TERMS OF SERVICE
Effective Date – March 9, 2019
THIS IS AN AGREEMENT BETWEEN YOU OR THE ENTITY THAT YOU REPRESENT (hereinafter “Customer” or “Your”) AND HappSales (hereinafter “Company”) GOVERNING YOUR USE OF HappSales suite of software applications
Company agrees to provide and Customer agrees to buy the services in accordance with the Service Description mentioned above on the terms of this Agreement.
RESTRICTIONS AND RESPONSIBILITIES
Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
Further, Customer may not remove or export or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations.
Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless the Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
While the Company will take standard industry measures to back up all Data stored using the Services, the Customer agrees to keep a separate back-up copy of all Data uploaded by it.
Customer and its personnel must –
not impersonate another person or misrepresent authorisation to act on behalf of others;
not attempt to undermine the security or integrity of the underlying systems;
not use, or misuse, the Service in any way which may impair the functionality of the underlying systems or impair the ability of any other user to use the Service;
not attempt to view, access or copy any material or data other than that which Customer is authorised to access in accordance with this Agreement;
not use the service in a manner, nor transmit, input or store any Data, that breaches any third party right or is objectionable, incorrect or misleading;
CONFIDENTIALITY; PROPRIETARY RIGHTS
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (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 Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
PAYMENT OF FEES
Customer will pay Company applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms. Customer shall be responsible for all taxes as applicable.
If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise, requires the payment of additional fees per the terms of this Agreement. Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days from the date of invoice in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
TERM AND TERMINATION
Subject to earlier termination as provided below, this Agreement is for the Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided.
Upon the end of the Services, Customer no longer has rights to access or use the Services. However, on Customer’s request, Company will make all Customer Data available for electronic retrieval for a period of thirty (30) days. At the end of such 30 day period, Company will delete or otherwise render inaccessible any of the content and application that remain in the Services Environment.
INTEGRATING THIRD-PARTY APPLICATIONS
Company does not make any warranty or representation on the availability of features from/through Third Party Applications. If a third party application ceases to provide a feature, Company may cease to make available that feature to the Customer and Customer is not entitled to any refund, discount or other compensation.
WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. Except as expressly set forth in this section, the services and implementation services are provided “as is” and company disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
Customer agrees to indemnify and hold the Company (along with its officers, directors, employees, and affiliates) harmless from and against any losses, damages, fines and expenses (including any legal fees and costs) arising out of or relating to any claims that Customer has used the Services in violation of another party's rights, in violation of any law, in violations of any provisions of the Terms, or any other claim related to your use of the Services, except where such use is authorized by Company.
LIMITATION OF LIABILITY
Customer agrees that Company shall, in no event, be liable for any consequential, incidental, indirect, special, punitive, or other loss or damage whatsoever or for loss of business profits, business interruption, computer failure, loss of business information, or other loss arising out of or caused by the use of or inability to use the service, whether or not company has been advised of the possibility of such damage. In no event shall Company’s entire liability to Customer in respect of any service, whether direct or indirect, exceed the fees paid by Customer to Company for the services under this agreement in the 12 months period immediately prior to the event giving rise to such liability.
Neither parties shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of the obligated party. Both parties will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either may cancel unperformed Services and affected orders upon written notice. This Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or obligation to pay for the Services.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub-licensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. This Agreement is governed by the substantive and procedural laws of India and both parties agree to submit to the exclusive jurisdiction of, and venue in, the courts in Bangalore, India in any dispute arising out of or relating to this Agreement.