HEROIC Master Terms

The HEROIC Service Terms and Conditions (the “Service Terms”) are a legally binding agreement between HEROIC Security, LLC (“HEROIC,” “we” “our” or “us”) and you (“you,” “your” or “yours”), and describe the terms under which you agree to use the HEROIC® monitoring service programs, including any applicable compromised credential (the “Service Programs”), cybersecurity and any other service or product which may be made available to you by us for which you have registered or enrolled or have been registered or enrolled by an authorized third party (collectively the “Services” and individually a “Service”).

Both our Privacy Policy and our Website Terms of Use, which apply to our website (our “Site”) and your use of our Site, are available at HEROIC.com and are incorporated by reference into these Service Terms. Notwithstanding anything stated otherwise in these Service Terms, the Privacy Policy shall govern with respect to the collection, use, retention or storage of any information or data provided by you or to which you grant HEROIC access.

You represent that you are a natural person over eighteen (18) years of age, that your access to or use of the services does not violate applicable laws, and that you agree with all the terms of these service terms. Further, if you enroll in or use our credit monitoring service and/or any of our protection programs, you also represent and warrant that you are a u.S. Resident, that you have provided us your valid email address, associated domains and ip addresses, and that you shall only use such services in connection with accounts that are directly associated with your valid business and/or personal credentials.

If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and your affiliates to these terms and conditions. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this agreement and may not use the service.

If you do not agree to these service terms, you must not enroll or register for any of the services or otherwise use the services.

1. DEFINITIONS

• “Non-fee User” refers to a customer of our non-fee based Services, such as serving as a Monitor for a Member of our GUARDIAN FREE level Service.
• “Authorized User” means your employee, your Affiliate’s employee, or a Permitted Third Party’s employee for whom you create a unique username and password under your member account.
• “Member” refers to a customer that is enrolled in one of our fee-based Services, such as HEROIC EPIC (Business) or HEROIC GUARDIAN (Personal).
• “Monitor” shall refer to an adult that is 18 or older and is serving to monitor the HEROIC account of a Member with that Member’s permission.
• Collectively we will use the term “Customer” when referring to both Members and Users.
• “Affiliate” means any entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where “control” means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.
• “Agreement” means this Services Agreement and any Service Orders you enter into with us.
• “Client Software” means software components to be installed on your, your Affiliates’, or your Authorized Users’ computer systems or devices, including but not limited to HEROIC EPIC or HEROIC GUARDIAN.
• “Documentation” means our user documentation, in all forms, relating to the Service (e.g., user manuals, on-line help files, etc.).
• “Permitted Third Party” means an entity under contract with you or your Affiliates who need to access the Service to perform its obligations to you or your Affiliates and who is not our competitor.
• “Professional Services” means the professional services specified in a Service Order, potentially including but not limited to implementation services, consulting, and training services.
• “Service” means the service identified in the Service Order, as we may modify the service from time to time in our discretion, including any associated Client Software provided by us to you.
• “Service Order” means an ordering document entered into between you and us specifying the services to be provided thereunder, including any addenda and supplements thereto. By entering into a Service Order under this Agreement, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party to the Agreement.
• “Subscriber Data” means any data uploaded into the Service, or otherwise provided for processing by the Service, by or on behalf of you and your Affiliates in accordance with this Agreement.
• “Subscription Fees” means the fees for the Service specified in the Service Order.
• “Technical Support Services” means our then-current technical support services offering, as described at https://www.heroic.com.
• “We” or “Us” or “Our” means HEROIC SECURITY LLC or it’s designated Affiliate as specified in a Service Order or invoice.
• “You” or “Your” or “Subscriber” means the customer named on the Service Order, the person indicating acceptance of this Agreement, or if the person indicating acceptance of this Agreement is acting on behalf of a company or other legal entity, such company or legal entity.
• “Confidential Information” means non-public business information, know-how, and trade secrets in any form, including information regarding our product plans, Beta Versions, terms of this Agreement, and any other information a reasonable person should understand to be confidential, which is disclosed by or on behalf of either party or its Affiliates to the other party or its Affiliates, directly or indirectly, in writing, orally, or by inspection of tangible objects, and whether such information is disclosed before or after the Effective Date specified on the Service Order. Confidential Information includes this Agreement and its terms. “Confidential Information” excludes information that (a) is publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party through no action or inaction of the receiving party; (b) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; (c) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.

• Full HEROIC Service. We offer various versions of our Service. The most comprehensive version of the Service requires payment for continued use of the Service. The version of the Service that requires payment is currently referred to as the “Full HEROIC Service.”
• Free Versions. Certain versions of the Service may be provided to you free-of-charge. The versions of the Service that do not require payment to be accessed are currently referred to as “Free Versions.”
• Free Trials. From time to time, we may offer trials of the Full HEROIC Service for a specified period of time without payment or at a reduced rate (each, a “Free Trial”). We reserve the right, in our absolute discretion, to determine your eligibility for a Free Trial, and, subject to applicable laws, to withdraw or to modify a Free Trial at any time without prior notice and with no liability, to the greatest extent permitted under law.

ANY DATA YOU ENTER INTO THE SERVICE, AND ANY CONFIGURATION CHANGES MADE TO THE SERVICE BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS THOSE COVERED BY THE FREE TRIAL OR EXPORT SUCH DATA, BEFORE THE END OF THE FREE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CONFIGURATION CHANGES MADE DURING THE FREE TRIAL TO A FREE VERSION OF THE SERVICE, UNLESS THE DATA ENTERED OR CONFIGURATION CHANGES ARE TO FEATURES AVAILABLE IN THE FREE VERSIONS; THEREFORE, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.

• Inapplicable Provisions. NOTWITHSTANDING WARRANTIES AND DISCLAIMERS, BETA VERSIONS, FREE VERSIONS, AND FREE TRIALS OF THE SERVICE ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION DO NOT APPLY TO BETA VERSIONS, FREE VERSIONS, OR FREE TRIALS OF THE SERVICE

Depending upon the Services you enroll in, register for, or otherwise sign up for or subscribe to use (collectively, “enroll”), we may permit you to be enrolled (i) by telephone, (ii) on our Site, (iii) by some other method we expressly permit, or (iv) by a third party who is authorized to provide your Personal Information to enroll you on your behalf (collectively, the “Enrollment Process”). In order to enroll in, register for and receive one or more Services, you must provide us with the full and accurate Personal Information that we require for the applicable Services, which may include without limitation your name, address, telephone number, email address, and other personal information to verify your identity, as well as financial information such as your credit card number (collectively, “Personal Information”). You agree to keep all Personal Information updated and accurate. In the event we do not receive all the required Personal Information during your Enrollment Process, you agree that we may, in our sole discretion, use our database, the database of our affiliates, or other resources to attempt to complete the required Personal Information on your behalf. If we are unable to obtain the required Personal Information or you fail to authenticate your identity as may be required, the Services for which you have enrolled or registered from us may be limited or unavailable. A Monitor may enter the above information for a Member of HEROIC services; provided, however, the Member is responsible for the accuracy of the information and assuring that it is up to date.

Upon completion of the Enrollment Process, and payment to us of any fees owed, you will become eligible to receive the Services for which you have enrolled or registered. For purposes of clarity, certain services and/or plans such as a Monitor for a GUARDIAN Member is not covered by any Insurance or Service Guarantee, unless such Monitor obtains his/her own membership. Such coverage belongs to the GUARDIAN Member at the levels described in the GUARDIAN Member program. Please note, your service and/or plan may not include a Protection Program, including a Service Guarantee. To determine if your plan includes this coverage, please review the options at HEROIC.com or review your offer and applicable features.

YOU UNDERSTAND THAT WE MONITOR YOUR PERSONAL INFORMATION WITHIN OUR NETWORK USING CERTAIN PROPRIETARY TECHNOLOGIES AND DATABASE INFORMATION OWNED BY OR UNDER LICENSE TO US, BUT NOT ALL CREDENTIALS, INCLUDING THOSE THAT MIGHT AFFECT THE POTENTIALLY FRAUDULENT USE OF A CUSTOMER’S INFORMATION, MAY BE MONITORED AND THE SCOPE OF THE NETWORK UTILIZED BY US TO PROVIDE ALERTS MAY CHANGE. YOU ALSO UNDERSTAND AND AGREE THAT IT MAY TAKE UP TO FOUR (4) WEEKS FROM THE DATE YOU ACCEPT THESE SERVICE TERMS AND COMPLETE THE ENROLLMENT PROCESS FOR ALL OF THE SERVICES TO BE FULLY ACTIVATED.

We may make certain features and Services available to Users for no fee (the “User Services”), including those we make available on or through your mobile phone or device and those we make available by any means to Monitors of accounts for our HEROIC GUARDIAN service for which either the User or the member may be responsible for payment. User Services may include the ability to receive SMS text messages, email, push notifications and other notifications from the Services (the “Mobile Alerts”) and the ability to access the Services for which you have enrolled or registered through our mobile enabled application (our “App”).

Users of our Free User Services are not required to enroll as a paid Member; however, Users may still be required to register with us and may need to provide permissions for us to contact them via SMS text messages, email, push notifications or automated telephone recordings to fulfill the services in the case of our GUARDIAN service. To register for User Services, you must provide us with certain information, including your name, mobile telephone number and email address, and must also create a username and password. Members enrolled by their Monitor for our GUARDIAN services will be asked to accept these terms and conditions as well as confirm their agreement to such terms and conditions.

4.1 Mobile App Terms and License
Our App offers functionality that allows Members to access their HEROIC portal and membership data. Our App also offers “protection services,” which allow you to submit credential data, performs device analysis and performs periodic device maintenance and optimization. Other functionality may also be available on the App such as the ability to receive various promotional offers, notifications and benefits.

The App is provided to you under license and your use of the App and any information or data downloaded by or in connection with the App (the “Data”) is subject to and limited by the license terms set forth below. We grant you a limited, non-exclusive, non-transferable license to use the App and Data subject to the terms and conditions set forth in this Agreement. You acknowledge that you must be a Member to access the Member-only features of our App. You may (a) install the App on one device at a time, (b) use the App on the screen of such device, and (c) make one copy of the App and Data for back-up, archival purpose provided such copy contains all of the original proprietary notices provided with or otherwise relating to the App or Data. This license will also govern any software upgrades provided by us that replace and or supplement the original App unless such upgrades are accompanied by a separate license in which case the terms of that license will govern.

We have no obligation to provide you with any updates, maintenance or support services for the App. The App contains certain third-party software under license to us, including open source software (collectively, the “Third-Party Software”). The Third-Party Software is licensed to you under and subject to the terms of the applicable third-party software licenses, which can be found on HEROIC.com.

You may not use or permit others to use the App or Data except under the terms expressly listed above. Without limiting the previous sentence you shall not and shall not permit anyone else to (a) use the App or any device that you do not own or control, (b) use the App or Data for service bureau time sharing or other similar purpose, (c) modify, translate reverse engineer, decompile, attempt to derive the source code of, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the App or Data, (d) copy the App, including any updates or any part thereof, or Data (except as permitted above), (e) rent, lease, sell, offer to sell, distribute or otherwise transfer rights to the App or Data, (f) develop, sell or distribute applications that integrate with the App or otherwise make use of the Data, (g) remove any proprietary notices or labels on or relating the App or Data, or (h) use the App or Data in any manner that could impair any website that we may own or operate currently or in the future.

The App may be available via one or more mobile app stores or marketplaces (and “App Store”) for use on mobile devices, including App Stores provided by Apple, Inc., Google, Inc., Amazon.com, Inc. and Microsoft, Inc. Apple, Inc., Google, Inc. Amazon.com, Inc. and Microsoft, Inc. are each a “Provider” for the purposes of these Terms with respect to any App downloaded from one of their respective App Stores. To use the App you must first download it from an App Store and then register with us, by providing your name, email address and other information, and setting a password.

You acknowledge that this Agreement is between you and HEROIC only, and not with any Provider.

Your use of our App must comply with the then-current Terms of Service applicable to the App Store(s) from which you downloaded our App. HEROIC, and not Provider, is solely responsible for our App and the services and content available thereon. You acknowledge that Provider has no obligation to provide maintenance and support services with respect to our App. To the maximum extent permitted by applicable law, Provider will have no warranty obligation whatsoever with respect to our App. We and not Provider are responsible for addressing any questions, comments or claims relating to the App and or your use of the App including but not limited to any product liability claims, claim that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our App or your possession and use of our App. You agree to comply with all applicable third-party terms of agreement when using our App (e.g., you must not be in violation of your wireless data service terms of agreement when using the App). Provider is a third-party beneficiary to this Agreement. Upon your acceptance of this Agreement Provider will have the right (and will be deemed to have accepted the right) to enforce this Agreement with respect to the App.

In the event of a third-party claim that the App or your possession of and/or use of the App infringes a third party’s intellectual property rights, we, not Provider, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

Dispute Process: certain features in the App may allow you to make a purchase or request access to additional or different features for which fees may apply. You can choose whether or not to make these purchases or access these features and you will not be subject to fees or charges without your consent; however if you believe you have been assessed a fee or a charge in error or if the feature or item purchased does not perform as described or is not delivered to you, you may dispute the purchase by logging into your mobile application store from which you downloaded the App and lodging your dispute or request for refund directly with the application store owner.

4.2 Mobile Alert Service
If you are a Member or a User who is a Monitor in the HEROIC GUARDIAN product and you elect to enroll in our Mobile Alert Service, you acknowledge and agree that we may continue to send you alerts and other notifications via the email address or telephone number you provided to us or through another method as expressly agreed to by us in writing, until you notify us that you no longer wish to receives these Mobile Alerts. You can choose what types of Mobile Alerts you would like to receive, and you should note that Mobile Alerts sent to you are not encrypted. You should take steps to protect your email and/or any devices through which you access or receive such alerts to safeguard against unauthorized access.

THE FREQUENCY OF MOBILE ALERTS WILL VARY BASED ON THE KINDS OF ALERTS AND OTHER NOTIFICATIONS (INCLUDING PUSH NOTIFICATIONS ON YOUR MOBILE DEVICE) YOU SIGN UP TO RECEIVE PURSUANT TO YOUR SERVICES. STANDARD TEXT MESSAGING RATES APPLY (INCLUDING WHERE APPLICABLE ROAMING CHARGES), SO PLEASE CONTACT YOUR MOBILE PHONE CARRIER FOR DETAILS AND FEES. YOU WILL BE RESPONSIBLE FOR ALL TEXT MESSAGING AND DATA PLAN FEES CHARGED BY YOUR MOBILE PHONE SERVICE. MOBILE ALERTS ARE PROVIDED AS A COURTESY TO YOU. WE DO NOT GUARANTEE THE ACTUAL, COMPLETE OR TIMELY DELIVERY OF ANY MOBILE ALERTS. WE ARE NOT RESPONSIBLE FOR, AND EXPRESSLY DISCLAIM ANY AND ALL LIABILITY RELATED TO, THE FAILURE OF ANY MOBILE ALERT TO BE ACTUALLY, ACCURATELY, FULLY OR TIMELY DELIVERED TO YOU FOR ANY REASON WHATSOEVER, INCLUDING THOSE CAUSED BY A TECHNICAL ERROR OR OTHER PROBLEM WITH OUR SYSTEMS, THOSE OF YOUR MOBILE SERVICE PROVIDER, A THIRD-PARTY COMPANY OR ISSUES RELATED TO YOUR MOBILE SERVICE ACCOUNT OR MOBILE DEVICE.

5.1 Professional Services.
You may contract with us to perform Professional Services. The specific details of the Professional Services to be performed will be determined on a per-project basis, and the details for each project will be described on the Service Order. Unless otherwise specified in the applicable Service Order, any unused portion of the Professional Services and training will expire and may not be carried over after 12 months from the Service Order effective date.

5.2 Changes to Professional Services.
You may reasonably request in writing that revisions be made with respect to the Professional Services set forth in a Service Order. If your requested revisions materially increase the scope of the Professional Services or the effort required to perform the Professional Services under the Service Order, then we will deliver to you a written proposal reflecting our reasonable determination of the revised Professional Services, delivery schedule, and payment schedule, if any, that applies to the requested revisions. If you approve the proposal, then the parties will execute an amendment to the Service Order. Otherwise, the then-existing Service Order will remain in full force and effect, and we will have no obligation with respect to the relevant change requests.

5.3 Technical Support Services.
We will provide you with the applicable Technical Support Services for the version of the Service to which you are subscribed so long as you are current in payment of the Subscription Fees (if applicable). You are responsible for providing support to Permitted Third Parties.

5.4 Changes to the Services
We reserve the right to modify, add to, discontinue, and/or retire any Service and/or any feature of a Service at any time. We may also modify the terms and conditions that apply to the features and your use of the Services. We shall make reasonable attempts to provide you with notice of such modifications by posting them on the Site. We have no obligation to provide direct notice of any such changes. We have the right to define eligibility criteria for the Services, and make changes to those criteria at any time.

If we modify or update the Service Terms and/or Service(s), you have affirmatively agreed to such changes by continuing to use the Service(s) and Site. If you object to such change, your sole remedy shall be to terminate and/or cancel the Service. You can cancel the Service at any time, and may be eligible for a refund, as set forth in our refund policy – Section 8.

You may be eligible to use the credential monitoring feature (“Credential Monitoring”) of our Services. To sign up for Credential Monitoring, you must provide us with the account credentials (“Account Credentials”) for your eligible account(s) (such as email accounts, domains, and IP addresses) at participating third party institutions, and authorize HEROIC to use your Account Credentials to directly access your account data at these third-party companies (“Account Information”). By using the Credential Monitoring feature and providing us your Account Credentials, you are expressly authorizing HEROIC to access your Account Information on your behalf. You hereby grant HEROIC a non-exclusive, royalty-free, fully paid-up, license to use your Account Information in order to provide our Services to you, and to prepare aggregated and anonymous data derived from your Account Information for our own internal use. If any of your Account Credentials change, you are responsible for providing updated Account Credentials to HEROIC; if you do not, we will not be able to access your Account Information to provide alerts or notifications for any account for which we do not have your current Account Credentials.

YOU ACKNOWLEDGE AND AGREE THAT WHEN HEROIC IS ACCESSING AND RETRIEVING ACCOUNT INFORMATION FROM THIRD PARTY SITES, HEROIC IS ACTING AS YOUR AGENT FOR THE SOLE AND LIMITED PURPOSE OF OBTAINING YOUR ACCOUNT INFORMATION TO PROVIDE THE SERVICES TO YOU. IF YOU SIGN UP TO RECEIVE CREDENTIAL MONITORING ALERTS ON YOUR MOBILE DEVICE, YOU ACKNOWLEDGE AND AGREE THAT NEITHER COMPANY NOR ITS SERVICES ARE INTENDED TO PROVIDE LEGAL, TAX OR FINANCIAL ADVICE. RECOMMENDATIONS RELATED TO TRANSACTION ALERTS. WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY BASED ON YOUR RELIANCE ON OR USE OF ANY INFORMATION CONTAINED IN ANY ALERT OR DUE TO A FAILURE TO SEND OR RECEIVE AN ALERT.

7.1 Fees and Payment Terms.
Unless otherwise specified in a Service Order, the Subscription Fees for the initial subscription term and Professional Service fees set forth in the Service Order are due upon execution of the Service Order. After the initial subscription term, Subscription Fees will be invoiced annually at the then-current rate for the Service or as otherwise specified in a Service Order, 30 days in advance of the start of each renewal period. Fees for additional Service quantities and Professional Services will be invoiced at the time of order, unless otherwise agreed in writing by the parties. You will pay all amounts in full within 30 days after the invoice date. The charges in an invoice will be considered accepted by you unless we are notified of a good faith dispute in writing within 15 days of the date of the invoice. Unless expressly provided otherwise in a Service Order, all amounts payable under this Agreement are denominated in United States dollars, and you will pay all such amounts in United States dollars.

7.2 Credit Card.
If you use a credit card to set up an account or pay for the Service, you must be authorized to use the credit card information that you enter when you create the billing account. You authorize us to charge you for the Service plus a reasonable processing fee using your credit card and for any paid feature of the Service that you choose to sign up for or use under this Agreement. We may bill: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for a subscription to the Service. If you set up a Free Trial using a credit card or if you paid the Subscription Fees using a credit card, you agree that we may automatically charge your credit card account the applicable Subscription Fee when the Free Trial ends or renew your subscription and charge your credit card account on the one-year anniversary of your last subscription date (the “Renewal Date”), unless you cancel your subscription before the end of the Free Trial or the Renewal Date (as applicable). We will automatically renew your subscription each year on the Renewal Date until you terminate your subscription or we no longer offer the Service to which you subscribed. We will notify you in advance of the difference for recurring Subscription Fees. We may charge you up to the amount you approve plus a reasonable processing fee. You must keep all information in your billing account current. You may change your payment method at any time. If you tell us to stop using your payment method and we no longer receive payment from you for a Service that requires payment, we may terminate your access to that Service.

7.3 Late Payment.
Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded monthly from the date due until the date paid. You will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by us to collect any amount that is not paid when due. Amounts due from you under this Agreement may not be withheld or offset by you against amounts due to you for any reason.

7.4 Taxes.
The fees stated in a Service Order do not include local, state, federal, or foreign taxes (e.g., value-added, sales, or use taxes), or fees, duties, or other governmental charges resulting from this Agreement (“Taxes”). You are responsible for paying all applicable Taxes. If we determine that we have the legal obligation to pay or collect Taxes, we will add such Taxes to the applicable invoice and you will pay such Taxes, unless you provide us with a valid tax exemption certificate from the appropriate taxing authority. If a taxing authority subsequently pursues us for unpaid Taxes for which you are responsible under this Agreement and which you did not pay to us, we may invoice you and you will pay such Taxes to us or directly to the taxing authority, plus all applicable interest, penalties and fees.

7.5 Future Functionality.
Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.

You understand and agree that perfect security does not exist anywhere, and that you will protect your Personal Information in a reasonable way at all times. Accordingly, you will not recklessly disclose or publish your credentials or IP addresses, or any other related Information to anyone who might reasonably be expected to improperly use or disclose that Personal Information, such as, by way of example, in response to “phishing” scams, unsolicited emails, or pop-up messages seeking disclosure of Personal Information. You also agree that you will, upon request from us, immediately remove from your computer any software that we notify you poses a security risk. You understand that HEROIC offers, as a separate service, full computer maintenance, malware removal and system optimization that is a separate service from HEROIC EPIC or HEROIC GUARDIAN. You are responsible for maintaining the confidentiality of any password associated with your use of the Services and the App, as well as any activity within the App and Services using your password(s).

Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, you will not, and will not permit or authorize your Affiliates or third parties to: (a) rent, lease, or, except as explicitly set forth in this Agreement, otherwise permit third parties to use the Service or Documentation; (b) use the Service to provide services to third parties as a service bureau or in any way that violates applicable law; (c) circumvent or disable any security or other technological features or measures of the Service, or attempt to probe, scan or test the vulnerability of a network or system, or to breach security or authentication measures; (d) upload or provide for processing any information or material that is illegal, defamatory, offensive, abusive, obscene, or that violates privacy or intellectual property rights of any third party; (e) use the Service to harm, threaten, or harass another person or organization; or (f) send, store, or distribute any viruses, worms, Trojan horses, or other disabling code or malware component harmful to a network or system.

You will not copy, reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of any Client Software or provide, disclose, or make any Client Software available to any third party, except that you may make one copy of Client Software solely for backup and archival purposes. You will neither alter nor remove any trademark, copyright notice, or other proprietary rights notice that may appear in any part of the Documentation or any Client Software and will include all such notices on any copies. You will ensure that your Affiliates and Permitted Third Parties comply with this Agreement. You will be directly and fully responsible to us for their conduct and any breach of this Agreement by them. We reserve the right to deactivate, change, or require you to change your user ID and any custom or vanity URLs, custom links, or vanity domains you may obtain through the Service for any reason or for no reason. We may exercise such right at any time, with or without prior notice.

This Agreement restricts the use of the HEROIC EPIC Service to Authorized Users, up to the number of users specified in the Service Order. An Authorized User account must not be shared among users. Additional Authorized Users may be added by paying the applicable fees to us at our then-current rate or as otherwise specified in a Service Order. The Authorized Users who are employees of Permitted Third Parties may access and use the Service solely to perform the Permitted Third Party’s contractual obligations to you subject to the use limitations set forth in this Agreement. As part of the registration process, you may be asked to identify your company and other Authorized Users who should be associated with your account. You will not misrepresent the identity or nature of the company or Authorized Users who should be associated with your account. We may reassign the domain name associated with your account and change the way you access the Service at any time in our sole discretion. You are responsible for maintaining the confidentiality of your login, password, and account and for all activities that occur under your login and account, including the activities of Authorized Users.

Protection against Unauthorized Use. You will, and will ensure that your Affiliates and Permitted Third Parties use reasonable efforts to prevent any unauthorized use of the Service or Documentation, and you will immediately notify us in writing of any unauthorized use that comes to your attention. If there is unauthorized use by anyone who obtained access to the Service or Documentation directly or indirectly through you, your Affiliate, or a Permitted Third Party, you will take all steps reasonably necessary to terminate the unauthorized use. You will cooperate and assist with any actions taken by us to prevent or terminate unauthorized use of the Service or Documentation. We may, at our expense and no more than once every 12 months with reasonable notice, appoint our own personnel or an independent third party to verify that your use of the Service complies with the terms of this Agreement.

10.1 Term.
This Agreement commences on the effective date specified in the Service Order and continues for the initial subscription term specified in the Service Order, unless this Agreement is terminated earlier in accordance with the terms of this Agreement. This Agreement automatically renews for additional successive one-year terms unless at least 30 days before the end of the then-current term either party provides written notice to the other party that it does not intend to renew.

10.2 Termination.
Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party. A breach of this Agreement by your Affiliate or Permitted Third Party will be treated as a breach by you. Termination in accordance with this Subsection will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If you fail to timely pay any Subscription Fees or Professional Services Fees, we may, without limitation to any of our other rights or remedies, suspend performance of the Service, Professional Services, and Technical Support Services until we receive all amounts due, or may terminate this Agreement pursuant to this Subsection. We may terminate your license to use Free Versions at any time in our sole discretion.

IF YOU WISH TO CANCEL THE SERVICES, ACCOUNT ACCESS, OR PROGRAMS, YOU MUST CALL 1-800-613-8582. IF YOU HAVE TRANSACTED FOR SERVICES VIA A THIRD PARTY, YOU MUST TERMINATE THE SERVICES WITH THAT THIRD PARTY.

10.3 Post-Termination Obligations.
If this Agreement is terminated for any reason: (a) we have no obligation to provide or perform any Service, Professional Services, or Technical Support Services after the effective date of the termination; (b) you will immediately pay to us any Subscription Fees, Professional Services Fees, and other amounts that have accrued prior to the effective date of the termination; (c) any and all liabilities accrued prior to the effective date of the termination will survive; (d) you will provide us with a written certification signed by your authorized representative certifying that all use of the Service and Documentation by you, your Affiliates and Permitted Third Parties has been discontinued and the Client Software has been de-installed from your and your Affiliates’ computer systems. If this Agreement is terminated by us for your uncured material breach or by you other than as a result of a material, uncured breach by us, you will pay to us the amounts due under the applicable Service Order for the remainder of the then-current term. If you terminate this Agreement for our uncured material breach, as your exclusive remedy, we will provide you a pro-rata refund of all prepaid but unused Subscription Fees for the remainder of the then-current term.

If you have enrolled in or obtained your membership to the Service(s) through a third party, and you wish to cancel the Service and/or Service Terms, you must notify the third party of your intent to cancel. We will terminate the Services and/or Service Terms upon notice to us provided by such third party. If you are enrolled in any Services through a third party, you will not be entitled to any refund of fees by HEROIC; we shall have no obligation to, and shall not, refund any fees paid by you to a third party.

You agree that we may use your Personal Information in accordance with our Privacy Policies, which are available on HEROIC.com and are incorporated by reference into these Service Terms. You expressly authorize HEROIC, its agents, and its employees to obtain various information and reports about you (or about any minor child that you have enrolled) as we deem reasonably necessary or desirable in the course of performing the Services. We may share your Personal Information with any other person registered on your HEROIC account. You, individually or as the parent or legal guardian of a minor child you enroll or cause to be enrolled, expressly authorize HEROIC, its agents, and its employees to take any steps necessary to implement the Services, including, but not limited to, completing and executing any documents, communicating with third parties, and acting as a personal representative to the fullest extent permitted by law.

12. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS

We retain all right, title and interest (including all copyright, trademark, patent, trade secrets and all other intellectual property rights) in our Services, our App (including the Data), API’s and Data, as well as our trademarks, service marks, designs, logos, URLs, and trade names that are displayed in connection with our Services and our App. Further, your use of or access to our Site and to any content, materials, data or information available on or via our Site, is subject to the HEROIC Intellectual Property Statement, including its applicable provisions on intellectual property, feedback, submissions, and proprietary rights.

The party receiving Confidential Information hereunder agrees to take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or disclosure of the Confidential Information to third parties without the disclosing party’s prior written consent. The receiving party may disclose the disclosing party’s Confidential Information to the receiving party’s employees or agents who reasonably need to have access to such information to perform the receiving party’s obligations under this Agreement, and who will treat such Confidential Information under the terms of this Agreement. Provided that such Permitted Third Party is bound by obligations of confidentiality and nonuse no less restrictive than the terms of this Agreement, you may disclose our Confidential Information to a Permitted Third Party solely to the extent required for such Permitted Third Party to be able to access and use the Service pursuant to this Agreement. Also, we may disclose this Agreement to actual and potential investors and funding sources and their representatives, in each case who agree to hold it in confidence. The receiving party may disclose the disclosing party’s Confidential Information if required by law so long as the receiving party gives the disclosing party written notice of the requirement prior to the disclosure (where permitted) and reasonable assistance, at the disclosing party’s expense, in limiting disclosure or obtaining an order protecting the information from public disclosure.

Return of Materials and Effect of Termination. Upon written request of the disclosing party, or in any event upon any termination or expiration of this Agreement, the receiving party will return to the disclosing party or destroy all materials, in any medium, to the extent containing or reflecting any of the disclosing party’s Confidential Information. Following expiration or termination of this Agreement, we may purge your Subscriber Data and your Service environment from our systems. The obligations in this Section 15 survive for three years following expiration or termination of this Agreement, except that Confidential Information that constitutes a trade secret of the disclosing party will continue to be subject to the terms of this Section 15 for as long as such information remains a trade secret under applicable law.

We control and operate the App and Services from our headquarters in the United States of America and the content and features may not be appropriate or available for use in other locations. If you use the App or Services outside the United States of America, you are responsible for following applicable local laws. By using the App or Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

15. DATA SECURITY

We implement and maintain physical, electronic, and managerial procedures intended to protect against the loss, misuse, unauthorized access, alteration, or disclosure of Subscriber Data. These measures include encryption of Data during transmission to the Service, and encryption of backups of Data and authentication credentials at rest. We will notify you of any unauthorized access to, or use of, Subscriber Data that comes to our attention. If any unauthorized disclosure of Subscriber Data resulting from your use of the Service comes to our attention, we will work with you to investigate the cause of such unauthorized disclosure, and will work together in good faith to take the steps reasonably necessary to prevent any future reoccurrence and to comply with applicable data breach notification laws.

Data Transmission. You acknowledge that use of the Service involves the transmission of Data and other communications over the Internet and other networks, and that such transmissions could potentially be accessed by unauthorized parties.

UNLESS OTHERWISE EXPLICITLY STATED, HEROIC, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SERVICES, RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED IN THE SERVICES.

UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED THROUGH THE SERVICES IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. HEROIC DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.

WITHOUT LIMITING THE FOREGOING LIMITATION OF LIABILITY, IN THE EVENT WE ARE FOUND LIABLE FOR DAMAGES TO YOU IN A COMPETENT LEGAL PROCEEDING OUR AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THESE SERVICE TERMS IS LIMITED TO THE LESSER OF (a) ONE THOUSAND U.S. DOLLARS ($1,000) OR (b) THE AMOUNTS PAID TO US FOR THE SERVICES THAT ARE THE BASIS OF THE CLAIM IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE CLAIM. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY. ONLY LIMITATIONS THAT ARE LAWFUL IN THE APPLICABLE JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

We have no obligation under this Section for any infringement or misappropriation to the extent that it arises out of or is based upon (a) use of the Service in combination with other products or services; (b) any aspect of the Service configured specifically for you to comply with designs, requirements, or specifications required by or provided by or on your behalf; (c) use of the Service by you, any Affiliate, or any Permitted Third Party outside the scope of the rights granted in this Agreement; (d) failure of you, any Affiliate, or any Permitted Third Party to use the Service in accordance with instructions provided by Us; or (e) any modification of the Service not made or authorized in writing by Us.

Neither these Service Terms, nor any rights hereunder, may be assigned by operation of law or otherwise, in whole or in part, by you without our prior written permission. Any purported assignment without such permission shall be void. Any waiver of our rights under these Service Terms must be in writing, signed by HEROIC, and any such waiver shall not operate as a waiver of any future breach of these Service Terms. In the event any portion of these Service Terms is found to be illegal or unenforceable, such portion shall be severed from these Service Terms, and the remaining terms shall be separately enforced. Your use of the Services shall at all times comply with all applicable laws, rules, and regulations.

19.1 Service Terms:
These Service Terms, and all documents incorporated into these Service Terms by reference are the entire agreement between the parties with respect to this subject matter and supersede any and all prior or contemporaneous or additional communications, negotiations, or agreements with respect thereto. Our failure to enforce any of these Service Terms is not a waiver of such term. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Service Terms.

These Service Terms are solely and exclusively between you and HEROIC and you acknowledge and agree that (i) no third party, including a third-party partner of HEROIC is a party to these Service Terms, and (ii) no third party, including any third-party partner of HEROIC has any obligations or duties to you under these Service Terms.

19.2 Access by Competitors.
You may not access the Service if you are our direct competitor, except with our prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purpose.

19.3 Patent Marking.
The Service is protected by one or more claims of patents in the U.S. and elsewhere. Please see the following link for details on these patents: https://www.HEROIC.com.

19.4 U.S. Government Use.
If the Service is licensed under a United States government contract, you acknowledge that the Service is a “commercial item” as defined in 48 CFR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are defined in FAR Section 2.101 and Section 252.227-7014 of the Defense Federal Acquisition Regulation Supplement (48 CFR 252.227-7014) and used in 48 CFR 12.212 or 48 CFR 227.7202-1, as applicable. You also acknowledge that the Service is “commercial computer software” as defined in 48 CFR 252.227-7014(a)(1). United States government agencies and entities and others acquiring under a United States government contract will have only those rights, and will be subject to all restrictions, set forth in this Agreement.

19.5 Anti-Corruption.
You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If you learn of any violation of the above restriction, you will use reasonable efforts to promptly notify our Legal Department at legal@HEROIC.com.

19.6 Relationship.
We will be and act as an independent contractor (and not as the agent or representative of you) in the performance of this Agreement.

19.7 Publicity.
We may only use your name, trademarks, and service marks to the extent necessary to fulfill our obligations under this Agreement or as otherwise explicitly authorized in this Agreement or a Service Order. We reserve the right to use your name and trademark as a reference for marketing and promotional purposes on our website and in other communications with our existing and prospective customers. If you do not want to be listed as a reference for the Service, you may send an email to legal@HEROIC.com stating that you do not wish to be identified as a reference.

19.8 Assignment and Delegation.
You may not assign any of your rights or delegate any of your obligations under this Agreement (in whole or in part) without our prior written consent, except in connection with a change of control, merger, or by operation of law. Your assignment or delegation will not relieve you of your obligations under this Agreement nor release you of your liability under this Agreement. We may voluntarily, involuntarily, or by operation of law assign any of our rights or delegate any of our obligations under this Agreement without your consent. Any purported assignment or delegation in violation of this Subsection will be null and void. Subject to this Subsection, this Agreement will bind and inure to the benefit of each party’s respective permitted successors and permitted assigns.

19.9 Subcontractors.
We may use subcontractors or other third parties in carrying out our obligations under this Agreement and any Service Order. We remain responsible for all of our obligations under this Agreement.

19.10 Notices.
Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or overnight courier, return receipt requested, to the appropriate party at the address set forth in the Service Order and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Subsection. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.

19.11 Force Majeure.
Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.

19.12 Governing Law.
This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Utah, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.

19.13 Arbitration.
Any action arising out of or in connection with this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, will be determined by binding arbitration in Salt Lake County, Utah, U.S.A. by one arbitrator. The arbitration will be administered by the AAA pursuant to its Comprehensive Arbitration Rules and Procedure. Judgment upon the award rendered by an arbitrator may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its attorneys’ fees and costs incurred in connection with any arbitration or litigation instituted in connection with this Agreement. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to prepare for or conduct the arbitration hearing on the merits. This section does not prohibit either party from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, or to any action by us to collect amounts not paid to us when due.

19.14 No Third-Party Beneficiaries.
There are no third-party beneficiaries to this Agreement, including, without limitation, your Affiliates, Permitted Third Parties, or Authorized Users.

19.15 Waiver and Modifications.
Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the party of any other right or remedy under this Agreement or that the party is entitled by law to enforce. We reserve the right, at our discretion, to change the terms of this Agreement on a going-forward basis at any time. Please check the terms of this Agreement periodically for changes. If a change materially modifies your rights or obligations, you will be required to accept the modified Agreement in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Agreement. Immaterial modifications are effective upon publication. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.

19.16 Severability.
If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Service under this Agreement is found to be illegal, unenforceable, or invalid, your right to use the Service will immediately terminate.

19.17 Counterparts.
The Service Order may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. The Service Order may also be executed and delivered by facsimile or electronically and such execution and delivery will have the same force and effect of an original document with original signatures.

19.18 Entire Agreement.
This Agreement and all exhibits contain the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter, including any prior Nondisclosure Agreement between the parties or their Affiliates. If there is a conflict between the terms of this Agreement and a Service Order, the terms of the Service Order will control. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. Neither party will be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by the other party in any acceptance, confirmation, invoice, purchase order, receipt, correspondence, or otherwise, unless each party mutually and expressly agrees to such provision in writing.