You must read and agree to the terms below to use HappyApp.
Please read these Terms and Conditions carefully. All contracts that the Provider may enter into from time to time for the provision of the Hosted Services and related services shall be governed by these Terms and Conditions, and the Provider will ask for the Customer's express written acceptance of these Terms and Conditions before providing any such services to the Customer.
1.1 In these Terms and Conditions:
"Access Credentials" means the usernames, passwords and other credentials enabling access to the Hosted Services, including both access credentials for the User Interface and access credentials for the API;
"Agreement" means a contract made under these Terms and Conditions between the Provider and the Customer;
"API" means the application programming interface for the Hosted Services defined by the Provider and made available by the Provider to the Customer;
"Authorised Users" means the named users identified in the user management page of the Website who are authorised by the Customer to use the Services and the Documentation.
"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;
"Charges" means the amounts payable by the Customer to the Provider for the User Licences, as set out in the applicable Price Plan;
"Customer" means the person or entity identified as such in the Services Order Form;
"Customer Data " means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider 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 by the Customer (but excluding analytics data relating to the use of the Platform and server log files);
"Customer Personal Data " means any Personal Data that is processed by the Provider on behalf of the Customer in relation to the Agreement;
"Data Protection Laws " means all applicable laws relating to the processing of Personal Data including, while they are in force and applicable, the United Kingdom's Data Protection Act 2018 and the General Data Protection Regulation (Regulation (EU) 2016/679);
"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer, as may be amended by the Provider from time to time;
"Effective Date " means following the Customer completing and submitting the online Services Order Form published by the Provider on the Website, the date upon which the Provider sends to the Customer an order confirmation;
"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, wars and pandemics);
"HappyApp" means the Provider’s hosted service, provided at the Website, and Software for monitoring the wellbeing of individual users, as further described in the Documentation;
"Hosted Services " means HappyApp, which will be made available by the Provider to each Customer as a service via the internet in accordance with these Terms and Conditions;
"Initial Subscription Term " means either one (1) month or one (1) year from the Effective Date, as set out in the applicable Price Plan.
"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);
"Personal Data " has the meaning given to it in the Data Protection Laws applicable in the United Kingdom from time to time;
"Platform" means the platform managed by the Provider and used by the Provider 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;
"Price Plan " means a set of charges, features, allowances and limits published by the Provider and made available for purchase to use the Hosted Services;
"Provider" 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;
"Renewal Period " the period described in clause 2.2.
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;
"Services Order Form " means an online order form published by the Provider and completed and submitted by the Customer incorporating these Terms and Conditions by reference;
"Software" means the HappyApp mobile applications, desktop applications and webpages (as applicable);
"Subscription Term " has the meaning given in clause 2.2 (being the Initial Subscription Term together with any subsequent Renewal Periods).
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services and Software, but shall not include the provision of training services;
"Supported Web Browser " means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported;
"Term" means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
"Terms and Conditions " means all the documentation containing the provisions of the Agreement, namely the main body of these Terms and Conditions and Schedule 1 (Acceptable Use Policy), including any amendments to that documentation from time to time; and
"User Interface " means the interface for the Hosted Services designed to allow individual human users to access and use the Hosted Services.
"User Licences” the user licences purchased by the Customer pursuant to clause 12 and clause 4 which entitle the Authorised Users to access and use the Services and the Documentation in accordance with these Terms and Conditions.
"Website" means the website at happyapp.org and any of its sub-domains.
2.1 The Agreement shall come into force upon the Effective Date.
2.2 The Agreement shall continue in force for the Initial Subscription Term and, thereafter, shall be automatically renewed for successive periods of the length of the Initial Subscription Term (each a "Renewal Period"), subject to termination in accordance with Clause 20 or any other provision of these Terms and Conditions.
2.3 Unless the parties expressly agree otherwise in writing, each Services Order Form shall create a distinct contract under these Terms and Conditions.
3.1 Subject to the Customer purchasing the User Licences in accordance with clause 12, the restrictions set out in this clause 3 and these Terms and Conditions, the Provider hereby grants to the Customer a non-exclusive, worldwide, non-transferable, without the right to grant sublicences, right to permit the Authorised Users to use the Services and Documentation for the purposes of monitoring the wellbeing of users in accordance with the Documentation during the Term.
3.2 The licence granted by the Provider to the Customer under Clause 3.1 is subject to the following limitations:
(a) the User Interface may only be used through the Software, and where applicable, access to webpages must be through a Supported Web Browser;
(b) the User Interface may only be used by the Authorised Users, providing that the Customer may change, add or remove an Authorised User in accordance with the procedure set out therein;
(c) the Hosted Service and Software may not be used by more than the number of User Licences the Customer has purchased from time to time, providing that the Customer may add or remove User Licences in accordance with the procedure set out therein;
(d) the API may only be used by an application or applications meeting the requirements set out in the Documentation; and
(e) the API may only be used by an application or applications controlled by the Customer.
3.3 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 3.1 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Hosted Services and/or Software;
(b) the Customer must not permit any unauthorised person or application to access or use the Hosted Services and/or Software;
(c) the Customer must not use the Hosted Services to provide services to third parties;
(d) the Customer must not republish or redistribute any content or material from the Hosted Services, Software or Documentation;
(e) the Customer must not make any alteration to the Platform, except as permitted by the Documentation; and
(f) the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform, Hosted Services or Software without the prior written consent of the Provider.
3.4 The Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the Hosted Services or Software by means of the Access Credentials.
3.5 The Provider will perform the Services substantially in accordance with the Documentation and with reasonable skill and care.
3.6 The Provider shall use commercially reasonable endeavours to maintain the availability of the Hosted Services to the Customer 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.
3.7 The Provider may change the Hosted Services 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 Hosted Services.
3.8 The Provider may make more significant changes to the Hosted Services than the changes set out in clause 3.7 . Where such changes materially reduce the functionality provided by the Hosted Service, the Provider will use reasonable endeavours to notify the Customer and the Customer may then, if required, immediately terminate the Agreement within 30 days’ of receiving such notice or within a period of 30 days after such significant changes have gone live. Where such changes materially reduce the functionality provided by the Hosted Services, the Customer shall be entitled to a pro-rata refund for any Charges already paid in respect of the period following termination of the Agreement.
3.9 The Customer must comply with Schedule 1 (Acceptable Use Policy), and must ensure that all Authorised Users comply with Schedule 1 (Acceptable Use Policy) and their obligations under the HappyApp End User Licence Agreement (“EULA”).
3.10 The Customer must not use the Hosted Services and/or Software 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.
3.11 The Customer must not use the Hosted Services and/or Software in any way that uses excessive Platform resources and as a result is liable to cause a material degradation in the services provided by the Provider to its other customers using the Platform; and the Customer acknowledges that the Provider may use reasonable technical measures to limit the use of Platform resources by the Customer for the purpose of assuring services to its customers generally.
3.12 The Customer 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.
3.13 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
3.14 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 14 days' written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
3.15 The Provider may offer functionality for the Customer to optionally access the Hosted Service via a URL using a custom sub-domain (for example: https://company.happyapp.org, where company is the custom sub-domain) in addition to the primary URL (https://happyapp.org). Where this functionality is offered, the Provider will allow the Customer to input a valid sub-domain of their choice at the time of creating a subscription. The sub-domain must comply with Schedule 1 (Acceptable Use Policy) and any sub-domain requirements in place within the Hosted Service in order to be valid and accepted by the Hosted Service. The Provider reserves the right to modify the custom sub-domain for any reason and at any time at its sole discretion. However, the Provider will make reasonable endeavours to communicate with the Customer before or after making such modification to identify a suitable replacement custom sub-domain where necessary.
4.1 Subject to clause 4.2 and clause 4.3 , the Customer may, from time to time during the Subscription Term, purchase additional User Licences in excess of the number set out in the Services Order Form.
4.2 If the Customer wishes to purchase additional User Licences, the Customer may do so via the subscription licence management page on the Website . Following such purchase, the additional User Licences shall be immediately available for allocation to the Customer’s new users.
4.3 If additional User Licences are purchased by the Customer part way through the Subscription Term, the Charges for such additional User Licences shall be pro-rated from the date of purchase for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable). Charges for additional User Licences would then continue to be charged for subsequent Renewal Periods until reduced or the subscription is cancelled in accordance with Clause 20.
5.1 Subject to clauses 5.2 and 5.3 , the Customer may, from time to time during the Subscription Term, reduce the number of User Licences below the number set out in the Services Order Form, provided that the number of User Licences shall not fall below the minimum number specified in the Customer’s Price Plan.
5.2 If the Customer wishes to reduce the number of User Licences, the Customer may do so via the subscription licence management page on the Website.
5.3 Any reduction in the number of User Licences pursuant to this Clause 5 shall take effect from the beginning of the next Renewal Period, and no refund will be payable to the Customer in respect of any Charges paid in advance for any User Licences removed pursuant to this Clause 5.
5.4 The Customer will lose the right of Service for any User Licences relinquished and must reasonably ensure that only Authorised Users continue to have use of the Software and Hosted Services.
6.1 Subject to clauses 6.2 and 6.3 , the Customer may, from time to time during the Subscription Term, move to a different available Price Plan via the subscription licence management page on the Website.
6.2 If the Customer wishes to move to a Price Plan with higher fees than the Customer’s current Price Plan, the additional Charges for the new Price Plan shall be pro-rated from the date of purchase for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable). Following the Customer’s payment of such additional Charges, the new Price Plan shall take effect immediately after payment.
6.3 If the Customer wishes to move to a Price Plan with lower fees than the Customer’s current Price Plan, the new Price Plan shall take effect from the beginning of the new Renewal Period, and no refund will be payable to the Customer in respect of any Charges paid in advance for the Customer’s current Price Plan.
6.4 The Provider may modify or withdraw Price Plans at any time. Where the Provider modifies or withdraws a Price Plan then-currently in use by the Customer, the Provider shall:
(a) notify the Customer in writing of its intention to modify or withdraw the Price Plan, providing no less than 30 days’ notice; and
(b) allow the Customer to change to a different Price Plan subject to this clause 6.
6.5 Where the Customer’s Price Plan has been modified or withdrawn, the Customer will be permitted to continue using the unmodified or withdrawn (as applicable) version of the Price Plan until the end of the Initial Subscription Term or the end of the current Renewal Period as applicable.
6.6 Where the Customer’s subscription to the Services are due to automatically renew for a new Renewal Period, and the Customer’s Price Plan has been withdrawn, and the Customer has not selected an alternative Price Plan, the Provider may at its discretion:
(a) move the Customer to the nearest comparable monthly Price Plan as deemed by the Provider; or
(b) suspend provision of Services until the Customer selects a new Price Plan and notify the Customer of such suspension. If the Customer does not switch to a new Price Plan within 30 days of such notice, the Provider may immediately terminate this Agreement.
7. Customer Data
7.1 The Customer hereby grants to the Provider a non-exclusive, royalty-free, licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in the Agreement.
7.2 The Customer grants to the Provider for the Term a revocable, non-exclusive, royalty-free, licence to use the Customer's company name and logo solely for the purposes of identifying the Customer as a customer of the Provider:
(a) on the Provider’s websites; and
(b) in the Provider’s product brochures.
The Provider agrees that any additional use, such as (but not limited to) broadcast media, social media or trade publications, will be subject to specific prior written approval of the Customer for each new type of use.
Furthermore, the Provider will adhere to usage of the Customer’s logo in the style used by the Customer on its own websites and any branding guidelines notified to the Provider under this Agreement.
The Customer grants such licence only for the duration of this Agreement, however the Customer may revoke the licence at its discretion by providing 14 days’ notice to the Provider.
8.1 The Customer shall defend, indemnify and hold harmless the Provider against claim arising out of or in connection with the Customer Data, the Customer’s breach of this Agreement, or the Customer’s use of the data provided by the Hosted Service, except to the extent the liability arises as a result of a Provider breach of the Agreement, provided that:
(a) the Provider provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(b) the Customer is given sole authority to defend or settle the claim.
8.2 The Provider shall defend, indemnify and hold harmless the Customer against any third party claim brought against the Customer that the Software infringes such third party's intellectual property rights, except to the extent that the liability arises as a result of the Customer’s breach of the Agreement, provided that:
(a) the Customer provides reasonable co-operation to the Provider in the defence and settlement of such claim; and
(b) the Provider is given sole authority to defend or settle the claim.
9. Support services
9.1 Where the Customer’s Price Plan specifies that Support Services are included in the Services, the Provider will, at no additional cost to the Customer, provide the Customer with the Support Services, including an email-based helpdesk. The Customer may use such helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
9.2 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 14 days’ written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
10.1 The parties acknowledge and agree that the use of the Software, the parties’ respective rights and obligations in relation to the Software and any liabilities of either party arising out of the use of the Software shall be subject to separate terms and conditions though the EULA, and accordingly these Terms and Conditions shall not govern any such use, rights, obligations or liabilities.
11. No assignment of Intellectual Property Rights
11.1 Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
12.1 The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions.
12.2 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.
12.3 The Customer shall on the Effective Date provide to the Provider valid, up-to-date and complete credit card details, bank details or approved purchase order information acceptable to the Provider and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
(a) its credit card details to the Provider, the Customer hereby authorises the Provider to bill such credit card:
(i) from the Effective Date for the Charges payable in respect of the Initial Subscription Term; and
(ii) subject to clause 2.2 , at the beginning of each Renewal Period for the Charges payable in respect of that Renewal Period;
(b) its bank details to the Provider, the Customer hereby authorises the Provider, subject to the terms of the direct debit scheme, to setup direct debit mandate(s) using such bank details, and collect payment:
(i) from the Effective Date for the Charges payable in respect of the Initial Subscription Term; and
(ii) subject to clause 2.2 , at the beginning of each Renewal Period for the Charges payable in respect of that Renewal Period;
(c) its approved purchase order information to the Provider, the Provider shall invoice the Customer:
(i) from the Effective Date for the Charges payable in respect of the Initial Subscription Term; and
(ii) subject to clause 2.2 , at the beginning of each Renewal Period for the Charges payable in respect of that Renewal Period,
and the Customer shall pay each invoice within 14 days after the date of such invoice.
12.4 The Provider may elect to vary any element of the Charges by giving to the Customer not less than 90 days' written notice of the variation. The varied Charges will apply from the beginning of the next Renewal Period.
12.5 The Customer must pay the Charges to the Provider in advance or at the start of the period to which they relate as determined by the Price Plan.
12.6 If the Customer does not pay any amount properly due to the Provider under these Terms and Conditions, the Provider may charge the Customer interest on the overdue amount at the rate of 4% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month)
13. Distance contracts: cancellation right
13.1 This Clause 13 applies if and only if the Customer enters into the Agreement with the Provider as a consumer - that is, as an individual acting wholly or mainly outside the Customer's trade, business, craft or profession - where the Agreement is a distance contract within the meaning of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
13.2 The Customer may cancel the Agreement entered into with the Provider at any time within the period:
(a) beginning on the Effective Date; and
(b) ending at the end of 14 days after the day on which the Agreement was entered into,
subject to Clause 13.3 . The Customer does not have to give any reason for the withdrawal or cancellation.
13.3 The Customer agrees that the Provider may begin the provision of services before the expiry of the period referred to in Clause 13.2 , and the Customer acknowledges that, if the Provider does begin the provision of services before the end of that period, then:
(a) if the services are fully performed, the Customer will lose the right to cancel referred to in Clause 13.2; and
(b) if the services are partially performed at the time of cancellation, the Customer must pay to the Provider an amount proportional to the services supplied or the Provider may deduct such amount from any refund due to the Customer in accordance with this Clause 13.
13.4 In order to cancel the Agreement on the basis described in this Clause 13 , the Customer must inform the Provider of the Customer's decision to withdraw or cancel (as the case may be). The Customer may cancel the Agreement by contacting the Provider by email at the email address shown on the Website by using the contact form that the Provider will make available to the Customer on the Website. To meet the cancellation deadline, it is sufficient for the Customer to send its communication concerning the exercise of the right to cancel before the cancellation period has expired.
13.5 If the Customer withdraws an offer to enter into the Agreement, or cancels the Agreement, on the basis described in this Clause 13 , the Customer will receive a full refund of any amount the Customer paid to the Provider in respect of the Agreement, except as specified in this Clause 13.
13.6 The Provider will refund money using the same method used to make the payment, unless the Customer has expressly agreed otherwise.
13.7 The Provider will process the refund due to the Customer as a result of a cancellation on the basis described in this Clause 13 without undue delay and, in any case, within the period of 14 days after the day on which the Provider is informed of the cancellation.
14.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.
14.2 The Customer warrants to the Provider that it has the legal right to disclose all Customer Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement.
14.3 The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to the Agreement, the Customer Personal Data of Authorised Users and Customer’s remote workers of the following types: name, phone number, address, email address, profile image, job title, role title, department name, team name, line manager and employer; and the Provider shall only process the Customer Personal Data for the following purposes: to carry out its obligations and enforce its rights under this Agreement.
14.4 The Provider shall only process the Customer Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 14.
14.5 The Provider shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to any place outside the European Economic Area and the United Kingdom), as set out in these Terms and Conditions or any other document agreed by the parties in writing, unless required to do so by European Union or member state law to which the Provider is subject; in such a case, the Provider shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
14.6 The Provider shall promptly inform the Customer if, in the opinion of the Provider, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
14.7 Notwithstanding any other provision of the Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
14.8 The Provider shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
14.9 The Provider and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data.
14.10 The Provider must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, the Provider shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Customer may terminate the Agreement on 14 days' written notice to the Provider, providing that such notice must be given within the period of 14 days following the date that the Provider informed the Customer of the intended changes. The Provider shall ensure that each third party processor is subject to the same legal obligations as those imposed on the Provider by this Clause 14.
14.11 As at the Effective Date, the Provider is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, the following third parties: (1) Microsoft Ireland Operations Limited, and (2) Google Ireland Limited.
14.12 The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.
14.13 The Provider shall make available to the Customer all information necessary to demonstrate the compliance of the Provider with its obligations under this Clause 14 and the Data Protection Laws.
14.14 The Provider shall, where in direct relation to use of the Services, assist the Customer in ensuring compliance with the obligations relating to the security of processing of the Customer Personal Data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws in relation to the Services.
14.15 Where the Customer requires the Provider to engage in activities beyond those that would be necessary for the Provider to demonstrate its own legal compliance with Data Protection Laws, the Provider may, subject to prior agreement with the Customer, charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 14.13.
14.16 The Provider must notify the Customer of any Customer Personal Data breach affecting the Customer Personal Data without undue delay and, in any case, not later than 48 hours after the Provider becomes aware of the breach.
14.17 The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Customer Personal Data.
14.18 The Provider shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Provider’s processing of Customer Personal Data with the Data Protection Laws and this Clause 14 . The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 14.18 , providing that no such charges shall be levied where the request to perform the work arises out of any breach by the Provider of the Agreement or any security breach affecting the systems of the Provider.
14.19 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Customer Personal Data carried out under the Agreement, then the parties shall use their best endeavours promptly to agree such variations to the Agreement as may be necessary to remedy such non-compliance.
14.20 The Customer accepts the Providers Privacy and Cookies policy, the latest copy of which can be found at www.happyapp.org/legal/privacy. In the event of a conflict between the Privacy and Cookies policy, this Terms and Conditions Agreement shall take precedence.
15. Trials and Betas
15.1 If the Customer receives access to the Hosted Service or Software features on a trial basis or as an alpha, beta or early access offering (“Trials and Betas”), use is permitted only for Customer’s internal evaluation during the period designated by the Provider (or 30 days, if not designated). Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete or include features the Provider may never release, and their features and performance information are the Provider’s confidential information. Notwithstanding anything else in this Agreement, the Provider provides no warranty, indemnity, SLA or support for Trials and Betas and its liability for Trials and Betas will not exceed 100 GBP.
16.1 The Provider represents and warrants that it will maintain reasonable and appropriate technical and organisational security measures to protect the Customer’s systems from disruption 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.
16.2 The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions.
16.3 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
17. Acknowledgements and warranty limitations
17.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
17.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
17.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Documentation; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
17.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
17.5 The Customer acknowledges that the Provider does not warrant the Customer’s use of the Hosted Service will be uninterrupted or error-free, or that the Hosted Service will meet the Customer’s requirements or operate in combination with any third-party services used by Customer.
17.6 Subject to clause 8.2 and clause 16.1 , the Provider provides no warranty for Trials and Betas.
18. Limitations and exclusions of liability
18.1 Nothing in these Terms and Conditions 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 or exclude liability under any indemnity in this Agreement;
(d) limit any liabilities in any way that is not permitted under applicable law; or
(e) 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 these Terms and Conditions, except to the extent permitted by law.
18.2 The limitations and exclusions of liability set out in this Clause 18 and elsewhere in these Terms and Conditions:
(a) are subject to Clause 18.1; and
(b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
18.3 The Provider will not be liable to the Customer 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 falling outside the backup and data retention period of the Hosted Service, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement.
18.4 The Provider will not be liable for any data held on devices that have not been uploaded to the Hosted Service or for any delays, failures or problems inherent in the use of the internet, electronic communications or third party hardware and systems outside the Provider’s control, including (but not limited to) where this results in delays sending or receiving information.
18.5 The aggregate liability of the Provider to the Customer 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 agreement shall be limited to the total Charges paid under this Agreement during the twelve (12) months immediately preceding the date on which the claim arose.
19. Force Majeure Event
19.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
20.1 Either party may terminate the Agreement by giving to the other party at least 30 days' written notice of termination, provided that no refund shall be payable to the Customer in respect of any Charges paid in advance for the period following termination.
20.2 The Customer may terminate this Agreement though the subscription cancellation functionality as made available by the Provider via the Hosted Service, where such termination will come into effect:
(a) after the end of the current Renewal Period, where the Agreement has been automatically renewed subject to clause 2.2; or
(b) after the end of the Initial Subscription Term where cancellation is made within the Initial Subscription Term and the Agreement has not been automatically renewed subject to clause 2.2.
20.3 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of these Terms and Conditions.
20.4 Either party may terminate the Agreement 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 the Agreement); 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.
21.1 Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.13, 8, 10, 12, 14, 18, 21, 24 and 25.
21.2 Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.
21.3 Within 30 days following the termination of the Agreement for any reason the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement, without prejudice to the parties' other legal rights.
22.1 Any notice from one party to the other party under these Terms and Conditions must be sent by email to the relevant email address specified through the Hosted Services, specifically:
(a) In the case of notices to the Customer, the Provider shall send the notice by email to the email addresses of the Customer’s administrator and co-administrator, as specified by the Customer in the user management page of the Website.
(b) In the case of notices to the Provider, the Customer shall send the notice by email to email@example.com.
Notices pursuant to this clause 22.1 shall be deemed to be received upon receipt of the email by the recipient's email server, 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.
23.1 Subject to any express restrictions elsewhere in these Terms and Conditions, the Provider may subcontract any of its obligations under the Agreement.
24.1 No breach of any provision of the Agreement shall be waived except with the express written consent of the party not in breach.
24.2 If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement 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).
24.3 The Provider may vary the Agreement Terms and Conditions and/or accompanying EULA and its Privacy and Cookies policy by giving to the Customer at least 90 days' written notice of the variation. Subject to this:
(a) where the Customer accepts the variations and wishes to continue using the Service, the Customer must indicate acceptance using dedicated functionality within the Hosted Service that will be made available each time the Provider issues a notice under this clause;
(b) where the Customer does not agree to the variations, they will be entitled to terminate this Agreement using the subscription cancellation functionality made available by the Provider through the Hosted Service. In this case the Customer shall be entitled to a pro-rata refund for any Charges already paid in respect of the period following termination of the Agreement;
(c) Where the Customer has not accepted the variations from within the Hosted Service by the end of the 90-day notice period, the Provider may, at its sole discretion, either suspend delivery of the Services (including limiting or preventing access to the Hosted Service and Software), or immediately terminate the Agreement. Where Services are suspended, the Provider will attempt to contact the Customer to confirm the Customer’s intention to terminate or resume use of the Services. Where the Provider does not receive such confirmation from the Customer within 14 days from the date of suspension, the Provider will immediately terminate the Agreement. In this case the Customer shall be entitled to a pro-rata refund for any Charges already paid in respect of the period following suspension of the Services under this clause. If the Agreement is terminated directly without suspension the Customer shall be entitled to a pro-rata refund for any Charges already paid in respect of the period following termination of the Agreement
24.4 The Customer hereby agrees that the Provider may assign the Provider's contractual rights and obligations under the Agreement to any successor to all or a substantial part of the business of the Provider from time to time - providing that such action does not serve to reduce the guarantees benefiting the Customer under the Agreement. Save to the extent expressly permitted by applicable law, the Customer must not without the prior written consent of the Provider assign, transfer or otherwise deal with any of the Customer's contractual rights or obligations under the Agreement.
24.5 The Agreement 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 the Agreement are not subject to the consent of any third party.
24.6 Subject to Clause 18.1 , a Services Order Form, together with these Terms and Conditions and any Schedules, shall constitute the entire agreement between the parties in relation to the subject matter of that Services Order Form, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
24.7 The Agreement shall be governed by and construed in accordance with English law.
24.8 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.
25.1 In these Terms and Conditions, 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.
25.2 The Clause headings do not affect the interpretation of these Terms and Conditions.
25.3 References in these Terms and Conditions to "month" or "calendar months" are to the one or more of the 12 named periods (January, February and so on) into which a year is divided.
25.4 In these Terms and Conditions, 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.
Schedule 1 (Acceptable Use Policy)
1.1 This acceptable use policy (the "Policy") sets out the rules governing:
(a) the use of the Website, and the services available on the Website (the "Services"); and
(b) the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").
1.2 References in this Policy to "you" are to any customer for the Services and any individual user of the Services (and "your" should be construed accordingly); and references in this Policy to "us" are to Techfinity Ltd (and "we" and "our" should be construed accordingly).
1.3 By using the Services, you agree to the rules set out in this Policy.
1.4 We will ask for your express agreement to the terms of this Policy before you upload or submit any Content or otherwise use the Services.
1.5 You must be at least 18 years of age to use the Services; and by using the Services, you warrant and represent to us that you are at least 18 years of age.
2. General usage rules
2.1 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
2.2 You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.
2.3 You must ensure that all Content complies with the provisions of this Policy.
3. Unlawful Content
3.1 Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
3.2 Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:
(a) be libellous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(g) be in contempt of any court, or in breach of any court order;
(h) constitute a breach of racial or religious hatred or discrimination legislation;
(i) be blasphemous;
(j) constitute a breach of official secrets legislation; or
(k) constitute a breach of any contractual obligation owed to any person.
3.3 You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
4. Graphic material
4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question, and in particular for children over 12 years of age.
4.2 Content must not depict violence in an explicit, graphic or gratuitous manner.
4.3 Content must not be pornographic or sexually explicit.
5. Factual accuracy
5.1 Content must not be untrue, false, inaccurate or misleading.
5.2 Statements of fact contained in Content and relating to persons (legal or natural) must be true; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion.
6. Negligent advice
6.1 Content must not consist of or contain any legal, financial, investment, taxation, accountancy, medical or other professional advice, and you must not use the Services to provide any legal, financial, investment, taxation, accountancy, medical or other professional advisory services.
6.2 Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.
7.1 Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.
7.2 Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
7.3 Content must not be liable to cause annoyance, inconvenience or needless anxiety.
7.4 You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
7.5 You must not use the Services for the purpose of deliberately upsetting or offending others.
7.6 You must not unnecessarily flood the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.
7.7 You must ensure that Content does not duplicate other content available through the Services.
7.8 You must ensure that Content is appropriately categorised.
7.9 You should use appropriate and informative titles for all Content.
7.10 You must at all times be courteous and polite to other users of the Services.
8. Marketing and spam
8.1 You must not without our written permission use the Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering.
8.2 Content must not constitute or contain spam, and you must not use the Services to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
8.3 You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Services or that you find using the Services.
8.4 You must not use the Services to promote, host or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing schemes, "get rich quick" schemes or similar letters, schemes or programs.
8.5 You must not use the Services in any way which is liable to result in the blacklisting of any of our IP addresses.
9. Regulated businesses
9.1 You must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.
9.2 You must not use the Services for any purpose relating to the offering for sale, sale or distribution of drugs or pharmaceuticals.
9.3 You must not use the Services for any purpose relating to the offering for sale, sale or distribution of knives, guns or other weapons.
10.1 You acknowledge that we do not actively monitor the Content or the use of the Services.
11. Data mining
11.1 You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.
12.1 You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.
13. Harmful software
13.1 The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
13.2 The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.