SaaS Terms and Conditions

These Terms and Conditions (the “Terms”) shall govern the provision the software license by .38 Long LLC (dba Hemingway Editor App), a North Carolina limited liability company located at PO Box 72, Durham, NC 27702 ( hereinafter “HEA”) to the person or entity identified on the Order Form as the customer of the Services (“Customer”) as reflected in an order form reflecting the subscription of services entered into by Customer and HEA in writing or transmitted electronically (“Order Form” and collectively with these Terms, this “Agreement”). Any capitalized term used but not defined herein shall have the meaning ascribed to such term under the Order Form.

  1. Certain Definitions. For purposes of these Terms, the following definitions apply:
  1. “Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
  2. “AI Functionality” means the use of the artificial intelligence features and functionality available to certain Users as a part of the Services. 
  3. “Authorized User” means each invitee of a Customer granted access to the Services by a Customer.
  4. “HEA Materials” means the Services, Documentation, and HEA Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by HEA or any subcontractor in connection with the Services or otherwise comprise or relate to the Services or HEA Systems. For the avoidance of doubt, HEA Materials include Resultant Data and any information, data, or other content derived from HEA’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
  5. “HEA Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of HEA or any subcontractor.
  6. “HEA Systems” means the information technology infrastructure used by or on behalf of HEA in performing the Services, including AI Functionality, all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by HEA or through the use of third-party services.
  7. “Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services or that incorporates or is derived from the processing of such information, data, or content by or through the Services. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
  8. “Customer Systems” means the information technology infrastructure used by or on behalf of Customer in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.
  9. “Customer” means an individual or entity identified in the Order Form.
  10. “Documentation” means any manuals, instructions, or other documents or materials that HEA provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or HEA Materials.
  11. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other Intellectual Property Rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
  12. “Order Form” means the subscription of services order form entered into by Customer and HEA in writing or transmitted electronically.
  13. “Personal Information” means any information that, individually or in combination, does or can identify a specific individual or device or by or from which a specific individual or device may be identified, contacted, or located. Personal Information includes all “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996, “Personal Data” as defined in the EU Data Protection Directive (Directive 95/46/EEC), “Personal Information” as defined under the Children’s Online Privacy Protection Act of 1998, and all rules and regulations issued under any of the foregoing.
  14. “Registered User” means a Customer or Authorized User.
  15. “Resultant Data” means Feedback and all data and information related to Customer’s use of the Services that is used by HEA in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
  16. “Services” means the SaaS services listed in the Order Form.
  17. “Site” means https://hemingwayapp.com
  18. “Users” means Customer, Authorized User or Trial User. 
  1. Services.
  1. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, HEA hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the initial period reflected on an Order Form (“Initial Term”), solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. The total number of Authorized Users will not exceed the number set forth in the Order Form, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the Fees payable hereunder. Upon expiration of the Initial Term, this Agreement will automatically renew for subsequent periods of the same length as the Initial Term (each a "Renewal Term" and, together with the Initial Term, the "Term"), unless either party notifies the other of its intention not to renew at least thirty calendar (30) days prior to the expiration of the then-current Term or as otherwise expressly permitted through use of the Services (i.e., use of any opt-out, cancellation option when using the Services).  
  2. Customer shall at all times during the Term set up, maintain, and operate in good repair all Customer Systems on or through which the Services are accessed or used. HEA is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).
  3. HEA reserves the right, in its sole discretion, to make any changes to the Services and HEA Materials that it deems necessary or useful to: (i) maintain or enhance: (A) the quality or delivery of HEA’s services to its customers; (B) the competitive strength of or market for HEA’s services; or (C) the Services’ cost efficiency or performance; or (ii) to comply with applicable law. Customer will have access to all updates and new releases at its current price during the applicable Term, subject to increase at a Renewal Term.
  4. HEA may, directly or indirectly, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other person’s access to or use of all or any part of the Services or HEA Materials, without incurring any resulting obligation or liability, if: (i) HEA receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires HEA to do so; (ii) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement, provided that Customer is provided with at least thirty (30) days’ prior written notice to cure the foregoing; (iii) Customer or any Authorized User is or has been involved in any fraudulent or unlawful activities; or (iv) this Agreement expires or is terminated. This paragraph does not limit any of HEA’s other rights or remedies, whether at law, in equity, or under this Agreement.
  5. With respect to accessing the Services and general account security, the provisions that govern the creation, access and use of Authorized User accounts are determined by these Terms.
  6. Beta Releases and Free Access Subscriptions. HEA may provide individual or a legal entity that uses the Services (“Trial Users”) and Registered User with a limited, non-transferable, non-sub-licensable, internal license to access and use to the Services without the need for Access Credentials for free or on a trial basis (each a “Free Access Subscriptions”) or with “alpha”, “beta”, or other early-stage Services, integrations, or features (“Beta Releases”), which are optional for Trial Users and Registered User use. HEA makes no promises that future versions of Beta Releases or Free Access Subscriptions will be released or will be made available under the same commercial or other terms. HEA may terminate any right to use any Free Access Subscriptions or Beta Releases by Trial Users or Registered Users at any time in its sole discretion, without liability. WITH RESPECT TO BETA RELEASES, TRIAL USERS AND REGISTERED USER ACKNOWLEDGE AND AGREE THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH HEA WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF BETA RELEASES ARE AT CUSTOMER’S SOLE RISK NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN. IN ADDITION, TRIAL USERS ACKNOWLEDGE THAT HE OR SHE WILL FOLLOW ALL TERMS AND CONDITIONS OF CUSTOMERS INCLUDING, WITHOUT LIMITATION, SECTION 8 (PROHIBITED USES), SECTION 12 (LIMITATION OF LIABILITY) AND SECTION 13 (INDEMNIFICATION). Additional terms and conditions applicable to the free trial version of the Services may appear on the applicable registration page. Any such additional terms and conditions are incorporated into these Terms by reference.
  1. Fees/Payment. All fees arising out of or related to this Agreement are stated in U.S. dollars and all payments to HEA shall be made in U.S. dollars through a third party payment processor (e.g., Stripe). Customer agrees to pay the fees specified in the Order Form in accordance with the terms specified therein. Unless otherwise specified in the Order Form, invoices are payable within thirty (30) days of receipt. HEA reserves the right to charge a late fee of up to 1.5% per month (or, if less, the maximum rate allowable by law) on any undisputed balance remaining unpaid for more than thirty (30) days beyond the date such payment is due. Customer shall reimburse HEA for all costs incurred by HEA in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees. If Customer is in default of this Section 3 for seven (7) days following written notice thereof, HEA may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other person by reason of such suspension. All amounts payable to HEA under this Agreement shall be paid by Customer to HEA in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.
  2. Third-Party Materials.
  1. The Services may include (i) third party plugins, (ii) applications that third parties have licensed to HEA for use by HEA’s Users and (iii) the AI Functionality (each, a “Third-Party Material”).
  2. If a Third-Party Material is enabled for Customer’s workspace, please be mindful of any Customer Data that will be shared with the third-party provider and the purposes for which the provider requires access. HEA will not be responsible for any use, disclosure, modification or deletion of Customer Data that is transmitted to, or accessed by, a Third-Party Material.
  1. AI Functionality.
  1. The AI Functionality is provided by third-parties providers. Currently HEA is using artificial intelligence technology developed and provided by OpenAI LLC (“OpenAI”), Anthropic PBC (“Anthropic”), and Together Computer Inc. (Together). User acknowledges and understands that by using the Services the OpenAI Terms of Service govern the use of the AI Functionality (available here) (“OpenAI Terms”) and specifically, that any information, content or code uploaded to the AI Functionality (“Input”) may, in certain instances, be used by OpenAI for model training and improvement. OpenAI grants opt-out rights available here. The Inputs may be shared with and manually reviewed by a person, including by third party contractors located around the world. Users should not use or provide any information that is sensitive or that he does not want others to view, including Personal Information. HEA has no control over the use of the Input, thus, any use of such is at Users own risk and HEA does not represent, undertake or warrant to any security or control of or to the Input.
  2. User is solely responsible for the Input and recognizes that by using the AI Functionality, User will receive output generated and returned by the AI Functionality based on the Input (“Output”) (Input and Output are collectively “Content”). User is solely responsible for ensuring that the Content complies with applicable laws and these Terms. As between the parties and to the extent permitted by OpenAI and Together Terms and applicable law, User owns all Input and is hereby granted rights, title and interests in and to Output; for avoidance of doubt, ownership of the Output through use of the Services means that HEA does not own the Output, but does not guarantee that such Output does not violate another party’s intellectual property rights. The Content may, at User’s sole risk, be used for non-commercial purposes except that Customers may use the Content for any legal and lawful purpose, including commercial purposes and publication. Prior to publication, it is recommended to add a disclosure that the Output was generated by AI tools. Due to the nature of machine learning, Output, in whole or in part, will not be unique across users and the AI Functionality may generate the same or similar output for third parties.
  1. HEA Technology and Content.
  1. The Services, Site, software, code, proprietary methods and systems used to provide the Services, including HEA Materials (“HEA Technology”) and the content of the Site and Services (“HEA Content”) are (i) copyrighted by HEA and/or its licensors under United States and international copyright laws, (ii) subject to other Intellectual Property Rights and laws, and (iii) owned by HEA or its licensors. Neither HEA Content nor HEA Technology may be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without HEA’s prior written permission and the prior written permission of HEA’s applicable licensors. 
  2. User must abide by all copyright notices, information, or restrictions contained in or attached to any of HEA Content or HEA Technology and User may not remove or alter any such notice, information or restriction. User’s use of HEA Content and HEA Technology must at all times comply with this Agreement. Nothing in these Terms grants User any right to receive delivery of a copy of HEA Technology or to obtain access to HEA Technology except as generally and ordinarily permitted through the Services according to this Agreement.
  3. The Site and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by HEA, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other Intellectual Property Rights.
  4. User hereby unconditionally and irrevocably grants to HEA an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
  5. User grants HEA a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Content (i) to improve its Services and (ii) in an anonymized manner.
  1. Customer Data.
  1. As between HEA on the one hand, and Customer and any Authorized Users on the other, Customer will own all Customer Data. Subject to the terms and conditions of the Order Form and these Terms, Customer (for itself and all of its Authorized Users) grants HEA a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer Data, only as reasonably necessary (i) to provide, maintain and update the Services; (ii) to prevent or address service, security, support or technical issues; (iii) as required by law; and (iv) as expressly permitted in writing by Customer. Customer represents and warrants that it has secured all rights in and to Customer Data from its Authorized Users as may be necessary to grant this license.
  2. The Services may also provide Customer with features like document previews, sorting, editing, sharing and searching capabilities. These and other features may require HEA’s systems to access, store and scan Customer Data. Customer gives HEA permission to do those things, and this permission extends to trusted third parties HEA work with who may act on HEA’s behalf, provided that such third parties are subject to confidentiality and data security obligations at least as protective as those of HEA.
  3. All feedback HEA receives (e.g., questions, comments, suggestions or the like) regarding any of the Services including the use of the AI Functionality (collectively, “Feedback”), if any, and all rights, including intellectual property rights in such Feedback shall belong exclusively to HEA and that such shall be considered to be included in HEA’s Intellectual Property Rights, provided Feedback shall not include Customer Data; and Customer hereby irrevocably and unconditionally transfers and assigns to HEA without all intellectual property rights it has in such Feedback and waives any and all moral rights that Customer may have in respect thereto.
  4. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. HEA HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
  1. Prohibited Uses.
  1. Users shall not, and shall not permit any other person to, access or use the Services or HEA Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Users shall not, except as this Agreement expressly permits:
  1. copy, modify, or create derivative works or improvements of the Services or HEA Materials;
  2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or HEA Materials to any person, including on or in connection with the internet or any, software as a service, cloud, or other technology or service;
  3. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or HEA Materials, in whole or in part;
  4. bypass or breach any security device or protection used by the Services or HEA Materials or access or use the Services or HEA Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
  5. input, upload, transmit, or otherwise provide to or through the Services or HEA Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code;
  6. damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, HEA Systems, or HEA’s provision of services to any third party, in whole or in part;
  7. remove, delete, alter, or obscure any trademarks, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other Intellectual Property Rights notices from any Services or HEA Materials, including any copy thereof;
  8. access or use the Services or HEA Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other HEA customer), or that violates any applicable law;
  9. access or use the Services or HEA Materials for purposes of competitive analysis of the Services or HEA Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the HEA’s detriment or commercial disadvantage;
  10. access or use the Services or HEA Materials for purposes of web scraping, web harvesting, or web data extraction methods, other than as expressly permitted by these Terms;
  11. allow any non-human access or use of the Services or HEA Materials for any purposes;
  12. otherwise access or use the Services or HEA Materials beyond the scope of the authorization granted under this Agreement.
  1. Without derogating from the restrictions in subsection (a) or any other provision of these Terms, each User hereby represents and warrants that it will not, nor will it authorize anyone on its behalf, including an Authorized User, to:

  1. mislead anyone that Content generated is human-generated;
  2. impersonate any person or entity, including any of its employees or representatives,
  3. use the Services to generate content that expresses or promotes hate, harassment, or violence, exploits or harms children, encourages self-harm, presents illegal, sexual, political, harmful, false, deceiving or misleading information, intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability, misuses personal data, contains malware, unsolicited bulk content, ransomware, viruses, or other software;
  4. contains explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals),
  5. constitutes unauthorized or unsolicited advertising, junk or bulk email (also known as “spamming”), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling or
  6. use the Services for activities which has high risk of economic harm, for adult content, adult industries, and dating apps; offering tailored financial advice without a qualified person reviewing the information; to provide health advice, political campaigning or lobbying.

  1. If User becomes aware of any actual or threatened activity prohibited by this Agreement, User shall, immediately: (i) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and HEA Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (ii) notify HEA of any such actual or threatened activity.
  1. Trademarks. The trademark HEMINGWAY is owned by Hemingway, Ltd. and is used by HEA under license .The terms “Hemingway Editor” and “Hemingway Editor App”, Hemingway logo(s) and all related names, logos, product and service names, designs and slogans are used as trademarks of HEA or its affiliates or licensors including, without limitation the license granted by Hemingway, Ltd. Users must not use such marks without the prior written permission of HEA. All other names, logos, product and service names, designs and slogans on this Site are the trademarks of their respective owners.
  2. Security.
  1. HEA will employ security measures in accordance with applicable industry practice.
  2. User acknowledges that the Services are not designed with security and access management for processing the following categories of information: (i) Personal Information; (ii) data that is classified and or used on the U.S. Munitions list, including software and technical data; (iii) articles, services, and related technical data designated as defense articles or defense services; and (iv) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, “Prohibited Data”). User shall not, and shall not permit any other person or entity to, knowingly provide any Prohibited Data to, or process any Prohibited Data through, the Services, the HEA Systems, or any HEA Personnel. User is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. 
  3. Customer has and will retain sole responsibility for: (i) all Customer Data, including its content and use; (ii) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (iii) Customer Systems; (iv) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (v) all access to and use of the Services and HEA Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
  4. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (i) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (ii) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services.
  1. Representations and Warranties.
  1. Customer represents, warrants, and covenants to HEA that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by HEA and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law.
  2. HEA represents, warrants, and covenants to Customer that it will (i) abide by all applicable laws and regulations in providing the HEA Materials; and (iii) use industry standard data security measures.
  3. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL SERVICES AND HEA MATERIALS ARE PROVIDED “AS IS” AND HEA MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER COMMUNICATION. HEA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, HEA MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR HEA MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET USER OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
  4. IN ADDITION TO THE DISCLAIMERS PROVIDED FOR IN SUBSECTION (c), THE AI FUNCTIONALITY IS PROVIDED BY THIRD PARTY PROVIDERS, HEA DOES NOT GUARANTEE ACCURACY OF ANY OUTPUT GENERATED BY THE AI FUNCTIONALITY. GIVEN THE PROBABILISTIC NATURE OF MACHINE LEARNING, AND ARTIFICIAL INTELLIGENCE, USE OF THE AI FUNCTIONALITY MAY IN SOME SITUATIONS RESULT IN INCORRECT OUTPUT THAT DOES NOT ACCURATELY REFLECT THE ACTION GENERATED. USER SHALL EVALUATE THE ACCURACY OF ANY OUTPUT AND SHALL NOT RELY ON HEA TO DO SO. HEA WILL HAVE NO LIABILITY OR RESPONSIBILITY ARISING IN ANY WAY FROM USER’S USE OF THE CONTENT OR ANY ERRORS OR OMISSIONS CONTAINED IN THE CONTENT.
  5. HEA WILL PASS THROUGH TO CUSTOMER ANY APPLICABLE WARRANTIES AND INDEMNITIES PROVIDED BY HEA’S LICENSORS OF EMBEDDED SOFTWARE, AND WILL SEPARATELY IDENTIFY SUCH WARRANTIES AND INDEMNITIES TO CUSTOMER IN WRITING UPON CUSTOMER REQUEST. TO THE EXTENT HEA RECEIVES A WARRANTY OR INDEMNITY FROM A LICENSOR OF EMBEDDED SOFTWARE BUT IS UNABLE TO PASS SUCH WARRANTY OR INDEMNITY THROUGH TO CUSTOMER, HEA AGREES THAT IT WILL ENFORCE SUCH WARRANTIES AND INDEMNITIES ON BEHALF OF CUSTOMER TO THE EXTENT HEA IS PERMITTED TO DO SO UNDER THE TERMS OF THE APPLICABLE THIRD PARTY AGREEMENTS. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. HEA MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER COMMUNICATION RELATING TO THIRD-PARTY SOFTWARE, AND HEA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THIRD-PARTY SOFTWARE. ANY WARRANTIES RELATING TO THIRD-PARTY SOFTWARE ARE PROVIDED SOLELY FROM THE MANUFACTURER.
  1. Limitation of Liability. THE CUMULATIVE LIABILITY OF HEA TO USER FOR ALL CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE LOWER OF FEES PAID TO HEA DURING THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM FOR THE APPLICABLE PORTION OF THE SERVICES WHICH CAUSED THE DAMAGE OR WHICH IS THE SUBJECT MATTER OF THE CLAIM OR ONE HUNDRED DOLLARS ($100). IN NO EVENT WILL HEA OR ITS SUPPLIERS BE LIABLE TO USER FOR DAMAGES FOR LOSS OF DATA OR LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, EVEN IF HEA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 12 SHALL ONLY APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW AND SHALL NOT SERVE TO ELIMINATE OR OTHERWISE DIMINISH THE PARTIES’ OBLIGATIONS OF INDEMNIFICATION UNDER SECTION 13.
  2. Indemnification.
  1. HEA will defend at its own expense any third party claim (an “Action”) against Customer, its affiliates, officers, directors, and employees that Customer’s use of Services (excluding Customer data and Third Party Materials), infringe any valid U.S. patent, copyright, trade secret, or any other proprietary right, and will indemnify and hold harmless Customer against all losses, damages, expenses (including reasonable attorneys’ fees), and costs (the “Losses”) incurred by Customer in connection with such claim. If such a claim is made or appears possible, HEA may, at its option, (i) secure for Customer the right to continue to use of Services; (ii) modify or replace the Services, so they are non-infringing, provided that any such modification or replacement may not materially modify the functionality of the software, or require of Customer additional expenses, unless HEA agrees to reimburse Customer for such expenses, or, if neither of the foregoing options is available; (iii) require Customer to discontinue use of the Services, for a refund of the Fees. However, HEA has no obligation for any claim of infringement based on modifications of the Services or HEA Materials, not made, authorized or approved by HEA, or the combination, operation, or use of any Services or HEA Materials, with any product, data, or apparatus not provided by HEA, in each case to the extent use of the Services, would not otherwise infringe. With respect to Services under this Agreement, the foregoing obligation does not apply to the extent that the alleged infringement arises from: (i) Customer Data; (ii) access to or use of the HEA Materials in combination with any hardware, system, software, network, or other materials or service not provided by HEA or specified for Customer’s use in the Documentation; (iii) modification of the HEA Materials other than: (A) by or on behalf of HEA; or (B) with HEA’s written approval in accordance with HEA’s written specification; (iv) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of HEA; or (v) act, omission, or other matter described in any of the foregoing, whether or not the same results in any Action against or Losses by any HEA Indemnitee (as defined below).
  2. Excluding claims of HEA’s intellectual property infringement of third party rights as provided in Section 13(a), User will defend at its own expense any third party claim against HEA, its affiliates, officers, directors, shareholders, members, managers, and employees based on User’s illegal or improper (where improper is defined as not authorized by this license or applicable law) use of the Services or HEA Materials to the extent that any such claims are not based on a fault of HEA, and will indemnify HEA against all damages and costs awarded in connection with such claim. In addition, User shall indemnify, defend, and hold harmless HEA and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “HEA Indemnitee”) from and against any and all Losses incurred by such HEA Indemnitee resulting from any Action by a third party (other than an Affiliate of a HEA Indemnitee) that arise out of or result from, or are alleged to arise out of or result from: (i) Customer Data, including any processing of Customer Data by or on behalf of HEA in accordance with this Agreement; (ii) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of a User, including HEA’s compliance with any specifications or directions provided by or on behalf of a User to the extent prepared without any contribution by HEA; (iii) allegation of facts that, if true, would constitute User’s breach of any of its representations, warranties, covenants, or obligations under this Agreement or these Terms; or (iv) negligence or more culpable act or omission (including recklessness or willful misconduct) by a User, or, with respect to a Customer or Authorized User, any third party on behalf of such Customer or any Authorized User, in connection with this Agreement.
  3. A party’s obligations to indemnify under this Section 13 shall be subject to such party’s receipt of written notice of the claim or lawsuit, all relevant available information requested, reasonable assistance (to be reimbursed by the indemnifying party), and sole authority to defend or settle such claim or lawsuit (provided that any such settlement may not impose liability on an indemnified party without such indemnified party’s express, written approval). An indemnified party may be permitted, at its expense, to participate in the defense of any claim described under this Section.
  4. THE INDEMNIFICATION OBLIGATIONS AFFORDED TO CUSTOMER UNDER THIS SECTION 13 SET FORTH CUSTOMER’S SOLE REMEDIES AND HEA’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND HEA MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
  1. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without HEA’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which HEA’s prior written consent is required. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 14 is void. HEA may assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Customer’s prior written consent and without need to provide notice of such assignment or transfer. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
  1. Default/Termination. If Customer fails to pay any undisputed fees or charges due or breach any obligation under Section 3, HEA may, at its option, in addition to other available remedies, suspend the provision of any maintenance or professional services being provided, provided that HEA must first give Customer ten (10) days prior notice in order to permit Customer to cure its default. In the event of a material default of the terms of this Agreement by either party, the other party may, at its option, either discontinue the delivery of Services under this Agreement and/or terminate this Agreement in its entirety, provided that the non-breaching party first gives the other party thirty (30) days prior notice in order to permit such party to cure its alleged default.  Upon expiration or termination of this Agreement other than a termination by Customer for breach due to HEA’s breach, Customer will pay all fees incurred under this Agreement up to the date of termination and cease use of and promptly return or certify the destruction of all copies of the HEA Materials and all other materials pertaining to the Services previously delivered to Customer. Any section that by its nature, given the manner of termination, would be required to survive to effect the parties intent hereunder, shall survive the termination of this Agreement. Customer may terminate this Agreement at any time through use of the Services (i.e., use of any opt-out, cancellation option when using the Services), provided, however, that except as expressly provided otherwise, fees are non-refundable whether or not the Services are terminated prior to completion of the Term.

16.        Miscellaneous.

(a)         During the time of performance of any Services hereunder and for a period of one (1) year after completion of such Services, respectively, neither party shall solicit, interfere with, or endeavor to entice away any employee of the other party who has been involved in the performance of the Services, except that either party may hire an employee of the other party who, without individual solicitation, responds to advertisements or solicitations aimed at the general public. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

(b)        This Agreement is the complete and exclusive statement of the agreement between the parties and supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter hereof. If there is any inconsistency between any online terms and this Agreement, this Agreement shall prevail.

(c)        Except as specifically provided in this paragraph, a person who is not a party to this Agreement has no right to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from this Agreement.

(d)        Any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a party at the addresses set forth on the signature page hereto (or to such other address or such other person that such party may designate from time to time in accordance with this Section 16 (d)). Notices sent in accordance with this Section 16(d) will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

(e)        The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

(f)        No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(g)        In no event will HEA be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond HEA’s reasonable control (a “Force Majeure Event”), including (i) acts of God; (ii) flood, fire, earthquake, pandemic, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; or (viii) shortage of adequate power or transportation facilities. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more. In the event of any failure or delay caused by a Force Majeure Event, HEA shall give prompt written notice to Customer stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

(h)        On a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.

(j)        The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever

(k)        Except as authorized under the Order Form, neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld.

(l)        This Agreement is governed by and construed in accordance with the internal laws of the State of North Carolina without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of North Carolina. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of North Carolina in each case located in the city of Raleigh, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(m)        In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party

(n)        This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

[End of SaaS Terms]