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Happeo Terms of Service

These Terms of Service (the “Terms”) form an integral part of the Agreement governing the subscription and use of the Services provided by Happeo to the customer defined in the Order Form or using the Services ("Customer" or “you”). 

The Agreement becomes effective when Customer signs an Order Form or other contractual document referencing the Terms, clicks to accept the Terms when ordering online, or accesses or uses the Service, whichever earliest (“Effective Date”). If you are taking any action above and entering into this Agreement on behalf of a Customer or other legal entity including any Affiliates, you represent that you have full legal power and authority to bind Customer or other legal entity, including any Affiliates to this Agreement. If you do not have such authority, or if you do not agree to all the terms and conditions of this Agreement, you, the respective entity or its Affiliates have no right to use the Service.

Happeo and Customer are each referred to as a “Party” and jointly the “Parties'

Effective as of: 9 Jan 2023

 

1. Definitions

1.1. “Add-On(s)” means integrations, applications, and other add-ons available or used with the Service.

1.2. “Additional Terms” means additional terms and conditions that may apply to certain additional services and features of the Service as may be provided by Happeo from time to time (“Additional Service(s)”). 

1.3. “Affiliate(s)” means any entity which is controlled by, in control of, or is under common control with a Party, where “control” means either the power to direct the management or affairs of the entity or ownership of more than 50% of the voting securities of the entity.

1.4. “Agreement” means, collectively, any Order Form(s) and these Terms entered into by the Parties, and any annexes and amendments thereto, as well as any Additional Terms that may apply from time to time.

1.5. “Authorized Users” means Customer’s officers, directors, employees, contractors and other persons to whom Customer assigns a Seat to access and use the Service, including Customer's Administrators.

1.6. “Confidential Information” means information that one Party (or an Affiliate) discloses or otherwise makes available in any form, whether in writing, orally, electronically to the other Party under the Agreement that is marked as “Confidential” or “Proprietary” or identified as such at the time of disclosure; or reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Happeo’s Confidential Information includes but is not limited to non-public information regarding features, functionality, performance, and pricing of the Services, non-public Documentation (if any), product and business plans and other Happeo Technology. Customer’s Confidential Information includes Customer Content. 

1.7. “Customer Content” means any data, materials or content uploaded or otherwise submitted in the Service by Customer or its Authorized Users, as well as Controller Data defined in the DPA. 

1.8. “Customer's Administrator(s)” means the Authorized User(s) who Customer has assigned to administrator accounts within the Service. 

1.9. “Documentation” means manuals and technical documentation created and provided by Happeo in connection with the Service, currently available at help.happeo.com, and as may be updated from time to time.

1.10. “Happeo” or “we” or “us” means the Happeo entity* specified in an Order Form or if not specified,  if the Customer resides in the United States, Canada or Mexico, Happeo Inc. (“Happeo US”) a Delaware company, or if the Customer resides outside the aforementioned territories, Happeo Oy, a Finnish limited liability company. For clarity, Happeo Oy owns all Intellectual Property Rights in and to the Service.

1.11. “Happeo Technology” means the Service, Documentation, technology, code, know-how, logos templates and any reports or output obtained from the Service, including Usage Data, anything delivered or developed as part of support or other services by Happeo, and any updates, modifications or derivative works of any of the foregoing, and any and all related or underlying Intellectual Property Rights, excluding Third-Party Products.

1.12. “Intellectual Property Rights” means all intellectual property or proprietary rights in any jurisdiction, including e.g. rights in or to patents, registered and unregistered copyrights, software, technology, domain names, trademarks, service marks, designs, and registrations and applications for any of the foregoing, data and documentation thereof, trade secrets and know-how (including but not limited to inventions, development information, specifications, plans, proposals and technical data).

1.13. “Order Form(s)” means any Happeo order documentation or online sign-up or subscription flow, regardless of the form, entered into between the Parties that specifies the services and products ordered by Customer and their pricing, and references the Terms.

1.14. “Seat(s)” or “Account(s)” means each individual user account granting access to Authorized Users to the Service as assigned or assignable by Customer’s Administrators via the admin panel within the Service.

1.15. “Service(s)” means the proprietary SaaS (Software as a Service) services of Happeo and any related services by Happeo, including without limitation deployment and onboarding services, but  excluding any Third-Party Products. Service(s) include access to the Happeo platform and use thereof, and the features and functionalities made available by Happeo from time to time, as well as support services by Happeo, if any.

1.16. “Subscription Term” means the initial term of Customer’s subscription to the applicable Service, as specified in the Order Form(s), and each subsequent renewal term (if any).

1.17. “Third-Party Product(s)” means any software, services and documentation proprietary to a third party which interfaces or interoperates with the Services, including any Add-Ons not developed by Happeo.

 

2. Access and assigning seats

2.1. Access and Customer Administrator Account(s). To access the Service, Customer may need to register for a cloud-based identity provider and access management service supported by the Service from time to time (such as Google Workspace, Azure AD, or Okta). Customer is responsible for designating individuals authorized to access Customer’s Administrators' account(s). Customer’s Administrators' actions are binding on the Customer in relation to Happeo,

2.2. User Directory and Number of Seats. Customer’s Administrators can control which users in Customer’s User Directory get synchronised (provisioned) with the Service and are assigned Seats in the Service. Customer’s Administrators have, via the admin panel within the Service, the ability to limit (but not decrease) or add, either manually or automatically, the number of Seats in Customer’s subscription of the Services. Customer shall ensure that the number of Seats synchronized from Customer’s User Directory or added manually corresponds to the number of Seats that Customer has intended to assign to Authorized Users at any given time. 

2.3. Assigning Seats to Customer Affiliate(s). Customer may assign Seats to its Affiliate(s) and their officers, directors, employees and contractors, in which case any such individuals shall be deemed Customer’s Authorized Users. Customer shall inform Happeo of any and all Affiliates using the Services under Customer’s Agreement. Customer and the applicable Affiliate will be jointly and severally liable to Happeo for such Affiliate(s)’ and Customers’ Authorized Users’ use of the Service under the Agreement. Notwithstanding anything to the contrary in the Agreement, if Customer assigns Seats to Affliates, only Customer may seek to enforce the Agreement against Happeo. For avoidance of doubt, if  Customer’s Affiliate(s) executes a separate Order Form with Happeo for a subscription to the Service, it shall form a separate agreement between Happeo and the respective Affiliate, and such separate agreement between Happeo and the respective Affiliate of the Customer does not grant any rights to Customer or Customer’s other Affiliates or impose any obligations on Happeo with respect to Customer or its other Affiliates.

 

3. Use of the service

3.1. Terms of Use. Authorized Users’ use of the Service is subject to each Authorized User’s acceptance of separate Terms of Use currently available at happeo.com/terms-of-use  as may be updated by Happeo from time to time. Customer shall ensure and is liable for its Authorized Users’ use of the Service in compliance with the Terms of Use. 

3.2. Right to use the Services.  The Service is provided on a subscription basis. Subject to compliance with the Agreement and the Terms of Use, Happeo grants Customer and its Authorized Users a limited, non-exclusive, revocable, non-transferable, non-sublicensable right during the applicable Subscription Term to access and use the Services designated in the Order Form. The Services may be used solely for Customer’s internal purposes. For the avoidance of doubt, the Customer will be liable for Authorized Users’ use of the Service and their compliance with the terms and conditions of this Agreement. Customer acknowledges and agrees that it has no right to obtain a copy of the underlying software related to any Services.

3.3. Access Credentials. Accounts are personal and shall not be shared by multiple individuals. Customer shall ensure that all user IDs, passwords, and other access credentials (such as API tokens) for the Service are kept strictly confidential by Customer and its Authorized Users and not shared with any unauthorized persons. Customer shall notify Happeo promptly of any breach of security or unauthorized access to or use of an Account, which Customer or Customer's Administrators have become aware of. If any Authorized User is no longer entitled to access the Service, Customer shall promptly terminate that individual’s access to the Service. Customer is liable for any and all actions taken using the user IDs, passwords and other access credentials designated to Customer, Customer's Administrators and Authorized Users.

3.4. Prohibited Use. Customer must not, and must not allow Authorized Users or any third party to: (i) rent, lease, copy, transfer, resell, sublicense, time-share, or otherwise provide access to the Service to a third party (except access by Authorized Users); (ii) publicly disseminate information regarding the performance of the Service (which is deemed Happeo’s Confidential Information); (iii) modify or create a derivative work of the Service or any portion of it; (iv) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any Service (including Happeo’s code), except to the extent expressly permitted by applicable law and then only with advance notice to Happeo; (v) access the Service for the purpose of building a competitive product or service or copying its features or user interface; (vi) use the Service for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without Happeo’s prior written consent; (vii) remove or obscure any proprietary or other notices contained in the Service, including in any reports or output obtained from the Service (viii) upload, transmit, or submit any viruses, malware, or malicious code, or other harmful materials to the Service, or otherwise interfere with the operation of the Service; (ix) use the Service in an unlawful manner or for any unlawful purpose; (x) provide any false or misleading information or any information it does not have the right to provide; or (xi) otherwise violate any of Happeos’ published rules, policies, or guidelines.

3.5. Support and other Related Services. Happeo makes available web-based support through its website (currently available at help.happeo.com). Additional support services may be available to the Customer upon payment of applicable fees. Any support services are subject to this Agreement and Happeo’s applicable support policies. Customer acknowledges that certain Services, such as deployment and onboarding Services that Happeo may provide to Customer under the Agreement, are dependent on Customer’s reasonable and timely cooperation and the accuracy and completeness of any information given by Customer to Happeo. Provision of such Services may require access granted to Happeo and/or its subcontractors by Customer to Customer’s service environment and/or Customer Content.

3.6. Trials. If Customer receives free access or a trial or evaluation subscription to the Service (a “Trial Subscription“), then Customer may use the Services in accordance with the terms and conditions of this Agreement for a period of seven (7) days or such other period granted by Happeo (the “Trial Period“). Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If Customer does not enter into a paid Subscription Term, this Agreement and Customer’s right to access and use the Services will terminate at the end of the Trial Period. Happeo has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, Happeo WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.

 

4. Proprietary rights

4.1. Rights in Customer Content.  Customer retains all rights, title, and interest (including any Intellectual Property Rights) in and to Customer Content (excluding any Happeo Technology). Customer hereby grants Happeo and its Affiliates a non-exclusive, worldwide, sub-licensable, royalty-free right and license to host, use, copy, store, transmit, modify, display, and create derivative works of the Customer Content as reasonably necessary to provide and facilitate provision of the Services and any other services requested by Customer. 

4.2. Rights to Happeo Technology. Happeo (or its suppliers) retain all rights, title and interest (including all Intellectual Property Rights) in and to all Happeo Technology and Happeo reserves all rights to Happeo Technology not specifically granted in the Agreement. Happeo Technology includes data comprising operational and performance data related to Authorized Users’ use of and interaction with the Service, including, without limitation, which features are used, how they are used, length of visits and similar data and metadata generated in connection with the use of the Service as well as analysis of such data and derived findings, provided it has been aggregated or otherwise pseudonymized in such a manner that it cannot be attributed to a specific person without the use of additional information which is stored separate from the actual usage data (“Usage Data”). Usage Data may be used to improve the Services during or after the term of the Agreement. Any identifiers connected to Usage Data will be deleted after a reasonable time from the termination of the Agreement. 

4.3. No Transfer of Intellectual Property Rights. Except as expressly set forth in these Terms, the Agreement does not grant either Party any rights, implied or otherwise, to the other's Intellectual Property Rights. 

4.4. Feedback.  If Customer or Authorized Users chooses to provide any suggestions, comments, improvements, information, ideas or other feedback or related material to Happeo (“Feedback”), Customer acknowledges and agrees that Happeo has no responsibility to evaluate, use or compensate Customer or its Authorized Users for any Feedback they may choose to submit, and that such Feedback will not be deemed by Happeo as Confidential Information of Customer. Nothing in this Agreement limits Happeo’s right to independently use, develop, evaluate, or market or sell products, whether incorporating Feedback or otherwise.

 

5. Developments and early stage services

5.1. Developments. The Service may develop and evolve over time. Happeo may, at its option, make updates, bug fixes, modifications or improvements to the Service from time to time. Happeo may also make such new versions, applications, features, functionalities or Add-Ons to the Service available from time to time, the use of which may be subject to Additional Terms.

5.2. Early Stage Services. Happeo may provide Customer with access to “Beta”, or other early stage Services, integrations, or features (“Beta Releases”), which are optional for Customer to use. Happeo may use good faith efforts in its discretion to assist Customer with Beta Releases. Without limiting the other disclaimers and limitations in the Agreement, Customer acknowledges and agrees that Beta Releases may not be complete or fully functional and may contain bugs, errors, omissions, and other problems for which Happeo will not be responsible. Accordingly, any use of Beta Releases are at Customer’s sole risk. Happeo makes no promises that future versions of Beta Releases will be released or will be available under the same commercial or other terms. Happeo may terminate Customer’s right to use any Beta Releases at any time for any reason or no reason in Happeo’s sole discretion, without liability.

 

6. Personal data

6.1. Obtaining Consents. Customer and Customer’s Administrators may have the ability to access, monitor, use, disclose or otherwise process personal data of Authorized Users within the Authorized Users’ Accounts. Customer shall be responsible for obtaining and maintaining all required consents or approvals (in each case as required by applicable law) from Authorized Users to allow: (i) Customer's and Customer’s Administrators’ access, monitoring, use, disclosure and other processing of such data and (ii) Happeo to provide the Service and collect and process data pursuant to the terms of this Agreement.

6.2. Data Processing. In the course of providing the Service to Customer, Happeo may process personal data or personal information (as defined in applicable data protection legislation, including the EU General Data Protection Regulation 2016/679 and the UK Data Protection Act 2018 (collectively and as applicable the “GDPR”) and, the California Consumer Privacy Act of 2018 as amended by the California Privacy Rights Act of 2020 (California Civil Code §§ 1798.100 to 1798.199)  (“CPRA”), each as may be amended or replaced from time to time) as a data processor or service provider on behalf of Customer. To the extent Happeo is the recipient of personal data protected by applicable data protection legislation, such processing shall be subject to the Data Processing Addendum (“DPA”) available at happeo.com/dpa, as may be amended from time to time,  and incorporated by this reference into the Agreement.

 

7. Third-Party Products and rights

7.1. Compliance with Third-Party Terms Customer’s use of Third-Party Products within the Service may be subject to third-party terms. Customer shall obtain and maintain the relevant rights and licenses to use the Third-Party Products, and shall comply with all applicable terms of Third-Party Products, which Customer chooses to use within the Service. Customer shall not take any action that would cause Happeo or the Service to become subject to any third-party terms (including open source license terms).

7.2. Third-Party Access to Customer Content. If Customer or its Authorized Users chooses to install, enable or use Third-Party Products within the Service, Customer acknowledges and accepts that providers of those Third-Party Products may have access to Customer Content,  and Happeo will not be responsible for any resulting use, disclosure, modification, or deletion, loss, or or breach of such Customer Content. 

7.3. Access at Own Risk. Customer accesses Third-Party Products and the content thereof solely at its own risk. Happeo makes no representations or commitments in relation to any such Third-Party Products or for any transactions completed by the Customer with any such third party or for any Third-Party Products integrated, or which interfaces with, or which can be accessed via, the Service. No responsibility can be assumed by Happeo for hosting any Third-Party Products or for any unavailability of or faults in any Third-Party Products.

7.4. Respecting Third-Party Rights. Customer represents and warrants that Customer’s collection, use, and disclosure of Customer Content or Customer’s use of Third-Party Products in the Services do not violate any third-party rights, including Intellectual Property Rights, privacy and publicity rights of any third parties. If Customer receives any valid takedown requests or infringement notices related to Customer Content or Third-Party Products, it must immediately stop using the related item within the Service and promptly notify Happeo in writing. If Happeo receives any valid takedown requests or infringement notices related to Customer Content or Customer’s use of Third-Party Products, Happeo may respond in accordance with its policies, including immediate removal of the relevant content from the Service.

 

8. Subscription and renewal

8.1. Subscription Start Date. Subscription Start Date is the date specified in the Order Form, or if not specified, the Effective Date.

8.2. Subscription Term. Unless otherwise agreed in the Order Form, the initial Subscription Term is twelve (12) months from the Subscription Start Date. 

8.3. Renewal of Subscription Term

a. Automatic Renewal. Unless otherwise agreed in the Order Form, after the initial Subscription Term, Customer’s subscription will automatically renew for additional successive twelve-month (12-month) periods until either Party gives the other Party a written notice of non-renewal at least sixty (60) days before the end of the then-current Subscription Term. If such notice of non-renewal is submitted less than sixty (60) days prior to the end of the Subscription Term, the Subscription Term shall renew as provided in this Section 8.3. and the termination shall become effective only at the expiration of the renewed Subscription Term.

b. Number of Seats at Renewal.The number of Seats to be renewed for a new Subscription Term is based on Customer’s committed Seat count specified in the Order Form or Customer’s actual Seat count at the time of renewal, whichever higher. Customer may decrease the number of Seats to be renewed by contacting their Account Manager or via the admin panel within the Service, as applicable, provided that Customer has given notice of such decrease within the notice period set forth in Section 8.3 (a).

8.4. No cancellation. Customer cannot decrease the number of committed Seats during the Subscription Term or otherwise cancel or terminate an ongoing Subscription Term except as expressly permitted by Section 10.2. (Termination for Cause).

 

9. Fees and invoicing

9.1. Fees and Currency. Customer will pay Happeo the fees specified in the applicable Order Form (“Fees”) for the duration of the entire Subscription Term specified in the Order Form, regardless of Customer’s actual use of the Service. Unless otherwise specified in the Order Form, Fees are payable in USD for Order Forms executed with Happeo US and in EUR for all other Order Forms. All payments are non-cancelable and non-refundable, except where expressly set forth in Section 10.2 (Termination for Cause).

9.2. Standard Billing Interval. Unless otherwise specified in the Order Form, Services are invoiced upfront at the beginning of the Subscription Term for the first 12 month period, and thereafter for each subsequent 12-month period in advance.

9.3. Fee Increases. All Fees are subject to an automatic increase of 5% over the then-current Fees for each renewing Subscription Term without prior notice. Happeo will provide a notice for any increases in Fees greater than 5%, at least 90 days prior to the applicable renewing Subscription Term.

9.4. Invoicing Additional Seats. If Customer or any of Customer's Administrators add Seats, either manually or by enabling automatic increase of Seats based on Customer’s actual user count per month, in excess of the number of committed Seats specified in the Order Form (“Additional Seats”), such Additional Seats will be subject to additional Fees as per the Order Form from the beginning of the calendar month during which the Additional Seats were added. The overage Fees for Additional Seats are charged monthly in arrears, but can be pooled and invoiced at a later date at Happeo’s discretion. After Additional Seats have been created, all invoicing of Seats will be based on the increased number of Seats for the remainder of the ongoing Subscription Term.

9.5. Taxes.  All Fees are exclusive of taxes and any other governmental levies. Happeo shall add any VAT or sales tax, if applicable, to the invoice according to applicable regulations. Customer shall be responsible for all taxes and levies associated with Services or use thereof other than taxes based on Customer’s net income. If Customer is under applicable laws or regulations required to withhold and deduct any taxes from the Fees, Customer shall promptly provide Happeo with a tax certificate or other such documentation authorized by appropriate tax authority needed to process any refunds Happeo is entitled to under the applicable laws and regulations. Customer shall compensate all reasonable losses, costs and expenses incurred by Happeo due to Customer failing to comply with this obligation.

9.6. Invoicing Information. Customer shall, by the date of signing the Order Form, provide Happeo with accurate and complete invoicing information, including but not limited to full legal name and address of the paying legal entity, and any purchase order numbers, as applicable, and is responsible for keeping invoicing information up-to-date. A failure by Customer to provide complete and accurate invoicing information to Happeo shall not waive Customer’s obligation to pay the Fees by due date. Happeo’s preferred invoicing method is electronic invoicing via email (as pdf) or e-invoice, where available. If Customer requests paper invoices sent via mail, Happeo has the right to charge a reasonable invoicing surcharge.

9.7. Payment Term.  The payment term is 14 days net, unless Customer is paying by credit card, or otherwise is agreed in the applicable Order Form. Unpaid amounts are subject to a late payment fee on any outstanding balance of the lesser of 8% per annum (calculated on a pro rata basis) or the maximum amount allowed by applicable law, whichever is lower, plus all expenses of collection.

9.8. Payment Method. All payments shall be made via wire transfer to Happeo’s bank account specified by Happeo in the invoice, or upon Customer’s written request, via credit card in which case 3% credit card surcharge will apply. All payments shall refer to the invoice reference number. Other payment methods need to be expressly agreed in the Order Form, and may be subject to surcharges.

9.9. Inaccuracies in Invoicing. If Customer believes that Happeo has billed Customer incorrectly, Customer must contact Happeo no later than 10 days after the date of the invoice detailing the extent and reasons for inaccuracies in invoicing, or otherwise the invoicing is deemed accepted by Customer. Customer is deemed to have received the invoice no later than the next business day after the invoice was sent to Customer by Happeo. Customer shall remain responsible to pay all undisputed Fees. 

 

10. Term and termination

10.1. Agreement Term. This Agreement will enter into force on the Effective Date and, unless terminated early pursuant to Section 10.2 (Termination for Cause), continue until the expiration of Customer’s last Subscription Term (including any renewal Subscription Terms), or if applicable, until the expiration or termination of Customer’s rights to use the Services.  

10.2.  Termination for Cause. The Agreement can be terminated with immediate effect by a Party, if the other Party:

a. is in material breach of the Agreement (including failure to pay any amount when due) and fails to cure that breach within thirty (30) days after receipt of written notice by the counterparty; 

b. ceases its business operations or becomes subject to insolvency proceedings; or

c. is repeatedly in material breach of the Agreement notwithstanding any cure of such breaches.

Upon termination, except in case of Happeo’s material breach, all fees payable to Happeo until the end of the Subscription Term, will become immediately due and payable, and Customer’s right to use the Service ceases. In case Customer terminates the Agreement for cause and Happeo is the defaulting Party, Happeo will refund a pro-rata portion of any unused subscription fees Customer has pre-paid for the terminated portion of the applicable Subscription Term.

10.3. Suspension. Happeo may immediately suspend Customer’s and/or any Authorized User’s access to the Service if: (a) Customer or any of its Authorized User breaches Section 3.5 (Prohibited Use) or fails to pay any undisputed amount when due; or (b) Happeo determines in good faith that such suspension is reasonably necessary to avoid possible harm to its own, Customer’s, or any third party’s property, systems, or information. Happeo will notify Customer of the suspension and reason thereof as soon as commercially practicable, and restore service as soon as commercially practicable once the underlying issue is resolved. 

10.4. Rights and Obligations upon Termination,  Surviving Sections. Upon termination of the Agreement: (i) the rights granted under the Agreement by one Party to the other will cease immediately; (ii) Happeo shall provide Customer access to, and the ability to export, Customer Content for thirty (30) days at Happeo’s then-current rates (iii) Happeo may delete Customer Content thereafter in accordance with its then-current retention policy and (iv) upon request each Party will use commercially reasonable efforts to promptly return or destroy Confidential Information of the other Party. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, intellectual property rights, indemnity obligations, warranty disclaimers, and limitations of liability.

 

11. Confidentiality

11.1. Confidentiality Obligation. Each Party (as the Party receiving Confidential Information) agrees not to use or disclose to third parties (except in performance of the Services or as otherwise permitted in this Agreement) the other Party’s Confidential Information. Each Party may share the other Party’s Confidential Information with its, and its Affiliates’, employees, agents or contractors on a legitimate need-to-know basis (which, for Happeo, includes its subcontractors referenced in Section 16.4.), provided that the Party remains responsible for any recipient’s compliance with the terms of this Section 11. and that such recipients are bound by confidentiality obligations no less protective than those set herein. These confidentiality obligations do not apply to any information that: (a) is or becomes generally available to the public; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Confidential Information of the disclosing Party; or (e) is required to be disclosed by law. 

11.2. Exemptions from Confidentiality. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required: (a) to comply with the order of a court or other governmental body, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made are a reasonable effort to obtain a protective order; or (b) to establish a party’s rights under this Agreement; or (c) in confidence, to legal advisors, consultants, accountants, banks, and financing sources, and their advisors; and (d) the terms and conditions of this Agreement in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction.

11.3. Equitable Relief. The Parties acknowledge that disclosing Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section 11, each Party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.

 

12. Indemnification

12.1. Customer agrees to defend and indemnify Happeo, its Affiliates and their directors, officers, employees, suppliers and agents against any third-party claims and liabilities (including reasonable legal fees) arising from the Customer’s (or its Authorized Users’) use of the Services in violation of the Agreement or applicable law, or alleging that Customer Content (including without limitation Controller Data) infringe or misappropriate any Intellectual Property Rights or other rights of such third party.  

 

 

13. Warranties and disclaimers

13.1. Happeo uses reasonable efforts to maintain the availability of Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Happeo or by third-party providers, or because of other causes beyond Happeo’s reasonable control, but Happeo shall use reasonable efforts to provide advance notice of any major scheduled service disruption. HOWEVER, HAPPEO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT CUSTOMER CONTENT WILL BE PRESERVED WITHOUT LOSS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. HAPPEO WILL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO THE SERVICE OR CUSTOMER CONTENT BEYOND ITS REASONABLE CONTROL. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND HAPPEO TECHNOLOGY ARE PROVIDED “AS IS” AND HAPPEO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE,  FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. 

13.2. HAPPEO DISCLAIMS ALL WARRANTIES AND LIABILITY AND SUPPORT IN RELATION TO ANY THIRD-PARTY PRODUCTS (WHETHER OR NOT THESE ITEMS ARE DESIGNATED BY HAPPEO AS “POWERED”, “VERIFIED” OR OTHERWISE), OR FOR PERSONAL DATA RECEIVED FROM CUSTOMER IN BREACH OF THIS AGREEMENT.

 

14. Limitation of liability

14.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT WILL EITHER PARTY OR ITS SUPPLIERS BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGE, INCLUDING WITHOUT LIMITATION LOSS OF USE, BUSINESS OR PROFITS, LOST OR INACCURATE DATA, COST OF DELAY, LOST OR REPUTATIONAL HARM, IN EACH CASE, WHETHER OR NOT ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

14.2. THE AGGREGATE LIABILITY OF US TOGETHER WITH OUR AFFILIATES AND SUPPLIERS WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO HAPPEO FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY. FOR BETA RELEASES, HAPPEO’S TOTAL LIABILITY WILL HOWEVER NOT EXCEED IN AGGREGATE FIFTY EURO (50 EUR). 

14.3. THE LIABILITY LIMITATIONS IN THIS SECTION 14 DO NOT APPLY TO ANY PAYMENT OBLIGATIONS, OR DAMAGE CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

14.4.  IN CASE THE APPLICABLE LAW DOES NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION 14, THIS SECTION 14 WILL APPLY  TO THE MAXIMUM EXTENT PERMITTED BY LAW.

 

15. Updates to the terms

15.1. Terms of Service. Happeo may modify and update the Terms from time to time by posting the modified Terms at https://www.happeo.com/tos or with notice to you. Any non-material modifications will take effect immediately upon posting. If a modification is material, Happeo will provide Customer with at least 45 days prior notice pursuant to section 16.12. If the effective date of such material modification is during your then-current Subscription Term, and you object to the modification by giving us a notice pursuant to Section 16.12 within thirty (30) days of us providing notice of the modifications, then (as your exclusive remedy) your subscription will continue on the existing terms until the end of your then-current Subscription Term and then expire. 

15.2. Other Updates. Happeo may from time to time update Happeo’s policies, including without limitation the Terms of Use, and Documentation to reflect changes in our products, business or law. Such changes will take effect from the date of posting. 

15.3. Additional Terms.  Happeo may from time to  time launch Additional Services that are subject to Additional Terms. You acknowledge and agree that if such Additional Terms are accepted by  Customer’s Administrator or the Additional Service is accessed or used by any of Customer’s Authorized Users (whichever occurs first), you agree to be bound by such Additional Terms. If there is a conflict between these Terms and such Additional Terms, the Additional Terms shall prevail with respect to your use of that Additional Service.

 

16. Other terms

16.1. No Archiving of Customer Content. Happeo does not provide an archiving service. Upon termination, Customer will have the right to export and Happeo has the right to delete Customer Content as provided in Section 10.4. Happeo expressly disclaims all other obligations with respect to archiving.  Customer is responsible for making its own regular backups of important Customer Content.

16.2. Assignment.  You may not assign or transfer the Agreement without our prior written consent, except that you may assign the Agreement in their entirety to your successor resulting from a merger, reorganization, acquisition, or sale of all or substantially all of its assets or voting securities, provided that you provide us with prompt written notice and the successor agrees in writing to assume all of your obligations under this Agreement. Any attempt to transfer or assign the Agreement except as expressly authorized above will be void. We may assign our rights and obligations under the Agreement (in whole or in part) without your consent. Subject to the forgoing, the Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.

16.3. Publicity. Unless otherwise specified in the applicable Order Form, Happeo may make public references with respect to Customer’s use of the Services and use the Customer’s name, logo, and trademarks to identify Customer as a customer of Happeo and a user of the relevant Service(s) on Happeo’s website and in Happeo marketing materials. At Happeo's request the Customer shall reasonably cooperate with Happeo in preparing a case study document on how the Services are being used by the Customer and how the Customer benefits from such use.

16.4. Subcontractors. Happeo may use subcontractors and permit them to exercise the rights granted to Happeo in order to provide the Service and related services under the Agreement. These subcontractors may include, for example, Happeo’s hosting provider. However, subject to all terms and conditions of the Agreement, Happeo will remain responsible for: (i) compliance of its subcontractors with the terms of the Agreement; and (ii) the overall performance of the Services if and as required under the Agreement.

16.5. No Partnership. The Parties to the Agreement are independent actors. The Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship between the Parties. Neither Party has the power to bind the other or incur obligations on the other Party’s behalf without that Party’s prior written consent.

16.6. Force Majeure. Neither Party will be liable for any delay or failure to perform its obligations under the Agreement (other than payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.

16.7. Export Compliance. The Services and Happeo Technology may be subject to export laws and regulations. Customer is responsible for obtaining any required export authorizations required for the use of the Service under applicable export controls laws and regulations. The Customer represents that it or its Affiliates are not designated in any U.S. government or EU denied-party list or other sanctions list, and shall not permit Authorized Users to access or use any Service in a US or EU embargoed country or in violation of any U.S. export law or regulation.

16.8. Anti-Corruption. Neither Party has received or been offered any illegal or improper bribe, kickback, payment, gift, or similar matter of value from any employees or agents of the other Party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

16.9. No Waiver. Severability. Failure to enforce any provision of this Agreement will not constitute a waiver.  If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect.

16.10. No Third-Party Rights. Nothing in the Agreement confers on any third party the right to enforce any provision of the Agreement. 

16.11. Entire Agreement. The Agreement represents the Parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Happeo Technology or any other subject matter covered by the Agreement. Any terms provided by Customer (including as part of any purchase order or other business form used by Customer) are for administrative purposes only, have no legal effect and are not binding on Happeo unless expressly accepted in writing by Happeo. 

16.12. Notices. Any notice under the Agreement must be given in writing, and in the English language. Each Party consents to receiving electronic notices as the form of legal written communications. Customer shall send notices by email at legal@happeo.com. Happeo shall send notices to Customer at the email address specified in the Order Form, or in the absence of such email address, to the email address of Customer’s known representative. Neither Party is responsible for any automatic filtering the other Party or its network provider may apply to email notifications. Any notice will be deemed given upon the first business day after sending.

 

17. Governing law and dispute resolution

17.1. The Agreement is governed by the laws of Finland without regard to any conflict of law provisions. Any dispute, controversy or claim arising out of or relating to the Agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The number of arbitrators shall be one. The seat of arbitration shall be Helsinki, Finland. The language of the arbitration shall be English. The arbitral proceedings and award shall be confidential.

17.2. If the Agreement is entered into by Happeo US this paragraph of Section 17 will apply in lieu of the preceding paragraph. The Agreement is governed by the laws of the state of Delaware in the United States, without regards to its conflicts of laws principles. Any dispute, controversy or claim arising out of or relating to the Agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration conducted by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and the Expedited Procedures therein. The number of arbitrators shall be one. The seat of arbitration shall be New York. The language of the arbitration shall be English. The arbitral proceedings and award shall be confidential.

17.3. Notwithstanding anything to the contrary in this Section 17, Happeo may file suit in any court having jurisdiction to seek injunctive or other equitable relief to prevent or address an actual or threatened breach of confidentiality obligations and/or its Intellectual Property Rights.

 

18. Happeo services re-sold by resellers

18.1. In case the Services have been re-sold by Happeo’s official reseller (“Reseller”), the use of the Services by Reseller’s customer and Happeo’s liabilities in relation to the provision of the Service shall be governed as set out in these Terms. 

 

19. Order of precedence

19.1. In the event of any conflict or inconsistency between the terms and conditions, the following order of precedence applies: i) Order Forms, ii) DPA, if applicable and solely to the extent Personal Data processing is concerned, (iii) Terms, and iv) other annexes in descending order.

 

 



Order forms that have been issued before January 16, 2022 but after November 13, 2019 refer to these terms.

Purchase Orders and Order forms that have been issued before November 13, 2019 and after January 14, 2018 refer to these terms

Purchase Orders and Order forms that have been issued before January 14, 2018 refer to these terms.  


 

*If you are based in the United States, Canada or Mexico Happeo US shall mean Happeo Inc, a Delaware company. If you are based outside of the United States, Canada or Mexico, Happeo shall mean Happeo Oy, a Finnish limited liability company with business ID 2802188-2, with registered address at Fredrikinkatu 48, 00100 Helsinki, Finland.