HEYDAY TERMS OF SERVICE
Last Modified: April 21, 2023
Please review these terms (the “Agreement”) carefully. Heyday provides a software as a service (SaaS) solution for use with various messaging applications and customer engagement applications, as well as related set-up, training, and technical support services. Heyday solutions may be accessed remotely by Client in accordance with the terms and conditions of this Agreement.
By signing any Business Terms referencing this Agreement or accessing or using the Services offered by Heyday Technologies Inc, Client confirms that it has read, understands and accepts this Agreement. This Agreement can be updated from time to time in accordance with Section 7.4 below. Client is responsible for regularly reviewing the most current version of this Agreement, which is published at: https://hootsuite.widen.net/s/qxhddmtdsn/heyday-terms-of-service. When Heyday changes this Agreement, Heyday will update the “Last Modified” date above.
1. DEFINITIONS
Heyday uses capitalization for terms that have a special meaning in this Agreement. While some terms are defined elsewhere, this section sets out the definitions of some key terms.
1.1 “Affiliate(s)” with respect to an entity, means any other entity which controls, is controlled by, or is under common control with that entity, and includes for greater certainty subsidiaries and parent corporations.
1.2 “Additional SaaS Fees” means the additional fees set out in the Business Terms (including any additional Conversation usage fees, determined by calculating the Client’s actual number of Engaged Conversations in a given month that exceed the number of Engaged Conversations included in the SaaS Fees) subject to any price increases that may be made pursuant to the terms of this Agreement.
1.3 “Business Terms” means a document issued by Heyday and that is signed or otherwise agreed to by Client which includes the description of the Services and/or Professional Services purchased by Client, including the SaaS Fees, and any other related details, which terms are incorporated in this Agreement by reference.
1.4 “Client”, “you”, “your” means the person or legal entity identified as the client who is purchasing the Services in the Business Terms.
1.5 “Client Data” has the meaning attributed at Section 2.8.2.
1.6 “Closed Conversation” means the Client (or anyone acting on behalf of the Client) has indicated, using the Services, that a Conversation is completed or otherwise resolved.
1.7 “Confidential Information” means, with respect to a party, (i) any and all non-public, confidential or proprietary information of such Party, including any information relating to the content of this Agreement and such Party’s business, products, services, activities, operations, business affairs, customers and prospects, intellectual property, technology, know-how, design rights and trade secrets, whether such information is provided orally, in writing, in computer readable form or otherwise and whether or not it is specifically identified as confidential, and (ii) any copies, extracts or reproduction, in whole or in part, of any of the foregoing. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. For greater certainty, Heyday’s Confidential Information includes but is not limited to non-public information about its pricing, personnel, or partnerships, its product roadmap, security and data protection documentation, or other non-public information Heyday identifies as confidential. Client Confidential Information may include but is not limited to non-public information about Client’s policies, personnel, plans or strategies (such as marketing plans).
1.8 “Conversation” means an exchange of messages and/or other interactions between the Client and the Client’s individual customer using the Service.
1.9 “Conversational Data” has the meaning attributed at Section 2.8.1.
1.10 “Engaged Conversation” has the meaning attributed at Section 2.2.
1.11 “Fees” means the fees set out in the Business Terms for the Services, including but not limited to the SaaS Fees, the Additional SaaS Fees and fees for any Professional Services.
1.12 “Heyday”, “us”, “our”, “we” means Heyday Technologies Inc.
1.13 “Heyday Data” has the meaning attributed at Section 2.8.3.
1.14 “Interaction” means: (i) text; (ii) a graphical control element, or another form of engagement offered by the Services, in each case initiated by an individual customer of the Client in order to interact with the Services.
1.15 “Parties” means Heyday and Client.
1.16 “Paused Conversation” means, in respect of an automated Conversation (being a Conversation managed by the Heyday conversational AI Service), a period of 10 minutes or longer has elapsed since the last Interaction.
1.17 “Professional Services” means any professional services described in the Business Terms, where applicable, including but not limited to configuration services or training services.
1.18 “SaaS Fees” means the base fees set out in the Business Terms for the Services and number of Engaged Conversations set out therein, subject to any price increases that may be made pursuant to the terms of this Agreement.
1.19 “Service(s)” means Heyday’s cloud-based customer messaging software and any other Heyday software, product or service made available to Client and described in the Business Terms.
1.20 “Third Party Services” means any third-party telecommunications services, networks, websites, applications and/or conversational channels with which the Services interact, such as messaging applications, that Client may access or use in connection with its use of the Services.
1.21 “User(s)” means any person who uses the Services through the Client’s account, which may include the employees or contractors of the Client.
2. HEYDAY’S SERVICES
2.1 Heyday’s Services. During the term of this Agreement, subject to the terms and conditions of this Agreement and to Client’s payment of the applicable Fees, Heyday will make the Services available to Client in accordance with the applicable Business Terms (including any usage limits referred to therein) and the Service Level Agreement published at https://hootsuite.widen.net/s/cctkfvrx9n/heyday-service-level-agreement. Such access is for the benefit of the Client’s conversational channels described in the Business Terms only and, for clarity and without limitation, is not for the purposes of offering the Services to others. Client is responsible for all Users and must ensure that they comply with Client’s obligations under this Agreement. Where the Services include the provision of Heyday’s chat widget, required for integration of the conversational chat interface, Heyday grants the Client a limited, non-exclusive and non-transferable licence for the duration of this Agreement to copy, install and integrate the code snippet within the Client’s conversational channels identified in the Business Terms.
2.2 Engaged Conversations. A Conversation is engaged whenever there is: (i) a first Interaction to a new Conversation; (ii) a further Interaction to a Paused Conversation; or; (iii) the re-opening of a Closed Conversation by the Client.
2.3 Term. This Agreement will commence on the first day of the initial term set out in the Business Terms (“Initial Term”) and, except as otherwise set out in the Business Terms, shall renew automatically for successive periods of 12 months (“Renewal Term(s)”), unless one Party notifies the other Party in writing at least 60 days prior to the expiration of the then-current term that it does not wish to renew the Agreement. Heyday reserves the right to increase the Fees on renewal by giving the Client written notice thereof (which notice may be given by email) provided that if Heyday gives the Client such notice less than ninety (90) days prior to the end of then-current Initial Term or Renewal Term (as applicable), the Client will have thirty (30) days thereafter to give Heyday written notice to opt out of any applicable automatic renewal.
2.4 Updates. Heyday’s Services evolve constantly. So long as Heyday does not breach the warranty set out in Section 8.2(a), Heyday may change the Services (for example, by fixing, updating or introducing new features) at any time, for any reason, and Heyday may or may not provide notice of those changes to Client.
2.5 Beta Services. From time to time, Heyday may offer the Client the opportunity to install, use and test certain Heyday services prior to their commercial release (“Beta Services”). Use of the Beta Services is optional. Use of any Beta Services is subject to additional terms agreed between the parties to govern access to those Beta Services.
2.6 Feedback. Client may (but is not obliged to) provide Heyday with suggestions, comments, bug reports, feature requests or other feedback (“Feedback”). Heyday does not have to keep Feedback confidential, even if Client tells Heyday it is confidential, provided Heyday does not disclose that Client is the source of any Feedback. If Client provides Feedback, Client grants Heyday a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use the Feedback for any purpose.
2.7 Intellectual Property. Client recognizes and agrees that all trade-marks (registered or not), inventions (whether patentable or not), patent applications, patents, industrial designs, works protected by copyright or related rights (registered or not), trade secrets, know-how or other intellectual property in or related to the Services (the “Intellectual Property”) are the exclusive property of Heyday or are otherwise controlled by Heyday.
2.8 Data. By using the Services, Client recognizes and agrees that Heyday collects and uses the following data:
2.8.1 Conversational Data. Heyday collects the Conversations generated by Client’s use of the Services (the “Conversational Data”).
Heyday recognizes and agrees that the rights in such Conversational Data shall be held by the Client. Client hereby grants to Heyday a non-exclusive, transferable, royalty-free, worldwide licence to use, host, reproduce, distribute, analyse and display the Conversational Data in order for Heyday to provide the Services and/or Professional Services to Client. A copy of such Conversational Data may be requested by Client at any time by sending Heyday a written notice to that effect, upon which Heyday shall send such copy of the Conversational Data to Client within a reasonable period.
2.8.2 Client Data. Heyday accesses various client-owned data: (i) by connecting to Client’s systems in order to access the data found there, which is unique to Client and is generated by, and hosted on, Client hardware and software; and/or (ii) that is otherwise provided by the Client to Heyday as part of Heyday’s provision of the Services or Professional Services, in each case excluding Conversational Data or Heyday Data (the “Client Data”). Client grants Heyday a non-exclusive, worldwide, sublicensable, royalty-free license to use, host, run, copy, reproduce, process, adapt, translate, publish, transmit, display and distribute the Client Data for the purposes of providing and supporting the Services and any Professional Services. Client Data is used by Heyday to improve and enhance Client’s conversational experience, Client’s customer’s user experience, and the general performance of its obligations under this Agreement. Client Data shall remain fully owned by Client, with Heyday having only a limited right to use such data for the purposes outlined in this Section 2.8.2 and only on an internal basis. Heyday recognizes and agrees that it has no right to sell, share or disclose Client Data. Client is responsible for maintaining back-ups of Client Data and for the post-termination storage, use, processing, and anonymization (if any) of Client Data. Promptly following the termination of this Agreement, or sooner upon request of Client, Heyday shall securely and permanently delete from its systems all Client Data.
2.8.3 Heyday Data. “Heyday Data” means all data other than Client Data or Conversational Data as defined above, and for greater certainty, includes data gathered, purchased, or licensed in whole or in part by Heyday and the trained version of Heyday’s AI algorithm and Heyday analytics data. Client recognizes and agrees that Heyday Data shall remain fully owned by Heyday, which shall have all rights over the Heyday Data. For clarity, under no circumstances shall Heyday Data include any Confidential Information of Client.
2.8.4 Machine Learning. Client agrees and instructs that Heyday may use Conversational Data to develop and improve the capabilities of the Services and Heyday’s machine-learning technologies, both during and after the term of the Agreement, provided that (i)
such Conversational Data shall be anonymized so that no individual can be specifically identified; and (ii) such Conversational Data shall not be shared with any other client or customer.
2.9 Reservation of Rights. All rights, titles, and interests that are not expressly granted to Client in this Agreement are hereby reserved by Heyday.
2.10 No Access to Source Code. This Agreement does not grant Client the right to access or obtain the source code of any software provided through the Services nor any programming documentation.
2.11 Suspension of Access to Services. Heyday may suspend Client’s access to the Services and/or Professional Services without prior notice if Client fails to comply with any material obligation under this Agreement, including without limitation Sections 2.1 (Permitted Access), 3.2 (Acceptable Use) and 6 (Fees and Payment Terms). Heyday may also suspend Client’s access to the Services, without prior notice, if Heyday detects fraud, a security breach, a denial of service attack or any other similar threat that causes or that could cause, in Heyday’s reasonable opinion, damage to the Services or to the Client Data or Heyday Data. In such case, Heyday will notify the Client of the suspension and will work with the Client in good faith to resolve the issue. Any suspension by Heyday of Client’s access to the Services in application of this Section shall not release Client from its payment obligations under the Agreement.
3. CLIENT RESPONSIBILITIES
3.1 Third Party Services. The Services may use or operate in conjunction with Third Party Services. Your relationship with the Third-Party Service provider is an agreement between you and them and such use of Third Party Services is subject to these third parties’ terms and conditions. To the fullest extent possible while still complying with this Agreement and all applicable laws, Client shall use the Services in accordance with such Third Party Services’ terms and conditions and policies. Any fees associated with the use of such Third Party Services are payable by the Client. These Third Party Services remain the property of their respective creators and are products and services separate from Heyday’s and are not governed by this Agreement. Client hereby understands and acknowledges that Heyday has no control whatsoever on such Third Party Services, and that it is Client’s sole responsibility to ensure that it understands, agrees and complies with the terms of use and other policies applicable to these Third Party Services.
3.2 Acceptable Use. Client must comply, and will ensure its Users comply, with the Acceptable Use Rules published at https://hootsuite.widen.net/s/d8vzqmf6ml/heyday-acceptable-use-rules (“Acceptable Use Rules”).
3.3 Other Client Responsibilities.
(a) Client must procure and maintain all of the hardware, connections, telecommunication services and other products or services required to remotely access the Services. The Parties agree that Heyday has no obligation to provide any such hardware, connections, telecommunications services, or other products and services under this Agreement.
(b) Client must cooperate with Heyday’s reasonable requests in order to assist Client with configuration and support.
(c) where applicable, Client must supply to Heyday any marketing, branding or visual content required to provide the Services (such as logos and re-sized images) and approve the conversational texts as supplied by Heyday.
(d) Client is entirely responsible for the ongoing management of Client’s corporate social media pages and private direct messages.
(e) Client must promptly inform Heyday of all issues or errors involving the Services of which it becomes aware.
(f) Client must provide Heyday’s technical support personnel with access to Client’s computer systems and networks where reasonably required for technical support purposes.
4. HEYDAY’S PROFESSIONAL SERVICES
4.1 Heyday will provide the Professional Services set out in the applicable Business Terms and will perform the Professional Services in a professional manner in accordance with generally accepted industry standards.
4.2 Client acknowledges that Professional Services will require it to provide input and cooperation, allocate sufficient resources, perform tasks and deliver any materials reasonably required by Heyday and agrees to provide the same in a complete, accurate and timely manner. Any timelines set out in the Business Terms shall be automatically extended in the event that Client does not provide Heyday, in a timely manner, with the necessary information, material or responses required by Heyday to perform the Professional Services.
4.3 Heyday will use commercially reasonable efforts to provide the Professional Services according to any schedule set forth in the applicable Business Terms or otherwise agreed with the Client in writing.
4.4 Heyday may use subcontractors to fulfill its responsibilities in delivering Professional Services, provided that Heyday will remain fully responsible for the performance of its subcontractors.
4.5 Heyday retains all right, title, and interest in and to the content, information, data, tools, processes, methods, designs, and know-how, whether or not copyrightable or patentable, that it may use in connection with the Professional Services, whether pre-existing or created or invented during the performance of the Professional Services. During the term of this Agreement, Heyday grants the Client a limited, worldwide, non-exclusive, non-transferable license, without a right to sublicense, to use any training materials or other documentation supplied by Heyday in the course of the Professional Services.
4.6 Client acknowledges that if it chooses to delay the performance of the Professional Services, this does not result in the postponement of payment for the Fees, nor any extension to the term of this Agreement. Except as expressly set out in the Business Terms, the Professional Services are to be performed remotely by Heyday via videoconference or similar means. In the event that Heyday agrees to provide onsite Professional Services at one or more facilities designated by the Client, Heyday may charge reasonable travel and living expenses for attending the premises of the Client, which Client agrees to pay upon presentation of the supporting documentation.
5. CONFIDENTIALITY, SECURITY AND DATA PROTECTION
5.1 Obligation of Confidentiality. The Party receiving (“Recipient”) from the other Party (“Discloser”) any of Discloser’s Confidential Information, or otherwise obtaining any of Discloser’s Confidential Information, shall keep confidential Discloser’s Confidential Information and shall protect Discloser’s Confidential Information with the same degree of care as Recipient employs in the protection of its own confidential and proprietary information, but at least with a reasonable degree of care. Without limiting the scope of the foregoing, Recipient shall not copy, reproduce, disclose, circulate or publish Discloser’s Confidential Information or permit such action, except as reasonably required for the purpose of performing its obligations or exercising its rights under the Agreement or to comply with applicable laws, directives, policies or procedures. Recipient shall disclose Confidential Information only to those of its employees, consultants and subcontractors who have a need to know said Confidential Information for the aforesaid purposes. Recipient remains liable for any breach of the terms of this Section 5 by its employees, consultants or subcontractors (including, in the case of Client, its Users).
5.2 Legal Communication. In the event Recipient becomes legally compelled to disclose any portion of Discloser’s Confidential Information, Recipient shall use reasonable efforts to promptly give notice thereof to Discloser (unless prohibited by law from doing so) and shall collaborate with Discloser reasonably and in good faith to prevent or limit the disclosure or to allow the Discloser to obtain a protective order or other recourse. In the event that disclosure cannot be prevented, that the protective order or other recourse fails, or that Discloser waives compliance with this provision, Recipient shall disclose only that portion of the Confidential Information which it is legally bound to disclose (as reasonably determined by Recipient) and exercise all reasonable efforts to obtain a reliable guarantee that the confidentiality of the disclosed Confidential Information will be ensured in accordance with the terms hereof.
5.3 Injunctive Relief. Each Party acknowledges that the restrictions contained in this Section 5 are reasonable and necessary to protect the other Party’s legitimate interests. Each Party understands and agrees that monetary damages for the violation of any of the undertakings or provisions of this Section 5 may not be a sufficient remedy, that such violations will cause irreparable harm within a short period of time, and that the other Party shall be entitled to preliminary injunctive relief or other injunctive relief against any such violation without the necessity of proving actual damages. Such injunctive relief shall be in addition to, and in no way in limitation of, any and all other remedies the other Party shall have at law and in equity for the enforcement of these undertakings and provisions.
5.4 Assistance. Each Party agrees that it shall notify the other Party if it becomes aware of, or has reasonable grounds to suspect, that the unauthorized disclosure of the Confidential Information of the other Party has occurred or is likely to occur.
5.5 Security Standards. During the term of this Agreement, Heyday will maintain the following “Security Standards”:
a) Security Practices. Heyday will implement and maintain security practices as described at https://hootsuite.widen.net/s/dqhk6lp8cw/heyday-security-practices.
b) Reports. Upon request no more than once annually, Heyday will provide the Client with a copy of its most recent security audit report (which may include summaries of test results or equivalent measures taken to assess the effectiveness of its control environment).
c) Disaster Recovery and Business Continuity. Heyday has and will maintain a disaster recovery and business continuity plan.
d) Breach Notification. Heyday will notify the Client without undue delay (but in any event within 72 hours of becoming aware) of any unauthorized access to Client’s Heyday account (a “Breach”), will promptly take all necessary steps to mitigate the Breach, and will provide the Client with reasonable cooperation in investigating the Breach (including, on request and to the extent reasonable, providing the Client with copies of relevant records, logs, or other materials).
5.6 Personal Information. If Client’s use of the Services includes the processing of Client Data and/or Conversational Data that contains personal information about European or Californian individuals, Client may enter into a Data
Processing Addendum (“DPA”) with Heyday by visiting https://www.hootsuite.com/en-gb/legal/data-processing-addendum to access a pre-signed Heyday DPA or by contacting Client’s account manager. Once Heyday receives Client’s signed DPA, this becomes legally binding and forms a part of this Agreement.
6. FEES AND PAYMENT TERMS
6.1 Fees. In consideration for the rights granted herein, Client shall pay Heyday the Fees set forth in the Business Terms. Unless otherwise provided in the Business Terms, the SaaS Fees are payable annually in advance.
6.2 Fees for Professional Services. Client agrees to pay the fees for the Professional Services as set out in the Business Terms. Unless otherwise provided in the Business Terms, fees for Professional Services are calculated on an hourly basis at the hourly rate(s) set out in the Business Terms and represent budgetary estimates based on the information provided by Client.
6.3 Reimbursement of Expenses. Client will reimburse any pre-agreed expenses, including travel and living expenses, incurred by Heyday in connection with the Professional Services, subject to and upon presentation to Client of the relevant documentation.
6.4 Payment. Unless otherwise expressly set out in the Business Terms, Client shall make all payments to Heyday within 30 days of the applicable invoice date.
6.5 Non-Refundable. All amounts paid or payable under this Agreement are non-refundable.
6.6 Taxes. All payments shall be exclusive of any tariffs, duties or taxes imposed or levied by any government or governmental agency. If taxes are chargeable in respect of any payments, Client shall be liable for payment of all such taxes, however designated, levied or based on Client’s use of the Services, the Professional Services or on this Agreement including, federal, provincial, state or local sales taxes, unless the Client provides Heyday with a valid tax exemption certificate authorised by the appropriate taxing authority. For clarity, taxes do not include taxes based on Heyday’s income. Client agrees that all amounts payable by Client pursuant to this Agreement shall be paid without any deduction or withholding on account of any taxes, monetary transfer fees, or other charges or withholdings of any nature, except to the extent that the deduction or withholding of any tax is required by applicable law, in which event Client shall (i) pay to Heyday such additional amount as is necessary so that Heyday receives, after such deduction or withholding (including any withholding with respect to this additional amount), an amount equal to the amount that Heyday would have received if such deduction or withholding had not been made; and (ii) deliver to Heyday within 30 days after the date of such payment an official receipt of the relevant taxing authority showing that Client paid to such taxing authority the full amount of the tax required to be deducted or withheld.
6.7 Currency. Unless otherwise expressly set forth in the Business Terms, all prices are expressed in USD (United States dollars).
6.8 Interest. Payments not received by the due date in accordance with this Agreement shall bear interest at the lower of (a) the rate of 1% per month, compounded monthly; or (b) the maximum rate permitted by law, from the date such payment was due until the date paid.
7. TERMINATION AND AMENDMENT
7.1 Termination for Cause. Each Party may terminate this Agreement in the event the other Party materially breaches the terms of this Agreement and fails to remedy such breach within 30 days of written notice given by such Party. Additionally, either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
7.2 No Termination for Convenience. Notwithstanding any provision of applicable law, including article 2125 of the Quebec Civil Code (the benefit of which is hereby waived by the Client), this Agreement may not be terminated for convenience.
7.3 Effect of Termination. When this Agreement is terminated, regardless of the reason for termination: (a) the Client’s right to access the Services ends and no right of use or other such right to access the Services shall subsist for Client; (b) Heyday shall cease performance of any Professional Services; and (c) Client must pay all unpaid Fees that it owes to Heyday. If Client terminates this Agreement in accordance with Section 7.1, Heyday will refund any Fees the Client paid in advance for the Services and/or Professional Services applicable to the period after termination. If Heyday terminates this Agreement in accordance with Section 7.1, then without prejudice to any other rights or remedies available to Heyday, Client will pay any unpaid Fees for the remainder of the Initial Term or Renewal Term then in effect. In no event will termination of this Agreement relieve Client of its obligation to pay any amounts payable to Heyday for the period prior to the date of termination.
7.4 Amendment. Heyday may change any part of this Agreement (including any terms or documents incorporated by reference in this Agreement) at any time
by posting the revised terms on the Heyday website. It is important for the Client to review this Agreement before using the Services and from time to time. Heyday will notify Client of any changes that, in Heyday’s sole discretion, materially impact this Agreement. The updated Agreement will be effective as of the time of posting, or on such later date as may be specified in the updated Agreement, and Client’s continued use of the Services after any such changes are effective will constitute Client’s consent to such changes. Except for changes made by Heyday as described here, no other amendment or modification of this Agreement will be effective unless set forth: (a) in any Business Terms issued by Heyday and signed by Client; or (b) in an agreement signed or otherwise agreed in writing by both Client and Heyday.
7.5 Survival. Any provision of this Agreement that, either by its terms or to give effect to its meaning, must survive and such other provisions that expressly or by their nature are intended to survive termination will survive the expiration or termination of this Agreement. Without limiting the foregoing, Sections 2.7 (Intellectual Property), 2.8 (Data), 3.2 (Acceptable Use), 5 (Confidentiality), 7 (Termination and Amendment) and 8 (Disclaimer of Warranties, Indemnification and Limitation of Liability) shall survive the termination or expiry of this Agreement.
8. DISCLAIMER OF WARRANTIES, INDEMNIFICATION AND LIMITATION OF LIABILITY
WARRANTIES & DISCLAIMER
8.1 Mutual Warranties. Each of Heyday and Client represents and warrants to the other that: (a) it has the power and authority to enter into this Agreement and to perform its obligations and duties under this Agreement; and (b) it will perform its obligations and duties and exercise its rights under this Agreement in compliance with all laws applicable thereto.
8.2 Heyday Warranties. Heyday warrants that: (a) subject to any changes in Third Party Services, the functionality of the Services will not be materially decreased during the term of this Agreement; (b) to its knowledge, the Services do not contain any malicious code or viruses; and (c) Heyday has and will maintain and apply its own industry-standard company policies (including without limitation the policies made available at https://www.hootsuite.com/legal/).
8.3 Disclaimer of Warranties. OTHER THAN THE EXPRESS WARRANTIES SET OUT IN SECTIONS 8.1 AND 8.2, HEYDAY OFFERS THE SERVICES AND PROFESSIONAL SERVICES “AS IS” AND MAKES NO REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND WHATSOEVER IN CONNECTION WITH THIS AGREEMENT OR SUCH SERVICES, AND HEREBY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, PERFORMANCE, SATISFACTORY QUALITY, ACCURACY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, AND/OR FITNESS FOR A PARTICULAR PURPOSE, THAT SUCH SERVICES OR PROFESSIONAL SERVICES WILL MEET CLIENT’S REQUIREMENTS OR THAT SUCH SERVICES OR PROFESSIONAL SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE OR ERROR-FREE. USE OF THE SERVICES DESCRIBED IN THIS AGREEMENT IS AT CLIENT’S OWN RISK. UNDER NO CIRCUMSTANCES WILL HEYDAY BE LIABLE FOR ANY THIRD-PARTY SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SERVICES, OR ACTIVITIES OF THIRD PARTIES, OR ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HEYDAY OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
INDEMNITIES
8.4 Indemnification by Heyday. Subject to Client’s compliance with Section 8.6, Heyday will defend, indemnify, and hold harmless Client, its Affiliates, and its or their directors, officers, employees, agents, shareholders, successors and assigns from and against all claims, losses, damages, penalties, liability, and costs, including reasonable legal fees, of any kind or nature that are incurred in connection with or arising out of a third-party claim that the use of the Services as permitted hereunder directly infringes a third party’s intellectual property rights (a “Claim”).
Heyday will have no liability for any Claim to the extent it arises from: (a) a modification of the Services by or at the direction of any person other than Heyday; (b) use of the Services in violation of this Agreement or applicable law; (c) use of the Services after Heyday notifies Client to discontinue use because of an infringement or misappropriation claim; or (d) the combination, operation, or use of the Services with any other software, program, or device not provided or specified by Heyday to the extent such infringement would not have arisen but for such combination, operation, or use.
For the avoidance of doubt, Heyday’s indemnification obligations in this Section
8.4 will not apply to third-party content, open-source software, or other Third Party Services accessed through the Services, or any Client Data or Conversational Data.
If the Services or any part thereof have become, or in Heyday’s opinion are likely to become, the subject of any Claim, Heyday may at its option and expense:
(i) procure for Client the right to continue using the Services as set forth hereunder;
(ii) replace or modify the Services or applicable functionalities to make
them non-infringing; or
(iii) if options (i) or (ii) are not reasonably practicable, terminate this Agreement and refund to Client any unearned fees that Client paid in advance for such Services.
This section 8.4 sets forth Heyday’s sole liability and Client’s sole remedy regarding infringement or misappropriation of third-party intellectual property rights.
8.5 Indemnification by Client. Subject to Heyday’s compliance with Section 8.6, Client will defend, indemnify, and hold harmless Heyday, its Affiliates, and its or their directors, officers, employees, agents, shareholders, successors and assigns from and against all claims, losses, damages, penalties, liability, and costs, including reasonable legal fees, of any kind or nature that are incurred in connection with or arising out of a third-party claim: (a) alleging that any Client Data infringes or violates the intellectual property rights, privacy rights, or any other rights of a third party or violates any applicable law; or (b) arising from Client’s breach of the Acceptable Use Rules, any terms or conditions applicable to Client’s use of any Third Party Services, or any applicable law.
8.6 Indemnification Procedure. The indemnified party will: (a) give written notice of the claim to the indemnifying party promptly and in any event no later than ten (10) days after the indemnified party receives the claim; (b) give the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not enter into any settlement, compromise or consent to judgment with respect to any claim without the indemnified party’s prior written consent unless such settlement, compromise or consent to judgment unconditionally releases the indemnified party of all liability); and (c) provide the indemnifying party with reasonable cooperation and assistance at the indemnifying party’s expense.
LIMITATIONS OF LIABILITY
8.7 Maximum Liability. EXCEPT AS PROVIDED UNDER SECTIONS 8.8 THROUGH 8.10, AND NOT INCLUDING CLIENT’S OBLIGATION TO PAY ALL FEES OWED TO HEYDAY HEREUNDER, IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, (INCLUDING NEGLIGENCE OR STRICT LIABILITY), WARRANTY OR OTHERWISE, EXCEED THE FEES PAID BY CLIENT TO HEYDAY FOR THE SERVICES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. THE OCCURRENCE OR FILING OF MULTIPLE CLAIMS SHALL NOT INCREASE THIS AMOUNT.
8.8 Excluded Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL,
CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR FOR LOSS OF PROFITS, GOODWILL OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES DESCRIBED IN THIS AGREEMENT OR ANY OTHER ASPECT OF THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL HEYDAY BE LIABLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES OR CLIENT’S ACCOUNT, OR THE DATA OR INFORMATION CONTAINED THEREIN, IF THE CLIENT OR ANY OF ITS USERS FAIL TO MAINTAIN THE CONFIDENTIALITY OF ANY PASSWORD OR OTHER LOGIN CREDENTIALS.
8.9 CLIENT’S EXCLUSIVE REMEDIES FOR ANY INTERRUPTION OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM THE SERVICES ARE SET FORTH IN THE SERVICE LEVEL AGREEMENT.
8.10 Exclusions. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR WILL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF EITHER PARTY FOR: (I) INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT; (II) DEATH OR BODILY INJURY CAUSED BY THE NEGLIGENCE OF THAT PARTY, ITS EMPLOYEES, OR ITS AGENTS; (III) FRAUDULENT MISREPRESENTATION OR WILLFUL MISCONDUCT OF THAT PARTY OR ITS EMPLOYEES AND USERS; OR (IV) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
8.11 Allocation of Risk. It is agreed that the limitation of remedies/liability set forth in this Section 8, and elsewhere in this Agreement, allocates the commercial risks between Heyday and Client arising out of or in connection with this Agreement and that the financial terms of Section 6 and the other terms and conditions of this Agreement reflect this allocation of risk.
9. MISCELLANEOUS
9.1 Insurance. Heyday has and will maintain industry-standard insurance policies. Upon request no more than once annually, Heyday will provide the Client with a copy of an insurance certificate showing coverage for comprehensive general liability and professional liability (including coverage for errors & omissions and network & information security liability).
9.2 Successor and Assigns. Neither party may transfer or assign any right, title or interest it has in this Agreement, without the prior written consent of the other party. Any assignment not in accordance with this Section 9.2 shall be void. Notwithstanding the foregoing, Heyday may upon notice to Client, transfer or assign this Agreement or any right, title or interest it has in this Agreement, if such sale, transfer or assignment (a) is part of the sale, transfer or assignment of all or substantially all of its assets or business; or (b) is made to one of its Affiliates.
9.3 Entire Agreement. This Agreement (including the Business Terms, which form an integral part hereof) shall constitute the entire agreement between the Parties with respect to the subject matter hereof. All prior, contemporaneous, or collateral agreements, representations, warranties, and communications, including marketing materials, advertisements or any additional terms that Client may present (such as terms in a unilateral notice from the Client to Heyday or printed on a purchase order or any other document generated by the Client), do not apply.
9.4 Governing Law; Forum.
(a) The laws of the Province of British Columbia and Canadian law applicable in British Columbia will govern any dispute, cause of action or claim arising out of this Agreement or your use of our Enterprise Services (“Dispute”), without giving effect to conflict-of-law principles.
(b) If either of us breach this Agreement or violate the other’s rights or another person’s rights, in addition to any other remedy, you or we may ask a court for an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions of this Agreement, and seek reimbursement of reasonable legal fees associated therewith.
(c) If you have any kind of Dispute with us, the exclusive means of resolving it will be by confidential, binding arbitration before a single arbitrator chosen by you and Hootsuite. You will give notice of your Dispute to us in writing. If we do not decide together on an arbitrator within fifteen (15) days after we receive that notice, we both agree to ask the British Columbia International Commercial Arbitration Centre (BCICAC) to appoint one for us. The arbitration will take place in Vancouver, British Columbia, under the Arbitration Act (British Columbia), and will follow the Domestic Commercial Arbitration Rules of the BCICAC. The arbitrator will have the right to decide how the costs should be divided between us. The arbitrator will have the right to accept whatever kind of evidence they think is appropriate and will have the right to make whatever award they consider fair and equitable, based on legal and equitable principles, including giving an order such as an injunction (to stop one of us from doing something) or an order that you or we pay damages to the other. The arbitrator’s award can be entered into the registry of the British Columbia Supreme Court in Vancouver, British Columbia, and enforced in the same way as a court order if the court in the enforcing jurisdiction allows.
(d) Any Dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Hootsuite and you each waive any right to a trial by jury.
9.5 Independent Contractors. This Agreement does not make either Party the partner, employee, trustee, agent or legal representative of the other for any purpose whatsoever. Neither Party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other Party.
9.6 Promotional Terms. Client hereby grants to Heyday the right to identify Client as a commercial partner on Heyday’s websites, social media, commercial brochures and documents, and for such purpose only, Client hereby grants unto Heyday the limited, non-exclusive and royalty-free right to display Client’s name and logo. Further, Heyday is authorized to disclose in general terms to third parties the nature of the commercial relationship between Heyday and Client. Client may withdraw its consent at any time by sending Heyday a notice to such effect, it being understood that such withdrawal cannot apply retroactively.
9.7 Export Compliance. Client will not use or access the Services if it is located in any jurisdiction in which the provision of the Services is prohibited under Canadian, U.S. or other applicable laws (a “Prohibited Jurisdiction”) and Client will not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. Client confirms that it is not named on any Canadian or U.S. government list of persons or entities prohibited from transaction with any Canadian or U.S. person; (b) it is not a national of, or a company registered in, any Prohibited Jurisdiction; (c) it will not allow Users to access or use the Services in violation of any Canadian, U.S. or other export embargoes, prohibitions or restrictions; and (d) it will comply with all applicable laws regarding the transmission of data exported from the country in which it (or its Users) is located to Canada and the United States.
9.8 Force Majeure. Save in respect of any payment obligations, neither party will be liable for any failure to perform its obligations under this Agreement if that failure results from any cause beyond such party’s reasonable control, including but not limited to: the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lockouts or labor disruptions; and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
9.9 Severability. If a court finds part of this Agreement to be invalid, the rest of the Agreement will continue to apply with the minimum changes required to remove the invalid part.
9.10 Waivers. The rights of each Party may be waived only in writing. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
9.11 Remedies. Unless otherwise stated, each party’s remedies under this Agreement are not exclusive of any other remedies under this Agreement, at law or otherwise.
9.12 Notices to Client. Heyday may give notice to Client by placing a notice on the Heyday platform or Heyday’s website. Heyday may also contact Client or its Users through Client’s Heyday account or contact information Client provides, such as email or telephone. If Client fails to maintain accurate account information, such as contact information, Client may not receive critical information about the Services or this Agreement.
9.13 Notices to Heyday. For any notice to Heyday that Client gives under or regarding this Agreement, Client must notify Heyday by email to legal@heyday.ai with a duplicate copy sent via registered mail to the following address: Heyday Technologies Inc., 1100 avenue des Canadiens-de-Montreal, suite 150, Montreal (Quebec) Canada H3B 2S2; Attention: Legal Team.