Terms of Service
Revised March 17th, 2020
1. Acceptance of Terms of Service.
These terms of service are entered into by and between you and Happy Monday, Inc., a Delaware company (“Happy Monday,” “we,” or “us”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, these “Terms of Use” or “Agreement”), govern your access to and use of Happymonday.com, including any content, functionality, and services offered on or through Happymonday.com, and any related application (the “Site”), whether as a guest or a registered user.
Please read the Terms of Service carefully before you start to use the Site. By (i) accessing, browsing, subscribing to, and using the Site; and (ii) by using the Happy Monday software as a service platform, associated content, and any customizations made to the services provided or offered by Happy Monday via the Site (collectively, the “Services”), you signify that you have read, understood, and agree to be bound by the terms and conditions of this Agreement, and that comply with all applicable laws and regulations. If you do not agree to these terms, you must not access or use the Site or any of the Services. If you are accepting these Terms of Use on behalf of your employer or another entity, you represent and warrant that you have full legal authority to enter into this Agreement on behalf of such employer or other entity and are able to bind such employer or other entity to the terms and conditions of these Terms of Service. This Agreement incorporates the Happy Monday Privacy Policy located at HappyMonday.com/privacy-policy and any other specific terms and conditions of any Order Form accepted by Happy Monday as applicable.
This Agreement applies to all persons and entities who visit, use, or access any of the Services (“User(s)”). If you are using the Services as a Job Seeker, please review the terms of Section 6 carefully. If you are using the Services as a Hiring Company, please review the terms of Section 7 carefully.
The owner of the Site is based in the United States. We provide this Site for use only by persons located in North America. We make no claims that the Site or any of its content is accessible or appropriate outside of North America.
User assumes all knowledge of applicable law and is responsible for compliance with any such laws. User may not use the Services in any way that violates applicable state, federal, or international laws, regulations or other government requirements. User further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law or regulation.
We reserve the right to amend this Agreement at any time by notifying you as provided in this Agreement. Your continued use of the Site or the Services after any such change constitutes your acceptance of the revised Terms of Service. If you do not agree to any of these terms of this Terms of Service, do not use or access the Services.
2. Access Grant, Registration, Accounts, and Passwords.
a. Provision of Access.
Subject to this Agreement, we provide you with access to the Services solely for your use of the Services. This Agreement and the access provided hereunder are non-transferable, except as expressly provided herein. We retain all rights not expressly granted to the User pursuant to this Agreement and any order form.
b. User Access of the Services.
To access the Site or Services, you may be asked to provide certain registration details or other information. It is a condition of your use of the Site or Services that all the information you provide is correct, current, and complete. We may terminate your access to our Site and to the Services if we learn that you have provided us with false or misleading registration data. You agree that all information you provide to register with this Site or otherwise, including but not limited to through the use of any interactive features on the Site, is governed by our Privacy Policy located at HappyMonday.com/privacy-policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy. If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Site or portions of it using your user name, password, or other security information. You are solely responsible for maintaining the confidentiality of your password and account, and you are solely responsible for all use of your password or account, whether authorized by you or not. Happy Monday cannot and will not be liable for any loss or damage arising from your failure to comply with the terms of this Agreement. You will immediately notify Happy Monday of any suspected or alleged violation of these Terms of Service, including any unauthorized use of any password or account information, or any other known or suspected breach of security. You further agree to cooperate with Happy Monday with respect to investigation or suspected or alleged violation of this Terms of Service.
c. Use of the Services.
Nothing on the Sites will be considered an endorsement, recommendation, representation, or warranty with respect to any User or third party, whether in regards to its website, products, services, hiring, experience, employment or recruiting practices, or otherwise.
WE MAKE NO REPRESENTATIONS OR GUARANTEES REGARDING THE EFFECTIVENESS OF THE SERVICES OR TIMELINESS OF THE SERVICES IN MEETING YOUR EMPLOYMENT OBJECTIVES. HAPPY MONDAY DOES NOT GUARANTEE THAT THE SERVICES WILL RESULT IN CANDIDATES BEING HIRED, POSITIONS BEING FILLED OR EMPLOYEES BEING RETAINED, AND IS NOT RESPONSIBLE OR LIABLE FOR ANY BUSINESS, EMPLOYMENT, HIRING AND/OR SALARY DECISIONS, FOR WHATEVER REASON MADE, MADE BY YOU.
d. Modification of Services.
We reserve the right to withdraw or amend the Site, and any service or material we provide on the Site, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Site is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Site, or the entire Site, to users, including registered users. You are responsible for making all arrangements necessary for you to have access to the Site and ensuring that all persons who access the Site through your internet connection are aware of these Terms of Use and comply with them. If we change the Services in a manner that materially reduces the aggregate functionality of the Service, we will make commercially reasonable efforts to inform you thirty (30) days before the effective date of such changes, and you will have the right to terminate this Agreement upon thirty (30) days’ written notice to us (provided that we receive such notice within thirty (30) days of such reduction in functionality). In the event that you terminate this Agreement pursuant to this Section 2(c), we will provide you with a prorated refund of any pre-paid Fees with respect to the then-remaining Term as of the effective date of such termination.
e. Future Functionality.
User agrees that User’s subscription to the Service and acceptance of this Agreement are not contingent on the delivery of any future functionality or features.
3. Happy Monday Responsibilities.
a. Service Levels.
Happy Monday makes no warranty regarding the availability of the Services. Happy Monday uses commercially reasonable efforts to make the Services reasonably available, except for: (i) planned downtime and (ii) unavailability caused by circumstances beyond Happy Monday’s control, including but not limited to acts of God, internet service provider failures or delays, and denial of service attacks.
b. Information Security.
Please refer to our Privacy Policy HappyMonday.com/privacy-policy for information regarding how we collect, process, share and store your User Content (as defined below). We will use commercially reasonable technical and organizational measures that are reasonably designed to maintain an industry-standard level of security and prevent unauthorized access to and/or disclosure of information submitted by a User in order to access and use the Services.
4. Authorized Users.
User is responsible and liable for all uses of the Service resulting from access provided by User, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, User is responsible for all acts and omissions of employees and agents of User that are authorized to use the Services (“Authorized Users”) and any act or omission by an Authorized User that would constitute a breach of this Agreement if performed by User. User will make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and will cause Authorized Users to comply with such provisions.
5. Transmissions, User Content, and Content Standards.
a. User Content.
The Services may allow Users to post and/or provide content that may be viewable by other Users, including, but not limited to, name, email, contact information, location, job advertisements (“Job Ads”), company information, a job seeker’s application information, content of messages, resumes/CVs, logos, trademarks, comments, questions, links to other websites, and other content or information (collectively, “User Content”). You acknowledge and understand that Happy Monday has no control over the quality, accuracy completeness, or legality of the User Content. Happy Monday cannot confirm the accuracy or completeness of any User Content or other information submitted by any User and is under no obligation to screen User Content. Happy Monday reserves the right to change the display of User Content on its Site, including, but not limited to, hiding fields, rearranging its format, and changing visual elements.
You will be solely responsible for your User Content and the consequences of posting, providing, or publishing it. Any material, information, or idea you transmit to or post on the Site or through the Services by any means will be treated as non-confidential and non-proprietary, and may be disseminated or used by Happy Monday or its affiliates for any purpose whatsoever, including, but not limited to, developing and marketing its services. Notwithstanding the foregoing, all personal data provided to Happy Monday will be handled in accordance with Happy Monday’s Privacy Policy, available at HappyMonday.com/privacy-policy. By providing any User Content on the Site, you hereby grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose.
You represent and warrant that:
You own or control all rights in and to the User Content and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.
All of your User Content do and will comply with these Terms of Service and applicable law.
You understand and acknowledge that you, and not Happy Monday, are responsible for any User Content you submit or contribute, and you, not Happy Monday, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. We are not responsible or liable to you or any third party for the content or accuracy of any User Content posted by you or any other user of the Site.
b. Content Standards.
These content standards apply to any and all User Content. User Content must in its entirety comply with all applicable federal, state, local, and international laws and regulations. In the case of a Hiring Company, your User Content must contain sufficient detail to convey clearly to Job Seeker the nature and requirements of the job opportunity, or, in the case of Job Seekers, your qualifications as a candidate for employment. User Content that encourage the Job Seeker to "email for more details" are not permitted. Without limiting the foregoing, User Content must not:
Contain inaccurate, false, or misleading information.
Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
Contain any official identification information (whether of your own or of another person), such as social security number, passport number, national identification number, insurance number, driver’s license number, immigration number, or any other similar number, code, or identifier.
Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
Advertise job openings located in countries subject to economic sanctions of the United States or Canadian governments, except where permitted by applicable law.
Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use and our Privacy Policy HappyMonday.com/privacy-policy.
Include any screening requirements or criteria where such requirement or criteria is not a bona fide occupational requirement for the role.
Requires applicants to pay to apply, pay for training, pay for training materials, or pay for samples.
Be likely to deceive any person.
Promote any illegal activity, or advocate, promote, or assist any unlawful act.
Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter, or advertising.
Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
You acknowledge and agree that Happy Monday may, with no liability or penalty, remove any User Content, which in the sole judgment of Happy Monday, violates or may violate this Terms of Service, applicable laws, rules or regulations, or third party terms; or may adversely affect Happy Monday. You agree that Happy Monday will have no liability to you or anyone else arising from its editorial decisions. We also have the right to:
Remove or refuse to post any User Content for any or no reason in our sole discretion.
Take any action with respect to any User Content that we deem necessary or appropriate in our sole discretion, including if we believe that such User Content violates the Terms of Service, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Site or the public, or could create liability for Happy Monday.
Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Site.
Terminate or suspend your access to all or part of the Site for any or no reason, including without limitation, any violation of these Terms of Use.
c. Content Disclosure.
Happy Monday reserves the right to disclose User Content and any information related to the provider of such User Content, (i) to third parties in connection with the operation and provision of the Services, (ii) to enforce the terms of any agreement that we have with you, (iii) to comply with legal obligations and requests from governmental authorities, law enforcement agencies, court orders, subpoenas, etc., and (iv) to protect the interests of Happy Monday where necessary. For the avoidance of doubt, you agree that we have the right to disclose your identity to a third party who is claiming that any User Content you posted, provided or uploaded is fraudulent, false, or misleading or constitutes a violation of the law, or a violation of their intellectual property or ownership rights, or of their right to privacy.
Additionally, we may send User Content to certain third parties that you indicate an interest in (e.g., if you indicate you are interested in the services in which the third party provides or a job offering from the third party). For example, if you consent in your user profile to Happy Monday sending your User Content to employers with job openings, we may send your User Content to an applicable third party employer with a job opening. As another example, with your consent, Happy Monday may send your User Content to a third party that uses an API that is set up to receive leads about Users that affirmatively express interest in the services that the third party provides. We will only send your User Content to such third parties if you give us permission to do so. You will indicate this interest by affirmatively opting-in to such use of your User Information. You have the ability to opt-out of this affirmative consent at any time by updating your Happy Monday account or unsubscribing to any communications that you receive. Some of our Services will not be available to you if you do not agree to such use of your User Content.
6. Additional Terms that Apply to Job Seeker.
As a User that is searching and applying for jobs (“Job Seeker”), you can use the Services to (i) search for jobs, (ii) apply for jobs (“Job Applications”), and (iii) receive emails or text messages alerting you to Job Ads (“Alerts”). If you have a Happy Monday account, provide Happy Monday with your resume, or sign up for Alerts, you acknowledge and agree that we may (A) use the information you provide to send you information about Job Ads, and (B) provide your resume and other information that you permit us to share with an employer, recruiter or third party.
To the extent that you permit us to share your information and resume with potential employers, recruiters, staffing agencies, or third parties (including, where you have applied to a Job Ad using our Services), you consent to our sharing of your name, email address, and/or resume, together with any additional information you provide to us while creating a Happy Monday account, or during the application process. This means that you hereby grant to us a perpetual, irrevocable, non-exclusive, royalty-free, worldwide license in your resume and any additional information you provide to us, to share or otherwise use such resume and additional information as we reasonably require to fulfil the services we provide to you.
a. Job Applications.
By applying to a Job Ad, you give us permission to store your information using the Services and share your information with the entity or person that posted the Job Ad. You are responsible for ensuring that the information that you provide is complete and accurate, and only contains information that you are comfortable sharing. Happy Monday does not guarantee that the recipient of your Job Application will receive, access, view, or respond to your Job Application.
By using the Services, you agree that Happy Monday is not responsible for the content of the Hiring Company’s Job Ads, messages, screener questions, skills assessments or their format or method of delivery, and that Happy Monday does not guarantee receipt of your application by the Hiring Company, or your receipt of messages from the Hiring Company. Please note that Happy Monday does not choose the questions asked by the Hiring Company or decide the job qualification criteria of the Hiring Company. Some questions may be labeled as optional, indicating only that the application may be submitted to the Hiring Company without providing an answer. Happy Monday cannot guarantee that the Hiring Company will consider such an application or make a particular determination with regard to such an application. Happy Monday does not guarantee the identity of a Hiring Company or any individuals working for any Hiring Company, and cautions Job Seekers when applying to jobs. Happy Monday does not guarantee the validity of a job offer and cautions Job Seekers to verify the validity of a job offer before taking an adverse action regarding their current employment situations. Job Seekers are solely responsible for verifying the accuracy of any Hiring Company or job offer.
b. Job Alerts.
You can sign up to receive job alerts when you create an account or respond to a Job Ad. We may automatically send you recommended jobs via the email address you use to create a Happy Monday account or apply to a job. We may determine what these recommended jobs are on the basis of a variety of factors, including but not limited to, any information you input on the Site about yourself, searches you run on the Site, jobs you click on, jobs you apply to, or the materials you provide in a job application to an Hiring Company through our Site. You can edit or change the Job Alerts you want to receive. You may opt out of job alerts by clicking on the unsubscribe link in your job alert email or following the directions presented in a text message. You can also contact us at support@happymonday.com if you need assistance.
c. Job Seeker Information and Matching.
Happy Monday may use your application materials (including resumes and your responses to an initial questionnaire) and your activity on the Site to determine whether the words of any Job Seeker’s resume and answers to certain questions match the words of a Job Ad. You agree and consent that Happy Monday may differentiate those matching resumes and questionnaire responses from those that do not match, and utilize that information to present Job Seekers to a Hiring Company as potential matches. Happy Monday may also use such information in order to improve the Site or any other Happy Monday product or service (including by displaying or otherwise making available potentially relevant Job Ads and resumes to Job Seekers and Hiring Companies). By using the Services, you also acknowledge that a Hiring Company may instruct Happy Monday to send out rejection notices if your resumes do not match Job Ads of the Hiring Company, and you acknowledge that Happy Monday has no discretion in the transmission of these rejections. Happy Monday may offer a Hiring Company the ability to activate a feature on their account in which the Hiring Company instructs Happy Monday to send a message on the Hiring Company’s behalf to the Job Seeker informing them that the Hiring Company has determined not to move forward with their application. You acknowledge and agree that Happy Monday has no discretion in the sending of these messages, and that any such messages are solely a result of the Hiring Company’s decision to not take an action on your application.
The Hiring Company is the sole party to determine which application materials will qualify a candidate and is solely responsible for the use of this information including any results which are considered to have a “disparate impact”. You further acknowledge that only the Hiring Company is responsible for offering alternative methods of screening, if so required by the Americans with Disabilities Act or any other equivalent state act.
d. Interactions with Other Users; Scams; Confidentiality.
You are solely responsible for your interactions with Users whom you contact or who contact you. Note: there are risks, including, but not limited to, the risk of physical harm, that may arise when dealing with strangers, including persons who may be acting under false pretenses. You should therefore use caution with regard to the information you elect to share as part of the User Content you share. Only list the contact information that you are comfortable disclosing to recruiters, hiring companies, and other Users of the Services. You should conduct your own due diligence on potential employers and Job Ads that may be of interest to you. Happy Monday does not authenticate Users or guarantee that a Job Ads are suitable, legitimate, or real.
7. Additional Terms that Apply to Hiring Companies and Job Ads.
As a User that is a hiring company (“Hiring Company”), you can use the Services to (i) search for prospective employees or candidates, (ii) view resumes, candidate profiles, or source of candidate, and (iii) post and/or distribute Job Ads on behalf of yourself or a third party.
a. Job Ad Content Rules.
With respect to all Job Ads that you submit, post, or distribute, whether on your own behalf or on behalf of a third party, you represent and warrant that (i) the content of Job Ads (whether owned by you or your clients), will comply with advertising standards and applicable laws, including, but not limited to, employment and privacy laws, in your jurisdiction and the jurisdictions in which the vacancies are located; (ii) you have the necessary rights to permit the publication and use of Job Ads by Happy Monday pursuant to this Terms of Service; (iii) the use, reproduction, distribution or transmission of Job Ads will not violate any applicable laws or any rights of any third parties, including, but not limited to, infringement of any copyright, trademark, or other proprietary right, false advertising, defamation, any other right of any person or entity; and (iv) the content of Jobs Ads will comply with the then-current versions of this Agreement.
Without limiting the generality of the foregoing, Happy Monday reserves the right (but is under no obligation) to remove any Job Ads that directly or indirectly discriminates against Job Seekers. Direct discrimination means, for example, that a Job Ad specifically makes clear that only Job Seekers matching a certain criteria are wanted, thereby excluding others because of, for example, their gender, race, age or disability. Indirect discrimination means, for example, that a Job Ad implicitly excludes certain classes of Job Seekers by making it impossible for them to qualify for the job requirements. You understand and agree that it is your responsibility to refrain from posting any Job Ad that directly or indirectly discriminate against Job Seekers or otherwise violate applicable law.
You understand and agree that you are solely responsible for any liability arising out of the content of your Job Ads and the publication of Job Ads or material to which Users can link though such Job Ads. You agree to indemnify and hold Happy Monday, and their respective officers, directors, employees, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with Job Ads provided by you or any other content provided by you, or your breach of this Agreement. You agree not to post or promote any Job Ads that violate applicable law and regulation or our Content Standards set forth in Section 5.
b. Distribution of Job Ads.
Happy Monday may distribute Job Ads to third party services, publishers, job boards, platforms, and/or other entities, or in job alert emails (where a Job Seeker has opted-in to receive such alerts) (collectively, ”Distribution Networks”). However, you acknowledge and accept that we have no control over the Distribution Networks or communication networks, and therefore we provide no guarantee that your Job Ads will actually be delivered over the Distribution Networks, be accepted by an entity in the Distribution Networks, or be received and/or read by a Job Seeker. You accept that entities in the Distribution Networks have no obligation to use or display a Job Ad and may reject a Job Ad for any reason or no reason, regardless of whether the Services are free or you paid for the Service from Happy Monday. You agree that Happy Monday is not liable to you or any third party if your Job Ad is rejected or not posted, and you will not be entitled to any refund for Job Ads not posted or distributed. By submitting a Job Ad, you give us permission to use our discretion to distribute and promote the Job Ad in the Distribution Networks and on the Happy Monday Site.
We make no guarantee as to the number or quality of candidates that you will receive as a result of your Job Ads. You are solely responsible for interviewing, performing background and reference checks on, verifying information provided by, and selecting an appropriate candidate.
c. Interactions with Job Seekers.
You agree to deal fairly and professionally with individuals who may respond to your Job Ads and agree to indemnify us from and against any claim brought by an individual against Happy Monday arising from your breach of this Terms of Service or any other agreement you have with Happy Monday.
d. License.
Subject to the terms and conditions of these Terms of Service, you hereby grant to Happy Monday a license to use your business name, trademark, logo, and any job description or other materials within the User Content provided by you to perform the Services, including, but not limited to (i) any marketing materials containing or incorporating such User Content, or (ii) any actions by Happy Monday to promote or publicize your User Content, including without limitation the use of keywords in third-party internet search engines. Subject to the rights granted herein, you and your licensors own and retain all right, title, and interest in, to, and under User Content. You understand that no compensation in any form will be due or payable to you in connection with Happy Monday’s exercise of its rights under the license granted under this Section. To the extent any compensation may be due under applicable law as a result of, or in connection with, Happy Monday’s exercise of these rights, you hereby waive any and all rights to such compensation.
You further acknowledge and agree that Happy Monday has no obligation, and may be unable, to remove your Job Ad and other content (including any logos and/or trademarks contained therein) once it has been (i) distributed via the Happy Monday distribution and publisher network, (ii) listed in search engine results, (iii) distributed on websites and in job alert emails or job alert texts, or (iv) incorporated into fixed media displays of Happy Monday or any third party, and in each case (i) to (iv) above, the license grant from you above will be perpetual and irrevocable for such uses. To the extent your User Content is a trademark, trade name, service mark or service name protected by law, the foregoing license also extends to the use by Happy Monday to identify you as a User of the Services in any promotional and marketing materials to promote Happy Monday and the Services.
8. Fees and Payment.
a. Fees.
To the extent the Services or any portion thereof is made available for any fee or through a subscription, the applicable fees described in any order form accepted by Happy Monday (collectively, “Fees”) and your access will be granted following payment of applicable fees to Happy Monday. Your account and access to the Services may be suspended in the event of non-payment of applicable fees. If you believes that Happy Monday has billed you incorrectly, you must contact Happy Monday no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared to receive an adjustment or credit. Inquiries should be directed to billing@happymonday.com. Except as expressly set forth in this Agreement, all Fees are non-cancellable and non-refundable.
b. Renewal Service Term Fees.
In the event that User exceeds any employee limit identified in an applicable order form, a prorated increase in fees will automatically be assessed and applied to the invoice for the Renewal Service Term. Happy Monday reserves the right to change the Renewal Service Term fees or applicable charges and to institute new charges and fees at the end of any term set forth in an order form, upon thirty (30) days prior notice to you. Without limiting the foregoing, any renewal term in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
c. Invoices.
Unless otherwise specified in an order form, Happy Monday will bill through an invoice and full payment for invoices issued must be received by Happy Monday thirty (30) days after the electronic delivery date of the invoice.
d. Credits.
Any credits due to a User will be applied on the next invoice against amounts then due. If there are no future invoices expected, Happy Monday will issue a payment to User for credits due.
e. Taxes.
Any amounts payable hereunder are exclusive of, and User will be responsible for all taxes, including general sales tax, value added taxes, duties, use taxes, withholdings, and other governmental assessments, excluding taxes based on the net income of Happy Monday, unless User provides to Happy Monday a valid tax-exempt certificate. In the case of any withholding requirements, User will pay any required withholding itself and will not reduce the amount paid to Happy Monday on account thereof.
9. Intellectual Property.
a. Happy Monday Intellectual Property.
Except as expressly set forth in this Agreement, Happy Monday owns and retains all right, title, and interest in, to, and under (a) the Services, including all software, improvements, enhancements, functionality, displays, or modifications thereto, (b) any software, applications, inventions, or other technology developed as part of any Professional Services (as set forth in an Order Form or Statement of Work mutually executed by both parties hereto that references this Agreement) or support, and (c) all intellectual property rights related to all of the foregoing (collectively, “Happy Monday Content”). This Agreement does not grant User (i) any rights to the Intellectual Property Rights in the Services or (ii) any rights to use the Happy Monday trademarks, logos, domain names, or other brand features. The Site and Services contain proprietary and copyright-protected information. Any unauthorized use of any Happy Monday Content contained on the Site or the Services may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit any of the content in whole or in part. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights. Happy Monday Content and Site may not be reproduced, duplicated, copied, sold, resold, or otherwise exploited for any commercial purpose without express written consent of Happy Monday. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Happy Monday without express written consent. You must not modify copies of any materials from this site or delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site. You may not use any meta tags or any other “hidden text” utilizing Happy Monday’s name or trademarks without the express written consent of Happy Monday. You may not misuse the Site. You may use the Site only as permitted by law. You must not access or use for any commercial purposes any part of the Site or any services or materials available through the Site.
b. User Data.
User gives Happy Monday permission to view data and take actions within User’s Happy Monday account for the purpose of delivering the Services, including support, maintenance, and onboarding, as well as to make design choices relating to the technical administration of the Services, for example, how the Service backs up data to keep it safe. User may request Happy Monday to perform actions within User’s Happy Monday account, and in doing so hereby grants Happy Monday the limited permission to view, create, and modify Happy Monday data in User’s Happy Monday account to fulfill the request, including but not limited to candidate records, reports, and account configurations. While not limited to the following, additional examples of the permissions encompassed in this section are: viewing or acting within an employee’s Happy Monday account to reproduce an issue or bug, creating or uploading job postings in the onboarding process, merging sources or tags, exporting data to produce a custom report, etc. User may request Happy Monday to perform actions within User’s Happy Monday account, and in doing so hereby grants Happy Monday the limited permission to view, create, and modify User Data in User’s Happy Monday account to fulfill the request, including but not limited to candidate records, reports, and account configurations. While not limited to the following, additional examples of the permissions encompassed in this section are: viewing or acting within an employee’s Happy Monday account to reproduce an issue or bug, creating or uploading job postings in the onboarding process, merging sources or tags, exporting data to produce a custom report, etc. You will not upload, post or otherwise make available on the Site or via the Services, any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right. You will indemnify Happy Monday and its officers, directors, employees, and agents for any claims by third parties of infringement of copyrights, trademarks, proprietary rights or any other harm resulting from such a submission of material by you.
c. Blind Data.
Notwithstanding anything to the contrary, Happy Monday has the right (during and after the term hereof) to, without any obligation to User, collect, develop, create, extract, compile, synthesize, analyze, and commercialize statistics, benchmarks, measures, and other information based on “Anonymized Data” (collectively “Blind Data”). “Anonymized Data” means User Data that is: (i) anonymized by removing any personal or other information so the data is in no way attributable to User, any of User’s employees, or any other individual or entity and (ii) presented in a way which does not reveal User’s identity.
d. Feedback.
Notwithstanding anything to the contrary, if User or any of its employees or contractors provide Happy Monday with any ideas, suggestion(s), enhancement requests, feedback, and/or recommendation(s) regarding the Services, including, without limitation, new and/or improved features or functionality relating thereto (“Feedback”), Happy Monday is free to use and disclose such Feedback without any obligation to User or such employees or contractors. As between the parties, Happy Monday is the owner of any such Feedback.
10. Prohibited Uses.
You may use the Site only for lawful purposes and in accordance with these Terms of Service. You agree not to use the Site:
In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter”, “spam”, or any other similar solicitation.
To impersonate or attempt to impersonate the Happy Monday, a Happy Monday employee, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).
To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Site, or which, as determined by us, may harm Happy Monday or users of the Site or expose them to liability.
Additionally, you agree not to:
Use the Site in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Site, including their ability to engage in real time activities through the Site.
Use any robot, spider, or other automatic device, process, or means to access the Site for any purpose, including monitoring or copying any of the material on the Site.
Use any manual process to monitor or copy any of the material on the Site or for any other unauthorized purpose without our prior written consent.
Use any device, software, or routine that interferes with the proper working of the Site.
Introduce any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Site, the server on which the Site is stored, or any server, computer, or database connected to the Site.
Attack the Site via a denial-of-service attack or a distributed denial-of-service attack.
Otherwise attempt to interfere with the proper working of the Site.
11. Third-Party Websites.
To provide the Services, Happy Monday may provide content to third-party websites. The use of the Services, including the distribution of User’s content to a third-party websites is at User’s own risk. We do not monitor or have any control over and make no claim or representation regarding third-party websites. To the extent User content is provided by Happy Monday, it is only provided as a convenience, and a link to a third-party website does not imply Happy Monday’s endorsement, adoption, or sponsorship of, or affiliation with, such third-party website. When you leave Happy Monday, our terms and policies do not govern your use of third-party websites. You hereby represent and warrant that you have read and agree to be bound by all applicable policies of any third-party relating to your use of the Services and that you will act in accordance with those policies, in addition to your obligations under this Agreement. Happy Monday has no control over and assumes no responsibility for the content, accuracy, privacy policies, practices, availability, or operations of any third party, nor any availability or operation of the Services to the extent caused by or dependent upon a third party. Happy Monday does not make any representations or warranties with respect to third-parties. Any exchange of data or other interaction between you and the third party is solely between you and the operator of such third party and is governed by your agreement with such third party.
12. NO WARRANTY.
a. Disclaimer of Warranties.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HAPPY MONDAY DOES NOT GUARANTEE ANY RESULTS FROM USING THE SERVICES. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES ARE AT YOUR OWN OPTION AND RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES, GUARANTEES, CONDITIONS OR TERMS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PURPOSE OR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY OTHER IMPLIED WARRANTY UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AS ENACTED BY ANY STATE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM HAPPY MONDAY, ITS EMPLOYEES, OR AGENTS, OR THROUGH THE SERVICES, WILL CREATE ANY WARRANTY, GUARANTEE, TERM OR CONDITION NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT (I) ANY CONTENT PROVIDED ON OR THROUGH THE SERVICES IS ACCURATE, LEGALLY COMPLIANT, UP-TO-DATE, RELIABLE OR CORRECT; (II) THE SERVICES WILL MEET YOUR REQUIREMENTS; (III) THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, OR WILL BE UNINTERRUPTED OR SECURE; (IV) ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR (V) THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED OR AVAILABLE AT YOUR OWN OPTION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA OR ANY OTHER TYPE OF LOSS THAT RESULTS FROM SUCH CONTENT OR YOUR USE OF THE SERVICES.
IF ANY SUCH WARRANTY OR GUARANTEE CANNOT BE EXCLUDED UNDER APPLICABLE LAW, THEN TO THE EXTENT PERMITTED BY APPLICABLE LAW, HAPPY MONDAY’S LIABILITY FOR BREACH OF ANY SUCH WARRANTY OR GUARANTEE IS LIMITED (AT HAPPY MONDAY’S OPTION) TO: (A) FOR GOODS, THE REPAIR OR REPLACEMENT OF THE GOODS, THE SUPPLY OF EQUIVALENT GOODS OR PAYMENT OF THE COST OF THE REPAIR OR REPLACEMENT OF THE GOODS OR SUPPLY OF EQUIVALENT GOODS; OR (B) FOR SERVICES, THE RESUPPLY OF THE SERVICES OR PAYMENT OF THE COST OF THE RESUPPLY OF THE SERVICES.
b. Universal Disclaimers.
HAPPY MONDAY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A USER OR THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, AND HAPPY MONDAY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND A USER OR THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
HAPPY MONDAY DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.
13. Indemnification.
To the maximum extent permitted by applicable law, you agree to defend, indemnify, and hold harmless Happy Monday and its subsidiaries, and their respective directors, officers, board members, employees, agents, successors and assigns, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to all legal fees and expenses) arising from: (i) your use of and access to the Services, including any data or content transmitted or received by you or any use by any person or entity under your user account or password; (ii) your violation of any term of this Agreement and any other agreement that you have with Happy Monday, including without limitation your breach of any of the representations and warranties herein; (iii) your violation of any third-party rights, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation, including, without limitation, your violation of the U.S. Fair Credit Reporting Act, or pursuant to applicable credit reporting laws, and any applicable data protection laws; (v) any claims or damages that arise as a result of your User Content; (vi) any other party’s access and use of the Services with your account or log-in information; and/or (vii) your intentional or willful misconduct, or negligence.
14. Limitation of Liability.
a. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS OTHERWISE EXPRESSLY STATED, IN NO EVENT WILL HAPPY MONDAY AND ITS RESPECTIVE BOARD MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS, BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (I) INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES OR LOSSES, OR ANY OTHER LOSS OR DAMAGE THAT DOES NOT ARISE NATURALLY AND ACCORDING TO THE USUAL COURSE OF THINGS FROM THE BREACH, ACT OR OMISSION RELATING TO THIS AGREEMENT AND GIVING RISE TO THAT LOSS, WHETHER OT NOT SUCH LOSS MAY REASONABLY BE SUPPOSED TO HAVE BEEN IN THE CONTEMPLATION OF THE PARTIES AT THE TIME THEY ENTERED INTO THIS AGREEMENT AS A PROBABLY RESULT OF THE BREACH, ACT OR OMISSION (II) DIRECT OR INDIRECT; (III), LOSS OF PROFITS, GOODWILL, USE, OR DATA THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HAPPY MONDAY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES; (C) UNAUTHORIZED ACCESS TO OR USE OF OUR SYSTEMS OR SERVERS AND/OR ANY PERSONAL INFORMATION STORED THEREIN; (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (D) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; (E) ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; (F) USER CONTENT OR (G) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY USER OR THIRD PARTY.. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT WILL HAPPY MONDAY’S AGGREGATE LIABILITY ARISING OUT OF AND/OR RELATED TO THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO HAPPY MONDAY UNDER THIS AGREEMENT IN THE TRAILING TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF STATUTORY DUTY OR ANY OTHER BASIS AND EVEN IF HAPPY MONDAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
b. Limitation of Claims.
Any claim or cause of action arising out of or related to use of the Service or to the Agreement must be filed within one (1) year after such claim or cause of action arose, or be forever waived.
15. Term and Termination.
a. Term and Termination.
This Agreement will remain in full force and effect for the Service Term as specified in the Order Form and will automatically renew for additional one year periods (each a “Renewal Service Term” and collectively, the “Term”), unless either party requests termination in writing at least thirty (30) days prior to the end of the then-current Term. A termination request by either party will be given via certified mail or via e-mail to respective Party Billing Contact. In addition to any other express termination right set forth in this Agreement, in Happy Monday’s sole and absolute discretion, with or without notice to you, Happy Monday may suspend or terminate your use of and access to the Services, terminate your account and/or remove and discard anything transmitted by you, or information stored, sent, or received via the Services without prior notice and for any reason, including, but not limited to: (i) User’s or any Authorized User’s use of the Services abuses, disrupts, or poses a security risk to the Services or to any other customer or vendor of Happy Monday, (ii) any violation of this Agreement, including, but not limited to, User failure to pay any Fees due under this Agreement, or (iii) tampering with or alteration of any of the software and/or data files contained in, or accessed through, the Services. Happy Monday will not be liable to you or any third party for any claims or damages arising out of any termination or suspension of the Site. Termination, suspension, or cancellation of the Services or your access rights to the Site will not affect any right or relief to which Happy Monday may be entitled, at law or in equity, and all rights granted to you will automatically terminate and immediately revert to Happy Monday.
b. Effect of Expiration or Termination.
Upon expiration or earlier termination of this Agreement, User will immediately discontinue use of and/or access to the Service(s). No expiration or termination will affect User’s obligation to pay all Fees that have become due before the effective date of such expiration or termination or entitle User to any refund.
c. Data.
Upon any termination, Happy Monday will make all User Data available to User for electronic retrieval in .csv format for a limited period of thirty (30) days.
16. Dispute Resolution and Arbitration Agreement.
You and Happy Monday mutually agree to waive our respective rights to resolution of disputes in a court of law by a judge or jury and agree to resolve any dispute by arbitration, as set forth below. This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives after the Agreement terminates or your relationship with Happy Monday ends. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. Except as expressly provided below, this Arbitration Agreement applies to all Claims (defined below) between you and Happy Monday, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders.
Except as expressly provided below, all disputes and claims between us (each a “Claim” and collectively, “Claims”) will be exclusively resolved by binding arbitration solely between you and Happy Monday. These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the Happy Monday Site, the Services, any other goods or services made available through the Happy Monday Site, your relationship with Happy Monday.
All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) will be decided by the arbitrator, except as expressly provided below.
By agreeing to arbitration, you understand that you and Happy Monday are waiving the right to sue in court or have a jury trial for all Claims, except as expressly otherwise provided in this Arbitration Agreement. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.
a. Class Action Waiver.
You understand and agree that you and Happy Monday may each bring Claims in arbitration against the other only in an individual capacity and not on a class, collective action, or representative basis (“Class Action Waiver”).
The arbitrator will have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. Except as otherwise provided in this Arbitration Agreement, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and we specifically agree to do so following initiation of the arbitration. Neither you, nor any other user of Services can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims.
b. Arbitration Procedures.
Any arbitration conducted pursuant to this Arbitration Agreement will be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA’s website (www.adr.org) (the “AAA Rules”) or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator will have the discretion to select a different set of AAA Rules, but in no event will the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding.
The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator will not be bound by rulings in prior arbitrations involving different Businesses or Installers, but is bound by rulings in prior arbitrations involving the same Businesses or Installers to the extent required by applicable law. The arbitrator’s award will be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
c. Arbitration Fees and Awards.
So long as you place a request in writing prior to commencement of the arbitration, we will pay all arbitration fees and associated costs and expenses. But, you will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if you provide notice and negotiate in good faith with us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
d. Location of Arbitration.
Either you or Happy Monday may initiate arbitration in Arizona or the federal judicial district that includes your billing address.
e. Exceptions to Arbitration.
This Arbitration Agreement will not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction; and (2) claims that may not be subject to arbitration as a matter of generally applicable law not preempted by the FAA.
In the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision will be severed and the remainder of the Arbitration Agreement will be given full force and effect.
17. Governing Law.
This Agreement and performance hereunder will be exclusively governed by, and construed in accordance with, the laws of the state of Arizona (without giving effect to its conflict of laws principles); provided, however, that the arbitration provision set forth above will be governed by the Federal Arbitration Act.
Our failure to enforce any right or provision of these Terms of Use will not be considered a waiver of those rights. If any provision of these Terms of Use is held to be invalid or unenforceable by a court, the remaining provisions of these Terms of Use will remain in effect. These Terms of Use constitute the entire agreement between us regarding our Services, and supersede and replace any prior agreements we might have had between us regarding the Services.
18. Entire Agreement.
This Agreement constitutes the entire understanding of the parties with respect to the Service and supersedes all previous agreements, statements, and understandings from or between the parties regarding the subject matter of this Agreement. This Agreement also supersedes any conflicting language contained in any applicable past or future purchase order regarding the subject matter of this Agreement. In the event of any conflict between the Terms of Service, the DPA, and/or the Order Form, the following order of precedence will apply (in descending order): (1) the DPA, (2) the Terms of Service, and (3) each Order Form. Notwithstanding the foregoing, in the event that an Order Form references a specific provision of these Terms of Service and states that it supersedes such provision, such Order Form will take precedence only with respect to such specific provision.
19. Survival.
Sections 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17 will survive any termination or expiration of this Agreement. No other provisions of this Agreement will survive the expiration or termination of this Agreement.
20. Force Majeure.
In no event will either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control.
21. Waiver and Severability.
No waiver of by Happy Monday of any term or condition set out in these Terms of Use will be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Happy Monday to assert a right or provision under these Terms of Use will not constitute a waiver of such right or provision.
If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision will be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.
22. Assignment.
User may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of Happy Monday, which will not be unreasonably withheld, conditioned. Any purported assignment or delegation in violation of this Section will be null and void. Happy Monday may freely assign and/or transfer this Agreement. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
23. Compliance with Laws.
Notwithstanding anything to the contrary, User may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing, User acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Happy Monday are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
24. Notices.
All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) must be in writing and to:
Happy Monday:
4700 E. Northern Ave. Unit 204
Phoenix, AZ 85018
User: Billing Contact identified in the Order Form
All Notices must be delivered by personal delivery, email, or certified or registered mail (in the latter case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party (or upon delivery, if by email) and (ii) if the Party giving the Notice has complied with the requirements of this Section.
25. Digital Millennium Copyright Act (“DMCA”) Notice
If you believe that any User Content violate your copyright, please send us a notice of copyright infringement to the address below. It is the policy of Happy Monday to terminate the user accounts of repeat infringers. In the event materials are made available to this Site by third parties not within our control, we are under no obligation to, and do not, scan such content for the inclusion of illegal or impermissible content. However, we respect the copyright interests of others. It is our policy not to permit materials known by us to infringe another party’s copyright to remain on the Site. If you believe any materials on the Site infringe a copyright, you should provide us with written notice that at a minimum contains:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
All DMCA notices should be sent to our designated agent as follows:
Copyright Administrator
Weiss Brown
6263 North Scottsdale Road, Suite 340
Scottsdale, AZ 85250
CopyrightAdministrator@WeissBrown.com
26. Company Name and Address
Company Name
Happy Monday, inc.
Company Address
4700 E. Thomas Rd. Unit 204
Phoenix, AZ 85018
It is our policy to terminate relationships regarding content with third parties who repeatedly infringe the copyrights of others.
© 2020 Happy Monday