(referred to in this document as “Terms of Service”)
These Terms of Service were last updated on 8 DEC 2022
CONTACT
Heave Inc.
1421 Bay St. SE, Ste 3
Saint Petersburg, Florida 33701
1-888-HEAVE-IT
These Terms of Use, together with the privacy policy available at ("Privacy Policy"), and the rules, policies, terms and conditions set forth in, referred to and/or linked herein, all of which are incorporated herein by reference, are, collectively, the “Agreement.” This Agreement constitutes a legal agreement between you ("you") and Heave Inc. (a Delaware C-Corp), hereinafter referred to as “Heave,” “we” or “us”). This Agreement sets forth the terms of use (“Terms”) that govern the access or use by you of applications, websites, content, products, programs and services made available by Heave (the “Services”), including an agreement to engage in binding arbitration to resolve any disputes between us. PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING THE SERVICES.
Your access and use of the Services constitutes your agreement to be bound by this Agreement. If you do not agree to the Terms, you may not access or use the Services. The Terms, together with any Supplemental Terms (as defined below), expressly supersede prior agreements or arrangements with you, and supersede content or information you read or have access to at other places, such as our website, emails, or applications. Heave may immediately terminate this Agreement or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason or no reason.
Supplemental terms or policies applicable to any particular Service (“Supplemental Terms”) will be disclosed to you. Supplemental Terms may include terms and conditions of any particular event, activity, program or promotion. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. Supplemental Terms shall prevail over these Terms in the event of a conflict with respect to the applicable Service(s).
Heave may amend the Terms from time to time. Amendments will be effective upon Heave's posting of such updated Terms or such amended Supplemental Terms. Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended.
By accessing and using the Services, you represent and warrant that: (i) you are at least 18 years old and are a legal adult in the jurisdiction in which you reside; and (ii) you have the right, authority and capacity to enter into this Agreement and to abide by the Terms, and that you will so abide. If you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement. The Services are not available to anyone under 18 years of age, or to any individual whose account has been terminated. Your account may not be used for Services to be performed for another person.
The Services constitute a technology platform including websites and mobile applications (the “Heave Platform”) that enables users to access a network of independent third party heavy equipment service providers (mechanics, technicians, or other independent contractors) (“Technicians”), and/or to arrange for equipment inspection, diagnosis, maintenance, repair, or related services (“Equipment Services”). WE DO NOT PROVIDE EQUIPMENT SERVICES, AND WE ARE NOT THE EMPLOYER OF ANY THIRD PARTY PROVIDER. You acknowledge that we do not supervise, direct, or control a Technician's work or Services performed in any manner. A Technician provides services to you as an independent contractor, and is not an employee, joint venture, partner, agent, or franchisee of Heave for any purpose whatsoever.
License. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to access and use the Services subject to the Terms of this Agreement. Any rights not expressly granted herein are reserved by us.
Restrictions. You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by us; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
Ownership. The Services and all rights herein are and shall remain our property. Neither these Terms nor your use of the Services convey or grant to you any rights in or related to the Services, except for the limited license granted above, or to use or reference in any manner our company names, logos, product and service names, trademarks or services marks. All content appearing on the Heave Platform is our property or the property of our partners and is protected by international copyright laws. Certain names, graphics and logos are trademarks, service marks, or trade dress (together, “Marks”) of Heave. Our Marks may not be used for any purpose except pursuant to our Trademark Usage Policy. All other Marks are the property of their respective owners and may not be used without their prior written consent. CASTROL and the Castrol logo are trademarks of Castrol Limited, used with permission. EXXONMOBIL and ExxonMobil logo are trademarks of ExxonMobil Limited, used with permission.
User Accounts. In order to use most aspects of the Services, you must register for and maintain a user account ("Account"). Account registration requires you to submit certain personal information, such as your name, email address, company name, address, machine information, and/or mobile phone number, and/or at least one valid payment method (e.g., a credit card). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information may result in your inability to access and use the Services or Heave's termination of this Agreement. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. We are not liable for any loss that you may suffer through the use of your password by others. You must notify us immediately of any unauthorized use of your Account or of any other breach of security known to you with respect to Heave.
Scheduling a Job. To request an appointment for Equipment Repair Services (a “Job” and a “Service Request”), you may be asked to specify the type of service that you think is required, the location where you would like the Job to be performed, and the date and time that you would like the Job to take place. You agree that it is your responsibility to provide a suitable location for the Job, and to ensure that the Technician has proper access and permission, and is legally authorized to complete the Job at the location.
Once you submit a Service Request, we may provide you with a price and/or a list of possible Technicians along with their experience information and “rating” based on previous customer reviews (if applicable). We reserve the right to modify, add, or delete items and/or price at any time prior to billing you. If you have agreed with the Technician to modify, add, or delete items in the Job Request, or to reschedule a Job, you must notify us. When you reschedule a Job, you agree to do so through the Heave Platform.
You agree to treat Technicians courteously and lawfully, to provide a safe and appropriate working environment that is in compliance with all applicable laws and regulations, and to provide reasonable cooperation to enable Technicians to complete the Job. We do not control the availability of the independent Technicians on the Heave Platform. You acknowledge that your selected Technician may be unavailable from time to time, e.g. due to illness, or vacation.
Plastic, composite and rubber engine and cooling system components are often affected by age and temperature fluctuations and become fragile over time. Because of this, such parts can break or even disintegrate during procedures that involve their disassembly or handling. You understand that Heave will not be held liable for these types of component failures, and that in the event of such, Heave will provide you with a revised estimate to include the replacement of the failed component.
If you would like to receive the replaced vehicle parts upon completion of the Job, please email us at support@heave.co, and, if applicable, you will be charged the core price for the replacement part and you will be responsible for proper disposal of such parts in accordance with all applicable laws, regulations and rules.
Communications. You expressly consent and agree to receive communications from us, including via e-mail, text message, calls, and push notifications, to the cellular telephone number you provided to us. You understand that you may receive communications generated by automatic telephone dialing systems and/or which will deliver pre-recorded messages sent by or on behalf of Heave or its affiliated companies, or Technicians, including operational communications concerning your Account, use of the Heave Platform or Services, updates concerning new and existing features on the Heave Platform, communications concerning promotions, and news concerning us and our Services. You may opt out of receiving text (SMS) messages from us at any time by texting the word STOP from the mobile device receiving the messages. You acknowledge that opting out of receiving text messages may impact your use of the Services. You agree to our use of a service provider to mask your telephone number when you call or exchange text messages with a Technician. During this process, we will receive and store data, including the date and time of the call or text message, the phone numbers, and the content of the text messages. You agree to our use and disclosure of this data for legitimate business purposes. We may send you confirmation and other transactional emails regarding the Services. We may also send you emails or text messages about services that we think might interest you ("Promotional Emails"). You can unsubscribe from Promotional Emails at any time by clicking unsubscribe in our email communications or contacting us.
Promotional Codes or Credits. We may create promotional codes or credits that may be redeemed for Account credit, or other features or benefits related to the Services and/or a Technician's services, subject to any additional terms associated with each promotion ("Promo Codes"). You agree that Promo Codes: (i) must be used by the intended audience and for the intended purpose and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to Heave; (iv) may only be used pursuant to the specific terms that we established for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. Heave reserves the right to interpret how the Promo Codes will be used, or to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that we determine or believe that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.
User Content. We may permit you from time to time to submit, upload, publish or otherwise make available textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions ("User Content"). Any User Content provided by you remains your property. However, by providing User Content to us, you grant us a worldwide, perpetual, irrevocable, transferable, unrestricted, non-exclusive, absolute, royalty-free license, with the right to sublicense, to use, copy, modify, transmit, reproduce, exhibit, disclose, display, transform, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised, without further notice to or consent from you, and without the requirement of payment to you or any other person or entity. Further, we shall be free to use any ideas, concepts, know-how or techniques contained in such User Content for any purpose whatsoever, including developing, manufacturing and marketing products and/or services incorporating any User Content. You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant us the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor our use of the User Content as permitted herein will infringe, misappropriate or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by us in our sole discretion, whether or not such material may be protected by law. We may, but shall not be obligated to, review, monitor, or remove User Content, at our sole discretion and at any time and for any reason or no reason, without notice to you.
Network Access and Devices. You are responsible for obtaining the compatible hardware or devices and data network access necessary to use the Services. The Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications and we shall not be held liable for any such malfunction or delay.
You understand that use of the Services may result in charges to you for the Equipment Repair Services you receive from a Technician (“Charges”). Charges may include any applicable federal, state and local taxes. At the time you schedule a Job, we will record your preferred payment method information and validate your payment information. You authorize the payment of Charge(s) according to your preferred payment method information, or, if applicable, the payment of a cancellation fee if you cancel the Job and the payment of rescheduling fee if you reschedule the Job. You agree not to make any alternative payment arrangement with the Technician who performs the Job. While we will use commercially reasonable efforts to ensure the security of all credit card and all other personal information, we expressly disclaim any liability for any damage that may result should any information be released to any third parties, and you agree to hold us harmless for any damages that may result therefrom.
After you have received Equipment Repair Services obtained through your use of the Service, we will facilitate your payment of the applicable Charges on behalf of the Technician, as such Technician's limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Technician. Charges paid by you are final and non-refundable, unless otherwise determined by us. All Charges are due immediately. If your primary payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that we may, as the Technician's limited payment collection agent, use a secondary payment method in your Account, if available.
We reserve the right to establish, remove and/or revise Charges for any or all Vehicle Services at any time in our sole discretion. If a Technician changes the Vehicle Services needed, or adds additional Vehicle Services, you authorize the payment of updated or modified Charges. If the Technician determines that your car requires services other than the Vehicle Services you specified in your original Job Request or that the Technician is not able to perform such work, you may be charged a separate diagnosis fee.
Termination by Heave. We may terminate this Agreement or terminate or suspend your Account immediately at any time for any reason or for no reason upon notice to you. If we terminate or suspend your Account, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your Account, we reserve the right to pursue any available legal action. When terminating your Account, we may delete the Account and any information in it. You have no ownership rights to your Account.
Termination by You. You may terminate this Agreement by completely and permanently ceasing to use the Services (provided that there are no outstanding Services ordered under your Account). If you attempt to terminate this Agreement while there are still outstanding Services ordered under your Account, this Agreement shall not terminate until such Services have been performed or otherwise canceled as permitted by this Agreement.
Rescheduling of Service Requests by You. You may reschedule a scheduled Service Request at any time, subject to the following. If you cancel more than 48 hours before a scheduled Service appointment or Job, there is no reschedule fee. If you cancel within 48 hours of the scheduled start time for the Job or scheduled Service, you will be charged for a $15 reschedule fee. We reserve the right to establish, remove and/or revise our reschedule policy or reschedule fee at any time at our discretion.
Cancellation of Service Requests by You. You may cancel a scheduled Service Request at any time, subject to the following. If you cancel more than 48 hours before a scheduled Service appointment or Job, there is no cancellation fee. If you cancel within 48 hours of the scheduled start time for the Job or scheduled Service, you will be charged for a $29.99 cancellation fee. We reserve the right to establish, remove and/or revise our cancellation policy or cancellation fees at any time at our discretion.
Cancellation of Service Requests by Technicians. When a Technician cancels a scheduled Service Request, we generally notify you and make your Service request available for another Technician. However, we cannot guarantee that a canceled Job will be selected by another Technician and rescheduled or that the Job Request will be completed. Technicians reserve the right to refuse a Job Request. You hereby agree to hold us harmless from any liability that may result from the cancellation of a Job or refusal of a Technician to complete a Job.
There may be instances where, after a Technician has arrived at your location, the Technician finds that he or she is not able to successfully complete the Job, for reasons including, without limitation, that the Technician does not have access or permission to work on your vehicle at the location you provided, that the location is not fit for repair services (e.g., hill or uneven surface), or that the information you provided with respect to your machine is inaccurate or incomplete. In such instances, you may be charged a minimum fee or cancellation fee.
If you schedule a diagnosis Job with a Technician, he or she will first seek to diagnose the problem. In performing a diagnosis, he or she may go through a step-by-step process to rule out or confirm part failures through visual inspection and/or appropriate tests. Although Technicians use their experience in performing diagnoses, we cannot guarantee that any particular diagnosis will identify all of the problems with your machine (and/or solutions) during the first inspection. Sometimes, the only way to get to the root cause of a problem is to go through a process of elimination – that is, to replace a part suspected to be defective and then see whether the problem still exists.
Technicians may be subject to an extensive vetting process before they can register for and during their use of the Heave Platform, including a comprehensive criminal background check. Although we may perform background checks of Technicians, we cannot confirm that each Technician is who they claim to be and therefore, we cannot and do not assume any responsibility for the accuracy or reliability of identity or background check information or any information provided through the Heave Platform. When interacting with Technicians, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don't know. WE ARE NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE HEAVE PLATFORM AND YOU HEREBY RELEASE HEAVE FROM ANY LIABILITY RELATED THERETO. WE WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE HEAVE PLATFORM.
THE SERVICE AND PARTS ARE MADE AVAILABLE ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS, WITHOUT ANY WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY. YOU USE THE SERVICES ENTIRELY AT YOUR OWN RISK. WE DO NOT PROVIDE, AND SPECIFICALLY DISCLAIM, ANY REPRESENTATION OR WARRANTY OF ANY KIND TO YOU OR ANY OTHER PERSON OR ENTITY, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTY (I) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (II) OF INFORMATIONAL CONTENT OR ACCURACY; (III) OF NON-INFRINGEMENT; (IV) OF QUIET ENJOYMENT; (V) OF TITLE; (VI) THAT THE HEAVE PLATFORM WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION; (VII) THAT ANY DEFECTS OR ERRORS IN THE HEAVE PLATFORM WILL BE CORRECTED; (VIII) THAT SERVICES OFFERED WILL BE AVAILABLE IN ALL MARKETS; OR (IX) THAT THE HEAVE PLATFORM IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE. HEAVE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. HEAVE DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
YOU AGREE NOT TO HOLD HEAVE (OR, ITS STOCKHOLDERS, AFFILIATES, LICENSORS, PARTNERS, MEMBERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS AND CONTENT PROVIDERS (COLLECTIVELY, "MEMBERS")) LIABLE FOR ANY DAMAGES, EXPENSES, LOSSES, SUITS, CLAIMS, AND/OR CONTROVERSIES THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR USE OF OR INABILITY TO USE THE HEAVE PLATFORM OR ANY SERVICES, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT, DELAY OF PERFORMANCE OR OMISSION OF ANY USER OR THIRD PARTY PROVIDER (OR ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER), ANY DISPUTE WITH ANY USER OR THIRD PARTY PROVIDER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY HEAVE OR MEMBERS, AND ANY DESTRUCTION OF YOUR INFORMATION.
UNDER NO CIRCUMSTANCES WILL HEAVE OR MEMBERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION FOR CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST EARNINGS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HEAVE AND MEMBERS DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED IN CONNECTION WITH THE HEAVE PLATFORM.
THE HEAVE PLATFORM IS ONLY A VENUE FOR CONNECTING USERS. WE ARE NOT RESPONSIBLE FOR ASSESSING THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD PARTY PROVIDER AND YOU EXPRESSLY WAIVE AND RELEASE HEAVE FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES (ACTUAL, DIRECT OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING FROM OR IN ANY WAY RELATED TO ANY THIRD PARTY PROVIDER. WE EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN YOU AND ANY THIRD PARTY PROVIDER. THE QUALITY OF THE SERVICES SCHEDULED OR REQUESTED THROUGH THE USE OF THE HEAVE PLATFORM IS ENTIRELY THE RESPONSIBILITY OF THE THIRD PARTY PROVIDER WHO ULTIMATELY PROVIDES SUCH SERVICES TO YOU. YOU UNDERSTAND, THEREFORE, THAT BY USING THE HEAVE PLATFORM, YOU MAY BE EXPOSED TO SERVICES THAT ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE HEAVE PLATFORM, AND THIRD PARTY PROVIDER, AT YOUR OWN RISK. NOTHING IN THIS AGREEMENT OR THE HEAVE PLATFORM CONSTITUTES, OR IS MEANT TO CONSTITUTE, ADVICE OF ANY KIND. IF YOU REQUIRE ADVICE IN RELATION TO ANY LEGAL, FINANCIAL OR MEDICAL MATTER YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL.
YOU ACKNOWLEDGE THAT THIRD PARTY PROVIDERS MAY NOT BE PROFESSIONALLY LICENSED OR PERMITTED. YOU AGREE THAT WE HAVE NO RESPONSIBILITY OR LIABILITY TO YOU RELATING TO EQUIPMENT REPAIR SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT HEAVE OR MEMBERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE AND TOTAL LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR CAUSE OF ACTION, EXCEED THE AMOUNT INVOICED FOR THE ASSOCIATED JOB.
BY USING THE HEAVE PLATFORM, YOU AGREE THAT THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN THIS AGREEMENT ARE REASONABLE. IF YOU DO NOT BELIEVE THEY ARE REASONABLE, YOU MUST NOT USE THE HEAVE PLATFORM.
California Waiver. If you are a California resident, to the extent permitted by California law, you waive California Civil Code Section 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor” as well as any other unknown claims under California Civil Code Section 1542 or any statute or common law principle of similar effect.
Indemnification. You hereby agree to indemnify, defend, and hold harmless Heave and Members from and against any and all claims, losses, expenses, liabilities, damages or demands (including attorneys' fees and costs incurred), in connection with or resulting from, directly or indirectly: (i) your use or misuse of or inability to use the Heave Platform, and/or the Services, (ii) your violation of this Agreement, (iii) your violation of any applicable law or regulation; (iv) your violation of the rights of another (including Technicians), and (v) your information and content that you submit or transmit through the Heave Platform. Heave reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any such claim or matter without the prior written consent of Heave.
Arbitration. Any dispute or claim relating in any way to your use of the Heave Platform will be resolved by binding arbitration, rather than in court ,except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms of Use as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Heave's Registered Agent/Legal Department, located at 4707 W. Clear Ave. Tampa, FL 33629. The arbitration will be conducted in Palm Harbor, FL by the National Arbitration and Mediation (NAM) 2151 Chianti Place, Palm Harbor, Florida 34683- Tel: (727)474-2151 (www.namadr.com, in accordance with the applicable NAM Arbitration Rules (“NAM Rules). Our agreement to arbitrate is retroactive in effect and applies to all Claims regardless of whether they accrued before or after this agreement went into effect.
If either party files an arbitration, You and Heave agree that both parties will keep all aspects of the arbitration strictly confidential, except where disclosure is required by law (including regulatory reporting, or tax reporting, to any governmental agency or entity). Otherwise, we agree not to disclose to any other person facts about the arbitration proceedings, documents filed in the proceedings, or award and rulings in the proceedings. This provision will not preclude either party from moving to vacate or confirm an arbitral award in court, but both parties agree to use best efforts to file an arbitral award or other order under seal in court proceedings. HEAVE AND YOU AGREE THAT CLAIMS MAY ONLY BE BROUGHT IN AN INDIVIDUAL CAPACITY AND IN THE NAME OF AN INDIVIDUAL PERSON OR ENTITY AND THAT CLAIMS MUST PROCEED ON AN INDIVIDUAL AND NON-CLASS AND NON-REPRESENTATIVE BASIS. THAT MEANS YOU AND HEAVE WAIVE THE RIGHT TO BRING A CLASS ACTION AND CANNOT ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR NON-REPRESENTATIVE MEMBER OF A CLASS. HEAVE AND YOU AGREE THAT CLAIMS OF TWO OR MORE PERSONS MAY NOT BE JOINED OR CONSOLIDATED IN THE SAME ARBITRATION UNLESS ARISING FROM THE SAME TRANSACTION. FURTHERMORE, HEAVE AND YOU AGREE THAT NEITHER YOU NOR HEAVE MAY PURSUE THE CLAIMS IN ARBITRATION AS A CLASS OR COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION. CLAIMS MAY NOT BE PURSUED IN ANY COURT OTHER THAN TO ENFORCE THE ARBITRATOR'S AWARD. THE ARBITRATOR SHALL HAVE THE AUTHORITY TO AWARD RELIEF ONLY ON AN INDIVIDUAL AND NON-CLASS AND NONREPRESENTATIVE BASIS. ACCORDINGLY, YOU AND HEAVE.CO AGREE THAT THE NAM RULES FOR CLASS ACTIONS DO NOT APPLY TO OUR ARBITRATION.
Heave and You agree that Your access to or use of the Website and/or any service offered through it has an effect on interstate commerce. Therefore, Heave and You agree that this Arbitration Agreement shall be construed and interpreted under the Federal Arbitration Act, 9 U.S.C. Section 1, et. seq. You acknowledge and agree that You voluntarily and knowingly entered into this Arbitration Agreement, and chose to use the Heave.co Website and/or the services offered through it rather than companies that offer similar services and who may not have an arbitration agreement.
In the event this Agreement conflicts with the Heave Terms of Service, the NAM Rules, or any other agreement, this Agreement shall control.
Your Right to Opt-out of Arbitration Agreement.
If you do not wish to be bound by this Arbitration Agreement, You must timely notify Heave by sending an email to arbitrationoptout@heave.co and providing the following information in Your email: (1) Your name; (2) Your address; (3) Your phone number; and (4) a clear statement that You wish to opt out of this Arbitration Agreement. To be effective, the opt-out notice must be emailed no later than 30 days after the date You become bound by the Arbitration Agreement. Please note that You will continue to be bound by any prior arbitration agreement You did not opt-out of and any arbitration agreement that otherwise governs Your relationship with Heave.
General. You may not assign these Terms without Heave's prior written approval. Heave may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Heave's equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Heave or any Technician as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Heave's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Heave in writing.
Complaints of Copyright Infringement. We respect the intellectual property of others. We will respond to properly submitted notices of alleged copyright infringement that comply with applicable law. In the event that a person or entity has a good faith belief that any materials provided through the Heave Platform or in connection with the Services infringe upon that person's or entity's copyright or other intellectual property right (such person or entity, a "Complainant") and sends to us a properly submitted copyright notice as indicated below, we will investigate, and if we determines, in our discretion, that the material is infringing, we will remove the content. All notices claiming an infringement of copyright rights must contain the following: (i) identification of the intellectual property right that is allegedly infringed (all relevant registration numbers, or a statement concerning the Complainant's ownership of the work, should be included); (ii) a statement specifically identifying the location of the infringing material, with enough detail that we may find it (please note it is not sufficient to merely provide a top level URL); (iii) the complete name, address, telephone number and e-mail address of Complainant; (iv) a statement that Complainant has a good faith belief that the use of the allegedly infringing material is not authorized by the owner of the rights, or its agents, or by law; (v) a statement that the information contained in the notification is accurate, and under the penalty of perjury, Complainant is authorized to act on behalf of the owner of the copyright or other property rights that are allegedly infringed; and (vi) a physical or electronic signature of a person authorized to act on behalf of the owner of the intellectual property rights that are allegedly being infringed. Heave's contact information for notice of alleged copyright infringement is via email: legal@heave.co. or via mail: Attn: Legal, Heave, 4707 W. Clear Ave. Tampa, FL 33629.
Notice. Heave may give notice by means of a general notice through the Heave Platform, electronic mail to your email address in your Account, or by written communication sent by first class mail or pre-paid post to your address in your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Heave, with such notice deemed given when received by Heave, at any time by first class mail to Heave LLC, Attn: Legal, 4707 W. Clear Ave. Tampa, FL 33629.
Links to Other Websites and Display of Others' Brand Names or Logos. The Heave Platform may contain logos and/or brand names of third parties, and/or links (such as hyperlinks) to third-party websites. Such brands, logos, and links do not constitute our endorsement of those parties, sites or their content. They are provided as an information service, for reference and convenience only. We do not control any such sites, and are not responsible for their availability or accuracy, or content, advertising, or products or services. The existence of links on the Heave Platform to such websites (including without limitation external websites that are framed by the Heave Platform as well as any advertisements displayed in connection therewith) does not mean that we endorse any of the material on such websites, or have any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other sites. We expressly disclaim any liability arising in connection with your use and/or viewing of any websites, others' brands or logos, or other material associated with links, logos or brand names that may appear on the Heave Platform. You hereby agree to hold us harmless from any liability that may result from the use of links that may appear on the Heave Platform.
Questions. Please contact us with any questions regarding this Agreement by emailing us at legal@heave.co.
