CUSTOMER AGREEMENT

This Customer Agreement (“Agreement”) constitutes a legally binding agreement between Happysales AI, Inc. (“Happysales”, “Our”, “Us”, “We”) and the subscriber to our Platform (“You”/ “Your”), and governs Your access to and use of Our Platform. By accessing or using the Platform in any way, You represent that You have (a) read, understood and that if You are entering into this Agreement on behalf of an entity you have the authority to bind such entity to this Agreement; (b) the legal capacity to enter into this Agreement; and (c) read and understood Our privacy policy available at www.happysales.ai/privacy-policy (“Privacy Policy”).

You and Happysales are individually referred to as “Party” and collectively as “Parties”.

1. Access and use of the platform

Subject to Your compliance with this Agreement and solely during the Subscription Term, You shall have a non-exclusive, non-transferable, revocable limited right to access and use the Platform solely for Your internal business purposes in accordance with the Subscription Plan.
You may not (a) access or use the Platform to build a competitive product or service (b) modify, adapt, copy, hack or reverse engineer the Platform or any part thereof; (c) remove, change or replace any Happysales’ intellectual property; (d) transmit Customer Data to Us in violation of any applicable law, proprietary or privacy rights; (e) use the Website or Platform to knowingly transmit any harmful software or use any program to disrupt the functioning of the Platform (f) use manual or automatic device to retrieve or gather information from the Platform (g) conduct any penetration or vulnerability testing on the Platform; (h) use Platform, including insights provided by it, to violate or incite violation of any applicable rules, regulations or laws, stalk any individuals, transmit unsolicited mass mailing, and/or any spam content; (i) download or make a copy of Happysales Data or resell, sub-license or transfer any rights in the Platform or Happysales Data during or after termination of the Agreement; (j) use the Platform in relation to any form of benchmarking;
The Platform may temporarily be unavailable due to scheduled downtime for upgrades and maintenance in which case We shall use commercially reasonable endeavours to notify You in advance.
The access and use of the Platform is restricted to the specified number of individual Users as specified in the Subscription Plan. Each User shall be identified using unique login information such as usernames and passwords (“User Login”) and such User Login shall be used only by one individual. You acknowledge and agree to be responsible for the actions and omissions of the Users.
You acknowledge and agree that Your use of Third-party Services will be subject to the terms and conditions and privacy policies of such third-party and that We shall not be liable for Your enablement, access or use of such Third-party Services, including Your data processed by such third party. You should contact that Third- party Service provider for any issues arising in connection with use of such Third-party Service. You shall be responsible for providing the required notices, or obtaining the consent or required approvals as required by applicable laws from User(s) for enablement of such Third-party Services.
You may request a trial of the Platform by creation of accounts for trial use for a limited period of time (“Trial Period”). The Trial Period shall be subject to this Agreement and any additional terms that We specify. We, in our sole discretion, shall have the right to terminate the usage of the Platform and Your right to use the Platform at any time during the Trial Period and for any reason, without being liable to You.
The functioning of the Platform will require access to Your email provider. The access provided to Your email accounts shall only be used to discharge services under this Agreement.
We may employ Our machine learning algorithm to train on the data generated from usage of the insights provided by Us (“Training Data”) for the purpose of improving the Platform.

2. Intellectual property rights

Except for the limited rights granted to You under this Agreement, all rights, title and interest in and to all intellectual property and/or proprietary rights, title and interest in or related to the Platform, including patents, inventions, copyrights, trademarks, domain names, trade secrets , algorithms, methodologies or know-how, Happysales Data, insights provided by the Platform (collectively, “Intellectual Property Rights”) shall belong to and remain exclusively with Us.
You grant Happysales a worldwide license and right to use, copy, store or organise the Customer Data to provide, support, maintain and improve the Platform. Data sourced from You ceases to be considered Customer Data once aggregated, anonymized or otherwise substantially transformed by Happysales. Except for the rights expressly granted to Happysales herein, You do not grant any ownership rights in relation to the Customer Data to Happysales.
Happysales shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Platform or otherwise use any suggestions, enhancement requests, recommendations or other feedback You may choose to provide to Happysales.
All rights not expressly provided to You herein are reserved.

3. Charges and payment

Subscription Charges: All charges associated with Your Account shall be as set forth in the relevant Subscription Plan (“Subscription Charges”). The Subscription Charges are non-refundable and are due in full and payable in advance when You subscribe to the Platform.
Renewal: Unless Your Subscription Plan is terminated, Your Subscription Plan will renew Subscription Term equivalent in length to the then expiring Subscription Term at the then prevailing Subscription Charges.
Payment: You hereby authorize Us or Our authorized agents, as applicable, to bill You upon Your subscription to the Platform (and any renewal thereof). Unless otherwise stated in an Order Form, Your payment is due within thirty (30) days of our invoice date.
Late Payments/Non-payment of Subscription Charges: We will notify You in the event We do not receive payment towards Subscription Charges within the due date. We must receive payments within a maximum of ten (10) days from the date of Our notice of Your non-payment. If We do not receive payment within the foregoing time period, in addition to our right to other remedies available under law, We may (i) charge an interest for late payment @ 1.5% per month and/or; (ii) suspend Your access to and use of the Platform until We receive Your payment towards the Subscription Charges as specified herein and/or; (iii) terminate Your Account.
Applicable Taxes: Unless otherwise stated, the Subscription 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”).

4. Term, termination and suspension

The Subscription Term shall be set forth in the Subscription Plan.
Termination by You: You may terminate one or more of Your Account(s) in the event We materially breach this Agreement, provided that You shall provide an advance notice of such breach and afford Us not less than thirty (30) days to cure such breach. In case of such termination, We shall, pro-rata, refund the Subscription Charges for the remainder of the Subscription Term.
Suspension and Termination by Us: In addition to suspension for late payment or non-payment of Subscription Charges, We may suspend Your access to and use of Your Account or the Platform if You are in violation of this Agreement. We will provide You with a period of thirty (30) days (“Cure Period”) to cure or cease such activities which violate this Agreement. If You fail to cure or cease such activities within said Cure Period or if We believe that such breaches cannot be cured, Your Account shall be terminated forthwith. We may also terminate Your Account(s) in accordance with clause 1.6 or at the end of a Trial Period unless You subscribe to a Subscription Plan. Further, We also reserve the right to terminate Your Account at any time by notice due to business reasons which shall include discontinuation of the Platform in whole or any service on the Platform.
Termination for Insolvency: If the other Party files for bankruptcy or insolvency, either party may terminate this Agreement effective immediately.
Effect of Terminating Your Account: Following the termination of Your Account either by Yourself or by Us, Your access and use of the Platform shall cease. We retain all Customer Data in our possession for 30 (thirty) days from the date of effective termination (“Data Retention Period”). Beyond the Data Retention Period, We will delete all the Customer Data in our possession.

5. Confidentiality; data privacy and security

If You choose, or are provided with a login, and password, You must treat such information as confidential and refrain from disclosing it to any unauthorized personnel. We shall not be responsible for any mishaps arising out of such non-compliance by You. We shall have the right to disable any Account, at any time, if You fail to comply with this clause.
Except as otherwise expressly permitted pursuant to this Agreement, each of the Parties may use the other’s Confidential Information solely to perform its obligations under this Agreement and shall disclose such Confidential Information solely to those of its respective employees, representatives and agents on a need-to-know basis.
Happysales shall Process Training Data as a Data Controller who decides the means of Processing without relying on You. Happysales shall Process Personal Data of Users as a Data Controller in the limited circumstances set forth in Happysales’ privacy policy. Except for the foregoing, Happysales shall Process any Personal Data forming part of Customer Data only on Your behalf as Your Data Processor and that You are deemed to be the Data Controller.
Where Happysales Processes Personal Data forming part of Customer Data that originates from the European Economic Area (EEA), United Kingdom (UK) and/or Switzerland, the Data Processing Agreement shall apply to such Processing, in addition to this Agreement.
You agree and acknowledge that for the purpose of generating Happysales’ Data, Happysales shall combine Customer Data and other information provided by various third-party sources (“Third Party Vendors”), who have necessary approvals and authorizations and legal basis to share such information with Happysales.
You agree that You shall provide notices, and maintain necessary authorizations, approvals and permissions for Happysales to Process Personal data forming a part of the Customer Data and the Training Data. You are responsible for compliance with this clause, and You acknowledge and agree that Happysales shall have no liability for claims arising from Your failure to comply with this clause.
You acknowledge that Happysales shall use appropriate technical and organizational measures to protect the Customer Data. Happysales shall, without undue delay, notify You of any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the Customer Data Processed by Happysales.
Parties are solely responsible for compliance with their respective obligations under all applicable data protection laws.
You acknowledge and agree that Happysales may access or disclose information about You, Users, including Customer Data in order to (a) comply with the law or respond to lawful requests or legal process; or (b) to seek advice from professional advisors who advise and assist Happysales in enforcing its contracts and policies, and in relation to any disputes Happysales may become involved in. Further, at Happysales’ sole discretion, any suspected fraudulent, abusive, or illegal activity by You may be referred to law enforcement authorities.

6. Disclaimer

EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE PLATFORM IS PROVIDED “AS IS'' WITHOUT WARRANTY OF ANY KIND. WE ALSO DISCLAIM WARRANTY OF ANY KIND WITH RESPECT TO THE PLATFORM AND HAPPYSALES DATA, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. THE INSIGHTS OFFERED BY THE PLATFORMS ARE ONLY SUGGESTIVE IN NATURE. THE RISK OF USE OF THE PLATFORM AND ITS INSIGHTS TO MAKE DECISIONS REMAIN SOLELY WITH YOU AND HAPPYSALES SHALL NOT BE LIABLE IN ANY MANNER FOR ANY CONSEQUENCES ARISING OUT OF SUCH USE. 

7. Limitation of liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO ANY PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST SALES, LOST GOODWILL, LOSS OF USE, IMPACT ON BUSINESS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITY OR LEADS) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EITHER PARTY’S AGGREGATE LIABILITY WILL BE LIMITED TO AN AMOUNT EQUAL TO TWELVE MONTHS OF THE SUBSCRIPTION CHARGES PAID BY YOU PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY, WE DISCLAIM ALL LIABILITIES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WITH RESPECT TO THE SERVICES OFFERED DURING THE TRIAL PERIOD.

8. Miscellaneous

Assignment: This Agreement and any rights or obligations hereunder may be assigned by either Party only with the prior written consent of the other Party, except to Affiliates or in connection with a merger or acquisition.
Entire Agreement and Amendment: This Agreement, together with any Order Form(s), constitute the entire agreement, and supersedes all prior agreements between the Parties on the subject matter hereof. In the event of a conflict between any Order Form and this Agreement, this Agreement shall prevail. We may amend the Agreement and will notify You of any material amendments not less than ten (10) days prior to the effective date of any amendments. Your continued use of the Platform following the effective date of any such amendment may be relied upon by Us as Your acceptance of any such amendment.
Severability; No Waiver: A Party’s failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
Relationship of the Parties: The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
Governing Law and Jurisdiction: this Agreement shall be governed by the laws of the State of Delaware, United States of America without regard to any conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the courts at the State of Delaware. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules (“AAA Rules”), and judgement on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The language of the arbitration shall be English. The dispute shall be resolved by a sole arbitrator who shall be appointed in accordance with the AAA Rules. The decision of the sole arbitrator shall be final and binding on the Parties.
Survival: All clauses which, by their nature are intended to survive, including without limitation Clauses 2 (Intellectual Property Rights), 3 (Charges and Payment), 4.5 (Effect of Termination), 5 (Confidentiality, Data Privacy and Security), 6 (Disclaimer), 7 (Limitation of Liability),), 8 (Miscellaneous) and 9 (Definitions) shall survive any termination of Our agreement with You regarding the use of the Platform.
Notices and Consent to Electronic Communications: All notices from Us may be delivered in writing or to the contact mailing address provided by You; or (ii) to the e-mail address provided by You at the time of subscription. Our address for a notice is: [●] with a CC to [●] by electronic mail.
Force Majeure: Notwithstanding anything to the contrary contained elsewhere, We shall not be liable for unavailability of the Platform caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the internet, unauthorized loss, distribution or dissemination of Customer Data), or acts undertaken by third parties, including without limitation, distributed denial of service attacks.
Publicity Rights: You hereby grant Us a royalty-free, worldwide, transferable license to use Your trademark or logo to identify You as Our customer on Our Websites and/or marketing collateral and to include Your use of the Platform in case studies.

9. Definitions

When used in this Agreement with the initial letters capitalized, in addition to terms defined elsewhere in this Agreement, the following terms have the following meanings:

Account: means any accounts or instances created by You or on Your behalf for access and use of the Platform.

Affiliate: means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of fifty percent (50%) or more of the voting equity securities or other equivalent voting interests of the entity.

API: means the application programming interfaces developed, enabled by or licensed to Happysales that permits certain functionalities provided by the Platform.

Confidential Information: means all information disclosed by one Party to the other Party which is in tangible form and labelled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential. For purposes of this Agreement, Customer Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information which (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, or (f) is required by law to be disclosed by the receiving party, provided that the receiving party shall, to the extent legally permitted, give the disclosing party written notice of such requirement prior to disclosing so that the disclosing party may seek a protective order or other appropriate relief.

Customer Data: means all electronic data, text, messages, or other materials, including Personal Data pertaining to You, or Your User(s), transmitted by You or provided or obtained on Your behalf for the purpose of usage of the Platform under this Agreement.

Data Controller, Data Processor/ Processor: shall have the meaning given to them in the EU GDPR.

Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Platform provided or made available by Us to You or Your Users through the Platform or otherwise.

End-User: means any person or entity other than the Customer or the Users whose data is transmitted by or on behalf of the Customer to the Platform.

Happysales Data: means any data, including Personal Data compiled by Happysales from public data platforms and from third-party partners to facilitate provision of insights in the Platform.

Order Form(s): means any service order form or statement of work executed by the Parties specifying the details of the Subscription Plan.

Personal Data: means data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the Data Controller.

Platform: means Happysales’ proprietary online platform that enables You to identify sales prospect or leads and send personalized and targeted emails and any new services that We may introduce to which You may subscribe to, and any updates, modifications or improvements thereto, including individually and collectively, the Software, the API and any Documentation.

Processing/To Process 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.

Subscription Term: means the period during which You have agreed to use the Platform specified in the Subscription Plan

Subscription Plan: means the subscription plan, including the pricing, usage limits, Subscription Term or particular features and functionalities You may opt for as detailed in the Website and updated by Us from time to time or as set forth in an applicable Order Form.

Software: means any software provided by Us (either by download or access through the internet) that allows Customer to use any functionality in connection with the Platform.

Third-party Service(s) shall mean third party application(s) or service(s) integrating with the Platform through APIs or otherwise enabled through the Platform which require You to have Your own accounts with such third-party application(s) or service(s) in order to utilize them.

User: means Your designated users within the Platform, including an Account administrator, agents and other designated users.

Website(s) shall mean the websites owned and operated by Us including https://www.happysales.ai/