- Heartfelt Capture’s platform is a proprietary video capture platform the (“Platform”) that offers solutions for customer videos, testimonials, and data analysis (each also referred to as a “Product” and collectively as the “Products”). “Services,” as used in the Agreement, refers to your access to the Platform and the Products. All content, data and other information that you submit to the Services through your use thereof, including, without limitation, such information as you may collect through the Services from End-Users (defined below), is “Your Content” for the purposes of this Agreement. Depending on the Products you are accessing, you may have access to the following functionality. If you are not accessing Products that offer the following functionality then the applicable terms do not apply:
- User Generated Content– Certain Products enable you to collect, organize and use Your Content that may include, without limitation, text, videos, photographs and other user-generated content created or otherwise supplied by your customers, end users or parties with whom you interacts (collectively, “End-Users”) on your website, social media services, and third-party websites. An example of such functionality would be your use of the Platform to display an End-User’s photo of your product on your website.
- Loyalty and Referrals– Certain Products enable you to provide End-Users with the ability to (i) earn loyalty points from you and apply applicable point balances to purchases from you and (ii) earn an incentive when the End-User refers a third-party purchaser to you. Your Content in the context of Loyalty and Referrals includes information related to an End-User’s participation in a loyalty or referral program (for example, the number of the End-User’s loyalty points).
- Videos – Certain Products enable you to invite End-Users to record videos. “Videos” are Your Content that may include, without limitation, opinions, product or service ratings or reviews, articles, written expressions, in any form or media, and/or any works of authorship created by the End-User, the you or any other third party and may, subject to the Agreement, include any Videos that are imported through the Platform from third-party sites.
- Ownership– Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Heartfelt Capture’s rights under this Agreement, between the parties, you retain all intellectual property and other rights in its intellectual property and to Your Content provided to Heartfelt Capture. Heartfelt Capture and its licensors retain all intellectual property and other rights in the Platform, and in and to each Product, the Services, and any deliverables and related Heartfelt Capture technology, templates, documentation, help files, tutorials, formats and dashboards, including any modifications or improvements to these items made by Heartfelt Capture, and the Usage Data (the “Heartfelt Capture Materials”). If you provide Heartfelt Capture with feedback or suggestions regarding the Service or other Heartfelt Capture offerings, Heartfelt Capture may use the feedback or suggestions without restriction or obligation.
- Usage Data– Heartfelt Capture may generate technical logs, data and learnings about your use and End-Users’ use of the Services (the “Usage Data”) and Your Content processed by the Services, and use such information to operate, analyze, improve and support the Platform and/or the Services and for other lawful purposes. Except as required by law, Heartfelt Capture will not disclose Usage Data externally, including in benchmarks or reports except in the aggregate.
LIMITED ACCESS AND LIMITED LICENSE TO YOUR CONTENT
- Access to the Services- Subject to the terms and conditions set forth herein, you may access and use the Services only for your internal business purposes in accordance with the terms of this Agreement. Access to the Services is limited to your employees and contractors acting for the sole benefit of you (“Permitted Users”). You and your Permitted Users may need to register for a Heartfelt Capture account in order to access or use the Services. You are responsible for ensuring that account registration information is accurate, current and complete.
- License to Your Content- you grant to Heartfelt Capture a worldwide, non-exclusive, transferable, revocable, royalty-free license to use, transfer, copy, reproduce, distribute, publicly perform, publicly display, digitally perform, modify, directly or through third parties, create derivative works of Your Content and otherwise use and commercially exploit Your Content in any media formats (i) to the extent necessary to provide you with access to and use of the Services in accordance with the terms of this Agreement, (ii) to comply with law, (iii) to detect, prevent and investigate security incidents, fraud, spam, or unlawful use of the Services, (iv) to address technical problems, address support requests, and attend to the proper working of the Services, (v) to protect the rights, property or safety of Heartfelt Capture, its customers, its customers’ end users, and/or the public, and (vi) subject to the Data Processing Agreement, for any other lawful purpose, including without limitation, for the purposes set forth in Section 2.2 hereof. Such license will apply to any form, media, or technology now known or hereafter developed.
LIMITATIONS OF USE
- Your use of the Services shall be limited to your own internal business use. Except as specifically permitted herein, you shall not (i) sell, license (or sub-license), lease, assign, transfer, pledge, or share any of your rights under this Agreement with/to any other party, entity or person; (ii) transfer, distribute, copy all or any part of the Services and/or the Heartfelt Capture Materials; (iii) refer to the Services by use of framing and/or deep-linking; (iv) make use of the Services or distribute any part thereof in any jurisdiction where same is illegal or where such use or distribution would subject Heartfelt Capture or its Affiliates to any registration requirement within such jurisdiction or country; (v) use, or encourage, promote, facilitate or instruct others to use, the Platform for any illegal, harmful or offensive use; (vi) promote any content, products, services, or other information that may be illegal to sell or promote under any applicable law or may reasonably be perceived to be unlawful, inflammatory, offensive, or otherwise inconsistent with the spirit of Heartfelt Capture’s services, brand or image; (vii) transmit any viruses or other harmful, infringing, illegal, disruptive or destructive content, messages or files; (viii) visit the Platform or access the Services through unauthorized means, including without limitation any data mining, robots/bots, or similar data gathering and extraction tools to extract for re-utilization of any parts of the Platform; (ix) distribute, publish, send, or facilitate the sending of unsolicited mass messages, promotions, advertising, or solicitations (e.g. “spam”) including unlawful commercial advertising and informational announcements as further described in 4.2; (x) distribute, publish, send, or facilitate the sending of any inappropriate, inaccurate, misleading, fraudulent or otherwise illegal content or content which infringes intellectual property rights of third parties or their right for privacy; (xi) modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), make any attempt to discover the source code of the Platform and/or the Services and/or any other software available therein or create derivative works thereof; (xii) remove any copyright, trademark or other proprietary rights notices contained in or on the Platform; (xiii) remove, change or modify any trademarks from or attach any additional trademarks to the Platform; (xiv) use the Platform or the Services in a manner that subjects any part thereof to any obligation to disclose or distribute the source code thereof and/or that may cause others to have the right to modify or create derivative works thereof; or cause them to become redistributable at no charge. You are solely responsible for obtaining, paying for, repairing and maintaining all the equipment, software, hardware and services required for you to access to the Services.
- Compliance with Law– you represent, warrant and covenant to Heartfelt Capture that your use of the Services shall comply with the limitations of use in Section 4 and all applicable laws, rules or regulations of any jurisdiction, including, without limitation, those relating to (i) communication by telephone, text/SMS/MMS message or email for advertising, marketing or other purposes; (ii) monitoring or recording of electronic or telephonic communications; (iii) the privacy, security or protection of ‘personal data’ or ‘personal information’, as such terms are defined under privacy laws (collectively, “Personal Information”), including, without limitation, as applicable to the collection, storage, retention, processing, transfer, disclosure, sharing, disposal or destruction of Personal Information; or (iv) requirements for websites and mobile applications, online behavioral advertising, or online tracking technologies (collectively, “Laws”). Without limiting the foregoing, Laws include the Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Do-Not-Call Implementation Act, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, the Children’s Online Privacy Protection Act (“COPPA”), the Federal Trade Commission Act, the California Consumer Privacy Act (“CCPA”), other state privacy, data security and breach notification laws, state consumer protection laws, the European Union’s General Data Protection Regulation (2016/679) (“GDPR”) and Privacy and Electronic Communications Directive 2002/58/EC (the “ePrivacy Directive”), the United Kingdom’s Data Protection Act 2018 (together with the GDPR, the ePrivacy Directive and any national legislation implementing either, “European Data Protection Law”), Canada’s Personal Information Protection and Electronic Documents Act, Canada’s Anti-Spam Legislation (S.C. 2010, c 23), and any legislation and/or regulation implementing or made pursuant to, or which amends, replaces, re-enacts or consolidates, any of the foregoing. For purposes of this Agreement, Laws also include the Cellular Telecommunications Industry Association (CTIA) Messaging Principles and any other applicable self-regulatory rules or codes of conduct, as amended from time to time, including, without limitation, such rules and guidelines issued by the Mobile Marketing Association and telecommunications providers.
- Restricted Data– you shall ensure that Your Content does not include (i) protected health information regulated by the Health Insurance Portability and Accountability Act (HIPAA) or medical information governed by state healthcare privacy laws; (ii) Social Security numbers, driver’s license numbers or other government-issued identification numbers; (iii) financial information, banking account numbers or passwords, or information regulated by the Gramm-Leach-Bliley Act; (iv) payment card data regulated by the Payment Card Industry Data Security Standards; (v) biometric data regulated by biometric privacy laws; (vi) online account passwords, mother’s maiden name or date of birth, (vii) criminal history, (viii) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation or other information that constitutes “special categories of data” regulated by the GDPR; or (ix) Personal Information of children under 13 years of age regulated by COPPA or under the age of consent for purposes of applicable privacy laws. Heartfelt Capture shall have no liability with respect to such information, notwithstanding anything in the Agreement to the contrary.
- Security– you shall use your best efforts to prevent unauthorized access to or use of the Services through you or your Permitted Users accounts, promptly notify Heartfelt Capture of any unauthorized access or use and provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers.
- Obligations Regarding Your Content– you acknowledge that the Services are provided by Heartfelt Capture to you on a business-to-business basis, and that Heartfelt Capture does not have a direct relationship with any End-User as a result of providing the Services to you hereunder. As a result, you acknowledge that Heartfelt Capture relies on your rights to Your Content in order to provide the Services. you are solely responsible for the accuracy, content and legality of Your Content. Heartfelt Capture shall not be liable for Your Content, and shall be entitled, in its sole discretion, to edit or remove from the Platform Your Content which Heartfelt Capture reasonably believes to be inaccurate, inappropriate or otherwise not in compliance with the Agreement or applicable law. NOTHING IN THE AGREEMENT OBLIGATES Heartfelt Capture TO DISPLAY ANY YOUR CONTENT THAT Heartfelt Capture REASONABLY BELIEVES TO BE INACCURATE, INAPPROPRIATE OR OTHERWISE NOT IN COMPLIANCE WITH THE AGREEMENT OR APPLICABLE LAW OR TO USE SUCH YOUR CONTENT AT ALL OR IN A CERTAIN MANNER. You shall designate a copyright agent and implement a notice and takedown mechanism in compliance with the Digital Millennium Copyright Act (or other comparable applicable laws in jurisdictions outside of the United States), and you shall comply with any such takedown notice received in respect of Your Content, in each case, to the extent required by applicable law.
- Rights in Your Content– you represent and warrant to Heartfelt Capture that you have given all notices and obtained all rights consents, assignments, licenses, permissions and authorizations (including the waiver of any moral rights) necessary for you to transfer to Heartfelt Capture and for Heartfelt Capture to collect, use and share Your Content (and any Personal Information contained therein) as contemplated by this Agreement without violation or infringement of (i) any Laws; (ii) intellectual property, publicity, privacy or other rights; or (iii) any terms of service or other agreements governing Your Content or your activities relating to your use of the Services (including, without limitation, the Instagram Platform Policy).