End User Licence Agreement (EULA)
You must read and agree to the EULA below to use HappyApp.
Please read this End User Licence Agreement (EULA) carefully, as it sets out the basis upon which we license the Software for use.
By accessing or using the Software or Hosted Service, the User expressly agrees to be bound by the provisions of this EULA.
1.1 In this EULA:
"App Store" means the online sales and distribution platform operated by a third party by means of which the User obtained the Software;
"App Store Terms and Conditions" means the terms and conditions of the App Store that set out any rights and/or obligations of the User in relation to the Software and/or any of the Services;
"Business Day " means any weekday other than a bank or public holiday in England;
"Business Hours " means the hours of 09:00 to 17:00 GMT/BST on a Business Day;
"Documentation" means the documentation for the Software produced by the Licensor and delivered or made available by the Licensor to the User, as may be amended by the Provider from time to time;
"Effective Date" means the date upon which the User receives a written confirmation that this EULA has come into force following the User's express consent to this EULA;
"EULA" means this end user licence agreement, including any amendments to this end user licence agreement from time to time;
"Export Laws" means all applicable laws restricting and/or regulating:
(a) the inter-jurisdictional import, export, supply, disclosure, transfer or transmission of goods, services, software, technology, technical know-how, data and/or information; and/or
(b) the import, export, supply, disclosure, transfer or transmission of goods, services, software, technology, technical know-how, data and/or information to designated entities or persons, or to designated classes of entities or persons;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks, pandemics and wars);
"Hosted Services" means the HappyApp hosted services that are made available by the Licensor to the User as a service via the internet and may be accessed and used by means of the Software;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Licensor" means Techfinity Ltd, a company incorporated in England and Wales (registration number 8324213) having its registered office at Suite 81, 105 London Street, Reading, RG1 4QD;
"Maintenance Services" means the supply to the User of Updates and Upgrades;
"Platform" means the HappyApp platform managed by the Licensor and used by the Licensor to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
"Privacy Policy” means the Licensor’s privacy policy as made available at www.happyapp.org/legal/privacy or such other website address as may be notified to the User from time to time.
"Services" means any services that the Licensor provides to the User, or has an obligation to provide to the User, under a Subscription Agreement and this EULA;
"Source Code" means the Software code in human-readable form or any part of the Software code in human-readable form, including code compiled to create the Software or decompiled from the Software, but excluding interpreted code comprised in the Software;
"Subscription Agreement " means the online cloud terms and conditions, pursuant to which the User enters into this EULA;
"Support Services" means support in relation to the use of the Software and the identification and resolution of errors in the Software, but shall not include the provision of training services whether in relation to the Software or otherwise;
"Term" means the term of this EULA, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
"Update" means a hotfix, patch or minor version update to the Software;
"Upgrade" means a major version upgrade of the Software;
"User" means the person to whom the Licensor grants a right to use the Software under this EULA; and
"User Data" means all data, works and materials: uploaded to or stored on the Platform by the User; transmitted by the Platform at the instigation of the User; supplied by the User to the Licensor for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services or Software by the User (but excluding analytics data relating to the use of the Platform and server log files).
2. Term
2.1 This EULA shall come into force upon the Effective Date.
2.2 This EULA shall continue in force, subject to termination in accordance with Clause 16 or any other provision of this EULA.
3.1 The User acknowledges that, in addition to this EULA, the App Store Terms and Conditions shall apply to the use of the Software and the other matters contemplated in this EULA.
3.2 In the event of any conflict between this EULA and the App Store Terms and Conditions, the provisions of the former shall take precedence.
3.3 Those provisions of the App Store Terms and Conditions that impose obligations and/or liabilities on the User in relation to the Software excluding those relating to payments are hereby incorporated into this EULA for the benefit of the Licensor, and as such shall be enforceable by the Licensor against the User.
3.4 For the avoidance of doubt, the following matters shall be governed by the provisions of the App Store Terms and Conditions: the amounts payable by the User in respect of this EULA; the methods of payment to be used by the User; and any rights of the User to cancel this EULA and received any refunds of amounts paid in respect of this EULA.
3.5 The User acknowledges that the operator of the App Store has rights under the App Store Terms and Conditions which may affect the exercise of the User's rights under this EULA. Subject to Clause 15.1 , the Licensor will not be in breach of this EULA as a result of, and will not be liable to the User in respect of any loss or damage arising out of, the operator's exercise of its rights under the App Store Terms and Conditions.
4.2 The User may also permit members of the User's App Store family group to use the Software in accordance with this Clause 4 and the rules relating to family groups implemented in the App Store and/or set out in the App Store Terms and Conditions.
4.3 The User may not sub-license and must not purport to sub-license any rights granted under Clause 4.1 without the prior written consent of the Licensor, save to the extent expressly provided otherwise in this EULA.
4.4 Save to the extent expressly permitted by this EULA or required by applicable law on a non-excludable basis, any licence granted under this Clause 4 shall be subject to the following prohibitions:
(a) the User must not sell, resell, rent, lease, loan, supply, publish, distribute or redistribute the Software;
(b) the User must not alter, edit or adapt the Software; and
(c) the User must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Software.
5. Source Code
5.1 Nothing in this EULA shall give to the User or any other person any right to access or use the Source Code or constitute any licence of the Source Code.
6. Hosted Services
6.2 Except to the extent expressly permitted in this EULA or required by law on a non-excludable basis, the licence granted by the Licensor to the User under Clause 6.1 is subject to the same prohibitions as those relating to the licence of the Software and set out in Clause 4.4.
6.3 The Licensor shall use commercially reasonable endeavours to maintain the availability of the Hosted Services to the User at the gateway between the public internet and the network of the hosting services provider for the Hosted Services, except for:
(a) planned maintenance carried out during the maintenance window of 10.00 pm to 5.00 am UK time; and
(b) unscheduled emergency maintenance.
6.4 The Licensor will perform the Services substantially in accordance with the Documentation and with reasonable skill and care.
6.5 The User must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
6.6 The User must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
7. User Data
7.1 The User hereby grants to the Licensor a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the User Data to the extent reasonably required for the performance of the Licensor's obligations and the exercise of the Licensor's rights under this EULA.
7.2 The User warrants to the Licensor that the User Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
8. Changes to the Services
8.1 The Licensor may change the Hosted Service and/or Software:
(a) to reflect changes in relevant laws and regulatory requirements;
(b) to implement technical adjustments and improvements, for example to address a security threat; and
(c) to implement new features or enhance existing features of the Software, provided that such changes will not materially reduce the functionality provided by the Software.
8.2 The Licensor may make more significant changes to the Software than the changes set out in clause 8.1 . Where such changes materially reduce the functionality provided by the Hosted Services, the Provide will use reasonable endeavours to notify the User (for example through the website or Software), and the user may then immediately terminate the EULA, if required, either within 30 days of receiving such notice or within a period of 30 days after such significant changes been made available to the User.
9. Support services
9.1 If Support Services are included in the Hosted Services as, the Licensor will, at no additional cost to the User, provide the User with the Support Services, including an email-based helpdesk. The User may use such helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the User must not use the helpdesk for any other purpose.
10. Privacy policy
10.1 Any personal data that the User supplies to the Licensor under or in connection with this EULA shall be processed in accordance with the Subscription Agreement and Privacy Policy of the Licensor.
11. No assignment of Intellectual Property Rights
11.1 Nothing in this EULA shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the User, or from the User to the Licensor.
12. Warranties
12.1 The Licensor warrants to the User that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.
12.2 The Licensor warrants to the User that the Software, when used by the User in accordance with this EULA, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
12.3 The Licensor represents and warrants that it will maintain reasonable and appropriate technical and organisational security measures from any virus, trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems, or software.
12.4 If the Licensor reasonably determines, or any third party alleges, that the use of the Software by the User in accordance with this EULA infringes any person's Intellectual Property Rights, the Licensor may acting reasonably at its own cost and expense:
(a) modify the Software in such a way that it no longer infringes the relevant Intellectual Property Rights, providing that any such modification must not introduce any Software Defects into the Software and must not result in the Software failing to conform with the Software Specification; or
(b) procure for the User the right to use the Software in accordance with this EULA.
12.5 The User warrants to the Licensor that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.
12.6 All of the parties' warranties and representations in respect of the subject matter of this EULA are expressly set out in this EULA. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this EULA will be implied into this EULA or any related contract.
13. Acknowledgements and warranty limitations
13.1 The User acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.
13.2 The User acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be entirely secure.
13.3 The User acknowledges that the Licensor will not provide any legal, financial, accountancy or taxation advice under this EULA or in relation to the Software; and, except to the extent expressly provided otherwise in this EULA, the Licensor does not warrant or represent that the Software or the use of the Software by the User will not give rise to any legal liability on the part of the User or any other person.
14. Limitations and exclusions of liability
14.1 Nothing in this EULA will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law,
and, if a party is a consumer, that party's statutory rights will not be excluded or limited by this EULA, except to the extent permitted by law.
14.2 The limitations and exclusions of liability set out in this Clause 15 and elsewhere in this EULA:
(a) are subject to Clause 15.1; and
(b) govern all liabilities arising under this EULA or relating to the subject matter of this EULA, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this EULA.
14.3 The Licensor will not be liable to the User whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this EULA.
14.4 The aggregate liability of the Licensor to the User in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this EULA shall be limited to GBP 100.
15.1 The Licensor may terminate this EULA immediately by giving notice to the User if the User is no longer authorised to use the Hosted Services under the Subscription Agreement.
15.2 The Licensor may terminate this EULA by giving to the User not less than 14 days' written notice of termination, expiring at the end of any calendar month.
15.3 The User may terminate this EULA by giving to the Licensor not less than 14 days' written notice of termination, expiring at the end of any calendar month.
15.4 Either party may terminate this EULA immediately by giving written notice of termination to the other party if:
(a) the other party commits any breach of this EULA, and the breach is not remediable;
(b) the other party commits a breach of this EULA, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or
(c) the other party persistently breaches this EULA (irrespective of whether such breaches collectively constitute a material breach).
15.5 Either party may terminate this EULA immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this EULA); or
(d) if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.
16.1 Upon the termination of this EULA, all of the provisions of this EULA shall cease to have effect, save that the following provisions of this EULA shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3, 6.7, 12, 15, 17, 18, 20 and 21.
16.2 Except to the extent that this EULA expressly provides otherwise, the termination of this EULA shall not affect the accrued rights of either party.
17.1 In the case of notices to the User, the Licensor shall send the notice either:
(a) by email, to the email address of the User as specified by the User in the Software; or
(b) by a message directly in the Software or Hosted Service.
17.3 Notices pursuant to clause 18.1 or 18.2 shall be deemed to be received upon receipt by the recipient's email server, web browser or Software, providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
18. General
18.1 No breach of any provision of this EULA shall be waived except with the express written consent of the party not in breach.
18.2 If any provision of this EULA is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this EULA will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
18.3 This EULA may not be varied except by a written document signed by or on behalf of each of the parties.
18.4 The User hereby agrees that the Licensor may assign the Licensor's contractual rights and obligations under this EULA to any successor to all or a substantial part of the business of the Licensor from time to time, providing that, if the User is a consumer, such action does not serve to reduce the guarantees benefiting the User under this EULA. Save to the extent expressly permitted by applicable law, the User must not without the prior written consent of the Licensor assign, transfer or otherwise deal with any of the User's contractual rights or obligations under this EULA.
18.5 This EULA is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this EULA are not subject to the consent of any third party.
18.6 The EULA shall constitute the entire agreement between the parties in relation to the subject matter of this EULA, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
18.7 This EULA shall be governed by and construed in accordance with English law.
18.8 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this EULA.
19.1 The User acknowledges that materials and/or information supplied to the User under this EULA may be subject to the Export Laws.
19.3 Without prejudice to the generality of Clause 20.2, the User:
(a) must not import, export, supply, disclose, transfer or transmit any materials or information supplied to the User under this EULA if such import, export, supply, disclosure, transfer or transmission would contravene any embargo or exclusion list applying under the Export Laws; and
(b) must, where applicable, obtain all licences and consents required under the Export Laws for any import, export, supply, disclosure, transfer or transmission by or on behalf of the User of materials or information supplied to the User under this EULA.
20.1 In this EULA, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
20.2 The Clause headings do not affect the interpretation of this EULA.
20.3 References in this EULA to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.
20.4 In this EULA, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.