Terms and Conditions

1.1. Provision Generally. During the Term (as defined in Section 6.2), Client will provide HeronAI with Client Data. “Client Data” means all data and information which Client inputs into the HeronAI Technology or otherwise provides to HeronAI. The “HeronAI Technology” means any and all of HeronAI’s proprietary technology, including a web portal, cloud-hosted software platform, products, processes, algorithms, user interfaces, know-how, techniques, designs, data and other tangible or intangible technical material or information. The HeronAI Technology can generate outputs (the “Results”) for Client, providing Client with all data in a centralized platform through either data migration or integrations, autonomously generated dashboards for data stored, and the ability to generate reports. HeronAI’s provision of access to the HeronAI Technology and generation of Results for Client shall be referred to as the “Service”.

1.3. Restrictions. Client shall not (and shall not allow any third party to): (a) use the Service or the Results for the benefit of any third party, or to develop or market any product, software or service that is functionally similar to or derivative of the Service, or for any other purpose not expressly permitted herein; (b) disclose the Results to any third party or permit any non-User to access or use the Service or the Results (other than third-party service providers who need to use the Service or the Results in order to provide services to Client, and who are subject to confidentiality obligations and use restrictions regarding the same); (c) sell, distribute, rent, lease, service bureau, post, link, disclose or provide access to the Service or the Results, directly or indirectly, to any third party; (d) alter, modify, debug, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to any software (including source code), or any other underlying data or technology, associated with the Service; or (e) use any robot, spider, scraper or other automated means to access the Service, or engage in any scraping, data-mining, harvesting, screen-scraping, data aggregating or indexing of the Service. Results shall initially be provided to Client branded with HeronAI attribution, and Client shall remove such attribution only as permitted with Client’s subscription level. All acts and omissions of Users shall be deemed to be those of Client, and Client shall be responsible therefor. If Users access the Service using passwords, Client shall keep all passwords safe and secure, and shall be responsible for all use of the Service using passwords issued to Client and Users. Client shall notify HeronAI immediately of any actual or suspected unauthorized use of its passwords for the Service. Without limiting any of its other rights or remedies, HeronAI reserves the right to suspend any User’s right to access the Service if HeronAI reasonably believes that such User has materially violated the restrictions and obligations in this Agreement (in which case, it shall provide Client prompt written notice of such suspension).

1.4. Client Cooperation. Client shall reasonably cooperate with HeronAI in all matters relating to the Service, and respond promptly to any HeronAI request to provide information, approvals, authorizations or decisions that are reasonably necessary for HeronAI to provide the Service in accordance with this Agreement. Client acknowledges and agrees that HeronAI’s ability to provide the Service and generate the Results is directly dependent on Client’s timely provision to HeronAI of accurate and complete Client Data, and that HeronAI shall not be liable for delays, inaccuracies or limitations in providing the Results resulting from Client’s lack of cooperation.

3.1. Support. HeronAI shall provide Client with the level of support services applicable to Client’s subscription, as described by service level. Support services may be provided by e-mail, phone or other media, as applicable. Support services shall apply to issues that can be reasonably described as bugs, but not enhancements, optimizations, or features, which HeronAI is not required or guaranteed to provide under this Agreement. HeronAI will act in good faith to resolve support issues in a timely manner, in accordance with its obligations.

3.2. Downtime. HeronAI shall use commercially reasonable efforts to provide access to the Service. Client agrees that from time to time the Service may be inaccessible or inoperable for various reasons, including (a) equipment malfunctions; (b) periodic maintenance procedures or repairs which HeronAI may undertake from time to time; or (c) causes beyond the reasonable control of HeronAI, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively “Downtime”). HeronAI shall use commercially reasonable efforts to provide twenty-four (24) hour advance notice to Client in the event of any scheduled Downtime. HeronAI shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Service in connection with Downtime, whether scheduled or not.

3.3. Security. HeronAI shall implement and maintain appropriate administrative, technical and physical safeguards to protect the security, confidentiality and integrity of Client Data provided by Client, including industry standard access controls, firewalls, passwords and malware protection. HeronAI will promptly notify Client if HeronAI has reason to believe that there has been any accidental or unauthorized access, acquisition, use, modification, disclosure, loss, damage or destruction of the Client Data.

4.1. By HeronAI. Client acknowledges and agrees that all right, title and interest in and to the Service (including the data, information, text, images, designs, marks, logos, compilations (meaning the collection, arrangement and assembly of information) and other content on or made available through the Service, other than the Client Data and the Results), the HeronAI Technology and all improvements and derivatives of the foregoing, including all intellectual property and proprietary rights embodied therein or associated therewith, are and shall remain owned by HeronAI or its service providers, and this Agreement in no way conveys any right, title or interest in the Service or the HeronAI Technology other than a limited right to use the Service in accordance with the terms and conditions herein. No right or license is granted hereunder to Client under any trademarks, service marks, trade names or logos. Client shall not remove any HeronAI trademark, service mark or logo, or any proprietary notices or labels (including any copyright or trademark notices) from the Service.

4.2. By Client. HeronAI acknowledges and agrees that all right, title and interest in and to the Client Data and the Results (including all intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain owned by Client or its licensors. Client hereby grants to HeronAI a non-exclusive, non-transferable, royalty-free right to use, reproduce, manipulate, display, transmit and distribute the Client Data and Results solely in connection with providing the Service to Client, and improving and developing the Service. Client agrees not to remove any HeronAI attribution on the Results unless and until permitted by HeronAI in accordance with Client’s subscription. In addition, HeronAI may analyze Client Data, Results, and data and results of other clients, to train HeronAI’s computer-generated models that are created by HeronAI using the Client Data and data from other clients, and to create aggregated or anonymized statistics or data that do not identify Client or any individual, and HeronAI may during and after the Term use and disclose such statistics and data, information generated from such models, in any manner in its discretion. Client shall be solely responsible for providing, updating, uploading and maintaining all Client Data, unless Client requests use of HeronAI add-ons to assist with Client Data collection and provision.

4.3. Feedback. If Client provides HeronAI with feedback and suggestions regarding the Service and the Results, including potential improvements or changes thereto (collectively, “Feedback”), the Feedback shall be considered Confidential Information of HeronAI, and HeronAI shall be free to use, disclose, and otherwise exploit in any manner, the Feedback for any purpose and without any payment to Client.

5.1. Fees.  HeronAI offers a 30-day free trial, and Basic, Premium and Enterprise versions of the Service with paid subscription plans.  Pricing for each paid version of the Service is available on the Heronai.com site. If Client chooses to purchase a paid subscription to the Service after its free trial, Client must provide HeronAI with automated clearing house (ACH) or credit card authorization, and HeronAI will initiate an ACH transfer or charge Client’s credit card for the subscription fee then in effect when Client subscribes to the paid version. Payment by invoice is only available if agreed upon separately with HeronAI. 

5.2. Taxes.  All amounts due hereunder are exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind (whether foreign, federal, state, local or other) associated with this Agreement, the Service, or Client’s access to the Service.  Client shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on HeronAI’s income), which may be invoiced by HeronAI from time to time.

5.3. Payment Method.  Client is responsible for maintaining complete and accurate billing and contact information with HeronAI. Payments shall be made either through automated clearing house (ACH) transfers from Client’s account directly to HeronAI, credit card authorization, or if agreed to by both parties, by invoice. Invoices shall be issued on or around the effective date of each applicable subscription term and due within thirty (30) days after date of invoice. If Client elects to pay through ACH transfer or credit card authorization, Client agrees to execute and deliver to HeronAI an authorization agreement for direct payments whereby HeronAI shall be irrevocably authorized to initiate ACH transfers from Client’s account to HeronAI, or to charge Client’s credit card, in the amounts required under this Agreement. Client agrees to undertake any and all required actions, execute any required documents, instruments or agreements, or to otherwise take any action in order to effectuate the requirements of this Section 5.3. If Client has elected to pay by ACH transfer or credit card, and the charge fails for any reason, Client shall be responsible for ensuring timely payment to HeronAI.

5.4. Late Payments.  Client shall pay interest on all late payments at the lesser of (a) 1.5% per month or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly.  Client shall reimburse HeronAI for all costs and expenses, including attorneys’ fees, incurred in collecting any unpaid amounts owed by Client hereunder. HeronAI may suspend delivery of Results to Client if payment is late.

6.1. Free Trial. If Client uses the Service under a free trial, Client may terminate this Agreement at any time by requesting by email that HeronAI closes Client’s account (support@heron-ai.com) and ceasing to use the Service.  HeronAI reserves the right to suspend Client’s account and/or access to the Service at any time if HeronAI believes Client is in breach of this Agreement.  HeronAI reserves the right to terminate this Agreement for free trial users or to cease to offer a free trial at any time on written notice to Client (including by posting on the Service), for any reason or no reason.  

6.3. Effects of Termination; Survival.  Upon any expiration or termination of this Agreement: (a) all rights granted to Client hereunder shall terminate, and HeronAI shall no longer provide access to the Service to Client, (b) Client shall cease and cause its Users to cease using the Service, and (c) each party shall promptly return or destroy any Confidential Information of the other party in its possession, except for that Client Data which has been incorporated into HeronAI’s AI model(s) prior to the date of expiration or termination.  Any obligations that have accrued prior to expiration or termination, including payment obligations, shall survive expiration or termination of this Agreement.  In addition, the following Sections, as well as any other provisions herein which by their nature should survive, shall survive expiration or termination of this Agreement: Sections 1.3, 1.4, 2, 4, 6.3 and 7 through 12.

Client is solely responsible for all Client Data provided by Client, including for the accuracy, integrity and quality of Client Data. Client shall not: (a) upload or otherwise make available to HeronAI any Client Data that violates the rights of any third parties, including without limitation intellectual property or other proprietary rights of any third party; (b) upload or otherwise make available to HeronAI any Client Data that Client does not have a right to transmit due to any Applicable Law or other obligation; (c) upload or otherwise make available to HeronAI any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Service or servers or networks connected to the Service; or (e) violate any Applicable Law, including but not limited to those regarding data protection, privacy, proprietary rights and publicity, marketing and advertising, consumer protection, and the export of technical data, in its use of the Service and the Results.

8.1. General Representations and Warranties.  Each Party hereby represents and warrants to the other Party that: (a) it is a corporation, company or other entity (as applicable) duly organized, validly existing and in good standing in its jurisdiction of organization; (b) its execution, delivery and performance of this Agreement have been duly and validly authorized by all necessary organizational action on its part; (c) the provisions set forth in this Agreement constitute legal, valid and binding obligations of such Party enforceable against such Party in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting creditors’ rights generally; and (d) its execution, delivery and performance of this Agreement do not and will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party under, any agreement or other obligation to which such Party is subject. 

8.2. HeronAI Limited Warranty.  HeronAI warrants that it will provide the Service in a competent and workmanlike manner.  HeronAI does not warrant that it will be able to correct all reported defects or that use of the Service will be uninterrupted or error free.  HeronAI makes no warranty regarding features or services (including data or content that is incorporated into the Results) provided by any third parties.  HeronAI retains the right to modify its services and the HeronAI Technology in its sole discretion; provided that doing so does not have a material adverse impact on the Service hereunder.  Client’s sole remedy for HeronAI’s breach of the warranty in this paragraph shall be that HeronAI shall remedy the applicable error, or if HeronAI is unable to do so in a timely manner, refund to Client actual damages up to a limit of the applicable Fees paid by Client. 

8.3. Disclaimer.  EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 8.1-8.2 ABOVE, HERONAI MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE SERVICE AND THE RESULTS (IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE), INCLUDING ANY WARRANTY (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, OR (B) THAT THE SERVICE OR RESULTS WILL MEET CLIENT’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR. THE RESULTS ARE GENERATED FROM DATA PROVIDED BY CLIENT; HERONAI MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE COLLECTION OF DATA, THE ACCURACY OR RELIABILITY OF THE RESULTS, OR ANY INFORMATION OR RESULTS OBTAINED FROM THE SERVICE. CLIENT ACKNOWLEDGES AND AGREES THAT THE RESULTS DO NOT INSTRUCT ON SPECIFIC ACTIONS AND THAT IT IS CLIENT’S RESPONSIBILITY TO VERIFY THE RESULTS WITH AN APPROPRIATE PROFESSIONAL.

9.1. Damages Cap.  EXCEPT FOR (A) ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, OR (B) ITS BREACH OF THE CONFIDENTIALITY PROVISIONS HEREIN, TO THE FULLEST EXTENT PERMISSIBLE BY LAW AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, HERONAI’S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SERVICE AND THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO HERONAI UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRIOR TO THE DATE CUSTOMER’S CLAIM AROSE. NOTWITHSTANDING THE FOREGOING OR ANYTHING ELSE IN THIS AGREEMENT, IN NO EVENT SHALL HERONAI’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED FIVE (5) TIMES THE AMOUNT PAID BY CUSTOMER TO HERONAI UNDER THIS AGREEMENT.

9.2. Disclaimer of Indirect Damages.  IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR THE LOSS OF PROFITS OR REVENUES ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. 

10.1. HeronAI Indemnification. If Client is a paying subscriber, HeronAI shall defend, indemnify and hold harmless Client and its directors, officers, employees and agents (“Client Indemnified Parties”) from and against any third party claims, actions, proceedings, demands, lawsuits, damages, liabilities and expenses (including reasonable attorneys’ fees and court costs) (collectively, “Claims”) to the extent based on any claim that the Service infringes, misappropriates or otherwise violates (collectively, “Infringes”) any third party intellectual property or proprietary right (excluding patents).  

10.2. Client Indemnification.  Client shall defend, indemnify and hold harmless HeronAI and its directors, officers, employees, agents and providers (“HeronAI Indemnified Parties”) from and against any Claims to the extent based on (a) any claim that the Client Data Infringes any third party intellectual property or proprietary right (excluding patents), or (b) any other violation of Client’s obligations under Article 7 above.

10.3. Indemnification Process. As conditions of the indemnification obligations in Sections 10.1-10.2 above: (a) the applicable Client Indemnified Party or HeronAI Indemnified Party (the “Indemnitee”) will provide the indemnifying Party (the “Indemnitor”) with prompt written notice of any Claim for which indemnification is sought (provided that failure to so notify will not remove the Indemnitor’s indemnification obligations except to the extent it is prejudiced thereby), (b) the Indemnitee will permit the Indemnitor to control the defense and settlement of such Claim (provided that the Indemnitee may participate using counsel of its own choosing, at its own expense), and (c) the Indemnitee will reasonably cooperate with the Indemnitor in connection with the Indemnitor’s evaluation, defense and settlement of such Claim.  The Indemnitor shall not settle or compromise any such Claim or consent to the entry of any judgment without the prior written consent of the other Party (not unreasonably withheld).

10.4. Exclusions.  HeronAI’s obligations in Section 10.1 above shall not apply to any Claim to the extent arising from or relating to (a) misuse of the Service (including any use in excess of purchased license or otherwise not strictly in accordance with the documentation therefor, HeronAI’s instructions, and this Agreement), (b) any modification, alteration or conversion of the Service not created or approved in writing by HeronAI, (c) any combination of the Service with any software or service not provided by HeronAI, (d) HeronAI’s compliance with specifications or other requirements of Client, (e) any Client Data provided by HeronAI, or (f) any data, information or materials which is publicly sourced or otherwise provided by a third party.  If the Service is or may be subject to a Claim of Infringement described in Section 10.1 above, HeronAI may, at its cost and sole discretion: (i) obtain the right for Client to continue using the Service as contemplated herein; or (ii) replace or modify the Service so that it becomes non-Infringing without substantially compromising its principal functions; or (iii) to the extent the foregoing are not commercially reasonable, terminate this Agreement and return to Client the portion of any pre-paid Subscription Fees for access to and use of the Service which does not occur due to such termination.  HeronAI’s obligations in this Section 10 shall be HeronAI’s sole obligations, and Client’s sole remedies, in the event of any Infringement of intellectual property or proprietary rights by or related to the Service.

11.1 Definition.  “Confidential Information” means information that is disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) hereunder during the Term that is clearly labeled or identified as confidential or proprietary when disclosed, or that, under the circumstances, should reasonably be treated as confidential, except that “Confidential Information” shall not include any information that (a) is or becomes generally known to the public through no fault of, or breach of this Agreement by, the Receiving Party; (b) is rightfully in the Receiving Party’s possession at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (d) is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure.  In addition, (i) the terms and conditions of this Agreement shall be deemed to be Confidential Information of both Parties; (ii) the Client Data and Results shall be deemed Confidential Information of Client, and (iii) the Service and HeronAI Technology shall be deemed Confidential Information of HeronAI, regardless of whether or not they are labeled or identified, or would reasonably be considered confidential.    

11.2. General Obligations.  Each Party agrees that it will during the Term and thereafter: (a) not disclose the other Party’s Confidential Information to any third party (other than as permitted in the last sentence of this paragraph); (b) use the other Party’s Confidential Information only to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement; (c) disclose the other Party’s Confidential Information only to those of its employees and independent contractors who reasonably need to know such information for purposes of this Agreement and who are bound by confidentiality obligations offering substantially similar protection to those in this Article 11; and (d) protect all Confidential Information of the other Party from unauthorized use, access or disclosure in the same manner as it protects its own confidential information of a similar nature, and in no event with less than reasonable care.  Notwithstanding the above, this paragraph shall not prohibit: (i) a Party from disclosing Confidential Information of the other Party to the extent required by Applicable Law (including a court order or other government order); provided that such Party provides the other Party prior written notice of such disclosure, to the extent practicable, and reasonably cooperates with efforts of the other Party to seek confidential treatment thereof, to the extent such cooperation is requested by the other Party; or (ii) a Party from disclosing the terms and conditions of this Agreement to its attorneys and financial advisors, or current or potential lenders, other sources of financing, investors or acquirors (provided that such third parties are bound by confidentiality obligations offering substantially similar protection to those in this Article 11; provided further that such third parties are only permitted to use such information for the purpose of advising, lending or providing financing to, or investing in or acquiring, such Party, as applicable).

11.3. Return or Destruction.  Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party, or destroy or erase, the Disclosing Party’s Confidential Information in tangible form, upon the termination or expiration of this Agreement, except for that Client Data which has previously been incorporated into HeronAI’s AI model(s); provided that (a) Receiving Party may retain a copy of Disclosing Party’s Confidential Information solely for the purposes of tracking Receiving Party’s rights and obligations hereunder with respect thereto, and (b) Receiving Party may retain Disclosing Party’s Confidential Information solely to the extent reasonably necessary for Receiving Party to exercise rights or perform obligations under this Agreement that survive such termination or expiration.

12.1 Assignment. Neither Party may assign or otherwise transfer this Agreement, or assign or otherwise transfer any of its rights hereunder, or delegate any of its obligations hereunder, without the prior written consent of the other Party; provided, HeronAI may assign or otherwise transfer this Agreement, or assign or otherwise transfer any of its rights or delegate any of its obligations hereunder to an affiliate or to a successor to all or substantially all of its assets, stock or business, without Client’s prior written consent.  Any purported assignment or delegation in violation of this paragraph is null and void. This Agreement will bind and inure to the benefit of each Party’s successors and permitted assigns.  

12.2. Entire Agreement.  This Agreement contains the complete understanding and agreement of the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, oral or written, with respect thereto.  No pre-printed terms on any purchase order, invoice or similar document issued in relation to this Agreement shall have any effect on the Parties or this Agreement. In the event of any conflict between this Agreement and any exhibit or other attachment, this Agreement shall control unless the conflicting provision in the exhibit or other document expressly states that it is intended to control. 

12.3. Amendment. HeronAI may from time to time amend this Agreement prospectively.  If HeronAI does so, HeronAI will notify Client by posting on the Service.  Client agrees that Client’s continued use of the Service constitutes Client’s agreement to the amended Agreement.  If Client does not agree to any amended Agreement that HeronAI publishes, Client must terminate Client’s account and cease using the Service.  Except as set forth above, this Agreement may be amended or modified only by HeronAI.

12.4. Notices. Unless otherwise specifically provided herein, all notices required or permitted by this Agreement shall be in writing. Notices to HeronAI may be delivered to support@heron-ai.com. Client agrees that notice to its email address on record will constitute formal notice under this Agreement.