Updated: May 2020
In light of the above, the parties have agreed to the following.
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.
1.4 “Client” means the individual, company or other entity subscribing to and paying for the Software.
1.5 “Defect” means a failure in program logic or functions of the Software which prevents the Software from operating in all material respects in its online user documentation.
1.6 “Force Majeure” means any unavailability caused by circumstances beyond Heyday’s reasonable control, including natural disasters, acts of government, floods, fires, earthquakes, civil unrest, pandemics, epidemics, government-mandated quarantines, publicly declared states of emergency, terrorism, strikes or other labour problems (other than those involving Heyday employees), Internet service provider failures or delays, or denial of service attacks.
1.7 “Heyday” means Heyday Technologies Inc.
1.9 “SaaS Fees” means the fees set by Heyday for the Right of Access, in connection with the plan selected by Client, subject to any price increases that may be communicated by Heyday to Client.
1.10 “Software” means Heyday’s SaaS solutions for use in various messaging applications and customer engagement applications, including its online user documentation (which, for greater certainty, does not include any source code or programming documentation).
1.12 “Third Party Services” means any third-party software or services, such as messaging applications, necessary to use the Software.
2. RIGHT OF ACCESS
2.3 Beta Features. Other than Upgraded Software, which will be specifically identified as such byHeyday, Heyday may also make available to Client certain beta features (the “Beta Features”) of the Software at no charge in order to obtain Client’s feedback and to test out the Beta Features.Whenever Heyday makes Beta Features available to Client, it will obtain Client’s written consent prior to doing so, and such written consent may include online acceptance of such features. Client expressly agrees and acknowledges that the Beta Features (including any modifications or improvements thereto) are not ready for general commercial release and may contain bugs, errors,Defects or harmful components and that Heyday is providing the Beta Features to Client “as is”.Heyday does not guarantee that the Beta Features (or any part thereof) will ever be made generally commercially available, or that any generally commercially available release of theBeta Features will contain the same or similar functionalities as the release made by Heyday to Client.
2.4 Restrictions. Client agrees that it shall not itself, either directly or indirectly including through any Affiliate, agent or other Person: (a) sell, lease, license, sublicense, loan, encumber or otherwise transfer its Right of Access to a third party, in whole or in part; (b) attempt to access or derive the source code of any portion of the Software; (c) attempt to make modifications, corrections, alterations, enhancements or other additions to the Software; (d) make the Software available to a third party by online services, remote dial-in, virtual private network, or network or telecommunication links of any kind; (e) provide, disclose, divulge or make available to, or permit use of the Software by Persons other than Users, without Heyday’s prior written consent;(f) circumvent the Software’s authentication or security access control systems or assist others todo so, or attempt to do so; or (g) disclose log-in or access credentials to unauthorized parties or fail to implement reasonable security measures to prevent such an occurrence.
2.6 Data. By using the Software, Client recognizes and agrees that Heyday collects, uses and has specific rights (including ownership rights) to the following data:
2.6.2 Client Data. Heyday accesses various Client-owned data by connecting toClient’s systems in order to access the data found there. This data is unique toClient, is generated by and hosted on Client hardware and software and does not include either Conversational Data or Heyday Data (the “Client Data”). ClientData is used by Heyday to improve and enhance Client’s conversational experience, Client’s customer’s user experience, and the general performance of the Software. Such Client Data shall remain fully owned by Client, with Heyday having only a limited right to use such data for the purposes outlined in the previous sentence and only on an internal basis. Heyday recognizes and agrees that it has no right to sell, share or disclose Client Data to any third party, and no right to use Client Data other than for the purposes described in this Section2.6.2. Client is responsible for maintaining back-ups of Client Data and for the post-termination storage, use, processing, and anonymization (if any) of ClientData.
2.6.3 Heyday Data. Heyday Data means all data other than Client Data orConversational 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.
2.8 Location of Server. The Software will be hosted in facilities located in Canada or the UnitedStates or both.
3. CLIENT RESPONSIBILITIES
3.2 Other Client Responsibilities. Client acknowledges that its Right of Access is conditional on respecting the following terms:
(b) Cooperate with Heyday’s reasonable requests in order to assist Client with configuration and support;
(c) Keep the log-in and access credentials required to exercise the Right of Access strictly confidential and ensure that its Users do the same, take reasonable steps to prevent their disclosure to third parties and ensure that any internal disclosure is on a need-to-know basis. Client shall be responsible for any damages suffered by Heyday as a result of the disclosure or misuse of Client’s and its Users’ log-in or access credentials;
(d) Maintain security measures in conformity with best industry practices and promptly inform Heyday upon becoming aware of unauthorized access to the Software, or the unauthorized disclosure or misuse of log-in or access credentials;
(e) Promptly inform Heyday of all issues or errors involving the Software of which it becomes aware;
(f) Share any personal information and other data about or relating to identifiable individuals(including Users) with Heyday only in conformity with privacy laws, regulations and binding guidelines to which Client is subject, that may be applicable to Client’s activities in Canada or any other jurisdiction where Client operates;
(g) Provide Heyday’s technical support personnel with access to Client’s computer systems and networks where reasonably required for technical support purposes; and
(h) Use the Software and Right of Access only in conformity with laws, regulations and binding guidelines to which Client is subject, including in particular Canada’s anti-spam law regarding commercial electronic messages, as well as any other laws, regulations and binding guidelines that may be applicable to Client’s activities in Canada or any other jurisdiction where Client operates.
4. HEYDAY’S SERVICES
4.1 Configuration Services. In exchange for the fees as described in Section 6.2 below, Heyday shall deploy reasonable efforts to perform the Configuration Services, which may include, without limitation, integration of Client’s system environment with the Software. Client acknowledges that these services will require its input and cooperation and agrees to provide same in a timely manner. Any timelines set by Heyday with respect to the provision of Configuration Services shall be automatically postponed in the event that Client is not in a position to provide necessary information, material or responses in a timely manner. The Configuration Services are to be performed remotely by Heyday. In the event that the foregoing is not possible or desired byClient, Heyday may charge reasonable travel and living expenses for attending the premises ofClient, which Client agrees to pay promptly upon presentation of the supporting documentation.
4.2 Training Services. In exchange for the fees as described in Section 6.2 below, Heyday shall provide the Training Services pertaining to the Software, which may include, without limitation,User training on the operation of the Software and Software functionalities. The TrainingServices will be provided remotely via videoconference or similar means and they will only be provided in the English or French language.
4.3 Support Services. Heyday agrees to provide its Support Services in the form of remote technical support via telephone, chat, email or other efficient communication method between 8 AM and 5PM (UTC-5), Monday to Friday. The purpose of the Support Services is to attempt to identify and resolve functional problems in the Software.
4.4 Severity. Each support request received will be given a severity level by Heyday according to the following guidelines:
a) High: when the Software is not operational or has suffered a major loss of capability resulting in the inability to use the Software, or if a failure is so frequent that it precludes productive use of the Software or when the Software is operational but its capability is severely degraded, such as the inability to run a major application within the Software, a critical product feature or function does not work, or a failure requires on-going intervention in order to maintain productive use;
b) Medium: when the Software is not operational or has suffered a loss of capability, but an acceptable workaround exists, which allows Client to use the Software, or if the Software suffers from a degradation in capacity or traffic handling capabilities, or if there is a problem which results in a significant impact on the Software’s performance for a period of 8 hours or more;
c) Low: when the Software is operational and the problem does not result in a significant impact on the Software’s performance.
4.5 Support Response Time. Heyday shall exercise all commercially reasonable efforts to meet the following response times:
a) High severity problems will be acknowledged and work begun to address them within 4business hours;
b) Medium severity problems will be acknowledged and work begun to address them within24 business hours;
c) Low severity problems will be acknowledged and work begun to address them within 5business days.
4.7 No Defect. Heyday shall not be responsible to correct any Defect or other failure of performance of the Software caused by the following: (i) use of the Software that materially deviates from its online user documentation; (ii) modification, customization, alteration or addition or attempted modification, customization, alteration or addition to the Software; (iii) abuse or misuse of theSoftware; or (iv) failure of Client to use the latest version of the Software.
4.8 Updates. Heyday may at its sole discretion update the Software from time to time and shall make commercially reasonable efforts to advise Client in advance of all Updates that materially affect the functionalities of the Software.
5.3 Legal Communication. In the event Recipient becomes legally compelled to disclose any portion of Discloser’s Confidential Information, Recipient immediately shall give notice thereof toDiscloser and shall collaborate with Discloser reasonably and in good faith to prevent or limit the disclosure or 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 disclosedConfidential Information will be ensured in accordance with the terms hereof.
5.4 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 the remedies at law for the violation of any of the undertakings or provisions of this Section 5 are insufficient, 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.
5.5 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.
6. FEES AND PAYMENT TERMS
6.1 SaaS Fees. In consideration for the rights granted herein, Client shall pay Heyday the SaaS Fees for the plan selected by Client. For greater certainty, a reasonable amount of Support Services, as determined by Heyday in its sole discretion, are included as part of the SaaS Fees. The SaaS Fees may be increased by Heyday on or after January 1s t of a given year by an amount equal to the general rate of inflation in Canada for the previous year, as measured by the Consumer PriceIndex. Any price increases will be communicated to Client prior to taking effect.
6.2 Fees for Configuration Services and Training Services. If Client requires ConfigurationServices and/or Training Services, Client agrees to pay for the Configuration Services and theTraining Services in accordance with the fees set by Heyday, which fees represent budgetary estimates based on the information provided by Client. Fees for Configuration Services andTraining Services are calculated on an hourly basis and are separate from the SaaS Fees.
6.5 Third-Party Payment Processors. All payments for SaaS Fees made via credit card are processed using a secure https:// connection with a valid security certificate, and payment processing is handled through third-party payment processors (the “Third-Party PaymentProcessors”), currently limited to Stripe and Shopify. The Third-Party Payment Processors currently accept certain credit and debit cards (which shall be displayed to Client upon making payment) as payment options, but these are subject to change without notice. Once transactions are accepted by the Third-Party Payment Processors, they are processed in accordance with their program rules and procedures and terms and conditions. Heyday and the Third-Party PaymentProcessors are unaffiliated companies and Heyday has no influence on the operations of theThird-Party Payment Processors. Heyday shall in no way be held responsible for any losses or damages, direct or indirect, pecuniary or otherwise, resulting from any error or failure on the part of a Third-Party Payment Processor. All billing information is collected by the Third-PartyPayment Processors, on their own secured servers. Heyday does not have access to any credit card information, nor can it be responsible for any breach of information caused by faulty programming or malicious users on the servers of the Third-Party Payment Processors.Non-financial information will, however, be available to Heyday for record-keeping purposes.
6.6 Sales Taxes. SaaS Fees do not include sales taxes, which will be identified separately from the SaaS Fees and added to the amount charged to Client’s credit card.
6.7 Currency. Unless otherwise indicated, all fees are expressed in U.S. dollars.
7. TERM AND TERMINATION
8. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
8.1 Professional and Workmanlike. Heyday warrants that the Support Services (and, where applicable, the Configuration Services and the Training Services) shall be performed in a professional and workmanlike manner.