Terms and Conditions of Use for BeHeard

Terms and Conditions

Terms of Use

Effective date: 5/19/25

Welcome to BeHeard. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at:

Email:  hi@gobeheard.com

Address:  548 Market street PMB 786440, San Francisco, California  94104

These Terms of Use (the “Terms”) are a binding contract between you and BEHEARD LABS INC. (“BeHeard,” “we” and “us”). Your use of the Services in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Services. These Terms include the provisions in this document as well as those in the Privacy Policy. Your use of or participation in certain Services may also be subject to additional policies, rules and/or conditions (“Additional Terms”), which are incorporated herein by reference, and you understand and agree that by using or participating in any such Services, you agree to also comply with these Additional Terms. 

Please read these Terms carefully. They cover important information about Services provided to you and any charges, taxes, and fees we bill you. These Terms include information about future changes to these Terms, automatic renewals, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.

ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

Will these Terms ever change?

We are constantly trying to improve our Services, so these Terms may need to change along with our Services. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site located at gobeheard.com, send you an email, and/or notify you by some other means. 

If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes. 

Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us. 

What about my privacy?

BeHeard takes the privacy of its users very seriously. For the current BeHeard Privacy Policy, please click here.

Children’s Online Privacy Protection Act

The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13 years of age. We do not knowingly collect or solicit personally identifiable information from children under 13 years of age; if you are a child under 13 years of age, please do not attempt to register for or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under 13 years of age, we will delete that information as quickly as possible. If you believe that a child under 13 years of age may have provided us personal information, please contact us at hi@gobeheard.com

What are the basics of using BeHeard?

In order to access the Services, you elect to communicate with BeHeard via text message (the “Text Messaging Feature”) through an enrollment mechanism, such as, but not limited to, scanning a QR sticker with a brand or company of your choosing (each a “Company”) to access the Services (the “Enrollment”). As part of the Enrollment, you must accept these Terms and BeHeard’s Privacy Policy to receive Services and acknowledge and agree that your use of the Services in any way means that you agree to all of these Terms, including the Privacy Policy, and these Terms will remain in effect while you use the Services. As part of the Services you acknowledge and agree to (i) that you will provide us with certain information or data, such as your contact information; (ii) receive questions related to the Company or Companies of your choice, such as questions about such Company’s customer service, products or other offerings; (iii) submit comments, feedback, testimonials, or suggestions related to the applicable Company (collectively, “Your Feedback”); (iv) receive recommendations for such Company’s products and services;  (v) receive additional information about such Company’s products and services such as promotions and loyalty programs; and (vi) if available, receive rewards and/or coupons related to such Company’s products and services.  You promise to provide us with accurate, complete, and updated contact information about yourself. You may not transfer your account to anyone else without our prior written permission.

You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and have gotten your parent or guardian to agree to these Terms on your behalf). If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization’s or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).

You will only use the Services for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.

You will not share your access to the Text Messaging Feature or the Services with anyone, and you must protect the security of your BeHeard access tools or credentials. You’re responsible for any activity associated with the telephone number associated with your access to the Services.

What about messaging?

As part of the Services, you may receive communications through the Services, including messages that BeHeard sends you (for example, via email or SMS). When signing up for the Services, you will receive a welcome message and instructions on how to stop receiving messages. By signing up for the Services and providing us with your wireless number, you confirm that you want BeHeard to send you information that we think may be of interest to you, which may include BeHeard using automated dialing technology to text you at the wireless number you provided, and you agree to receive communications from BeHeard, and you represent and warrant that each person you register for the Services or for whom you provide a wireless phone number has consented to receive communications from BeHeard. You agree to indemnify and hold BeHeard harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing.

Are there restrictions in how I can use the Services?

You represent, warrant, and agree that you will not provide or contribute anything, including any Content or User Submission (as those terms are defined below), to the Services, or otherwise use or interact with the Services, in a manner that:

  1. infringes or violates the intellectual property rights or any other rights of anyone else (including BeHeard);

  2. violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by BeHeard;

  3. is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;

  4. jeopardizes the security of your account or anyone else’s (such as allowing someone else to access the Services as you);

  5. attempts, in any manner, to obtain the password, account, or other security information from any other user;

  6. violates the security of any computer network, or cracks any passwords or security encryption codes;

  7. runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);

  8. “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);

  9. copies or stores any significant portion of the Content; or

  10. decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.


A violation of any of the foregoing is grounds for termination of your right to use or access the Services. 

What are my rights in the Services?

The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, Inputs (as defined below) and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including BeHeard's) rights. Anything you upload, share, store, or otherwise provide through the Services, including Your Feedback, is your “Input”.

Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us. You understand that BeHeard owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.

Some Services or components thereof may be powered by artificial intelligence technologies (“AI Technologies”). When you provide Inputs to the Services, you will receive outputs based on your Inputs (“Outputs”), including audio and text. As between you and BeHeard, and to the extent permitted by applicable law, BeHeard shall own the Outputs from the use of the Services. 

What about anything I contribute to the Services – do I have to grant any licenses to BeHeard or to other users?

Your Content

Some Content, including Inputs and Outputs, may be viewable by other users, including the Company. You are solely responsible for all Inputs you contribute to the Services. You represent that all Inputs submitted by you are accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You agree that you will not post, upload, share, store, or otherwise provide through the Services any Inputs that infringe any third party's copyrights or other rights (e.g., trademark, privacy rights, publicity rights, etc.) or violate any law. You acknowledge that we may generate the same or similar Outputs for multiple users and that we reserve all rights to do so.

You agree that you will not post, upload, share, store, or otherwise provide through the Services any User Submissions that: (i) infringe any third party's copyrights or other rights (e.g., trademark, privacy rights, etc.); (ii) contain sexually explicit content or pornography; (iii) contain hateful, defamatory, or discriminatory content or incite hatred against any individual or group; (iv) exploit minors; (v) depict unlawful acts or extreme violence; (vi) depict animal cruelty or extreme violence towards animals; (vii) promote fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures; or (viii) that violate any law. Without limiting the generality of the foregoing and for purposes of clarity, you may not provide any Inputs to the Services that may create Outputs that may violate any of the foregoing restrictions.

Licenses

In order to display your Content on the Services, and to share the Content, including Your Feedback with Companies (where applicable), you grant us certain rights in your Content (see below for more information). Please note that all of the following licenses are subject to our Privacy Policy to the extent they relate to your Content that is also your personally-identifiable information.

By submitting your Content through the Services, you hereby do and shall grant BeHeard a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the Content in connection with this site, the Services and our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of this site or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your account or the Services. By using the Services and submitting Your Feedback, you also hereby do and shall grant each Company a non-exclusive, perpetual license to access your Content, including any personally-identifiable information therein, through this site, a Customer platform, and/or the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such Content, including after your termination of your account or the Services. For clarity, the foregoing license grants to us and the Company do not affect your other ownership or license rights in your Content, including the right to grant additional licenses to your Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, privacy rights, or any other intellectual property or proprietary rights.

If you provide us with any comments, suggestions, ideas, or other feedback with respect to the Service itself (together, “Suggestions”), you agree that we will be free to copy, modify, create derivative works of, publicly display, disclose, distribute, license and sublicense, incorporate and otherwise use the Suggestions, including derivative works thereto, for any and all purposes (including both commercial purposes and non-commercial purposes) with no obligation of any kind to you. BeHeard may collect, retain and use during and after your termination of your account or the Services, usage data that is derived from the operation of the Services, including patterns identified through the use of the Services and data regarding the performance of the Services (“Usage Data”). BeHeard is free to use Usage Data for any lawful purpose, including to develop and improve the Services, including any AI Technologies. You acknowledge and agree that BeHeard may freely use, retain and make available Aggregated De-Identified Data (as defined below) for BeHeard’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing BeHeard’s products and services). “Aggregated De-Identified Data” means data submitted to, collected by, or generated by BeHeard in connection with your use of the Services, including Inputs, but only in aggregate, de-identified form which can in no way be linked specifically to you.

Finally, you understand and agree that BeHeard, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your Content to conform and adapt that Content to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.

Who is responsible for what I see and do on the Services?

You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.

The Services may contain links or connections to third-party websites or services that are not owned or controlled by BeHeard. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that BeHeard is not responsible for such risks. 

BeHeard has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that you interact with through the Services, including the Company. In addition, BeHeard will not and cannot monitor, verify, censor or edit the content of any third-party site or service. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third-party website or service that you visit or utilize. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third-party website or service. 

Your interactions with Companies, organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that BeHeard shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.

If there is a dispute between participants on this site or Services, or between users and any third party (including a Company), you agree that BeHeard is under no obligation to become involved. In the event that you have a dispute with one or more other users or Companies, you release BeHeard, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

Will BeHeard ever change the Services?

We’re always trying to improve our Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.

Do the Services cost anything?

The Services may be free or we may charge a fee for using the Services. If you are using a free version of the Services, we will notify you before any Services you are then using begin carrying a fee, and if you wish to continue using such Services, you must pay all applicable fees for such Services. Note that if you elect to receive text messages through the Services, data and message rates may apply. Any and all such charges, fees or costs are your sole responsibility. You should consult with your wireless carrier to determine what rates, charges, fees or costs may apply to your use of the Services.

What if I want to stop using the Services? 

You’re free to do that at any time by contacting us at hi@gobeheard.com ; please refer to our Privacy Policy, as well as the licenses above, to understand how we treat information you provide to us after you have stopped using our Services.

BeHeard is also free to terminate (or suspend access to) your use of the Services or your account for any reason in our discretion, including your breach of these Terms. BeHeard has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.

Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account. 

If you have deleted your account by mistake, contact us immediately at hi@gobeheard.com – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.

Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.

What about Mobile Applications?

You acknowledge and agree that the availability of our mobile application is dependent on the third party stores from which you download the application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. You agree to comply with, and your license to use our application is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms of Use, the more restrictive or conflicting terms and conditions in these Terms of Use apply.

I use the BeHeard App available via the Apple App Store – should I know anything about that?

These Terms apply to your use of all the Services, including our iOS applications (the “Application”) available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the Application:

  1. Both you and BeHeard acknowledge that the Terms are concluded between you and BeHeard only, and not with Apple, and that Apple is not responsible for the Application or the Content;

  2. The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;

  3. You will only use the Application in connection with an Apple device that you own or control;

  4. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;

  5.  In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;

  6. You acknowledge and agree that BeHeard, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;

  7. You acknowledge and agree that, in the event of any third-party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, BeHeard, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;

  8.  You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;

  9. Both you and BeHeard acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and

  10. Both you and BeHeard acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.

What else do I need to know?

Warranty Disclaimer. BeHeard and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (BeHeard and all such parties together, the “BeHeard Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services, and the BeHeard Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The BeHeard Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services. THE SERVICES AND CONTENT ARE PROVIDED BY BEHEARD (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. BEHEARD AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (I) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, (II) THE SERVICES OR ANY RESULTS OF THE SERVICES WILL MEET REQUIREMENTS OR EXPECTATIONS, OR (III) THE SERVICES OR ANY RESULTS OF THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES OPERATE ON AI TECHNOLOGIES (INCLUDING, WITHOUT LIMITATION, THIRD PARTY AI TECHNOLOGIES) AND BEHEARD DOES NOT TEST, VERIFY, ENDORSE OR GUARANTEE TO BE ACCURATE, COMPLETE OR CURRENT ANY SUCH SERVICES OR ANY RESULTS OF THE SERVICES. BEHEARD DOES NOT CONTROL OR INFLUENCE THE TRAINING OR HOSTING OF ANY SUCH THIRD PARTY AI TECHNOLOGIES. YOU SHOULD INDEPENDENTLY REVIEW AND VERIFY ALL RESULTS FROM THE SERVICES AS TO APPROPRIATENESS FOR ANY OR ALL OF YOUR USE CASES OR APPLICATIONS. RESULTS FROM THE SERVICES MAY NOT BE USED AS A SUBSTITUTE FOR PROFESSIONAL ADVICE OR INFORMATION. THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT FOR THE SERVICES APPLY TO ANY SERVICES WHICH OPERATE ON, OR RESULT FROM, BEHEARD’S AI TECHNOLOGIES OR THIRD PARTY AI TECHNOLOGIES. DUE TO THE NATURE OF ARTIFICIAL INTELLIGENCE, IT IS POSSIBLE THAT RESULTS OF THE SERVICES GENERATED THROUGH YOUR USE OF ANY COMPONENTS OF THE SERVICES LEVERAGING AI TECHNOLOGIES MAY BE SIMILAR TO RESULTS GENERATED THROUGH ANOTHER USER’S USE OF THE SERVICES, OR THAT THE SAME DATA MAY RESULT IN DIFFERENT RESULTS FROM ONE USE TO THE NEXT.


Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE BEHEARD PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO BEHEARD IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

Indemnity. You agree to indemnify and hold the BeHeard Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).

Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without BeHeard's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.

Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of California, without regard to the conflicts of laws provisions thereof.

Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with BeHeard and limits the manner in which you can seek relief from BeHeard. Both you and BeHeard acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, BeHeard's officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.

(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in San Francisco County, California. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. 

(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. BeHeard will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. BeHeard will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous. 

(c) Small Claims Court; Infringement. Either you or BeHeard may assert claims, if they qualify, in small claims court in San Francisco County, California or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. 

(d) Waiver of Jury Trial. YOU AND BEHEARD WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and BeHeard are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and BeHeard over whether to vacate or enforce an arbitration award, YOU AND BEHEARD WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.

(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor BeHeard is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below. 

(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 548 Market street PMB 786440, San Francisco, California  94104 postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.

(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or BeHeard to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and BeHeard agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, San Francisco County, California, or the federal district in which that county falls. 

(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with BeHeard.

Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the BeHeard may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and BeHeard agree that these Terms are the complete and exclusive statement of the mutual understanding between you and BeHeard, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of BeHeard, and you do not have any authority of any kind to bind BeHeard in any respect whatsoever.

Except as expressly set forth in the sections above regarding the Apple Application and the arbitration agreement, you and BeHeard agree there are no third-party beneficiaries intended under these Terms.