shall not be deemed Customer Data.
- HEROW shall have the right (but not the obligation) in its sole discretion to refuse or remove any Customer Data that violates GDPR with regard to sensitive personal data or other data at HEROW’ discretion.
7. Customer Content
- The Customer grants to HEROW during the term of this Agreement, a non-exclusive license to store, copy and otherwise use the Customer Content on the Platform for the purposes of operating the Platform, providing the Services, fulfilling its other obligations under this Agreement, and exercising its rights under this Agreement.
- Subject to Section 7 (a), all intellectual property rights in the Customer Content will remain, as between the parties, the property of the Customer.
- The Customer warrants and represents to HEROW that the Customer Content, and their use by HEROW in accordance with the terms of this Agreement, will not:
- Breach any laws, statutes, regulations or legally-binding codes;Infringe any person’s intellectual property rights or other legal rights; orGive rise to any cause of action against HEROW or the Customer or any third party, in each case in any jurisdiction and under any applicable law.
- Where HEROW reasonably suspects that there has been a breach by the Customer of the provisions of this Section 7, HEROW may:
- Delete or amend the relevant Customer Content; and/or,Suspend any or all of the Services and/or the Customer’s access to the Platform while it investigates the matter.
- Any breach by the Customer of this section will be deemed to be a material breach of this Agreement.
8. Modifications to the Services
Customer shall not modify the Services (whether by provision of Customer Content via the Services or otherwise), except as expressly permitted herein. Customer shall be responsible for the results of any authorized or unauthorized modification of the Services, including modifications created by Customer’s broadcast or other dissemination of Customer Content through the Platform. HEROW shall not be liable for any failure of the Services resulting from Customer’s unauthorized modification or use of such Services
9. Acceptable Use Policy
Customer shall use and access the Services responsibly. Accordingly, Customer’s license hereunder shall be conditioned upon Customer not doing, attempting to do, or encouraging any third party to attempt to do any of the following when accessing and using the Services:
- Use the Services for any purpose which violates applicable laws.
- Reverse engineer, decompile, modify, alter, tamper with, disassemble copy, translate, convert, apply any process to, or create any modifications, enhancements, or derivative work of any component of the Platform or the Services.
- Probe, monitor, or otherwise test for vulnerabilities in any network used to provide the Services.
- Introduce to the Services or any instrument thereof, any material, tangible or intangible, that contains software, viruses, or other computer codes, files or programs that are designed to disrupt, damage, limit, or interfere with the Services or any component thereof. For the avoidance of doubt, all activity that may be categorized as a precursor to any violation hereof (i.e. port scan, stealth scan, or other information gathering activity) shall also be prohibited.
- Customer is prohibited from accessing illegally or without authorization computers, accounts or networks belonging to HEROW or to any other party. Any activity that might be used as a precursor to an attempted system penetration (i.e. port scan, stealth scan, or other information gathering activity) is also prohibited.
- Breach or otherwise circumvent any security measures put in place by HEROW.
- Use manual or automated software, devices, or other processes to “crawl” or “spider” the site or any features of the Services.
- Modify, integrate, or incorporate any part of the Services into a product manufactured or sold by Customer, except with express written authorization of HEROW; provided however, that the delivery of Customer Content by Customer using the Services shall not constitute a violation hereof.
- Distribute, disclose, publish, assign, share, lend, or otherwise allow use of the Services by any third party, except as expressly permitted by these Terms.
- Transfer, rent, assign, sublicense, or allow the use of the Services.
- Disseminate Customer Content which:
- is defamatory, obscene, vulgar, pornographic, sexually explicit, abusive, or otherwise illegal;
- is intended to threaten or abuse a particular person or class of persons;
- Discriminates on the basis of, or is or may be offensive to persons of a particular race, religion, nationality, gender (including sexism), sexual preference, age, region, disability, etc.; or
- Constitutes hate speech.
Violations of Acceptable Use Policy
HEROW reserves the right to monitor the Services for violations of the Acceptable Use Policy and to remove, block, or otherwise restrict the dissemination of Customer Content and Customer Data which HEROW, in its sole discretion, deems to violate the Acceptable Use Policy. HEROW reserves the right to suspend or terminate the accounts of Customers that repeatedly violate the Acceptable Use Policy.
Violations of French Intellectual Property Code and Divertive of the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society (2001/29/EC)
HEROW takes copyright infringement very seriously. Accordingly, HEROW will remove and prevent from further dissemination any Customer Content that is in breach of copyrights or any other intellectual property tittle.
10. Ownership and Intellectual Property
Ownership of Services, IP, and Data
The Services, including but not limited to the Platform, API, SDK and all documents, data, know-how, methodologies, software, and other materials developed or acquired by HEROW for performance of the Services are the sole and exclusive property of HEROW, and are protected by copyright, trademark, design and models, trade secret, patent, and other U.S. and foreign laws. These terms do not grant Customer any right, title, and interest in and to the Services (except to the extent Customer is granted a license hereunder), or to any trademarks, logos, or other brand features which are part of the Services.
Ownership of Derivative Works
Customer accepts and agrees that any modifications, enhancements, or derivative works of the Services or any part thereof shall be the sole and exclusive property of HEROW (the “Derivatives”). Customer hereby irrevocably assigns to HEROW all right, title, and interest, throughout the universe, in and to the Derivatives , including, without limitation, all intellectual property rights therein that may inure to Customer or that Customer is deemed to obtain pursuant to these Terms.
Ownership of Feedback and Suggestions
It is expressly understood, acknowledged and agreed that Customer may, but is not obliged to, provide HEROW with suggestions, comments and feedback regarding its products and services, including, but not limited to, usability, bug reports, new services, new business model and test results (collectively, “Feedback”). The parties agree that the Feedback shall be considered the property of, and may be used by, HEROW without any obligation to Customer. Customer waives any right, title, and interest in and to such Feedback.
11. Purchasing the Services.
In the event of a conflict between the Order Form and these Terms, the Order Form shall prevail
The payment terms are set out in the Order Form and define the duration of the commercial relationship and associated billing that has been agreed between the two parties.
Late payments are subjected to late payment penalties fees calculated on the basis of the outstanding including taxes, multiplied by a rate corresponding to the rate applied by the European Central Bank to its most refinancing operation plus ten percent (10%).
Any payment delay of all or part of an amount, within the framework of this Agreement, at its due term, shall automatically entail, without prejudice to HEROW’ other rights and with a 3 days prior formal notice:
- Immediate suspension of current Services until complete payment by the Client of all amounts due,
- Invoicing of a late payment interest, for HEROW’ benefit, at the rate of 3 times (three times) the legal interest rate, calculated on the total of all amounts due by the Client.
HEROW reserves the right to collect taxes when HEROW, in its sole discretion, believe that applicable laws require it to do so.
12. Term and Termination
The term of the Services shall be as set forth in the Order Form. If the term of the Services is not set forth in Order Form or if such Order Form is not executed, the term of the Services shall be one (1) year.
Either party may terminate the Services (i) if the other party materially breaches any of its duties or obligations hereunder and such breach is not cured within ninety (90) days following receipt by the breaching party of notice thereof; or (ii) upon the occurrence of a Force Majeure Event which prevents performance by a party for no less than ninety (90) days.
Either party may terminate the Services by providing thirty (30) days written notice prior to the end of the term or any renewal term period, as the case may be. Certain actions of Customer may give rise to irreparable harm and allow HEROW to terminate the Services immediately and without notice. Specifically, HEROW may immediately terminate the Services for (i) non-payment; (ii) violations of any use restrictions set forth herein, including, but not limited to, the Acceptable Use Policy; and (iii) any other Customer actions which HEROW, in its sole discretion, believes pose an immediate threat to the Services or the HEROW platform, servers, or to HEROW, including its reputation, integrity, and security.
Effect of Termination
Upon termination, Customer’s license to use the Services hereunder shall immediately cease and be of no further effect.
In the event that the Customer terminates Services prior to the end of the term, it is expressly understood, acknowledged and agreed that HEROW shall not reimburse any received payment.
HEROW shall not issue refunds to Customers for sums already paid or due to HEROW. Notwithstanding the foregoing, HEROW reserves the right to issue refunds, provided that such refunds shall be made in the sole discretion of HEROW
13. Service Levels and Support.
HEROW uses virtualized and redundant physical servers and uses commercially reasonable efforts to ensure 99.8% Services availability per month. HEROW shall use commercially reasonable efforts to promptly reply to any Customer service request. Every system failure has a 4-hour repair time. The Customer agrees to notify HEROW in writing in the event of a SERVICE interruption within ten (10) business days of the event in order to review the event and decide on any action. The Customer waives the right to dispute any charges for the Service interruption after the expiration of the ten (10) business day period.
- The Services allow Customer to deliver Customer Content to their mobile application users via the Services. Customer represents and warrants that such Customer Content (which may be accessible to the public, including any images, pictures, logos and names) shall not infringe on the intellectual property rights of others. Additionally, Customer shall comply with the terms of the Acceptable Use Policy.
- Customer Content which it posts, disseminates, or otherwise directs via the Services, and for the use of the Customer Data which it gets from the Services and shall fully indemnify, defend and hold HEROW harmless from any liability and expenses in connection with any action brought by a third party relating to any Customer Content and Data.
- The Customer represents and warrants that the Customer Content contains nothing that is defamatory or indecent.
- The Customer represents and warrants that it is not aware of any circumstances likely to give rise to breach of any of the data protection rights of its customers in providing the Customer Content to HEROW for the purposes of this Agreement.
Disclaimer of Warranties
HEROW PROVIDES THE SERVICES AND ALL FEATURES AND COMPONENTS THEREOF ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CONNNECTHINGS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, THAT THE Services OR ANY COMPONENTS THEREOF WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF HARMFUL COMPONENTS. SUCH DISCLAIMER SHALL INCLUDE WITHOUT LIMITATION, ANY WARRANTY OR REPRESENTATION THAT THE SERVICES WILL PERFORM TO ANY PARTICULAR STANDARD OR BE FREE FROM BUGS, ERRORS OR REMAIN UNAFFECTED BY COMPUTER VIRUSES OR OTHER SIMILAR FEATURES AFFECTING PERFORMANCE OF THE Services. TO THE FULLEST EXTENT PERMITTED BY LAW, AND EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, HEROW MAKES NO WARRANTY, EXPRESS, IMPLIED, OR STATUTORY REGARDING THE SERVICES AND ANY OTHER SUBJECT MATTER OF THESE TERMS. BOTH CUSTOMER AND HEROW HEREBY DISCLAIM WARRANTY OR OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
Money Damages Sufficient
The Customer expressly agrees that money damages are sufficient compensation for any harm suffered in accordance with these Terms. Accordingly, the Customer expressly disclaims any right to non-monetary relief, including, but not limited to, equitable or injunctive relief, in connection with any dispute arising from these Terms. The foregoing shall not in any way limit any rights or remedies, including, but not limited to, equitable or injunctive relief, which HEROW may have in connection with any dispute arising under these Terms.
Customer shall indemnify, defend, and hold harmless HEROW from any and all claims, losses, damages, expenses and costs (including all reasonably incurred legal fees) arising out of or in connection with: (i) the Customer’s (or any third party authorized by Customer) misuse of the Services; (ii) fault, negligence, or failure of the Customer (or any third party authorized by Customer) to perform the Customer’s responsibilities hereunder; (iii) claims against the Customer by any other party; (iv) Servicesprocessing of the Customer Content under this Agreement or (v) Customer’s uncured material breach of these Terms.
16. Limitation of Liability.
HEROW SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH ANY USE OF THE SERVICES OR OTHERWISE, INCLUDING WITHOUT LIMITATION LOST PROFITS OR COST TO PROCURE SIMILAR GOODS OR SERVICES. HEROW SHALL NOT BE LIABLE TO ANY PARTY FOR FAILURE TO FULFIL ITS OBLIGATIONS HEREUNDER IF SUCH FAILURE IS IN ANY WAY DUE TO: (I) THE CUSTOMER’S (OR ANY THIRD PARTY AUTHORIZED BY CUSTOMER) MISUSE OF THE SERVICES, OR ANY COMPONENT THEREOF (II) THE CUSTOMER’S (OR ANY THIRD PARTY AUTHORIZED BY CUSTOMER) UNAUTHORIZED MODIFICATION OF IT’S THE SERVICES OR ANY COMPONENTS THEREOF; OR (III) ACTS BEYOND HEROW’ REASONABLE CONTROL, INCLUDING, BUT NOT LIMITED TO, FORCE MAJEURE EVENT.
17. Relief of Obligation to Pay.
Customer acknowledges that nothing herein (except for a Force Majeure Event resulting in termination of the Services for a reason other than Customer’s non-payment, or an uncured material breach of these Terms by HEROW which results in termination of the Services) shall relieve the Customer for its obligation to pay for the Services executed by HEROW.
18. Resolving Disputes
Initial Dispute Resolution
HEROW aims to address all Customer concerns without the need for formal legal proceedings. Before filing a claim against HEROW, Customer agrees to attempt to resolve the dispute informally by contacting HEROW at firstname.lastname@example.org. HEROW will try to resolve the dispute informally by contacting Customer via email. If a dispute is not resolved within ninety (90) days of submission, either party may begin formal legal action, subject to these Terms.
Any dispute arising from or relating to the subject matter of these Terms shall be finally settled by arbitration in New York County, New York, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.
Choice of Law.
The validity, performance, construction, regulation and interpretation of these Terms shall be governed under the laws of the State of New York. The parties hereby disclaim from application to these Terms of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Information learned or exchanged related to or arising out of the dispute shall be treated as confidential information by both Parties.
Each Party hereby grants the other Party the right to disclose that it is a partner of the other PARTY and the right to display the other Party’s logo on its materials including, but not limited to, web site and literature; provided that either party may revoke the use of such intellectual property by providing written notice of such a decision at any time.
Waiver, Severability and Assignment
Any failure on the part of HEROW to enforce a provision under these Terms does not constitute a waiver of rights hereunder, including the right to take action at a later date. If any provision of these Terms is found unenforceable by any court or administrative body of competent jurisdiction, such provision shall be excluded from these Terms and the balance of this document shall be interpreted and enforced as if such provision were so excluded and shall be enforceable to the fullest extent permitted by law. Except as expressly permitted hereunder, Customer may not assign its rights under these Terms, and any such attempt shall be null and void. HEROW may assign any of its rights to its affiliates, subsidiaries, or its successor interest pursuant to any business associated with the Services.
By using the Services, Customer consents to HEROW providing it with email notices for any and all notices required under these Terms. Such notices shall be deemed received once they are sent. If Customer no longer consents to receive notification by email, it must stop using the Services.
Relationship of the Parties
HEROW is an independent contractor. There is no relationship of agency, partnership, joint venture, employment, or franchise between Customer and HEROW. Customer and its agents shall not have the authority to bind HEROW in any way, or to incur any obligation on its behalf, except those obligations set forth in these Terms. These terms are for the benefit of the parties and are not intended to confer upon any person or entity any rights or remedies hereunder. Nothing in these Terms shall be deemed to create any agency or partnership.