HAPYAK END USER LICENSE AGREEMENT
AND TERMS OF SERVICE
Last updated: July 01, 2016
This HapYak End User License Agreement and Terms of Service (the “Agreement”) is a legal agreement between Trapelo Corp. (dba HapYak) (“HapYak”) and you (the “Licensee” or “you”) and governs the use of technology and related materials and documentation which are provided by HapYak. HapYak has developed the HapYak Software designed to, among other things, enable users to annotate video content and redisplay the annotated content using the HapYak Service, all of which are the exclusive property of HapYak or its licensors and are protected by United States and international intellectual property laws. The HapYak Solution is copyrighted and licensed (not sold). Any use of the HapYak Solution outside the scope of the terms and conditions of this Agreement is prohibited.
You may not use the HapYak Solution unless you agree to this Agreement. By clicking on the “accept” button at the end of this document or by accessing, installing, copying, executing or otherwise using the HapYak Software or HapYak Service, you acknowledge that you have read this agreement, understand it and agree to be bound by its terms and conditions. If you are not willing to be bound by the terms of this Agreement, do not download or use the HapYak Software or HapYak Service. You may not use the Services if (a) you are prohibited by Law from receiving or using the Services, (b) you are not fully able and competent to enter into a binding contract with HapYak, such as if you are not of legal age or have not obtained parental consent. You affirm that you are over the age of 13 and acknowledge that the HapYak Solution is not intended for children under 13.
If you are using the HapYak Solution in your capacity as employee or agent of a company or organization, then any references to the “Licensee” in this agreement shall refer to such entity and not to you in your personal capacity. You warrant that you are authorized to legally bind the company or organization. If you are not so authorized, then neither you nor the Licensee may use the HapYak Solution in any manner whatsoever.
HapYak may change this Agreement at any time in its sole discretion. If HapYak changes this Agreement, HapYak will make a new copy available at https://corp.hapyak.com/terms. Licensee’s use of the HapYak Solution is subject to the most current version of this Agreement at the time of such use. HapYak may require you to provide consent to the updated Agreement before further use of the HapYak Solution is permitted. Otherwise, by continuing to use the HapYak Solution, you accept and agree to the then-current version of this Agreement.
Capitalized terms used throughout this Agreement shall have the meanings accorded to such terms herein. The following additional terms have the meanings stated below:
“Account” means a User profile created via the HapYak Solution and used to make selections with respect to the presentation, management, distribution and/or access to Licensee Video Content
“Account Information” means the information a User provides to HapYak when creating an Account, including User ID and User log-in information.
“Annotation” means any Licensee Materials included in or displayed with the Licensee Video Content via the HapYak Service.
“Documentation” means any installation manuals, associated user guides or other documentation, associated media, printed materials, and online or electronic documentation which are provided with the HapYak Software and/or HapYak Service or are otherwise provided by HapYak.
“HapYak Service” means the online HapYak service which stores and makes available annotations to the HapYak Software.
“HapYak Software” means the object code version of the following components and all Updates provided by HapYak:
- HapYak Editor (“Editor”) allowing for the creation, updating and deleting of Annotations in relation of videos.
- HapYak Viewer (“Viewer”) allowing Annotations to be viewed synchronously with a playing video.
- REST API required for communication between the “Editor” and “Viewer” and the HapYak Service.
- All other software and application program interfaces (“APIs”) provided as part of the HapYak Plan Features.
“HapYak Solution” means the HapYak Service, HapYak Software and Documentation.
“HapYak Plan Features” means the features and limitations of the HapYak Subscription Plan selected by Licensee in the sign-up process.
“HapYak Subscription Plan” means the HapYak subscription plan selected by Licensee as part of the sign-up process.
“Intellectual Property Rights” means copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, and any other intellectual and proprietary rights.
“Law” means any applicable law, regulation, or generally accepted practices or guidelines in any applicable jurisdiction, such as any laws regarding the export of data or software to and from the United States or other applicable countries.
“Licensee Materials” means any materials provided by Licensee for use with the HapYak Solution, including without limitation any information, data, text, hyperlinks, documents, images, artwork, photographs, graphics, audio, and Licensee Video Content.
“Licensee Video Content” means any video content provided by Licensee for use with the HapYak Solution.
“Marks” means a party’s trademarks, logos and service marks.
“Subscription Fees” means the fees payable by Licensee pursuant to the applicable HapYak Subscription Plan.
“Subscription Period” means the period of time selected by Licensee in the sign-up process.
“Third Party Materials” means data, images, programming, computer code, information, data, text, hyperlinks, documents, images, artwork, photographs, graphics, audio, video and other materials made, conceived, or developed by third parties, including any open source software, shareware or freeware.
“Update” means bug fixes, improvements, enhancements, updates, upgrades, new modules, and new versions of the HapYak Software made generally commercially available by HapYak or otherwise provided by HapYak to Licensee.
“User” means Licensee and Licensee’s authorized employees, consultants, contractors or agents that have created an Account, but expressly excludes any competitor of HapYak and any employee, consultant, contractor or agent of any competitor of HapYak.
2. License Grant
2.1 License Grant. Subject to the terms and conditions of this Agreement, including payment of all applicable Subscription Fees, HapYak grants to the Licensee a personal, worldwide, revocable, limited, non-transferable, non-sublicensable, non-assignable, nonexclusive license for the Subscription Period to (i) use the HapYak Editor and associated Documentation to create, update, and delete Annotations for Licensee Video Content, (ii) access and use the HapYak Viewer, HapYak Service and associated Documentation to display such Annotations synchronously with the associated Licensee Video Content as such Licensee Video Content is played, and (iii) use the APIs to develop usage reports, in each case, solely for the Licensee’s own business or personal use and subject to the HapYak Plan Features.
2.2 Third Party Materials/Products/Services. Any third party products, content, services or links displayed on or through, or otherwise made available by, the HapYak Solution are not referrals or endorsements of any product, service or provider; any and all such offerings are displayed solely for convenience only. The HapYak Solution may be enabled for use with third party components or services that may be subject to their own, separate license agreements or special pass-through terms, and Licensee assumes all risks and liabilities associated with the use of any such third party offerings, regardless of whether HapYak provides integration modules or services in connection with third party products and/or services. In addition, the HapYak Solution may contain Third Party Materials as referenced in the Documentation. HapYak makes no representations or warranties with respect to such Third Party Materials and Licensee’s rights with respect to such Third Party Materials may be governed by a separate license agreement with the third party licensor as described in the Documentation.
3. HapYak Service Availability and Technical Support
3.1 Availability. HapYak uses commercially reasonable efforts to make the HapYak Service generally available 24 hours a day, 7 days a week. However, there will be occasions when the HapYak Service will be interrupted or temporarily suspended for maintenance, upgrades and repairs, as a result of failure of third party service providers, as a result of telecommunications links and/or equipment, or due to other causes that are beyond HapYak’s control. HapYak will take commercially reasonable steps to minimize such disruption, to the extent within HapYak’s reasonable control.
3.2 Modifications; Discontinuation. HapYak may modify or discontinue, temporarily or permanently, the HapYak Service or the HapYak Software, or any portion thereof, with or without notice. Licensee agrees that HapYak shall not be liable to Licensee or any third party as a result of any such modification or discontinuation.
3.3 Technical Support. HapYak will provide Licensee with the technical support offered as part of the HapYak Plan Features selected by Licensee.
3.4 Updates. The HapYak Software may automatically download and install Updates from HapYak. These Updates are designed to improve, enhance and further develop the HapYak Solution and may take the form of bug fixes, enhanced functions, new modules, and completely new versions. Licensee agrees to receive such Updates (and permit HapYak to deliver Updates to Licensee with or without Licensee’s knowledge) as part of Licensee’s use of the HapYak Solution. If HapYak separately delivers or otherwise makes available Updates to Licensee, Licensee agrees to promptly install such Updates. Notwithstanding the foregoing, Licensee understand that HapYak may modify, update, upgrade or create new versions of or modules for the HapYak Solution at any time, but is under no obligation to inform you of or furnish to you any such modifications, updates, upgrades, new versions or new modules. This Agreement does not grant you any right, license or interest in or to any support, maintenance, modifications, updates, upgrades, new versions of or new modules other than as may be offered under Licensee’s HapYak Subscription Plan and HapYak reserves the right to charge fees for such modifications, updates, upgrades, new versions and new modules.
4. Licensee Obligations
4.1. Subscription Fees. Licensee agrees to pay to HapYak the Subscription Fees. Subscription Fees are non-refundable and are payable in U.S. Dollars. Licensee acknowledges and agrees that Subscription Fees and HapYak Plan Features may change at the end of each Subscription Period. Licensee is responsible for paying all local, state, federal or foreign taxes, levies or duties of any nature (including any applicable value-add taxes) (“Taxes”) levied in connection with Licensee’s use of the HapYak Solution and if HapYak has the legal obligation to pay or collect Taxes for which Licensee is responsible, the appropriate amount shall be invoiced to and paid by Licensee to HapYak. Licensee’s credit card company or bank may impose on other fees, such as foreign exchange fees, in connection with Licensee’s payment of the Subscription Fees. Licensee’s or a User’s ability to access the HapYak Solution may require payment of third-party fees (such as telephone toll charges, mobile carrier fees, ISP, data plan, etc.) and HapYak has no connection to or responsibility for such fees. Licensee agree that, in the event HapYak is unable to collect the Subscription Fees owed by you to Licensee for the HapYak Solution, Licensee may take the steps it deems necessary to collect such Subscription Fees from you and that you will be responsible for all costs and expenses incurred by HapYak in connection with such collection activity. If Licensee’s account is overdue (except with respect to fees or charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies available to HapYak hereunder or at law or equity, HapYak reserves the right to suspend the HapYak Service, without liability to Licensee, until such undisputed amounts are paid in full.
4.2 License to Content. Licensee hereby grants HapYak a worldwide, royalty-free, fully paid up, non-exclusive, license during the Subscription Period to access and use the Licensee Materials solely as are reasonable or necessary to provide the HapYak Solution to Licensee and its Users as contemplated herein, including, without limitation, the right to: (i) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms and reports based on access to and use of the Licensee Materials; and (ii) use, exhibit, broadcast, publish, publicly display, publicly perform, distribute, promote, copy, store, and/or reproduce (in any form) the Licensee Materials; and (iv) use the Licensee Materials to test HapYak’s internal technologies and processes. Licensee acknowledges and agrees that HapYak has no obligation to undertake to edit, review, monitor or otherwise oversee Licensee Materials submitted, uploaded, distributed, retrieved, or viewed in connection with use of the HapYak Solution, and assumes no responsibility or liability relating therefor.
4.3 Branded Landing Page; Use of Name. If the HapYak Subscription Plan Licensee has selected includes the right to a branded video landing page, Licensee hereby grants HapYak the right to use and publicly perform and display on the branded video landing page those Licensee Marks that Licensee has requested HapYak include on Licensee’s branded video landing page. Licensee agrees that HapYak may use your name and logo on HapYak’s on- and off-line customer lists.
4.4 Equipment. Licensee is responsible for obtaining and maintaining the necessary equipment and software to enable Licensee’s and its Users’ use of the HapYak Service, including without limitation separately licensing a third party Content Delivery Network “CDN” for global caching of read-only data used by the “Editor” and “Viewer”. Licensee shall ensure its CDN implementation complies with the requirements set forth at http://bit.ly/1d1H1vd.
4.5 Restrictions. Except as expressly permitted by HapYak or to the extent expressly authorized herein or by the HapYak Solution, Licensee shall not, and shall ensure that Users do not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the HapYak Solution in any way; (ii) copy, modify or make derivative works based upon the HapYak Solution; (ii) reverse engineer, decompile, modify, translate, disassemble (except to the extent that this restriction is expressly prohibited by law, provided, however, that Licensee must first request the information from HapYak and HapYak may, in its discretion, either provide such information to you or impose reasonable conditions, including reasonable fees, to ensure that HapYak’s Intellectual Property Rights are protected); (iii) sublicense, sell, rent, lease, assign or otherwise transfer or make available to any third party any aspect of the HapYak Solution; (iv) take any act to remove, obscure, interfere with or modify the presentation or functionality of any aspect of the HapYak Solution or any text or proprietary notices contained therein; (v) copy or imitate part or all of the design, layout, or look-and-feel of the Service, which are protected by Intellectual Property Rights; or (vi) use the HapYak Solution in any other manner not expressly permitted hereunder.
4.6. Use Guidelines. Licensee is responsible for all activities that occur under its Accounts or by Users. Licensee shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Licensee Materials; (ii) use commercially reasonable efforts to prevent unauthorized control or tampering or any other unauthorized access to, or use of, the HapYak Service; (iii) comply with all applicable Laws in using the HapYak Solution. In addition, Licensee shall not, and shall ensure that its Users do not : (a) interfere with or disrupt the integrity, security or performance of the HapYak Service or the data contained therein; (b) attempt to gain unauthorized access to the HapYak Service or its related systems or networks or circumvent any access or use restrictions put into place to prevent certain uses of the HapYak Service; (c) access or use HapYak Software or the HapYak Service in a United States embargoed country or in violation of any applicable export law or regulation (including any United States export laws and regulations); or (d) use the HapYak Software or HapYak Service in order to (1) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (2) send or store infringing, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive or tortious material, including material harmful to children or violative of third party privacy rights; or (3) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs.
4.7 Licensee Representations. Licensee represents, warrants and covenants that: (a) Licensee owns the Intellectual Property Rights, or have obtained all necessary license(s) and permission(s), to use, publicly display, publicly perform and distribute the Licensee Material in connection Licensee’s use of the HapYak Service, including without limitation that Licensee and its Users have (1) obtained all necessary consents, permissions, licenses and waivers from copyright owners, artist(s), actors, directors, performers, writers, producers, or any other individuals who appear in the Licensee Materials or the results and proceeds of whose services are utilized in the Licensee Materials, (2) obtained any required synchronization and master use licenses from the owners of the musical compositions and sound recordings embodied in the Licensee Materials (or their designated representatives), and (3) made any payments to any labor unions and guilds, to the extent required under applicable collective bargaining agreements or otherwise (e.g., residuals, re-use, rerun and other similar fees) and paid any and all fees owed to the collecting societies for the viewing of the Licensee Materials; (b) Licensee has the rights necessary to grant the rights and licenses to HapYak as set forth herein; and (c) the Licensee Material does not violate, misappropriate or infringe any Intellectual Property Right or other proprietary right, including right of publicity or privacy, of any person, company or entity, or other third party.
4.8 Indemnification. Licensee agrees to indemnify and hold HapYak and its subsidiaries, affiliates, officers, agents, employees, stockholders and licensors harmless from and against any claim, demand, suit, action, investigation, allegation, damages, losses, costs, expenses, and any and all other liabilities (including reasonable attorneys’ fees and costs), arising out of or otherwise related to (i) the Licensee Material, (ii) Licensee’s or its Users’ use of the HapYak Solution, or (iii) Licensee’s or its Users’ breach of this Agreement (including without limitation any breach of the representations, warranties and/or covenants in Section 4.7 above) or any other applicable published HapYak usage terms, conditions, policies, or requirements, or violation of any rights of another.
5.1 Account Information. To access and use the HapYak Solution, Licensee and its Users must register for a HapYak Account. Licensee agrees that its Account Information will always be complete, accurate, and up-to-date. It is Licensee’s responsibility require and ensure its Users keep their account information up to date and will keep password or log-in credentials confidential at all times. Licensee is solely responsible to HapYak for all activity that occurs via Licensee’s and its Users’ Accounts. If Licensee becomes aware of any unauthorized use of an Account or Account Information, or any other breach of security, you agree to notify HapYak by contacting HapYak at email@example.com. HapYak may require that you change your Account Information or certain parts of your Account Information at any time for any reason.
6. Intellectual Property Ownership; Confidentiality
6.1 Intellectual Property Ownership. Except for the limited license granted to the Licensee under this Agreement, HapYak does not grant any express or implied rights in the HapYak Solution and all right, title and interest in and to the HapYak Solution and HapYak Marks, including without limitation all Intellectual Property Rights, shall remain exclusively in HapYak and/or its licensors and nothing in this Agreement shall be construed to confer any license or right, by implication, estoppel or otherwise, under copyright or other intellectual property rights, to you or any third party. HapYak owns all right, title and interest in and to the data created or collected by the HapYak Solution in connection with the use of the HapYak Solution by Licensee and its Users.
6.2 Confidentiality. Licensee acknowledges that the HapYak Solution and the Documentation contain and constitute commercially valuable, proprietary trade secrets and confidential information of HapYak and Licensee shall keep all information pertaining to the HapYak Solution strictly confidential (collectively “Confidential Information”) unless given written permission by HapYak to disclose such information, or such information becomes public knowledge other than by the Licensee’s breach of this Agreement.
6.3 Suggestions. Licensee may, from time to time, provide suggestions, techniques, know-how, comments, feedback or other input to HapYak with respect to the HapYak Solution (collectively, “Suggestions”). Both parties agree that each Suggestion is and shall be given entirely voluntarily. Each Suggestion, even if designated as confidential by License shall not, absent a signed, written agreement with HapYak, create an obligation of confidentiality for HapYak. Licensee agrees that it shall not give any Suggestion that is subject to license terms or restrictions that seek to require any HapYak technology, service, product or documentation incorporating or derived from such Suggestion, or any HapYak intellectual property, to be licensed or otherwise shared with Licensee or any third party. Furthermore, Licensee hereby assigns all right, title and interest, including without limitation all Intellectual Property Rights, in and to any and all Suggestions to HapYak, and will take any and all actions reasonably requested by HapYak to effect such assignment at HapYak’s expense and shall treat all Suggestions as HapYak Confidential Information.
7. Term; Termination
7.1 Term. Unless earlier terminated as provided herein, this Agreement shall terminate on the expiration of the Subscription Period.
7.2 Termination by Licensee. Licensee may terminate this Agreement at any time upon written notice to HapYak.
7.3 Termination by HapYak. HapYak may terminate this Agreement at any time upon notice to Licensee if (a) Licensee or its Users have breached or threatened to breach any provision of this Agreement; (b) HapYak is required to do so by Law (for example, where the provision of the HapYak Solution to you is, or becomes, unlawful); (c) HapYak has elected to discontinue the HapYak Solution (or any part thereof); or (d) Licensee undergoes a bankruptcy event, liquidates, dissolves or otherwise ceases to do business. Licenses agrees that all terminations by HapYak shall be made in HapYak’s sole discretion and that HapYak shall not be liable to Licensee or any third party for any termination of this Agreement.
7.4 Obligations on Termination. Upon termination of this Agreement for any reason, (i) the Subscription Period shall end, HapYak shall deactivate Licensee’s and its Users’ Account(s) and may delete all Account Information and any related information, data or materials associated with such Account(s), and (ii) Licensee shall cease all use of the HapYak Solution and shall return or destroy all copies of the HapYak Software in its possession or control, and shall return or destroy all HapYak Confidential Information and all extracts and copies thereof. At HapYak’s request, Licensee shall certify in writing its compliance with the foregoing. Sections 1, 4, 5.2, 6, 7.4, 8, 9, 10 and 11 shall survive any termination or expiration of this Agreement.
8. Disclaimer of Warranties
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE HAPYAK SOLUTION AND ANY MATERIALS PROVIDED BY HAPYAK ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, HAPYAK AND ITS LICENSORS MAKE NO WARRANTY THAT (a) THE HAPYAK SOLUTION OR MATERIALS WILL MEET LICENSEE’S OR ITS USERS REQUIREMENTS OR WILL BE CONSTANTLY AVAILABLE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (b) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE HAPYAK SOLUTION WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; (c) THE QUALITY OF THE HAPYAK SOLUTION WILL MEET LICENSEE’S OR ITS USERS’ EXPECTATIONS; OR THAT (d) ANY ERRORS OR DEFECTS IN THE HAPYAK SOLUTION WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY LICENSEE FROM HAPYAK OR THROUGH OR FROM USE OF THE HAPYAK SOLUTION SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. HAPYAK WILL NOT BE RESPONSIBLE FOR: (A) ANY NONCONFORMITIES CAUSED BY ACTS WITHIN THE CONTROL OF LICENSEE OR ANY USER OR INTEROPERABILITY OF SPECIFIC LICENSEE OR USER APPLICATIONS, CONTENT, DATA OR EQUIPMENT WITH THE HAPYAK SOLUTION; (B) THE INABILITY OF LICENSEE OR ITS USERS TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET; OR (C) SERVICE PROVIDED BY OTHER SERVICE PROVIDERS.
HAPYAK DOES NOT CONTROL, ENDORSE, OR ACCEPT RESPONSIBILITY FOR ANY MATERIALS OR SERVICES OFFERED BY THIRD PARTIES ACCESSIBLE THROUGH LINKED SITES. HAPYAK MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER ABOUT, AND SHALL NOT BE LIABLE FOR, ANY SUCH THIRD PARTIES, THEIR MATERIALS OR SERVICES. ANY DEALINGS THAT YOU MAY HAVE WITH SUCH THIRD PARTIES ARE AT YOUR OWN RISK.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
9. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL HAPYAK ITS OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE TO LICENSEE, ITS USERS OR ANYONE ELSE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING THOSE RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT FORESEEABLE OR IF HAPYAK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR BASED ON ANY THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORTIOUS ACTION, OR ANY OTHER CLAIM ARISING OUT OF OR IN CONNECTION WITH LICENSEE’S OR ITS USERS’ USE OF OR ACCESS TO THE SITE, SERVICES OR MATERIALS. NOTHING IN THE TERMS SHALL LIMIT OR EXCLUDE HAPYAK’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF HAPYAK OR ITS EMPLOYEES, OR FOR DEATH OR PERSONAL INJURY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, HAPYAK’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, LICENSORS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO US $100 OR THE SUBSCRIPTION FEES PAID BY LICENSEE DURING THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, WHICHEVER IS LARGER. THIS LIMITATION WILL APPLY EVEN IF HAPYAK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN LICENSEE’S JURISDICTION. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES. ACCORDINGLY, THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO LICENSEE.
HapYak, in its sole discretion, may (but has no obligation to) monitor or review Licensee and its Users’ use of the HapYak Solution at any time. Although HapYak does not generally monitor activity occurring in connection with the HapYak Solution, if HapYak becomes aware of any possible violations by Licensee or its Users of any provision of this Agreement, HapYak reserves the right to investigate such violations, and HapYak may, at its sole discretion, immediately terminate this Agreement. If, as a result of such investigation, HapYak believes that criminal activity has occurred, HapYak reserves the right to refer the matter to, and to cooperate with, any and all applicable law enforcement authorities. Except to the extent prohibited by applicable Law, HapYak is entitled to retain and/or disclose any information, data and materials, including Licensee Materials and/or Account Information (or elements thereof), in HapYak’s possession in connection with Licensee’s and its Users’ use of the HapYak Solution to (a) comply with applicable Law, legal process, or governmental request; (b) enforce this Agreement; (c) respond to any claims that the Licensee Material or use of the HapYak Solution violates this Agreement or rights of third parties; (d) respond to Licensee’s requests for support services; or (e) protect the rights, property or personal safety of HapYak or third parties, as HapYak in its sole discretion believes to be necessary or appropriate
(i) Nothing in this Agreement shall affect HapYak’s rights with respect to the HapYak Solution under the laws of any state or country relating to intellectual property rights or be construed as granting the Licensee any right or license to use the HapYak Solution except as expressly set forth herein. (ii) Licensee acknowledges and agrees that monetary damages alone would not be an adequate remedy in the event of a material breach by Licensee of its obligations under this Agreement and that, in such event, HapYak shall be entitled to injunctive relief to require Licensee to comply with its obligations hereunder. Any remedy available under this Agreement shall be cumulative and not exclusive of any other remedy available to HapYak under this Agreement, at law or in equity. (iii) Neither party shall assign or sublicense its rights or obligations under this Agreement without the other party’s prior written consent, except that HapYak may assign such rights or obligations its successor in a merger, acquisition or other change of control, including without limitation the sale of all or substantially all of its assets, stock or business to which this Agreement relates. (iv) If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties as reflected by that provision, and the remainder of this Agreement shall continue in full force and effect. Any failure by HapYak to enforce or exercise any provision of this Agreement, or any related right, shall not constitute a waiver of that provision or right. (v) This Agreement represents the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, arrangements and understandings. This Agreement shall be construed and enforced pursuant to the laws of the Commonwealth of Massachusetts, exclusive of rules governing conflict of law and choice of laws. The parties agree that the Uniform Computer Information Transactions Act (UCITA) is hereby excluded from application to this Agreement and the parties agree that the United Nations Convention for the International Sale of Goods is excluded in its entirety from this Agreement. The English version of this Agreement will be the version used when interpreting or construing this Agreement. (vi) Licensee agrees that any claim or dispute it may have against HapYak must be resolved by a court located in Boston, Massachusetts, United States except as otherwise agreed by the parties. Licensee agrees to submit to the personal jurisdiction of the courts located in Boston Massachusetts, United States. All claims Licensee brings against HapYak must be resolved in accordance with this section. All claims filed or brought contrary to this section shall be considered improperly filed. Should Licensee file a claim contrary to this section, HapYak may recover attorneys’ fees and costs up to U.S. $1,000, provided that HapYak has notified you in writing of the improperly filed claim and License has failed to properly withdraw the claim. (vii) The HapYak Solution is controlled, operated, and administered by HapYak from its offices in the United States. HapYak makes no representation that the HapYak Solution or any party thereof are appropriate or available for use outside of the United States. HapYak reserves the right to block access to the HapYak Solution by certain international users. If Licensee or its Users access the HapYak Solution from a location outside the United States, then Licensee is responsible for compliance with all applicable Laws. Licensee acknowledges that the HapYak Solution is subject to the U.S. Export Administration Regulations and other export laws, restrictions, and regulations (collectively, the “Export Laws”) and that you will comply with the Export Laws. Licensee will not ship, transfer, export, or re-export the HapYak Solution, directly or indirectly, to: (a) any countries that are subject to U.S. export restrictions (currently including, but not necessarily limited to, Cuba, Iran, North Korea, Sudan, and Syria) (each, an “Embargoed Country”), (b) any end user whom you know or have reason to know will utilize them in the design, development, or production of nuclear, chemical, or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems (each, a “Prohibited Use”), or (c) any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government (each, a “Sanctioned Party”). In addition, Licensee is responsible for complying with any local laws in your jurisdiction which may impact the right to import, export, or use the HapYak Solution. Licensee represents and warrants that Licensee and its Users (1) are not a citizen of, or located within, an Embargoed Country, (2) will not use the HapYak Solution for a Prohibited Use, and (3) are not a Sanctioned Party. (viii) Any notice provided to HapYak pursuant to this Agreement should be sent to firstname.lastname@example.org. HapYak may provide Licensee with notices, including those regarding changes to the Agreement, by email, regular mail, text message, postings on or within the HapYak Service, or other reasonable means now known or hereafter developed. (viii) HapYak’s failure to perform its obligations under this Agreement shall be excused to the extent that performance is rendered impossible by strikes or other labor problems, fire, flood, civil unrest, acts of terror, governmental acts or orders or restrictions, failure of suppliers or telecommunications providers, or any other reason where failure to perform is beyond the control of HapYak. (ix) The HapYak Solution and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.