1.1 “Customer Data” means Customer’s electronic data or information including Customer’s Confidential Information that is stored on goHappy’s server.
1.2 “Authorized Users” means Customer’s and its Affiliate’s employees and individual contractors (i.e., temporary employees).
1.3 “Confidential Information” means a discloser’s non-public written information, in any form, and all copies, summaries and extracts, which are identified as confidential at the time of disclosure. Confidential Information does not include information that:
(A) is or becomes generally publicly available at the time of disclosure or subsequently through no fault of recipient,
(B) was known to recipient, free of any confidentiality obligations, before its disclosure by discloser,
(C) becomes known to recipient, free of any confidentiality obligations, from a source other than discloser, or
(D) is independently developed by recipient without use of the Confidential Information.
1.4 “Documentation” means any information published by goHappy including reference material, help documentation and product information on goHappy’s website, relating to the use of the Software.
1.5 “Order Form(s)” means the Agreement or any other document signed by the parties that describes the Software that is being ordered by Customer, including fees and number of Authorized Users.
1.6 “Software” means goHappy’s software-as-a-service products (as may be modified by goHappy from time to time in its sole discretion), including Documentation, as described more fully in one or more Order Form(s) along with any releases, updates, or upgrades, licensed to Customer under the terms of this Agreement
1.7 “Tax(es)” means any tax, fee, or cost not based on Customer’s net income or capital, including without limitation any sales, excise, value added, use, customs, tariffs, imports, government proposed surcharges, withholding, social security, unemployment, duties, levies, and similar taxes and any fees, penalties, or interest associated with any of the foregoing.
2.1 Subject to the payment of fees set forth in the Order Form, goHappy grants Customer and Customer’s Authorized Users a non-exclusive, non-transferable, non-sublicenseable license during the Term to access and use the Software listed on the Order Form.
3.1 All fees and rates are set out in the Agreement and payment terms are Net 30 unless otherwise stated. All unpaid invoices or amounts due that are not subject to a good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by law, whichever is lower, plus all reasonable expenses of collection.
3.2 All fees are exclusive of Taxes imposed by taxing authorities and Customer shall be responsible for payment of all such Taxes (excluding taxes based on goHappy’s income), even if such amounts are not listed in the Agreement. No part of goHappy’s compensation under this Agreement will be subject to withholding for any Taxes or other required payments.
3.3 Unless otherwise stated in the Order Form, Unit Cost shall increase by 10% on each twelve (12) month anniversary date of the Live Date.
3.4 Account Suspension for Late Payments: In the event that Customer fails to make payments by the designated due date, and such failure continues for a period of thirty (30) days subsequent to receiving notice that their account is past due, then goHappy reserves the right to suspend Customer's account, which may result in restricted access to the Software until full payment is received.
4.1 Term. The term of this Agreement will begin on the Billing Date referenced in Customer’s Order Form and will continue until the subscription end date, as identified in the Order Form (the “Initial Term”), including any renewal periods referenced in such Order Form.
4.2 Termination for Breach. Either party may terminate this Agreement should the other party breach any of its material obligations and the breach continues uncured for thirty (30) days after written notice to the breaching party (which notice may be made via e-mail).
4.3 Termination due to Bankruptcy. Either party may terminate the Agreement with written notice if either party is adjudicated bankrupt, files a voluntary petition of bankruptcy, makes a general assignment for the benefit of creditors, is no longer able to function in the normal course of business, or if a receiver is appointed on account of insolvency.
4.4 Survival. On termination or expiration of this Agreement, each party will be released from all obligations and liabilities to the other party occurring or arising after that date; except that any termination or expiration will not relieve the parties of their obligations under Sections 4, 5, 6, 7, 8, 9, 10, and 11 nor will termination relieve the parties from liability arising from breach of this Agreement.
5.1 Customer has no right or claim to the intellectual property rights in and to the Software, the Documentation, or to goHappy’s Confidential Information. Customer will notify goHappy if Customer becomes aware of any potential infringement of goHappy’s rights.
5.2 goHappy has no intellectual property rights or other claim to the Customer Data that is hosted, stored, or transferred to and from the Software. At Customer’s sole cost and expense, goHappy will reasonably cooperate with Customer to protect Customer’s intellectual property rights and Customer Data. goHappy will promptly notify Customer if goHappy becomes aware of any potential infringement of those rights.
5.3 Customer will not:
(A) use trademarks, trade names, service marks, logos, domain names, other distinctive brand features separate from the Software or the Documentation without the express written consent of goHappy (which consent may be withheld in goHappy’s sole discretion); or
(B) remove, obscure, or alter any copyright notice, trademark, or other proprietary right appearing in or on any item included with the Software or the Documentation.
(C) copy, modify, adapt, alter, translate, or create derivative works from the Software.
(D) merge the Software with other software.
(E) distribute, sublicense, lease, rent, loan, or otherwise transfer the Software to any third party.
(F) reverse engineer, decompile, disassemble, or otherwise attempt to derive the Source Code for the Software.
(G) take any action that would breach goHappy’s rights, including, without limitation, goHappy’s copyrights in the Software and Documentation.
6.1 A recipient will:
(A) use Confidential Information only as necessary to perform its obligations under this Agreement,
(B) hold Confidential Information in with the same level of care that it holds its own Confidential Information (but in any event with no less than a reasonable level of care)
(C) disclose Confidential Information to only those third parties who provide services to the Recipient and have previously agreed in writing to protect third party confidential information to the same extent as required in this Agreement, and
(D) either promptly deliver or promptly destroy (and certify the destruction to the discloser) all Confidential Information and copies in the recipient’s possession at the discloser’s request and at the expiration or termination of this Agreement; provided, however, that recipient may retain a single copy solely for back-up or archival purposes.
6.2 If a party receives a court order or is otherwise required by law to disclose any Confidential Information obtained from a discloser, the receiving party must:
(A) to the extent allowable by applicable law, notify the discloser immediately on receipt of the court order or other document requiring disclosure so that the discloser may object and move for a protective order, and
(B) if Confidential Information is to be filed with a court, file it under seal or request that the court seal the Confidential Information before disclosure.
6.3 Except as may be required by court order or law, a recipient’s obligations regarding Confidential Information will remain in full force and effect. The recipient acquires no licenses or other rights to Confidential Information under this Agreement.
7.1 goHappy represents and warrants to Customer:
(A) To its knowledge the Software and will not infringe any third-party intellectual property rights,
(B) To its knowledge, the Software will comply with all applicable laws, statutes, ordinances and regulations,
(D) The Software will be provided in a workmanlike and competent manner in accordance with the professional standards in the cloud computing/online services industry,
(E) If any part of the Software has been obtained from a third party, goHappy will obtain all intellectual property rights necessary for Customer’s use as intended under this Agreement if available upon commercially-reasonable terms.
7.2 EXCEPT AS EXPRESSLY PROVIDED HEREIN, GOHAPPY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND GOHAPPY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ALL PRODUCTS AND SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. GOHAPPY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING GOHAPPY PRODUCTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, GOHAPPY AND ITS THIRD-PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE, SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT NEITHER GOHAPPY NOR ITS THIRD-PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. GOHAPPY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
8.1 goHappy will defend, indemnify, and hold Customer, its officers, directors, employees, customers, and agents, harmless from and against any and all third-party claims, losses, liabilities, damages, expenses, costs, reasonable attorneys’ fees, and court costs related to or arising out of:
(A) goHappy’s breach of this Agreement, and
(B) goHappy’s knowing infringement of intellectual property rights of a third party in connection with Customer’s use of the Software, provided;
(C) Customer will supply goHappy with prompt written notice of any claims. goHappy will have sole control of the defense of any claims, provided, Customer may participate in the defense and settlement of claims at its own expense. Any settlement of claims that imparts any obligation or liability on Customer will require Customer’s prior written consent which consent shall not be unreasonably withheld. Customer will supply goHappy with all reasonable assistance and information in the defense and settlement of claims at goHappy expense.
8.2 If an Infringement Claim endangers or disrupts Customer’s use of the Software, goHappy may, in its sole discretion and at no charge to Customer, take any of the following actions:
(A) obtain a license for Customer’s continued use of the Software,
(B) modify the Software to avoid infringement without impairing the functionality,
(C) replace the Software with a compatible, functionally equivalent, and non-infringing replacement; or, if options (A) through (C) cannot be accomplished under commercially reasonable terms, or
(D) terminate this Agreement, and refund a pro-rata portion of fees paid in accordance with this Agreement.
8.3 Customer will defend, indemnify, and hold goHappy, its parent, subsidiaries, officers, directors, employees, stockholders, customers, agents and other representatives harmless from and against any and all third party claims, losses, liabilities, damages, expenses, costs, reasonable attorneys’ fees, and court costs related to or arising out of:
(A) Customer’s breach of this Agreement;
(B) Customer’s violation of the CAN-SPAM Act, Telephone Consumer Protection Act (TCPA) or violations of other government regulations resulting in penalty; or
(C) Customer’s knowing infringement of intellectual property rights of a third party.
Provided that goHappy will supply Customer with prompt written notice of any claims (which notice may be made via e-mail to Customer). Customer will have sole control of the defense of any claims, provided, goHappy may participate in the defense and settlement of claims at its own expense. Any settlement of claims that imparts any obligation or liability on goHappy will require goHappy’s prior written consent which consent shall not be unreasonably withheld. goHappy will supply Customer with all reasonable assistance and information in the defense and settlement of claims at Customer’s expense.
9.1 NEITHER PARTY SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE LESSER OF $10,000 OR THE FEES PAID BY CUSTOMER TO GOHAPPY IN THE PRECEEDING 12 MONTHS.
10.1 Reciprocal License. Notwithstanding any other provision of this Agreement, each party hereby grants to the other party a non-exclusive, royalty-free, non-transferable, worldwide license to use and reproduce such party’s trademark(s) or service mark(s) (the “Marks”) on the other party’s website(s) and in presentations in order to publicize the business relationship between the parties in connection with the Agreement (the “Trademark License”).
10.2 Restrictions. Each party (“Trademark Customer”) shall use the other party’s (“Trademark Licensor”) Marks in conformance with Trademark Licensor’s trademark usage policies as communicated to Trademark Customer in writing from time to time. Trademark Customer shall not attempt to register any of Trademark Licensor’s Marks, nor shall it adopt any derivative or confusingly similar names, brands, or marks, or create any combination marks with Trademark Licensor’s Marks. Trademark Customer acknowledges Trademark Licensor’s and its affiliates’ ownership and exclusive right to use Trademark Licensor’s Marks and agrees that all goodwill arising as a result of Trademark Customer’s use of Trademark Licensor’s Marks shall inure solely to the benefit of Trademark Licensor and its affiliates. Except for the Trademark License granted pursuant to Section 10.1, without the prior written approval of the other party, neither party will issue any public statements or promotional materials disclosing the existence of this Agreement or the performance of Services.
11.1 Relationship of Parties. goHappy is an independent contractor and is not an agent or employee of Customer. Except as may be specifically set forth herein, neither party has authority to bind the other by contract or otherwise. goHappy will perform any services covered under the Order Form and under the general direction of Customer, but goHappy will determine, in goHappy’s sole discretion, the manner and means that the services are accomplished, subject to the express conditions that goHappy will:
(A) comply with all applicable laws, statutes, ordinances, and regulations, and
(B) follow all Customer supplied guidelines and policies.
11.2 Assignment. The parties’ rights and liabilities will bind and inure to the benefit of their respective successors, executors, and administrators.
11.3 Equitable Relief. Either party may enforce this Agreement and any of its provisions by injunction, specific performance, or any other equitable relief, without prejudice to any other rights and remedies that such party may have, for breach of this Agreement.
11.4 Governing Law; Choice of Forum and Venue.
(A) This Agreement (including the arbitration agreement in this section where applicable) and all matters relating to this Agreement will be governed by and construed in accordance with the laws in force in the Commonwealth of Virginia without reference to conflict of laws principles;
(B) Any dispute, controversy or claim arising under, out of or relating to this Agreement (including, without limitation, any SOW), will be finally determined by arbitration conducted by the Judicial Arbiter Group (or, if unavailable, then such other similar group that can provide former judges as arbiters) in accordance with the Rules of Arbitration of the International Chamber of Commerce applicable to commercial disputes by a single arbiter who is (a) fluent in written and spoken English, the language governing this Agreement, and (b) skilled and experienced with cloud or internet services. The place of such arbitration will be in Richmond, VA, U.S.A. The judgment of the arbitrator will be final, non-appealable (to the extent not inconsistent with applicable law) and binding upon the parties, and may be entered in any court of competent jurisdiction.
(C) Notwithstanding any provision in this Agreement, either party may request any judicial, administrative, or other authority in any other jurisdiction to order any provisional or conservatory measure, including injunctive relief, specific performance, or other equitable relief, prior to the institute of legal or arbitration proceedings, or during the proceedings, for the preservation of its rights and interests or to enforce specific terms that are suitable for provisional remedies.
(D) This Agreement will not be governed by the conflict of laws rules of any jurisdiction, UCITA, or the United Nations Convention on Contracts for the International Sale of Goods, the application of which are expressly excluded.
11.5 Notice. Any notices will be given to the appropriate party (i) as set forth herein, or (ii) at the address specified at the beginning of this Agreement, or as otherwise specified in writing. Except as otherwise specifically set forth herein, notice will be by personal delivery, by certified or registered mail, or by reputable courier. Notice will be deemed given on personal delivery to the appropriate address, on receipt of certified or registered mail, or if sent by courier, on the date of delivery shown in the courier’s records.
11.6 Complete Understanding; Modification; Waiver. This Agreement constitutes the full and complete understanding of the parties and supersedes all prior understandings and agreements. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision
11.7 Force Majeure. Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 20 days, either party may cancel unperformed Services upon written notice (which notice may be made via e-mail to the other party). This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to pay for the Services provided.
11.8 Export. goHappy’s Products are subject to the U.S. Export Administration Regulations and goHappy will comply with such regulations when providing the Software.
11.9 Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable, the remainder of this Agreement will continue in full force and effect
11.10 Restrictions on Use.
(A) We prohibit the use of the Site or the Products by any person or organization that violates these terms of service
(B) Use of Site and Products. Customer further agrees to comply with the following in connection with use of the Site and the Products:
(C) Limitations on Use. Customer understands that not all messages or campaigns sent through use of the Site or the Products will be received by or will be capable of being viewed by their intended recipients. Customer further understands that delivery of messages by means of the Site or the Products may involve transmissions over various networks, and that the messages could be reformatted or otherwise revised to conform to the formatting or technical requirements of such networks. Customer also understand and agree that messages exceeding maximum character limitations may be truncated, abbreviated, reduced or otherwise abruptly cut short. Customer agrees that we may establish general practices and limits concerning use of the Site or the Products, including without limitation the maximum size of any messages or campaigns that may be transmitted by means of the Site or the Products. We reserve the right to modify or revise any Product in whole or in part, either temporarily or permanently and with or without notice. If we discontinue any Product in its entirety, we will provide you with advance notice and an opportunity to cancel your account with the appropriate pro-rata refund.
11.11 Monitoring. Although we have no obligation to monitor the content provided by you or your use of the Site or the Products, we may do so and may block any messages or campaigns and remove any content that we believe may be (or is alleged to be) in violation of the foregoing or any other provision of this Agreement.
12.1 Prohibition on Spam. The Site and the Products may not be used for the sending of unsolicited text messages (sometimes called “spam”) to non-Customer employees and candidates. All messages sent by means of the Site or the Products shall be in compliance with the Bureau of Consumer Protection’s CAN-SPAM Act or the Telephone Consumer Protection Act (“TCPA”).
12.2 Customer is responsible for ensuring that use of the Site and the Products do not generate a number of spam or other complaints in excess of industry norms. goHappy may terminate your access to or use of the Site and the Products if the level of spam or other complaints is higher than industry norms, as determined by us in our sole discretion.
12.3 Customer agrees to import, access or otherwise use only contact lists in connection with the Customer and its employees and candidates. Customer agrees not to send messages through the Site or the Products to non-approved distribution lists, newsgroups, publicly available press or media addresses or purchased cell phone numbers.
12.4 goHappy reserves the right without notice to take all measures of any nature (whether legal, technical or otherwise) to prevent bulk text messaging and/or other unauthorized texts or campaigns from entering, utilizing or remaining within our network.
12.5 Messages. Customer shall represent its organization accurately in use of the Site or the Products and will not impersonate any other person, whether actual or fictitious.
12.6 Customer agrees that they are the sole or designated “sender” (as such term is defined in the CAN-SPAM Act of 2003 or the Telephone Consumer Protection Act (“TCPA”) and any rules or regulations adopted under such act (the “CAN-SPAM Act”)) of any message sent using the Site or the Products. Similarly, for messages sent to Canadian phone numbers, Customer is the sole person sending or causing or permitting the message to be sent using the Site or the Products (within the meaning of Canada’s Anti-Spam Legislation, S.C. 2010, c. 23 (“Canada’s Anti-Spam Legislation”)).
12.7 Customer agrees that for any text message sent by Customer using the Site or the Products, will accurately and in a non-deceptive manner identify yourself and your organization and the purpose of the text.
12.8 Unsubscribe. Due to the nature of texting, unsubscribes will come in the form of a text communication, email or phone call coming from the receiver of the text message (“contact”). This communication will allow Customers to remove themselves from your texting list. goHappy will monitor these unsubscribe requests and “immediately” unsubscribe the contacts based on the request from the user and update the text addresses to which messages are sent through your goHappy account. Unsubscribes will be reported back to the Customer and will be blocked from further communication. Customer cannot charge a fee, require the recipient to give you any personally identifying information beyond a phone number, or make the recipient take any step other than sending a reply text or visiting a single page on an Internet website as a condition for honoring an unsubscribe request. As required under the CAN-SPAM Act, the Telephone Consumer Protection Act (“TCPA”) and Canada’s Anti-Spam Legislation, you acknowledge that you and are responsible for maintaining and honoring the list of unsubscribe requests following termination of your goHappy account and this Agreement. goHappy will assist in monitoring and being the central record of this.
12.9 Customer agrees that you shall not utilize the Site or the Products to send any message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose) (a “commercial electronic mail message” as defined in the CAN-SPAM Act, the Telephone Consumer Protection Act (“TCPA”) or Canada’s Anti-Spam Legislation) to any person who has opted out or otherwise objected to receiving such messages from Customer or another sender on whose behalf they may be acting.
12.10 Compliance with Laws. Both parties shall comply with all applicable data protection laws and regulations, including but not limited to the General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA).
13.1 Service Level: goHappy shall provide Customer with access to the Messaging Module twenty-four (24) hours a day, seven (7) days a week with a Monthly Uptime Percentage (defined below) of at least 99.9%. “Monthly Uptime Percentage” will be calculated as follows: the number of minutes the Services are accessible and not suffering from a Service Outage as reported to goHappy by Customer during each calendar month, divided by the total number of minutes in the calendar month. For purposes of this Agreement, “Service Outage” means any event that renders the Services unavailable to Customer, other than Scheduled Downtime or Excluded Downtime. In the event goHappy is in violation of this provision and is notified by Customer of such more than twice in a twelve (12) month period, then Customer may elect to terminate the Agreement upon ten (10) days written notice and goHappy shall refund the appropriate pro-rata portion of the Subscription Fee already paid but not used within the contract term.
14.1 Privacy Protection: Non-public personal information regarding customers or employees of Customer that is disclosed to goHappy (“NPPI”) will be used by goHappy only to the extent necessary to perform the Services. goHappy agrees to maintain the confidentiality of any such NPPI and to use and re-disclose it only as Customer specifically directs. goHappy agrees that it shall (i) not disclose or use any NPPI except to the extent necessary to carry out its obligations under this Agreement and for no other purpose, (ii) not disclose NPPI to any third party, including, without limitation, its affiliates, agents and consultants, without the prior written consent of Customer and an agreement in writing from such third party to use or disclose such NPPI only to the extent necessary to carry out goHappy’s obligations under this Agreement and for no other purposes, (iii) maintain, and shall require all authorized third parties utilized in the performance of the services to maintain, effective information security measures to protect NPPI from unauthorized disclosure or use, and (iv) provide Customer with information regarding such security measures upon the reasonable request of Customer. In the event of disclosure or loss, inability to account for, or unauthorized access to NPPI by goHappy or any third party, goHappy shall immediately notify Customer in writing and take appropriate action to prevent further disclosure or loss, or unauthorized access. goHappy shall cooperate with Customer to provide any notices and information regarding such unauthorized access to appropriate law enforcement agencies and government regulatory authorities.