HEARKEN

TERMS OF SERVICE

Date of Last Revision: October 5, 2015

Welcome to Hearken!

Hearken (“Hearken,” “we,” “us,” “our”) provides its services (described below) to you through its website located at www.wearehearken.com (the “Site”) and through its mobile applications and related services (collectively, such services, including any new features and applications, and the Site, the “Service(s)”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”).  We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time.  If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Services user interface or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service. If any change to these Terms of Service is not acceptable to you, your only remedy is to stop using the Services and if you are a Publisher (as defined below), you must send a cancellation email to support@wearehearken.com.

In addition, when using certain services, you will be subject to any additional terms applicable to such services that may be posted on the Service from time to time, including, without limitation, the Privacy Policy located at http://wearehearken.com/privacy/. All such terms are hereby incorporated by reference into these Terms of Service.

Access and Use of the Service

             Services Description:  The Service is designed to provide a platform for digital newsrooms, publishers or other websites (“Publishers”) to engage their end user audiences (“End Users”) in story generation, assigning and reporting. If you are registering on behalf of a Publisher, you represent and warrant that you have the authority to bind such Publisher to these Terms of Service, and, for purposes hereof, the term “you” shall also be deemed to include the Publisher on whose behalf you have registered for the Service. 

            Your Registration Obligations: You may be required to register with Hearken in order to access and use certain features of the Service.  If you choose to register for the Service, you agree to provide and maintain true, accurate, current and complete information about yourself as prompted by the Service’s registration form.  Registration data and certain other information about you are governed by our Privacy Policy. If you are under 13 years of age, you are not authorized to use the Service, with or without registering.  In addition, if you are under 18 years old, you may use the Service, with or without registering, only with the approval of your parent or guardian.

            Modifications to Service: Hearken reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) in accordance with these Terms of Service. You agree that Hearken will not be liable to you or to any third party for any such modification, suspension or discontinuance of the Service.

            General Practices Regarding Use and Storage: You acknowledge that Hearken may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Hearken’s servers on your behalf. You agree that Hearken has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You further acknowledge that Hearken reserves the right to change these general practices and limits at any time, in its sole discretion.

Conditions of Use

            User Conduct: You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Service.  The following are examples of the kind of content and/or use that is illegal or prohibited by HearkenHearken reserves the right to investigate and take appropriate legal action against anyone who, in Hearken’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities.  You agree to not use the Service to:

a)              email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Hearken, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Hearken or its users to any harm or liability of any type;

b)              interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or

c)              violate any applicable local, state, national or international law, or any regulations having the force of law;

d)              impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;

e)              solicit personal information from anyone under the age of 18;

f)               harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;

g)              advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;

h)              further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or

i)               obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.

            Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls.  No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws.  Downloading or using the Software is at your sole risk.  Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.   

            Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.

Publisher Terms

If you are a Publisher, the following terms and conditions apply to you:

Your Account: As part of the registration process, you will identify an administrative user name and password for your account (“Account”).  You may use the administrative user name and password to create standard users (each with a user password) up to the maximum number permitted in the applicable order form (“Order Form”) (to the extent applicable). You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login, account and use of the Services.  Hearken reserves the right to access your account in order to respond to your requests for technical support.

Hearken Module: We offer a module for embedding and displaying the Services on your website (“Module”), under the terms below, in addition to the rest of the terms and conditions contained herein.  By embedding or otherwise using the Module, you agree to be bound by these additional terms:

·       You may only embed and display the Module on your website and other properties you own (e.g., Tumblr), subject to the terms and conditions of such websites or properties, and not in any other manner.

·       You may not modify the Module as provided by Hearken. Without limitation, you may not change any code provided by Hearken, you may not obscure or disable any element of the Module, and you may not tag links to the Site from the Module with a “nofollow” attribute or otherwise prevent or discourage search engines from following or scoring the link.

·       Your web page title and other trademarks and logos must appear at least as prominent as any Hearken Trademarks in the Module. You may not use the Module in a manner that implies affiliation with Hearken in any negative manner, and you must immediately stop doing so if notified by Hearken

·       The page of your web site must place the Module in a context appropriate to the content of the Module, and any reference to Hearken or its products and services must be accurate.

·       You may not display the Module on any site that disparages Hearken or its products or services, infringes any Hearken intellectual property or other rights, or violates any applicable law. We reserve the right at any time to terminate or modify your permission to display the Module, or to change or to cease the content returned by the Module.

·       Except as provided herein, you agree not to sell, assign, rent, lease, lend, distribute, export, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the Module or any part thereof, whether by operation of law or otherwise, unless previously agreed to by Hearken.

·       All right, title, and interest in and to the Module, including all intellectual property rights therein, shall remain the exclusive property of Hearken and/or its licensors. You acknowledge and agree that Module is licensed, not sold.

Attribution: Hearken reserves the right to display attribution links such as “Powered by Hearken,” on the Services to be displayed on your website. Such attribution may not be altered or removed in any way.

Publisher Content: You are solely responsible for and bear all risk associated with all content, information and materials published on, made available through or otherwise associated with your website or other digital properties or that you otherwise use or exploit in connection with the Services, including any content, information or materials provided by you or your End Users in connection with the Services (collectively “Publisher Content”). You shall ensure that your End Users do not use the Services as provided by you or on your behalf in violation of these Terms of Service. You hereby grant Hearken permission to share your Publisher Content, including news stories and articles, on our websites, so long as we credit you or the original author by linking back to your website or as otherwise agreed upon by you. Notwithstanding the foregoing, you retain all right, title and interest in and to any stories or articles written and/or published by you. We may use and share with third parties aggregated and/or anonymized or de-identified data that we or our third party service providers collect or obtain through the Services, provided that your identity and/or End User’ identities cannot be determined from such data. All Publisher Content on the Service (if any) may be permanently deleted by Hearken upon any termination of your account in its sole discretion.

Publicity: We reserve the right to use your name and/or Hearken name as a reference for marketing or promotional purposes on Hearken’s website and in other communication with existing or potential HEARKEN customers. To decline Hearken this right you need to email support@WEarehearken.com stating that you do not wish to be used as a reference.

Payment: To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan and provide Hearken information regarding your credit card or other payment instrument.  You represent and warrant to Hearken that such information is true and that you are authorized to use the payment instrument.  You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur.  You agree to pay HEARKEN the amount that is specified in the payment plan in accordance with the terms of such plan and these Terms of Service.  You hereby authorize HEARKEN to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred.  If you dispute any charges you must let HEARKEN know within sixty (60) days after the date that HEARKEN invoices you. Set-up and yearly subscription fees to HEARKEN are otherwise non-refundable. We reserve the right to change HEARKEN’s prices. If HEARKEN does change prices, Hearken will provide notice of the change on the Site or in email to you, at HEARKEN’s option, at least 30 days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount.  Hearken may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Hearken thirty (30) days after the mailing date of the invoice, or the Services may be terminated.  Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. You shall be responsible for all taxes associated with Services other than U.S. taxes based on Hearken’s net income.

Publisher Representations and Warranties: You represent and warrant to Hearken that (i) you have full power and authority to enter into these Terms of Service; (ii) you own all Publisher Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow Hearken to perform its obligations) in connection with the Services without obtaining any further releases or consents; (iii) Publisher Content and other activities in connection with the Service, and Hearken’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Publisher Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you will maintain and comply with a published privacy policy that complies with applicable laws and regulations and discloses the fact that Hearken may collect personally identifiable information on your behalf in providing the Services.

Intellectual Property Rights

            Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws.  Except as expressly authorized by Hearken, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service.  In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods.  If you are blocked by Hearken from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address).  Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited.  The technology and software underlying the Service or distributed in connection therewith are the property of Hearken, our affiliates and our partners (the “Software”).  You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software.  Any rights not expressly granted herein are reserved by Hearken.

The Hearken name and logos are trademarks and service marks of Hearken (collectively the “Hearken Trademarks”). Other Hearken, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Hearken. Except as expressly provided herein, nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Hearken Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Hearken Trademarks will inure to our exclusive benefit.

            Third Party Material:  Under no circumstances will Hearken be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content.  You acknowledge that Hearken does not pre-screen content, but that Hearken and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Hearken and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Hearken, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.

            User Content Transmitted Through the Service:  With respect to the content or other materials you upload through the Service or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein.  By uploading any User Content you hereby grant and will grant Hearken and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or otherwise as expressly provided herein.  We do not endorse any Publisher Content or any opinion, recommendation, or advice expressed in any Publisher Content, and we expressly disclaim any and all liability in connection with any Publisher Content.

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to Hearken are non-confidential and Hearken will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. 

You acknowledge and agree that Hearken may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Hearken, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

            Copyright Complaints: Hearken respects the intellectual property of others, and we ask our users to do the same.  If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Hearken of your infringement claim in accordance with the procedure set forth below.

Hearken will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement.  A notification of claimed copyright infringement should be emailed to Hearken’s Copyright Agent at dmca@g (Subject line:  “DMCA Takedown Request”). 

To be effective, the notification must be in writing and contain the following information:

  • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
  • a description of the copyrighted work or other intellectual property that you claim has been infringed;
  • a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
  • your address, telephone number, and email address;
  • a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
  • a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:

  • your physical or electronic signature;
  • identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
  • a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
  • your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Chicago, Illinois and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, Hearken will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.

            Repeat Infringer PolicyIn accordance with the DMCA and other applicable law, Hearken has adopted a policy of terminating, in appropriate circumstances and at Hearken's sole discretion, users who are deemed to be repeat infringers.  Hearken may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

Third Party Websites

The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Hearken has no control over such sites and resources and Hearken is not responsible for and does not endorse such sites and resources.  You further acknowledge and agree that Hearken will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource.   Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Hearken is not liable for any loss or claim that you may have against any such third party.

Social Networking Services

You may enable or log in to the Service via various online third party services, such as social media and social networking services like Facebook or Twitter (“Social Networking Services”). By logging in or directly integrating these Social Networking Services into the Service, we make your online experiences richer and more personalized. To take advantage of this feature and capabilities, we may ask you to authenticate, register for or log into Social Networking Services on the websites of their respective providers. As part of such integration, the Social Networking Services will provide us with access to certain information that you have provided to such Social Networking Services, and we will use, store and disclose such information in accordance with our Privacy Policy. For more information about the implications of activating these Social Networking Services and Hearken’s use, storage and disclosure of information related to you and your use of such services within Hearken (including your friend lists and the like), please see our Privacy Policy at www.wearehearken.com/privacy. However, please remember that the manner in which Social Networking Services use, store and disclose your information is governed solely by the policies of such third parties, and Hearken shall have no liability or responsibility for the privacy practices or other actions of any third party site or service that may be enabled within the Service.

In addition, Hearken is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, Hearken is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. Hearken enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.

Indemnity and Release

You agree to release, indemnify and hold Hearken and its affiliates and their officers, employees, directors and agents harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another.  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.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

Disclaimer of Warranties

YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Hearken EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

HEARKEN MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT HEARKEN WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF HEARKEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL HEARKEN’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID HEARKEN IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.

Arbitration

At Hearken’s or your election, all disputes, claims, or controversies arising out of or relating to the Terms of Service or the Service that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before JAMS, or its successor.  Unless otherwise agreed by the parties, arbitration will be held in Chicago, Illinois before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS unless specifically modified in the Terms of Service.  The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party.  The arbitrator’s decision and award will be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator.  The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in the Terms of Service and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under the Terms of Service, and each party hereby irrevocably waives any claim to such damages.  The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding.  Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award.  Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm.  The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.

Notwithstanding the provisions of the introductory section above, if Hearken changes this ‘Arbitration’ section after the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service ), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Date of Last Revision” date above or in the date of Hearken’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any dispute between you and Hearken in accordance with the provisions of this section as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).

Termination

If you are a Publisher, you may terminate your account at any time by sending a cancellation request to support@wearehearken.com. Subject to earlier termination as provided below, Hearken may terminate your Account and these Terms of Service at any time by providing thirty (30) days prior notice (or ten (10) days in the case of nonpayment) to the administrative email address associated with your Account or as otherwise mutually agreed upon the parties in writing. If you are an End User, you agree that Hearken, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason without notice to you, including, without limitation, for lack of use or if Hearken believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. You agree that Hearken will not be liable to you or any third party for any termination of your access to the Service.

User Disputes

You agree that you are solely responsible for your interactions with any other user in connection with the Service and Hearken will have no liability or responsibility with respect thereto.  Hearken reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.

General

These Terms of Service (and any applicable Order Form) constitute the entire agreement between you and Hearken and govern your use of the Service, superseding any prior agreements between you and Hearken with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the State of Illinois without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Hearken agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Cook County, Illinois. The failure of Hearken to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. 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 or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of Hearken, but Hearken may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.

Your Privacy

At Hearken, we respect the privacy of our users. For details please see our Privacy Policy.  By using the Service, you consent to our collection and use of personal data as outlined therein.

Questions?  Concerns?  Suggestions?
Please contact us at support@wearehearken.com to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.