TERMS OF SERVICE

Posted: June 1, 2019

Effective Date: June 1, 2019

 

Thank you for using Heartland’s Data Center (“Heartland,” “we,” or “us”), located at 1151 12th Street, Jesup,, IA 50648. These terms of service (“Terms”) cover your use and access to our services, client software and websites (“Services”). Our Privacy Policy explains how we collect and use your information while our Acceptable Use Policy outlines your responsibilities when using our Services. By using our Services, you’re agreeing to be bound by these Terms, our Privacy Policy, and Acceptable Use Policy. If you’re using our Services for an organization, you’re agreeing to these Terms on behalf of that organization.

 

Your use of our Services requires that you agree to the terms. If you do not understand the Terms, or do not accept any part of them, then you should not use our Services.

 

User Content:

 

In these Terms, “User Content” shall be used to refer to all content and information that you store, upload, submit, post or share using our Services. All User Content shall be owned by you or the person who made it available to you to store or upload via the Services. In consideration for being provided with use of Services made available pursuant to these Terms, you give Heartland permission to use your User Content as follows: you grant to Heartland and its affiliates a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our services, and to develop new ones. This license continues even if you stop using our services unless you delete your content. Finally, our license is perpetual, meaning that our license lasts for an indefinite period of time.

 

You hereby undertake that:

 

  1. you own all rights to your User Content or, alternatively, you have the right to give Heartland the rights described above;

 

  1. you have paid and will pay in full any fees or other payments that may be related to the use of your User Content; and

 

  1. your User Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party.

 

User Responsibilities:

 

You’re responsible for your conduct. Both you and your User Content must comply with our Acceptable Use Policy. Content in the Services may be protected by others’ intellectual property rights. Please don’t copy, upload, download, or share content unless you have the right to do so. You will be fully responsible and liable for what you or anyone using your account copies, shares, uploads, downloads or otherwise uses while using the Services.

 

We may review your conduct and content for compliance with these Terms and our Acceptable Use Policy. With that said, we have no obligation to do so. We aren’t responsible for the content people post and share via the Services.

 

By accepting these terms, you agree not to use Services for business purposes; you must use the Service only for personal non-commercial purposes. We recommend that businesses use BitPack Business. 

If you sign up for a Heartland account with an email address provisioned by your organization, your organization may be able to block your use of Heartland until you transition to an account on a BitPack Business or you associate your Heartland account with a personal email address.

 

Help us keep you informed and your User Content protected. Safeguard your password to the Services, and keep your account information current. Don’t share your account credentials or give others access to your account.

 

You must be at least 18 years old to use the Services.

 

Software:

 

Some of our Services allow you to download client software (“Software”) which may update automatically. So long as you comply with these Terms, we give you a limited, nonexclusive, nontransferable, revocable license to use the Software, solely to access the Services. To the extent any component of the Software may be offered under an open source license, we’ll make that license available to you and the provisions of that license may expressly override some of these Terms. You may not copy, modify, distribute, sell, or lease any part of Heartland or included software, nor may you reverse engineer or attempt to extract the source code of that software, unless laws prohibit those restrictions or you have our written permission.

 

Beta Services:

 

We sometimes release products and features that we are still testing and evaluating. Those Services have been marked beta, preview, early access, or evaluation (or with words or phrases with similar meanings) and may not be as reliable as Heartland’s other services, so please keep that in mind.

 

Ownership:

 

The Services are protected by copyright, trademark, and other US and foreign laws. Other than User Content, we own or license the content of the Services, including software, text, visual and audio content. These Terms don’t grant you any right, title, or interest in the Services, others’ content in the Services, Heartland trademarks, logos and other brand features. We welcome feedback, but note that we may use comments or suggestions without any obligation to you.

 

Copyright:

 

For information about Heartland’s copyright infringement reporting process, please refer to Section 17 of our Acceptable Use Policy. 

 

Purchasing Additional Storage and Payments: 

 

Free Storage: Heartland allows you to use two gigabytes of free online storage (subject to your compliance with the Terms).

 

Purchase of Additional Storage: You can also purchase additional storage (“Paid Storage Plan”) as you need it. We’ll automatically bill you from the date you convert to a Paid Storage Plan and on each periodic service term renewal until cancellation. If you’re on an annual plan, we’ll send you a notice email reminding you that your plan is about to renew within a reasonable period of time prior to the renewal date. You’re responsible for all applicable taxes, and we’ll charge tax when required to do so. Some countries have mandatory local laws regarding your cancellation rights, and this paragraph doesn’t override these laws.

 

Cancellation: Your Paid Storage Plan will remain in effect until it’s cancelled, downgraded or terminated under these Terms. You may cancel or downgrade your Paid Storage Plan at any time from within your Heartland storage settings. Your cancellation or downgrade will apply to the next billing period after the current service term expires. Refunds are only issued if required by law. If you don’t pay for your Paid Storage Plan on time, we reserve the right to downgrade your account and reduce your storage to free space levels.

 

Plan and Price Changes: We may change the storage plan and price in effect but will give you prior notice of these changes. These changes will apply after your current service term expires, when the next payment is due from you after the notice. We will give you at least 30 days’ prior notice of a price increase or storage plan decrease before you are charged. If you are given less than 30 days’ prior notice, the change will not apply until the payment after the next payment is due. If you do not wish to continue with the updated storage plan or price, you may cancel or downgrade your Paid Storage Plan at any time from within your Heartland storage settings. Your cancellation or downgrade will apply to the next billing period after the current service term; we will continue to make your files available to you or give you a chance to take your files out of Heartland.

 

Termination:

 

You’re free to stop using our Services at any time. If you terminate your account without exporting your User Content, there will be no way for you to recover the content. Once your account is terminated your User Content is permanently erased.

 

We reserve the right to suspend or terminate your access to the Services with notice to you if:

(a) you’re in breach of these Terms,

(b) your use of the Services in a manner that would cause a real risk of harm or loss to us or other users, or

(c) you don’t have a Paid Account and haven’t accessed our Services for 12 consecutive months.

 

We’ll provide you with reasonable advance notice via the email address associated with your account to remedy the activity that prompted us to contact you and give you the opportunity to export User Content from our Services. If after such notice you fail to take the steps we ask of you, we’ll terminate or suspend your access to the Services.

 

We won’t provide notice before termination where:

(a) you’re in material breach of these Terms,

(b) doing so would cause us legal liability or compromise our ability to provide the Services to our other users, or

(c) we’re prohibited from doing so by law.

 

Discontinuation of Services:

We may decide to discontinue the Services in response to unforeseen circumstances beyond Heartland’s control or to comply with a legal requirement. If we do so, we’ll give you reasonable prior notice so that you can export User Content from our systems.

 

Modifications:

 

We may revise these Terms from time to time to better reflect:

(a) changes to the law,

(b) new regulatory requirements, or

(c) improvements or enhancements made to our Services.

 

We will provide notice of material changes to the Service that we reasonably believe will adversely impact your use of them. However, there are times when we will need to make changes to Services without giving notice. These will be limited to instances where we need to take action to ensure the security and operability of the service, prevent abuse or where we must act to meet legal requirements.

We’ll post notice of modified additional terms (“Additional Terms”) on the Heartland webpage and will provide prior notice of material changes to the Terms to you. Changes will not apply retroactively and will become effective no sooner than 14 days after they are posted or notified to you. However, changes addressing new functions or features (“New Services”) or changes made for legal reasons will be effective immediately. If you do not agree to the modified terms for a New Service, you should discontinue your use of that New Service (see “Termination” above, for more information).

 

 

Disclaimer:

 

We strive to provide great Services, but there are certain things that we can’t guarantee. TO THE FULLEST EXTENT PERMITTED BY LAW, HEARTLAND AND ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICES. THE SERVICES ARE PROVIDED “AS IS.” WE ALSO DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

 

IN PARTICULAR, HEARTLAND AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY RECOMMENDATIONS OR OTHER CONTENT AVAILABLE ON OR THROUGH THE SERVICES), OR THE CONTENT OF ANY WEBSITES OR RESOURCES LINKED TO THE SITE OR SERVICES. HEARTLAND AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (a) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (b) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SITE OR SERVICES; (c) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL OR FINANCIAL INFORMATION; (d) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SITE OR SERVICES OR THE UNAVAILABILITY OF THE SITE OR SERVICES; (e) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SITE OR SERVICES BY ANY THIRD PARTY; OR (f) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE SITE OR SERVICES. YOU, AND NOT HEARTLAND, ARE RESPONSIBLE FOR MAINTAINING, PROTECTING, AND BACKING UP ALL OF YOUR USER CONTENT AND DATA. HEARTLAND WILL NOT BE LIABLE FOR ANY LOSS OR CORRUPTION OF YOUR USER CONTENT OR DATA OR FOR ANY COSTS OR EXPENSES ASSOCIATED WITH BACKING UP OR RESTORING ANY OF IT.

 

HEARTLAND AND ITS AFFILIATES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY PRODUCT OR SERVICE RECOMMENDED, ADVERTISED OR OFFERED ON OR THROUGH HEARTLAND SERVICES OR ANY LINKED WEBSITE.

 

YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING FROM DOING SO. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM HEARTLAND OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THESE TERMS.

 

Some jurisdictions do not allow the exclusion of certain warranties for incidental or consequential damages. Accordingly, some of the above disclaimers may not apply to you. To the extent Heartland may not, as a matter of applicable law, disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such law.

 

Limitation of Liability:

 

TO THE FULLEST EXTENT PERMITTED BY THE APPLICABLE LAW, NEITHER HEARTLAND NOR ITS AFFILIATES WILL BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO USE OF THE SITE OR SERVICES.

 

Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you. To the extent Heartland may not, as a matter of applicable law, limit its liabilities, the extent of Heartland’s liability will be the minimum permitted under such law.

 

Law Governing Disputes:

 

You and Heartland agree that any judicial proceeding to resolve claims relating to these Terms or the Services will be brought in the federal or state courts of Buchanan County, Iowa[MBA5] , subject to the mandatory arbitration provisions below. Both you and Heartland consent to venue and personal jurisdiction in such courts.

 

YOU ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS:

 

Agreement To Arbitrate: You and Heartland agree to resolve any claims relating to these Terms or the Services through final and binding arbitration by a single arbitrator, except as set forth under Exceptions to Agreement to Arbitrate below. This includes disputes arising out of or relating to interpretation or application of this “Mandatory Arbitration Provisions” section, including its enforceability, revocability, or validity.

 

Opt-out of Agreement to Arbitrate: You can decline this agreement to arbitrate by clicking here and submitting the opt-out form within 30 days of first registering your account. However, if you agreed to a previous version of these Terms that allowed you to opt out of arbitration, your previous choice to opt out or not opt out remains binding.

 

Arbitration Procedures: The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, Des Moines, IA, or any other location we agree to.

 

Arbitration Fees and Incentives: The AAA rules will govern payment of all arbitration fees. Heartland will pay all arbitration fees for individual arbitration for claims less than $75,000. If you receive an arbitration award that is more favorable than any offer we make to resolve the claim, we will pay you $1,000 in addition to the award. Heartland will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.

 

Exceptions to Agreement to Arbitrate: Either you or Heartland may assert claims, if they qualify, in small claims court in Des Moines (IA) or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the state and federal courts in Buchanan County, Iowa to resolve your claim.

 

NO CLASS ACTIONS. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren’t allowed. If this specific paragraph is held unenforceable, then the entirety of this “Mandatory Arbitration Provisions” section will be deemed void.

 

Controlling Law:

These Terms will be governed by Iowa law except for its conflicts of laws principles.

 

Entire Agreement:

 

These Terms constitute the entire agreement between you and Heartland with respect to the subject matter of these Terms, and supersede and replace any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of these Terms. These Terms create no third party beneficiary rights.

 

Waiver, Severability & Assignment:

 

Heartland’s failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable, the remaining provisions of the Terms will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights under these Terms, and any such attempt will be void. Heartland may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services.