This Master Subscription Agreement (“Agreement”) supersedes our Terms of Service at https://happy.co/terms-of-use between You and HappyCo., Inc., a Delaware corporation ("HappyCo").
THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES BY YOU, AGENTS AND END-USERS WHETHER IN CONNECTION WITH A PAID OR AN EVALUATION SUBSCRIPTION TO THE SERVICES.
By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any Agent or End- User to access or use a Service, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity or Person (an "Entity"), You are agreeing to this Agreement for that Entity and representing to HappyCo that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms "Subscriber," "You," "Your" or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not use any of the Services.
When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
(a) Account: means any accounts or instances created by or on behalf of Subscriber or its Agents within the Services.
(b) Affiliate: means any entity, individual, firm, or corporation, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with You.
(c) Agent: means an individual authorized to use a Service through Your Account as an agent and/or administrator as identified through a unique login.
(d) Agreement: means the Master Subscription Agreement together with any and all Supplements, Additional Terms and Order Forms.
(e) API: means the application programming interfaces developed and enabled by HappyCo that permit Subscribers to access certain functionality provided by the Services, including, without limitation, the application development API that enables the integration of the Services with other web applications, and such other application program interfaces as the parties may mutually agree upon in writing in the future, together with any and all portions and components thereof, related documentation and inventions, discoveries, and works of authorship in connection therewith, and all modifications or enhancements to, or derivative works of, the foregoing created or conceived by either party in connection with this Agreement.
(f) Confidential Information: means all information disclosed by You to HappyCo or by HappyCo to You which is in tangible form and labeled "confidential" (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to HappyCo's security policies and procedures. For purposes of this Agreement, this Agreement as well as Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party by a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without use of the disclosing Party's Confidential Information.
(g) Competitor: means, with respect to a party, a Person (a) whose primary business is in the same industry as such party's primary business, and (b) that, in its primary business, offers products or services that are similar to the products or services offered by such party in its primary business, provided that such similar products and services comprise a majority of the business operations of each of such Person and such party.
(h) Consulting Services: means consulting and professional services (including any training, success or implementation services) provided by HappyCo or its authorized subcontractors as indicated on an Order Form or other written document such as a statement of work "SOW".
(i) Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services or describing Service Plans, as applicable, provided or made available by HappyCo to You in the applicable HappyCo help center(s); provided, however, that Documentation shall specifically exclude any "community moderated" forums as provided or accessible through such knowledge base(s).
(j) End-User: means any person or entity other than Subscriber or Agents with whom Subscriber or its Agents interact using a Service.
(k) Feedback: means suggestions, comments and ideas related to HappyCo's Services, API, network or intellectual property or to any features, improvements, or enhancements thereof, which are given or communicated directly or indirectly by the other party or its employees, representatives, agents or subcontractors, whether before or during the term of this Agreement.
(l) Order Form: means any of Our generated service order forms executed or approved by You with respect to Your subscription to a Service, which form may detail, among other things, the number of Agents authorized to use a Service under Your subscription to a Service and the Service Plan applicable to Your subscription to a Service.
(m) Other Services: means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which a Service links to, or which You may connect to or enable in conjunction with a Service, including, without limitation, Other Services which may be integrated directly into Your Account by You or at Your direction.
(n) Payment Agent: means HappyCo, Inc. or a payment agent designated by HappyCo.
(o) Person: means a natural person or any legal, commercial, or governmental entity, including a corporation, general partnership, joint venture, limited partnership, limited liability company, trust, unincorporated association, savings bank, commercial bank, other depository financial institution, group acting in concert, or any Person acting in a representative capacity.
(p) Personal Data: means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.
(q) Personnel: means employees and/or non-employee service providers and contractors of HappyCo in connection with performance hereunder.
(r) Processing/To Process/Processed: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
(s) Service(s): means the products and services that are ordered by You online through a link or via an Order Form referencing this Agreement, whether on a trial or paid basis, and made available online by Us, via the applicable subscriber login link and other web pages designated by Us, including, individually and collectively, the applicable Software, Updates, API, Documentation that You have purchased or deployed or to which You have subscribed
("Deployed Associated Services"). "Services" exclude Other Services as that term is defined in this Agreement. From time to time the names and descriptions of the Services or any individual Service may be changed. To the extent Subscriber is given access to such Service as so described by virtue of a prior Order Form or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described.
(t) Service Data: means electronic data, text, messages, communications or other materials submitted to and stored within a Service by You, Agents and End-Users in connection with Your use of such Service, which may include, without limitation, Personal Data.
(u) Service Plan(s): means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Site applicable to the Service) for the Services to which You subscribe on the Order Form and/or via the Site.
(v) Site: means a website operated by HappyCo, including www.HappyCo.com, www.Happy.co and www.HappyInspector.com, as well as all other websites that HappyCo operates. (http://www.happyco.com)
(w) Software: means software provided by HappyCo (either by download or access through the internet) that allows Agents or End-Users to use any functionality in connection with the applicable Service.
(x) Subscription Term: means the period during which You have agreed to subscribe to a Service with respect to any individual Agent.
(y) Usage Data: means aggregated encoded or anonymized data that the HappyCo may collect about a group or category of services, features or users while You, Your Agents or End-Users use a Service for certain purposes, including analytics, and which does not contain Personal Data. "We," "Us" or "Our": means HappyCo as defined below.
(z) "We," "Us" or "Our": means HappyCo as defined below.
(aa) HappyCo: means HappyCo, Inc., a Delaware corporation, or any of its successors or assignees.
2.1 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Services are purchased as subscriptions, (b) the quantity may be changed during a subscription term for existing subscriptions, and (c) any additional subscriptions will adopt billing terms from the relevant subscription defined in the Order Form. During the Subscription Term and subject to compliance by You, Agents and End-Users with this Agreement, You have the limited right to access and use a Service consistent with the Service Plan(s) that You subscribe to, for Your internal business purposes. We will (a) make the Services available to You pursuant to this Agreement and the applicable Order Forms; (b) provide applicable standard customer support for the Services to You at no additional charge as detailed on the applicable Site and Documentation and/or upgraded support if purchased on the Order Form; (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except (i) during planned downtime for upgrades and maintenance to the Services (of which We will use commercially reasonable efforts to notify You in advance both through Our Site and a notice to Your Account owner and Agents) ("Planned Downtime"); and (ii) for any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Other Services, or acts undertaken by third parties, including without limitation, denial of service attack ("Force Majeure Event").
2.2 Renewals. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal.
2.3 CPI Adjustment. The fixed fees and other fees expressed as stated dollar amounts in the Order Form shall be increased annually commencing on the one-year anniversary date of the Effective Date by the percentage increase since the Effective Date in consumer prices for services as measured by the United States Consumer Price Index.
2.4 Usage Limits. Services are subject to usage limits, including, for example, the quantities specified in Order Forms and Documentation. If You exceed a contractual usage limit,We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 7 (BILLING, PLAN MODIFICATIONS AND PAYMENTS).
2.5 You may not use the Services to provide customer service, support or other outsourced business process services to more than one third party (other than Affiliates) through a single Account. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by HappyCo from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in writing.
2.6 You are responsible for procuring and maintaining the internet and network connections that connect Your network to our API, Software and/or Services, including, but not limited to, "browser" software for accessing the Services. We are not responsible for notifying You, Agents or End-Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by HappyCo. We assume no responsibility for the reliability or performance of any connections as described in this section.
2.7 Restrictions. In addition to complying with the other terms, conditions and restrictions set forth below in this Agreement, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than authorized Agents and End-Users in furtherance of Your internal business purposes as expressly permitted by this Agreement; (b) use the Services to Process data on behalf of any third party other than Agents or End-Users; (c) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (d) falsely imply any sponsorship or association with HappyCo; (e) use the Services in any unlawful manner, including, but not limited to, violation of any person's privacy rights; (f) use the Services to send unsolicited or unauthorized bulk mail, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Services to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person's intellectual property rights; (h) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; (j) use the Services to post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory or to store or transmit material in violation of third-party privacy rights; (k) use the Services to store or transmit any "protected health information" as that term is defined in 45 C.F.R. 160.103, unless expressly agreed to otherwise in writing by HappyCo; (l) use the Services to post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software ("Malicious Software"); (m) use or launch any automated system that accesses a Service (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser; (o) frame or mirror any part of any Service, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation; (p) access any Service in order to build a competitive product or service or to benchmark with a Non-HappyCo product or service; (q) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, or use any of Our Services to access or use any of Our intellectual property except as permitted under this Agreement, an Order Form, or the Documentation; or (r) use the Services in violation of this Agreement. Any use of the Services in breach of this Agreement, Documentation or Order Forms, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
2.8 Compliance. You are responsible for compliance with the provisions of this Agreement by Agents and End-Users and for any and all activities that occur under Your Account, as well as for all Service Data. Without limiting the foregoing, You are solely responsible for ensuring that use of the Services to store and transmit Service Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with Agents or End-Users. You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Agents or End-Users available under the applicable Service Plan(s) to which You subscribed or applicable Deployed Associated Service, access to and use of the Services is restricted to the specified number of individual Agents or End-Users permitted under Your subscription to the applicable Service. You agree and acknowledge that each Agent or End-User will be identified by a unique username and password ("Login") and that an Agent or End-User Login may only be used by one (1) individual. You will not share an Agent or End-User Login among multiple individuals. You and Your Agents and End-Users are responsible for maintaining the confidentiality of Login information for Your Account.
2.9 You acknowledge that HappyCo may modify the features and functionality of the Services during the Subscription Term.
2.10 You may not access the Services if You are a Competitor of HappyCo, except with HappyCo's prior written consent. You may not access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes.
2.11 If You register for an evaluation period for any of the Services, We will make such Services available to You on a trial basis at a negotiated price until the earlier of (a) the end of the evaluation period for which You registered to use the applicable Service(s); (b) the start date of any subscription to such Service purchased by You for such Service(s); or (c) termination of the trial by Us in our sole discretion. During the evaluation period, You shall be subject to the terms and conditions of this Agreement, in addition to any Additional trial terms and conditions which may appear on the evaluation registration agreement or web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Please review the applicable Documentation during the evaluation period so that You become familiar with the features and functions of the Services under applicable Service Plans before You make Your purchase.
2.12 ANY SERVICE DATA YOU ENTER INTO A SERVICE, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO A SERVICE BY OR FOR YOU, DURING YOUR EVALUATION PERIOD WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS COVERED BY THE EVALUATION PERIOD, PURCHASE THE APPLICABLE SERVICE, OR EXPORT SUCH SERVICE DATA, BEFORE THE END OF THE EVALUATION PERIOD.
3.1 Subject to the express permissions of this Agreement, each Party will protect each other's Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each of us may use each other's Confidential Information solely to exercise our respective rights and perform our respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the Personnel who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation.
3.2 HappyCo will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Service Data by Personnel except (a) to provide the Services and prevent or address service, support or technical problems; (b) as compelled by law in accordance with Sections 3.1(b) or 3.1(c); (c) in accordance with the provisions of Section 3.4; or (d) as You expressly permit in writing. HappyCo's compliance with the provisions of Sections 3.2 through 3.5 shall be deemed compliance with HappyCo's obligations to protect Service Data as set forth in the Agreement.
3.3 Unless otherwise specifically agreed to by HappyCo, Service Data may be hosted by HappyCo or its respective authorized third-party service providers in the United States, the EEA or other locations around the world. In providing the Services, HappyCo may engage other authorized service providers, to Process Service Data, including and without limitation, any associated Personal Data pursuant to this Agreement within the European Economic Area (the "EEA"), the United States and in other countries and territories.
3.4 You agree that HappyCo and the third-party service providers that are utilized by HappyCo to assist in providing the Services to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Service Data to the extent necessary to provide the Services, including, without limitation, in response to Your support requests. Any third-party service providers utilized by HappyCo will only be given access to Your Account and Service Data as is reasonably necessary to provide the Services and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 3.2; and (b) their agreement to comply with the data transfer restrictions applicable to Personal Data as set forth in this Agreement and maintain such data in compliance with applicable laws.
3.5 In addition to Service Data, We may use Your Data to create aggregated data and statistics (collectively "Benchmarked Data"), and We may use the Benchmarked Data at our discretion so long as the Benchmarked Data does not identify You, Your Users, Your Affiliates or any individual.
3.6 HappyCo may also obtain other information, including Personal Data, from third parties and combine that with information We collect through Our Services. For example, We may have access to certain information from a third party social media or authentication service if You log into Our Services through such service or otherwise provide Us with access to information from such service. Any access that We may have to such information from a third party social or authentication service is in accordance with the authorization procedures determined by that service. By authorizing Us to connect with a third party service, You authorize Us to access and store Your name, email address(es), current city, profile picture URL, and other Personal Data that the third party service makes available to Us, and to use and disclose it in accordance with this Agreement.
3.7 The Site contains links to other websites. We are not responsible for the privacy practices or the content of such websites. We may also make chat rooms, forums, message boards, and news groups available to you. Please understand that any information that is disclosed in these areas becomes public information. We have no control over its use and You should exercise caution when deciding to disclose your Personal Data.
You grant Us, Our Affiliates and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Your Data, as reasonably necessary for Us to provide the Services in accordance with this Agreement. We grant to You the limited-term, revocable, nonexclusive, non-transferable right and license to use the Service (including without limitation to download, install, and operate the mobile software application components thereof) all in accordance herewith and with such instructions and documentation as we may post on the Site or otherwise communicate from time to time. Subject to the limited licenses granted herein, each Party shall retain all rights, title and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, "Intellectual Property Rights").
The rights granted to You, Agents and End-Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all hardware, Software and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with HappyCo and belong exclusively to HappyCo. HappyCo shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other Feedback We receive from You, Agents, End-Users,
or other third parties acting on Your behalf. HappyCo®, Happy Inspector®, and HappyCo's other product and service names and logos used or displayed in or on the Services are registered or unregistered trademarks of one or more members of HappyCo (collectively, "Marks"). With prior consent of HappyCo, which may be withdrawn or modified at any time, You may only use Our applicable Marks in a manner permitted by HappyCo to identify You as a Subscriber; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Us, Our services or products.
We may offer You access to beta services that are being provided prior to general release (“Beta Services”). You understand and agree that the Beta Services may contain bugs, errors and other defects, and use of the Beta Services is at your sole risk. You acknowledge that your use of Beta Services is on a voluntary and optional basis, and we have no obligation to provide technical support and may discontinue provision of Beta Services at any time in our sole discretion and without prior notice to You. These Beta Services are offered “AS-IS”, and to the extent permitted by applicable law, we disclaim any liability, warranties, indemnities, and conditions, whether express, implied, statutory or otherwise. If You are using Beta Services, You agree to receive related correspondence and updates from us and acknowledge that opting out may result in cancellation of your access to the Beta Services. If You provide Feedback about the Beta Service, You agree that we own any Feedback that You share with us. For the Beta Services only, these Terms supersede any conflicting terms and conditions in the Agreement, but only to the extent necessary to resolve conflict.
6.1 Professional Services support is available for a fee via a Launch Package, a Statement Of Work (SOW) or an ongoing Professional Services subscription as indicated on your Order Form. Professional Services which are available post-implementation include, but are not limited to, assistance with Resident Inspections, Expiring Inspections, Bulk Report Creation, Live Inspections, Bulk Schedule Creation, Create/Configure Reports and/or Insights, Template Changes, Cancel Projects, Training, Unit Stitching, Property Code Changes, Integration Changes, etc.
6.2 If You subscribe to Due Diligence and a Due Diligence-certified account does not complete a Due Diligence walk within 12 months, We reserve the right to move the Due Diligence account to inactive status. In the event the inactive account requests a Due Diligence walk, it is in Our discretion to require a recertification.
7.1 Unless otherwise indicated on an Order Form referencing this Agreement, or Additional Terms (as defined in Section 12.2), all charges associated with Your access to and use of a Service ("Subscription Charges") are due in full upon commencement of Your Subscription Term. If You fail to pay Your Subscription Charges or other charges indicated on any Order Form within five (5) business days of Our notice to You that payment is due or delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies,We reserve the right to suspend or terminate access to and use of such Service by You, Agents and End-Users. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may terminate the Services and/or condition future subscription renewals and Order Forms on payment terms different than those previously specified.
7.2 Unless otherwise specified, you acknowledge that the pricing reflected on Your Order Form is correlated to the number of units specified and You agree to be invoiced for this minimum unit quantity five (5) days from counter-signature. Recurring billing will reflect the greater of either total units active or the minimum unit quantity.
7.3 If You choose to upgrade Your Service Plan during Your Subscription Term (a "Subscription Upgrade"), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your then current Subscription Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.
7.4 All payment obligations are non-refundable. No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade Your Service Plan. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and HappyCo does not accept any liability for such loss.
7.5 Furthermore, you may activate or deactivate properties on your subscription plan, subject to maintaining minimum unit quantities, for a Service and/or Related Software at any time during the term by written notice to HappyCo or by making changes within the HappyCo portal through which you manage your properties and Services. It is solely your obligation to activate or deactivate properties on your subscription plan. However, HappyCo reserves the right to deactivate your properties which are no longer active in your Property Management System. All changes will be applicable to the next billing cycle following HappyCo’s receipt of such notice. For any increase or decrease in the number of properties and units on your subscription plan, the credit card or other billing method that you provided as part of your Account will automatically be charged the new resulting fees on your next billing cycle.
7.6 Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively "Taxes"). You are responsible for paying Taxes relating to the Services We provide to You, except those assessable against the HappyCo measured by its net income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
7.7 If You pay by credit card or certain other payment instruments, the Services provide an interface for the Account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each receipt of payment by the Payment Agent, or they may obtain a receipt from within the Services to track subscription status. You hereby authorize the Payment Agent to bill Your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Service Plan for the Services and for periodic Subscription Charges applicable to Deployed Associated Services to which You subscribe until Your subscription to the Services terminates, and You further agree to pay any Subscription Charges so incurred. If applicable, You hereby authorize HappyCo and the Payment Agent to charge Your credit card or other payment instrument to establish such prepaid credit. You agree to promptly update Your Account information with any changes (for example, a change in Your billing address or credit card expiration date) that may occur. The Payment Agent uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for the Payment Agent.
7.8 Payments made by credit card, debit card or certain other payment instruments for the HappyCo Service are billed and processed by HappyCo's Payment Agent. To the extent the Payment Agent is not HappyCo, the Payment Agent is acting solely as a billing and processing agent for and on behalf of HappyCo and shall not be construed to be providing the applicable Service. Payment processing fees and/or other surcharge fees HappyCo incurs by your chosen vendor platform will be passed along to you and reflected on your HappyCo invoice.
7.9 If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least 10 days' prior notice that Your account is overdue, before suspending services to You.
8.1 Either Party may cancel the Services after the term has expired by providing written notice to the other party at least thirty (30) business days prior to the end of your Subscription Term.
8.2 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term.
8.3 Except for Your termination under Section 8.5, if You terminate Your subscription to a Service or cancel Your Account prior to the end of Your then effective Subscription Term or We effect such termination or cancellation pursuant to Sections 2, 8.4 and 8.5, in addition to other amounts You may owe HappyCo, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by You in the event You terminate Your subscription to a Service or cancel Your Account as a result of a material breach of this Agreement by HappyCo, provided that You provide advance notice of such breach to HappyCo and afford HappyCo not less than thirty (30) days to reasonably cure such breach as provided for in Section 8.5 herein.
8.4 We reserve the right to modify, suspend or terminate the Services (or any part thereof), Your Account or Your and/ or Agents' or End-Users' rights to access and use the Services, and remove, disable and discard any Service Data if We believe that You, Agents or End-Users have violated this Agreement. This includes the removal or disablement of Service Data in connection with notifications of alleged infringement by legitimate copyright holders. Unless legally prohibited from doing so,We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions.We shall not be liable to You, Agents, End-Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by You, Agents or End-Users may be referred to law enforcement authorities at Our sole discretion.
8.5 Either Party may terminate this Agreement for cause (a) upon thirty (30) days' written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement is terminated by You in accordance with this section, We will, to the extent permitted by applicable law, refund You any prepaid fees covering the remainder of the Subscription Term after the effective date of termination. If this Agreement is terminated by Us in accordance with this section, You will pay any unpaid fees covering the remainder of the Subscription Term pursuant to all applicable Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
8.6 Upon request by You made within thirty (30) days after the effective date of termination or expiration of this Agreement, We will make Service Data available to You for export or download as provided in the Documentation. After such 30-day period,We will have no obligation to maintain or provide any Service Data, and, as provided in the Documentation, will have the right to delete or destroy all copies of Service Data in Our systems or otherwise in Our possession or control, unless prohibited by law.
9.1 Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2 We warrant that during an applicable Subscription Term (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data; and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty above, Your exclusive remedies are those described in Section 8.5 herein.
9.3 EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 9.2, THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND
ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE
OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
10.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, HAPPYCO'S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES FOR SUCH SERVICES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS AGREEMENT.
10.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, HAPPYCO'S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
10.4 Any claims or damages that You may have against HappyCo shall only be enforceable against HappyCo and not any other entity or its officers, directors, representatives or agents.
11.1 We will indemnify and hold You harmless, from and against any claim against You by reason of Your use of a Service as permitted hereunder, brought by a third party alleging that such Service infringes or misappropriates a third party's valid patent, copyright, trademark or trade secret (an "IP Claim"). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by HappyCo for such defense, provided that (a) You promptly notify HappyCo of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such IP Claim; and (c) You fully cooperate with HappyCo in connection therewith. If use of a Service by You, Agents or End-Users has become, or, in Our opinion, is likely to become, the subject of any such IP Claim, We may, at Our option and expense, (a) procure for You the right to continue using the Service(s) as set forth hereunder; (b) replace or modify a Service to make it non-infringing; or (c) if options (a) or (b) are not commercially reasonable or practicable as determined by HappyCo, terminate Your subscription to the Service(s) and repay You, on a pro-rata basis, any Subscription Charges previously paid to HappyCo for the corresponding unused portion of Your Subscription Term for such Service(s).We will have no liability or obligation under this Section with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by the Customer; (ii) modification of the Service(s) by anyone other than HappyCo; or (iii) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing.
11.2 With respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service(s) by anyone other than HappyCo; or (iii) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing. The provisions of this Section 11 state the sole, exclusive and entire liability of HappyCo to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by You, Agents or End-Users.
11.3 You will indemnify and hold HappyCo harmless against any claim brought by a third party against Happy Co arising from or related to use of a Service by You, Agents or End-Users in breach of this Agreement or matters for which You have expressly agreed to be responsible pursuant to this Agreement; provided (a)We shall promptly notify You of the threat or notice of such claim; (b) You will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, You shall not settle or compromise any claim that results in liability or admission of any liability by Us without Our prior written consent); and (c)We fully cooperate with You in connection therewith.
12.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Our prior written consent. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
12.2 This Agreement, together with any Order Form(s) constitute the entire agreement, and supersede any and all prior agreements between You and HappyCo with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof. Notwithstanding the foregoing, some terms may apply to certain features, functionality, or services that We offer as part of or distinct from the Services (the "Additional Terms"). In those instances, We will notify You of such Additional Terms prior to the activation of these features, functionality, or services and the activation of these features, functionality, or services in Your Account will be considered acceptance of the Additional Terms. All such Additional Terms will be considered incorporated into this Agreement when You or any Agent authorized as an administrator in Your Account activate the feature, functionality, or service. Where there is a conflict between this Agreement and the Additional Terms, the Additional Terms will control.
12.3 This agreement can be amended only by a writing signed by both parties. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
12.4 In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) a signed MNDA, (3) this Agreement, (4) the Documentation, and (5) any other signed agreements such as vendor applications.
If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
The Services and other Software or components of the Services that We may provide or make available to You, Agents or End-Users may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Services, Software and such other components by You, Agents and End-Users. You shall not access or use the Services if You are located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under U.S. or other applicable laws or regulations (a "Prohibited Jurisdiction") and You shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) You are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) You shall not knowingly permit Agents or End-Users to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You, Agents and End-Users are located.
The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
All notices to be provided by HappyCo to You under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service ("Courier") or U.S. mail to the contact mailing address provided by You on any Order Form; or (b) electronic mail to the electronic mail address provided for Your Account owner. You must give notice to HappyCo in writing by Courier or U.S. mail to 5857 Owens Avenue Suite 300, Carlsbad, California, 92008, U.S.A., Attn: LEGAL DEPARTMENT. All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.
This Agreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in San Francisco County, California. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by You, Agents or End Users.
If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, each of the Services is a "Commercial Item" as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are licensed to You with only those rights as provided under the terms and conditions of this Agreement.
Sections 1, 3.1, 4 and 14-18 shall survive any termination of our agreement with respect to use of the Services by You, Agents or End Users. Termination of such agreement shall not limit a Party's liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.