Terms of Service
Updated: 7th September 2020
This Terms of Service (also referred to in this Terms of Service as “Agreement” or “ToS”) is entered into by and between HaYaChat.com Ltd (also referred to in this Terms of Service as “HaYa”) and the entity or person (also referred to in this Terms of Service as “The Organisation” or “you”) placing an order for or accessing any HaYaChat.com Ltd Services (also referred to in this Terms of Service as “Services”). If you are accessing or using the Services on behalf of your organisation, you represent that you are authorized to accept this Agreement on behalf of your organisation, and all references to “you” or “The Organisation” reference your organisation.
This Agreement permits The Organisation to register, use and purchase subscriptions to online Software-as-a-Service products and other services from HaYa pursuant to any HaYa ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (“Order Form(s)”) and sets forth the basic terms and conditions under which those products and services will be delivered. This Agreement will govern The Organisation’s first registration and first subscription purchase as well as any future purchases made by The Organisation that reference this Agreement.
The “Effective Date” of this Agreement is the date which is the earlier of (a) The Organisation’s initial access to any Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement.
As used in this Agreement, “HaYa” means HaYaChat.com Ltd., a company registered in England and Wales with offices at Dafield, Edenbridge, TN8 5NL, United Kingdom.
Modifications to this Agreement: From time to time, HaYa may modify this Agreement. Unless otherwise specified by HaYa, changes become effective for The Organisation upon renewal of The Organisation’s current Subscription Term (as defined below) or entry into a new Order Form. HaYa will use reasonable efforts to notify The Organisation of the changes through communications via The Organisation’s account, email or other means. The Organisation may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order Form, and in any event continued use of the Services after the updated version of this Agreement goes into effect will constitute The Organisation’s acceptance of such updated version. If HaYa specifies that changes to the Agreement will take effect prior to The Organisation’s next renewal or order (such as for legal compliance or product change reasons) and The Organisation objects to such changes, The Organisation may terminate the applicable Subscription Term and receive as its sole remedy a refund of any fees The Organisation has pre-paid for use of the applicable Services for the terminated portion of the Subscription Term.
These Terms of Service are governed by and construed in accordance with the laws of England and Wales.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
“Contractor” means an independent contractor or consultant who is not a competitor of HaYa.
“The Organisation Data” means any data of any type that is submitted to the Services by or on behalf of The Organisation, including without limitation: (a) data submitted, uploaded or imported to the Services by The Organisation (including from Third Party Platforms) and (b) data provided by or about People (including chat content, message logs and multimedia) that are collected from the The Organisation Properties using the Services.
“The Organisation Properties” means The Organisation’s websites, apps, or other offerings owned and operated by (or for the benefit of) The Organisation through which The Organisation uses the Services to communicate with People.
“Dashboard” means HaYa’s user interface for accessing and administering the Services that The Organisation may access via the web or the HaYa Apps.
“Order Form” means the section on HaYa’s user interface where The Organisation selects the Subscription Service they require and associated Payment Form.
“Documentation” means the technical user documentation provided with the Services.
“Feedback” means comments, questions, suggestions or other feedback relating to any HaYa product or service.
“HaYa App” means any mobile application or desktop client software included in the applicable Service that is made available by HaYa.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
“People” (in the singular, “Person”) means anyone contacting and connecting to The Organisation through the Service, and other users of and visitors to The Organisation Properties.
“Permitted User” means an employee or Contractor of The Organisation or its Affiliate who is authorized to access the Services.
“Sensitive Personal Information” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”); or (iii) any other personal data of an EU citizen deemed to be in a “special category” (as identified in EU General Data Protection Regulation or any successor directive or regulation).
“Service” or “Services” means HaYa’s proprietary Software-as-a-Service solution(s), including the Dashboard, HaYa application programming interfaces (APIs), HaYa Code and HaYa Apps.
“Taxes” means any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of HaYa.
“Third-Party Platform” means any software, Software-as-a-Service, data sources or other product
1. Acceptable Use Policy (AUP)
This Acceptable Use Policy applies to HaYa’s (a) websites (including without limitation to hayaorg.com (and any subdomain thereof), hayachat.com (and any subdomain thereof) and any successor URLS, mobile or localized versions and related domains and subdomains) and (b) all Services and linked Third-Party Platforms. To keep the Services running safely and smoothly, we need our users to agree not to misuse them. Specifically, you agree not to:
- Probe, scan, or test the vulnerability of any system or network used with the Services;
- Tamper with, reverse engineer or hack the Services, circumvent any security or authentication measures of the Services or attempt to gain unauthorized access to the Services (or any portion thereof) or related systems, networks or data;
- Modify or disable the Services or use the Services in any manner that interferes with or disrupts the integrity or performance of the Services or related systems, network or data;
- Access or search the Services by any means other than our publicly supported interfaces, or copy, distribute, or disclose any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”;
- Overwhelm or attempt to overwhelm our infrastructure by imposing an unreasonably large load on the Services that consume extraordinary resources, such as by: (i) using “robots,” “spiders,” “offline readers” or other automated systems to send more request messages to our servers than a human could reasonably send in the same period of time using a normal browser; or (ii) going far beyond the use parameters for any given Service as described in its corresponding documentation;
- Use the Services to generate or send unsolicited communications, advertising or spam, or otherwise cause HaYa to become impaired in its ability to send communications on its own or on its The Organisations’ behalf (e.g., by causing HaYa to become registered on any Email DNS blacklist or otherwise be denied services by any other third party communications service provider);
- Misrepresent yourself or disguise the origin of any data, content or other information you submit (including by “spoofing”, “phishing”, manipulating headers or other identifiers, impersonating anyone else, or falsely implying any sponsorship or association with HaYa or any third party) or access the Services via another user’s account without their permission;
- Use the Services for any illegal purpose or in violation of any laws (including without limitation data, privacy and export control laws);
- Use the Services to violate the privacy of others, or to collect or gather other users’ personal information (including account information) from our Services;
- Use the Services to stalk, harass, bully or post threats of violence against others;
- Submit (or post, upload, share or otherwise provide) data, content or other information that
- Infringes HaYa’s or a third party’s intellectual property, privacy or other rights or that you don’t have the right to submit (including confidential or personal information you are not authorized to disclose).
- That is deceptive, fraudulent, illegal, obscene, defamatory, libelous, threatening, harmful to minors, pornographic, indecent, harassing, hateful, religiously, racially or ethnically offensive, that encourages illegal or tortious conduct or that is otherwise inappropriate in HaYa’s discretion.
- Contains viruses, bots, worms, scripting exploits or other similar materials.
- That could otherwise cause damage to HaYa or any third party;
- Exception to AUP Part 11a, 11b. If The Organisation is a registered news organisation, law enforcement entity, legal service or medical institution, then there can be exceptions to AUP Part 11a, 11b due to the nature of operations of the aforementioned entities which are authorised under the laws governing their jurisdiction.
- Use meta tags or any other “hidden text” including HaYa’s or our suppliers’ product names or trademarks; or
Without affecting any other remedies available to us, HaYa may permanently or temporarily terminate or suspend a user’s account or access to the Services without notice or liability if HaYa (in its sole discretion) determines that a user has violated this Acceptable Use Policy.
2. HaYa Org Services
2.1 Services Overview
HaYa’s Services are a suite of messaging Software-as-a-Service solutions offered through multiple platforms. The Services are designed to enable The Organisation to manage communications with People through the entire lifecycle of their relationship with The Organisation and to provide a Dashboard for accessing and managing The Organisation Data regarding those People. The Organisation may import and export The Organisation Data between the Services and certain Third-Party Platforms through supported integrations. The Services may also include HaYa Code deployed on The Organisation Properties to enable live chat and messaging functionality.
2.2 Provision of Services
Each Service is provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term”). The Organisation will purchase and HaYa will provide the specific Services as specified in the applicable Order Form.
2.3 Access to Services
The Organisation may access and use the Services solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Documentation and any scope of use restrictions designated in the applicable Order Form (including without limitation the number of People tracked). Use of and access to the Services is permitted only by Permitted Users. If The Organisation is given API keys or passwords to access the Services on HaYa’s systems, The Organisation will require that all Permitted Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. If The Organisation is accessing the Services using credentials provided by a third party (e.g., Google), then The Organisation will comply with all applicable terms and conditions of such third party regarding provisioning and use of such credentials. The Organisation will be responsible for any and all actions taken using The Organisation’s accounts and passwords. If any Permitted User who has access to a user ID is no longer an employee (or Contractor, as set forth below) of The Organisation, then The Organisation will immediately delete such user ID and otherwise terminate such Permitted User’s access to the Service. The right to use the Services includes the right to deploy HaYa Code on The Organisation Properties in order to enable messaging, chat and similar functionality and to collect The Organisation Data for use with the Services as further described below.
2.4 HaYa Apps
To the extent HaYa provides HaYa Apps for use with the Services, subject to all of the terms and conditions of this Agreement, HaYa grants to The Organisation a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to use the object code form of the HaYa Apps internally, but only in connection with The Organisation’s use of the Service and otherwise in accordance with the Documentation and this Agreement.
2.5 Deployment of HaYa Code
Subject to all of the terms and conditions of this Agreement, HaYa grants to The Organisation a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to copy the HaYa Code in the form provided by HaYa on The Organisation Properties solely to support The Organisation’s use of the Service and otherwise in accordance with the Documentation and this Agreement. The Organisation must implement HaYa Code on the The Organisation Properties in order to enable features of the Services. The Organisation will implement all HaYa Code in strict accordance with the Documentation and other instructions provided by HaYa. The Organisation acknowledges that any changes made to the The Organisation Properties after initial implementation of HaYa Code may cause the Services to cease working or function improperly and that HaYa will have no responsibility for the impact of any such The Organisation changes.
2.6 Contractors and Affiliates
The Organisation may permit its Contractors and its Affiliates’ employees and Contractors to serve as Permitted Users, provided The Organisation remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement, and any use of the Services by such individuals is for the sole benefit of The Organisation.
2.7 General Restrictions
The Organisation will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to HaYa); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services (including without limitation (i) the “Powered by HaYa” designation that may appear as part of the deployment of the Services on The Organisation Properties and (ii) notices on any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services.
2.8 HaYa APIs
If HaYa makes access to any APIs available as part of the Services, HaYa reserves the right to place limits on access to such APIs (e.g., limits on numbers of calls or requests). Further, HaYa may monitor The Organisation’s usage of such APIs and limit the number of calls or requests The Organisation may make if HaYa believes that The Organisation’s usage is in breach of this Agreement or may negatively affect the Services (or otherwise impose liability on HaYa).
2.9 Free Subscriptions
If The Organisation uses the free subscription of the Service (a “Free Subscription”), then The Organisation may use the Services in accordance with the terms and conditions of this Agreement without charge and with the limitations of the Service as per the Free Subscription usage policy and limitations as described on the Order Form. Free Subscriptions do not include all functionality and features accessible as part of a Paid Subscription Term. HaYa has the right to terminate a Free Subscription at any time if the Free Subscription has not been accessed for more than 6 months. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, HAYA WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO FREE SUBSCRIPTIONS.
3. The Organisation Data
3.1 Rights in The Organisation Data
As between the parties, The Organisation will retain all right, title and interest (including any and all intellectual property rights) in and to the The Organisation Data as provided to HaYa. Subject to the terms of this Agreement, The Organisation hereby grants to HaYa a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the The Organisation Data solely to the extent necessary to provide the Services to The Organisation. HaYa agrees to never divulge, make public, distribute or publish The Organisation Data unless requested by court order.
3.2 Storage of The Organisation Data
HaYa does not provide an archiving service. HaYa agrees only that it will not intentionally delete any The Organisation Data from any Service prior to termination of The Organisation’s applicable Subscription Term. HaYa expressly disclaims all other obligations with respect to storage.
3.3 The Organisation Obligations
- In general The Organisation is solely responsible for the accuracy, content and legality of all The Organisation Data. The Organisation represents and warrants to HaYa that The Organisation has all necessary rights, consents and permissions to collect, share and use all The Organisation Data as contemplated in this Agreement (including granting HaYa the rights in Section 3.1 and that none of The Organisation Data will violate or infringe (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreements governing the The Organisation Properties or The Organisation’s accounts with any Third-Party Platforms. The Organisation further represents and warrants that all The Organisation Data complies with the AUP. The Organisation will be fully responsible for any The Organisation Data submitted to the Services by any Person as if it was submitted by The Organisation.
- No Sensitive Personal Information. The Organisation specifically agrees not to use the Services to collect, store, process or transmit any Sensitive Personal Information. The Organisation acknowledges that HaYa is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Services are neither HIPAA nor PCI DSS compliant. HaYa will have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.
- People Data. The Organisation is solely responsible for any and all Data supplied by People and it is the The Organisation’s responsibility to export, backup and store this Data on their own systems.
- Compliance with Laws. The Organisation agrees to comply with all applicable Laws in its use of the Services and People Data.
- Indemnification by The Organisation. The Organisation will indemnify, defend and hold harmless HaYa from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable legal fees and costs) arising out of or in connection with any claim arising from or relating to any The Organisation Data or breach or alleged breach by The Organisation of Section 3.3. This indemnification obligation is subject to The Organisation receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for The Organisation to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of HaYa at The Organisation’s expense. Notwithstanding the foregoing sentence, (a) HaYa may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) The Organisation will not settle any claim without HaYa’s prior written consent, unless the settlement fully and unconditionally releases HaYa and does not require HaYa to pay any amount, take any action, or admit any liability.
3.4 Aggregated Data
Notwithstanding anything to the contrary herein, The Organisation agrees that HaYa may obtain and aggregate technical data about The Organisation’s use of the Services that is non-personally identifiable with respect to The Organisation (“Aggregated Data”), and HaYa may use the Aggregated Data to analyze, improve, support and operate the Services and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by The Organisation and other HaYa customers. For clarity, this Section 3.4 does not give HaYa the right to identify The Organisation as the source of any Aggregated Data.
HaYa agrees to use commercially reasonable technical and organisational measures designed to prevent unauthorized access, use, alteration or disclosure of any Service or The Organisation Data. However, HaYa will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond HaYa’s control.
5. Third-Party Platforms
The Services may support integrations with certain Third-Party Platforms. In order for the Services to communicate with such Third-Party Platforms, The Organisation may be required to input credentials in order for the Services to access and receive relevant information from such Third-Party Platforms. By enabling use of the Services with any Third-Party Platform, The Organisation authorizes HaYa to access The Organisation’s accounts with such Third-Party Platform for the purposes described in this Agreement. The Organisation is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. The Organisation acknowledges and agrees that HaYa has no responsibility or liability for any Third-Party Platform or any of The Organisation Data exported to a Third-Party Platform. HaYa does not guarantee that the Services will maintain integrations with any Third-Party Platform and HaYa may disable integrations of the Services with any Third-Party Platform at any time with or without notice to The Organisation. For clarity, this Agreement governs The Organisation’s use of and access to the Services, even if accessed through an integration with a Third-Party Platform.
HaYa Technology. This is a subscription agreement for access to and use of the Services. The Organisation acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to The Organisation under this Agreement. The Organisation agrees that HaYa or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and all Documentation, professional services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “HaYa Technology”). Except as expressly set forth in this Agreement, no rights in any HaYa Technology are granted to The Organisation. Further, The Organisation acknowledges that the Services are offered as an on-line, hosted solution, and that The Organisation has no right to obtain a copy of any of the Services, except for HaYa Code and the HaYa Apps in the format provided by HaYa.
7. Subscription Term, Fees & Payment
7.1 Subscription Term and Renewals
Unless otherwise specified on the applicable Order Form, each Subscription Term will automatically renew for additional twelve month periods unless The Organisation downgrades their Paid Subscription to a Free Subscription through the Dashboard or until The Organisations terminates its usage of the Services.
7.2 Fees and Payment
All fees are as set forth in the applicable Order Form and will be paid by The Organisation via Credit Card (as defined below) or otherwise specified in the applicable Order Form. Except as expressly set forth in Section 9 and Section 14, all fees are non-refundable. The rates in the Order Form are valid for the initial twelve (12) month period of each Subscription Term and thereafter may be subject to an automatic adjustment increase of up to ten percent (10%) per year. The Organisation is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable Order Form. If The Organisation is required by Law to withhold any Taxes from The Organisation’s payment, the fees payable by The Organisation will be increased as necessary so that after making any required withholdings, HaYa receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
7.2 Payment Via Credit Card
If you are purchasing the Services via credit card, debit card or other payment card (“Credit Card”), the following terms apply:
- Recurring Billing Authorization. By providing Credit Card information and agreeing to purchase any Services, The Organisation hereby authorizes HaYa (or its designee) to automatically charge The Organisation’s Credit Card on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the Subscription Term for all fees accrued as of that date (if any) in accordance with the applicable Order Form. The Organisation acknowledges and agrees that the amount billed and charged each month may vary depending on The Organisation’s use of the Services in accordance with the conditions set in the Order Form and may include subscription fees for the remainder of The Organisation’s applicable billing period and overage fees for the prior month.
- Foreign Transaction Fees. The Organisation acknowledges that for certain Credit Cards, the issuer of The Organisation’s Credit Card may charge a foreign transaction fee or other charges.
- Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, The Organisation remains responsible for any amounts not remitted to HaYa and HaYa may, in its sole discretion, either (i) invoice The Organisation directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by The Organisation (if applicable) or (iii) automatically downgrade the subscription to a Free Subscription.
- Changing Credit Card Information. At any time, The Organisation may change its Credit Card information by entering updated Credit Card information via the “Settings” page on the Dashboard.
- Termination of Recurring Billing. In addition to any termination rights set forth in this Agreement, The Organisation may terminate the Subscription Term by sending HaYa notice of non-renewal to in accordance with Section 7.1 or, if The Organisation’s Subscription Term is on a monthly basis (or if otherwise permitted by HaYa), by terminating via the “Settings” page on the Dashboard, with termination effective at the end of the current Subscription Term.
- Payment of Outstanding Fees. Upon any termination or expiration of the Subscription Term, HaYa will charge The Organisation’s Credit Card (or invoice The Organisation directly) for any outstanding fees for The Organisation’s use of the Services during the Subscription Term, after which HaYa will not charge The Organisation’s Credit Card for any additional fees.
7.3 Automatic Downgrade of Service
If The Organisation’s account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), HaYa reserves the right to downgrade the applicable Service (and any related services) to a Free Subscription without liability to The Organisation until the Subscription is upgraded again to a Paid Subscription. HaYa also reserves the right to suspend The Organisation’s access to the Services without liability to The Organisation if The Organisation’s use of the Services is in violation of the AUP.
8. Term and Termination
This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all accounts and Subscriptions used by The Organisation.
8.2 Termination for Cause
Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
8.3 Effect of Termination
Upon any expiration or termination of this Agreement, The Organisation will immediately cease any and all use of and access to all Services (including any and all related HaYa Technology) and delete (or, at HaYa’s request, return) any and all copies of the Documentation, any HaYa passwords or access codes and any other HaYa Confidential Information in its possession. Provided this Agreement was not terminated for The Organisation’s breach, The Organisation may retain and use internally copies of all reports exported from any Service prior to termination. The Organisation acknowledges that following termination it will have no further access to any The Organisation Data input into any Service, and that HaYa may delete any such data as may have been stored by HaYa at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
9. Limited Warranty
9.1 Limited Warranty
HaYa warrants, for The Organisation’s benefit only, that each Service will operate in substantial conformity with the applicable Documentation. HaYa’s sole liability (and The Organisation’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to The Organisation, for HaYa to use commercially reasonable efforts to correct the reported non-conformity, or if HaYa determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and The Organisation will receive as its sole remedy a refund of any fees The Organisation has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this section will not apply: (i) unless The Organisation makes a claim within thirty (30) days of the date on which The Organisation first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to use provided on a no-charge, trial or evaluation basis.
9.2 Warranty Disclaimer
EXCEPT FOR THE LIMITED WARRANTY, ALL SERVICES ARE PROVIDED “AS IS”. NEITHER HAYA NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. HaYa does not warrant that The Organisation’s use of The Service will be uninterrupted or error-free, nor does HaYa warrant that it will review The Organisation Data for accuracy or that it will preserve or maintain The Organisation Data without loss or corruption. HAYA SHALL NOT BE LIABLE FOR THE RESULTS OF ANY COMMUNICATIONS SENT OR ANY COMMUNICATIONS THAT WERE FAILED TO BE SENT USING THE SERVICES. HAYA SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF HAYA. THE ORGanisatION MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
During the Subscription Term of each Service, HaYa will provide end user support in accordance with the following HaYa’s Support Policy:
- Support Hours. Support contact is provided 24 hours per day, 7 days per week through the Dashboard.
- Incident Submission and The Organisation Cooperation. The Organisation may report errors or abnormal behavior of the Service (“Incidents”) by contacting HaYa via the Dashboard Contact Form or via email at firstname.lastname@example.org. The Organisation will provide information and cooperation to HaYa as reasonably required for HaYa to provide Support. This includes, without limitation, providing the following information to HaYa regarding the Incident:
- Aspects of the Service that are unavailable or not functioning correctly
- Incident’s impact on users
- Start time of Incident
- List of steps to reproduce Incident
- Relevant log files or data
- Wording of any error message
- Incident Response. HaYa’s Support personnel will assign a priority level (“Priority Level”) to each Incident and seek to provide responses in accordance with the list below:
- Priority 1 – Operation of the Service is critically affected (not responding to requests or serving content) for a large number of users; no workaround available. 2 Hours response time.
- Priority 2 – Service is responding and functional but performance is degraded, and/or Incident has potentially severe impact on operation of the Service for multiple users. 1 Day response time.
- Priority 3 – Non-critical issue; no significant impact on performance of the Service but user experience may be affected. 3 Days response time.
- Exclusions. HaYa will have no obligation to provide Support to the extent an Incident arises from: (a) use of the Service by The Organisation in a manner not authorized in the Agreement or the applicable Documentation; (b) general Internet problems, force majeure events or other factors outside of HaYa’s reasonable control; (c) The Organisation’s equipment, software, network connections or other infrastructure; or (d) third party systems, acts or omissions.
13. Limitation of Remedies and Damages
13.1 Consequential Damages Waiver
EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
13.2 Liability Cap
HAYA AND ITS SUPPLIERS’ ENTIRE LIABILITY TO THE ORGanisatION ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY THE ORGanisatION TO HAYA DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.
13.3 Excluded Claims
“Excluded Claims” means any claim arising (a) from The Organisation’s breach of Section 2; (b) Section 3.3; or (c) from a party’s breach of its obligations in Section 14 (but excluding claims arising from operation or non-operation of any Service).
13.4 Nature of Claims and Failure of Essential Purpose
The parties agree that the waivers and limitations specified in this Section 13 apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
14. Confidential Information
Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any HaYa Technology, performance information relating to any Service, and the terms and conditions of this Agreement will be deemed Confidential Information of HaYa without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for HaYa, the subcontractors referenced in Section 16 – Subcontractors), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section. The Receiving Party’s confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
At the request of HaYa, The Organisation agrees to the issuance of a joint press release (“Press Release”) on a mutually agreed upon date. Each party will have the right to approve the Press Release in advance, but such approval will not be unreasonably delayed or withheld. The Organisation also agrees to participate in other reasonable marketing activities that promote the benefits of the Services to other potential customers and the use of The Organisation’s name and logo on HaYa’s web site and in HaYa promotional materials. The Organisation agrees that HaYa may disclose The Organisation as a customer of HaYa.
17. General Terms
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganisation, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section “Assignment” will be null and void.
If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
17.3 Governing Law; Dispute Resolution.
a) Direct Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, whether arising in contract, tort or otherwise, (“Dispute”), the parties shall first use their best efforts to resolve the Dispute. If a Dispute arises, the complaining party shall provide written notice to the other party in a document specifically entitled “Initial Notice of Dispute,” specifically setting forth the precise nature of the dispute (“Initial Notice of Dispute”). If an Initial Notice of Dispute is being sent to HaYa it must be emailed to email@example.com.
Following receipt of the Initial Notice of Dispute, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interest, attempt to reach a just and equitable solution of the Dispute that is satisfactory to both parties (“Direct Dispute Resolution”). If the parties are unable to reach a resolution of the Dispute through Direct Dispute Resolution within thirty (30) days of the receipt of the Initial Notice of Dispute, then the Dispute shall subsequently be resolved by arbitration as set forth below.
b) Arbitration. IN THE EVENT THAT A DISPUTE BETWEEN THE PARTIES CANNOT BE SETTLED THROUGH DIRECT DISPUTE RESOLUTION, AS DESCRIBED ABOVE, THE PARTIES AGREE TO SUBMIT THE DISPUTE TO BINDING ARBITRATION. BY AGREEING TO ARBITRATE, THE PARTIES AGREE TO WAIVE THEIR RIGHT TO A JURY TRIAL. Unless otherwise agreed by the parties, arbitration will be held in England, United Kingdom before a single arbitrator mutually agreed upon by the parties. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator’s decision and award will be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in the Terms of Service and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under the Terms of Service, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
All aspects of the arbitration shall be treated as confidential and neither the parties nor the arbitrators may disclose the content or results of the arbitration, except as necessary to comply with legal or regulatory requirements. The result of the arbitration shall be binding on the parties and judgment on the arbitrator’s award may be entered in any court having jurisdiction.
c) Construction and Joinder. THIS AGREEMENT MUST BE CONSTRUED AS IF IT WAS JOINTLY WRITTEN BY BOTH PARTIES. BOTH THE ORGanisatION AND HAYA AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS. NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. IN THE EVENT OF ANY DISPUTE CONCERNING THE VALIDITY OR ENFORCEABILITY OF THIS PROVISION, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.
d) Injunctive Relief. Notwithstanding the above provisions, HaYa may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
17.4 Amendments; Waivers
Except as otherwise provided herein, no supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by The Organisation will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
17.5 Entire Agreement
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. The Organisation acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved The Organisation experience HaYa may make changes to the Services, and HaYa will update the applicable Documentation accordingly. The support and service level availability terms described in the Support Policy may be updated from time to time upon reasonable notice to The Organisation to reflect process improvements or changing practices (but the modifications will not materially decrease HaYa’s obligations as compared to those reflected in such terms as of the Effective Date).
17.6 Force Majeure
Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the acceptance of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
HaYa may use the services of subcontractors and permit them to exercise the rights granted to HaYa in order to provide the Services under this Agreement, provided that HaYa remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Services as required under this Agreement.
Nothing in this Agreement prevents HaYa from disclosing The Organisation Data to the extent required by law, subpoenas, or court orders, but HaYa will use commercially reasonable efforts to notify The Organisation where permitted to do so.
17.9 Independent Contractors
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent
This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.
18 GDPR Compliance
General Data Protection Regulation (GDPR) is a European law that came into effect on 25th May 2018. It introduces enhanced responsibilities on organisations operating in Europe that collect personal data.
18.1 We are GDPR compliant
18.2 Data ownership
All The Organisation Data is owned by The Organisation. If The Organisation wants us to delete any or all data, they can do so by contacting us via the Dashboard contact form.
18.3 Data protection
We store all personal data and databases in the EU on our servers at Amazon Web Services. We use a number of third parties to provide our Services and we have ensured that they are either GDPR compliant or the data we provide them doesn’t breach our GDPR compliance. You can find the full list of these third parties in Section 18.1.