LICENSE AGREEMENT
Last revised: September 28, 2026
This Happyrobot license agreement (this “Agreement”) is entered into as of the Effective Date, by and between Customer and Happyrobot Inc. (“Happyrobot”), and establishes the terms and conditions under which Customer shall access and use the Happyrobot Platform.
Customer’s use of the Platform, Services and any other products or services provided by Happyrobot to Customer under an Order Form or otherwise shall be governed by the terms and conditions contained herein which shall supersede any terms and conditions contained in any purchase orders or other documents issued by Customer. Capitalized terms used but not defined herein shall have the respective meanings given to them in the Order Form, if any.
1. Definitions
Capitalized terms below shall have the following meanings:
1.1. “Affiliate” means an organization, person or entity that directly or indirectly controls, is controlled by, or is under common control with a party, where “control” means: (a) direct or indirect ownership of more than 50% of the voting interests of the organization; or (b) the right to direct the management or business affairs of an entity.
1.2. “Agreement” means, collectively, these Terms together with all Order Forms.
1.3. “Artificial Intelligence” or “AI” means a machine-based system that infers, from the input it receives, how to generate outputs, including the application of any mathematical model that is derived from any algorithm using any dataset.
1.4. “Claim” means any actual, threatened or potential civil, criminal, administrative, regulatory, arbitral or investigative demand, allegation, action, suit, investigation or proceeding or any other claim or demand.
1.5. “Customer” means (a) an individual who accepts this Agreement on their own behalf, or (b) an organization on whose behalf an authorized individual accepts this Agreement. If an individual accepts this Agreement on behalf of an organization, such individual represents and warrants that they have the authority to bind such organization to this Agreement.
1.6. “Customer Content” means any data or information that is uploaded to the Platform, is analyzed by or is generated through the use of the Services by Customer.
1.7. “Customer System” means any information technology system of Customer, including hardware and software, used to access or otherwise realize the benefit of the Platform or Services.
1.8. “Customer Output” means Interaction information and data, including Interaction transcripts, audio recordings, and analytics generated by the Platform.
1.9. “Data Processing Agreement” or “DPA” means the Happyrobot data processing agreement available at https://happyrobot.ai/legal/data-processing-agreement, as updated from time to time in accordance with Section 2.3.
1.10. “Documentation” means the current technical and user documentation for the Platform, available online: https://docs.happyrobot.ai/general/introduction, as updated from time to time in Happyrobot’s sole discretion.
1.11. “Effective Date” means the earliest of the date on which Customer: (a) affirmatively accepts these Terms online; (b) executes an Order Form referencing these Terms; or (c) first accesses or uses the Platform following the date these Terms are first made available on Happyrobot’s website. Customer’s use of the Platform is also subject to Happyrobot’s Privacy Policy, available at https://www.happyrobot.ai/legal/privacy-policy, as updated from time to time.
1.12. “Fees” means, collectively, the amounts payable as set forth in an Order Form.
1.13. “Initial Term” means the initial term for Customer’s use of the Services, set forth in an Order Form.
1.14. “Interaction” means any interaction between a Platform AI agent and a third party, measured by duration or volume, including SMS, MMS, e-mail and other messaging communications and any telephonic calls or other voice-based communications.
1.15. “Law” means any declaration, decree, directive, legislative enactment, order, common law, ordinance, regulation, rule, guideline, guidance or other binding restriction or requirement of or by any governmental authority, as may be amended or replaced from time to time.
1.16. “Losses” means any and all damages, fines, penalties, deficiencies, losses, liabilities (including settlements and judgments), costs and expenses (including interest, court costs, reasonable fees and expenses of lawyers, accountants and other experts and professionals or other reasonable fees and expenses of litigation or other proceedings or of any Claim, default or assessment).
1.17. “Order Form” means any order form or other ordering document entered into by and between the Parties with respect to the provision of Services and which incorporates by reference these Terms.
1.18. “Party” means each of Happyrobot and Customer, and together they are the “Parties”.
1.19. “Platform” means Happyrobot’s proprietary Artificial Intelligence-powered telephony services platform, as further described online: https://www.happyrobot.ai/ together with the related services and those capabilities all as defined within the Documentation.
1.20. “Platform Resources” means features and functions of the Platform that comprise the Services including model inference, voice processing, agent execution, workflow orchestration, evaluations, retrieval, storage, compute, and any other features or functions described in the Documentation (excluding Professional Services).
1.21. “Renewal Term” means a renewal term for Customer’s use of the Services, if any, agreed by the Parties in an Order Form and commencing upon the expiry of the Initial Term or a subsequent Renewal Term.
1.22. “Services” means, collectively, the services to be provided pursuant to an Order Form or otherwise made available by Happyrobot to Customer under this Agreement, including provision of the Platform and use of any Platform application programming interface made available to Customer by Happyrobot from time to time.
1.23. “Subscription Scope” has the meaning set forth in the applicable Order Form and, if applicable, may vary during the Term according to the scope of Services. If the Order Form does not include a definition, or if there is no Order Form, then “Subscription Scope” means that Customer is authorized to use the Platform for its internal business purposes.
1.24. “Term” means, collectively, the Initial Term and any Renewal Terms.
1.25. “Terms” means this license agreement pursuant to which Happyrobot provides the Services and which governs each Order Form, subject to Section 12.8.
1.26. “Third Party” means any person or entity other than a Party or any Affiliate of a Party.
1.27. “Usage Credit” means a unit of Platform consumption, where the consumption rate denotes the utilization of underlying Platform Resources.
1.28. “User” means an employee, agent or other personnel of Customer authorized by Customer to use the Platform in accordance with this Agreement and who has been supplied User Credentials by Customer pursuant to Section 3.2, regardless of whether the individual is actively using the Platform at any given time. Where Customer is an individual, Customer is the sole User.
2. Platform; Services
2.1 Platform; Delivery of Services. The Platform includes functionality and tools designed to enable Customer and its Users to upload to or process using the Platform Customer Content to facilitate Interactions, including through use of Customer Content, and to generate Customer Output. Happyrobot will use commercially reasonable efforts to provide Customer with the Platform and enable the use of the Services in accordance with the applicable Order Form commencing on the applicable Order Form Effective Date. Customer acknowledges and agrees that Happyrobot may process Customer Content using the subprocessors set forth in the Happyrobot Trust Center: https://trust.happyrobot.ai/subprocessors, as updated by Happyrobot from time to time. Happyrobot shall be responsible and liable for such subprocessors’ compliance with the applicable terms of this Agreement.
2.2 Pilot Services. Except as otherwise set forth on an Order Form, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, ANY PILOT SERVICES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE”, WITHOUT WARRANTIES OF ANY KIND. Pilot Services are available only for the Pilot Term and subject to the terms and conditions specified in the applicable Order Form. Except as set forth above in this Section 2.2 or as otherwise set forth in this Agreement, the Services during the Pilot Term are subject to all other terms and conditions of this Agreement. Customer and Happyrobot may enter into a separate Order Form for production purposes, pursuant to which Happyrobot will grant to Customer a general license to the Platform, which shall be subject to the terms of Section 5.1. The Pilot Services will terminate on the last day of the Pilot Term. Upon expiration of the Pilot Term, if the applicable Order Form does not provide for further Services and Customer has not executed a separate Order Form for further Services, Happyrobot shall terminate Customer’s access to the Platform and Services without further notice, liability or obligation to Customer.
2.3 Data Processing Agreement. The terms of the Data Processing Agreement are incorporated by reference and apply to any Services that involve the use or disclosure of Personal Data (as defined in the DPA). Happyrobot may update the Data Processing Agreement from time to time by posting an updated version online, effective as of the date thereof. Notwithstanding the preceding sentence, if any such update materially affects Customer’s rights or remedies, such update will take effect thirty (30) days following the date of the update. During such thirty (30) day period, Customer may notify Happyrobot of its reasonable objection to any such changes and Happyrobot and Customer shall discuss in good faith, for a period not to exceed ten (10) days, a mutually agreeable resolution. If no such resolution is reached, Customer may terminate this Agreement upon notice to Happyrobot (which termination shall not constitute termination for breach of the Agreement). Happyrobot may terminate this Agreement if Customer unreasonably objects to any such changes.
2.4 Third Party Products. The Platform may enable connection or integration with certain third parties’ websites, platforms, products or services through which Customer may access or have made available such third parties’ services or content (collectively, “Third Party Services or Content”), in each case subject to the terms and conditions of the applicable third party provider (each, a “Third Party Notice”). The Third Party Notices may include important licensing and warranty information and disclaimers. In the event of conflict between any Third Party Notice and other portions of this Agreement, the Third Party Notices will take precedence, but solely as to the Third Party Services or Content to which such Third Party Notice relates. Happyrobot does not control and is not responsible for any Third Party Service or Content. ALL THIRD PARTY SERVICES OR CONTENT MADE AVAILABLE VIA THE PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. HAPPYROBOT MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY SERVICES OR CONTENT AND HAPPYROBOT EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, QUALITY OF INFORMATION, QUIET ENJOYMENT, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY THIRD PARTY SERVICES OR CONTENT.
2.5 Affiliates. Customer and Happyrobot may mutually agree to allow the use of the Platform and Services by an Affiliate of Customer pursuant to this Agreement (including these Terms). Any such use shall be mutually agreed upon and documented in an addendum or amendment hereto executed by a duly authorized representative of Customer, Happyrobot and such Affiliate. In such case, Customer and Affiliate shall be jointly and severally liable for all obligations hereunder and a breach by Customer or Affiliate shall be deemed to be a breach of this Agreement by Customer.
3. Responsibilities of the Parties
3.1 Support. Happyrobot will provide to Customer limited technical support for the Platform during the Term in accordance with the terms set forth in the applicable Order Form. If no support services are specified therein, Customer and Happyrobot may enter into a separate Order Form or amendment to an existing Order Form to provide for support services. During the Term, Happyrobot may update any Service as part of such support, as long as Happyrobot does not materially and adversely change the performance thereof.
3.2 User Credentials. Happyrobot shall authorize a Customer account manager to create and issue to each User, a unique username and password for access to and use of the Platform (“User Credentials”). Customer and its Users are responsible for maintaining the confidentiality of all User Credentials and shall ensure that each User uses only such User’s own User Credentials, and does not share such User Credentials with any third party or other employee, agent or contractor of Customer. Customer is responsible for all use of such User Credentials and will immediately notify Happyrobot of any unauthorized use of any User Credentials. Happyrobot shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms of this Section 3.2.
3.3 Customer Personnel; Equipment. Customer shall ensure all Customer personnel necessary for the provision of the Services are reasonably available to Happyrobot. Customer is responsible for all hardware and software required in order to access and use the Platform and the Services, including Internet connectivity. To the extent that Happyrobot is required to access Customer Systems in connection with the Services, Customer shall provide Happyrobot with such access and assistance as reasonably required and Happyrobot will comply with the applicable Customer Systems access policies provided to Happyrobot in advance.
3.4 AI Notices. Customer acknowledges and agrees that as part of the ordinary functioning of the Platform, the counterparty to an Interaction may receive certain notifications consistent with applicable Laws, including that an Interaction is being recorded or that the counterparty is interacting with an AI agent. To the extent that such notification functionality is enabled in Customer’s instance of the Platform, Customer shall not interfere, directly or indirectly, with such functionality.
4. Fees; Taxes; Usage Credits
4.1 Fees. Customer shall pay Happyrobot the Fees set forth in each Order Form or as otherwise invoiced in accordance with the terms thereof. Customer shall reimburse Happyrobot for any reasonable and documented pre-approved costs or expenses incurred in connection with the provision of the Services, subject to Happyrobot’s compliance with Customer’s policies for such costs or expenses that have been provided to Happyrobot in advance.
4.2 Payment Terms. Fees and reimbursement of costs or expenses are due and payable within thirty (30) days from the date of Happyrobot’s invoice or as otherwise set forth in the Order Form. Customer will pay a late charge of the lesser of: (a) one and one-half percent (1.5%) per month; or (b) the highest amount permitted by applicable Law, on any Fees or costs or expenses not paid by the due date. Unless otherwise identified in an Order Form, all Fees are stated in, and all Fees and reimbursement of costs or expenses must be paid in, United States dollars. In the event that Customer fails to pay any Fees when due, Happyrobot may suspend access to the Platform until Customer has paid all past-due Fees. Overages shall be invoiced monthly in arrears following the month in which such overages were incurred, and shall be due and payable within ten (10) days of the date of invoice.
4.3 Adjustments. Except as otherwise set forth on an Order Form, the Fees are fixed for the duration of the Initial Term and subject to change for any Renewal Term upon notice to Customer not less than thirty (30) days prior to the commencement of any such Renewal Term.
4.4 Taxes. The Fees do not include additional charges that may apply in a particular jurisdiction including applicable taxes or other regulatory fees. Customer will pay all international, national, federal, state, provincial or local sales, use, value added, goods and services, property, excise, or other taxes imposed on or with respect to this Agreement, except for any taxes imposed on the income of Happyrobot. If any sales, use, value added, goods and services, property, excise, or other taxes (except for taxes based on Happyrobot’s net income) are assessed against or required to be collected in connection with the Services, Happyrobot will include such amounts on each invoice.
4.5 Usage Credits. Each Usage Credit corresponds to a measurable quantity of Platform consumption, debited against Customer’s Usage Credit balance at the applicable consumption rate. Usage Credits are not legal tender or currency and are not redeemable, refundable (except as required by Law), or exchangeable for any sum of money or monetary value (except where required by Law). Usage Credits are non-transferable and may be used only in exchange for usage of the Platform, as set forth in an Order Form. Customer is solely responsible for verifying that the balance of Usage Credits set forth in Customer’s account is correct and promptly notifying Happyrobot of any inaccuracies. Happyrobot shall have no obligation to honor Usage Credits purported to have been sold or transferred and any such attempted sale or transfer shall be deemed a material breach of this Agreement. The price of Usage Credits and the applicable consumption rates are fixed during the Initial Term and subject to change for any Renewal Term upon notice to Customer not less than thirty (30) days prior to the commencement of any such Renewal Term. Unused Usage Credits shall roll over from one calendar month to subsequent months within the same Initial Term or Renewal Term, as applicable, but shall not carry over beyond, and shall expire concurrent with the expiry of, the Initial Term or then-current Renewal Term. In the event Customer’s Usage Credit balance is exhausted, Customer may elect to purchase and will be billed for additional Usage Credits in order to continue use of the Platform. Exhaustion of Usage Credits shall not relieve Customer of its payment obligation with respect to any Fees accrued during the Term.
4.6 Payment Processor. Happyrobot may use third-party payment processor services to bill or facilitate processing of Fees. By submitting payment account information, Customer grants to Happyrobot and its payment processor the right to store and process Customer’s information with the third-party payment service, which may change from time to time. Customer agrees that during the Term, Happyrobot may charge and the payment processor may pay to Happyrobot any periodic Fees as they become due. Any payment processor services will be subject to the payment processor’s separate terms and conditions in addition to this Agreement. In no event will Happyrobot be responsible for any action or omission of any payment processor, including as to whether any payment is sent or received or sent or received to a party other than the intended party.
5. Proprietary Rights
5.1 License. Subject to these Terms and payment of all Fees and any other amounts due hereunder, Happyrobot hereby grants to Customer, during the Term, a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and use and have Users access and use the Platform and Services solely within the Subscription Scope, including to generate Customer Output, and not for the benefit of any other person or entity. No use beyond the Subscription Scope is permitted and any such use shall require a separate Order Form and payment of additional Fees. Happyrobot may authorize Customer to access and use the Platform without an Order Form or Fees, solely within the scope and for the period Happyrobot authorizes in writing (including through the Platform), subject to this Agreement.
5.2 Happyrobot IP. Happyrobot will own all right, title and interest in and to: (a) the Platform and any Happyrobot software and Documentation used in providing or related to the Platform, and all improvements, enhancements or modifications thereto; (b) any software, applications, inventions or other technology developed by or for Happyrobot in connection with the Platform; (c) any intellectual property rights in or related to any of the foregoing; and (d) all configurations, prompts, workflows, integrations, customizations, derivative works, and related materials created, developed, configured, or implemented using, on, or in connection with the Platform, regardless of whether such materials were created by Happyrobot, Customer, or any third party (the foregoing (a), (b), (c) and (d), collectively, “Happyrobot IP”).
5.3 Customer Content; Customer Output.
(a) As between Customer and Happyrobot, Customer will own all right, title and interest in and to the Customer Content and Customer Output (except for any Happyrobot IP). Customer hereby grants Happyrobot a royalty-free, non-exclusive, perpetual, irrevocable license to use the Customer Content to provide the Services during the Term and for the purposes set forth in this Section 5 to exercise Happyrobot’s rights hereunder.
(b) To the extent that any Happyrobot IP or other content that is not Customer Content made available through the Platform (collectively, “Happyrobot Content”) is incorporated into the Customer Output, Happyrobot hereby grants Customer a non-exclusive, royalty-free, perpetual, worldwide, non-transferable, non-assignable (except in accordance with Section 12.3) and non-sublicensable right and license to use such Happyrobot Content or other content solely as integrated into the Customer Output and solely within the Subscription Scope. Notwithstanding anything to the contrary, the license granted in this Section 5.3(b) will in no event grant Customer any right, title or interest in or to the Platform or any component thereof.
5.4 General Use Restrictions. Customer shall not, directly or indirectly, and shall not allow any Affiliate, User or Third Party to: (a) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code or any underlying algorithm or idea from the Platform; (b) circumvent or violate any technical restriction of the Platform; (c) use any Happyrobot IP or Customer Output for purposes of training, fine tuning, validation of, testing of, or any other development of, any Artificial Intelligence (including models or related technologies); (d) make any copies of the Platform or any portion thereof or any Documentation, except as otherwise authorized herein; (e) disclose the Platform or any portion thereof, or any Documentation to any Third Party; (f) sublicense, rent, lease, lend or host the Platform to or for any Third Party; (g) attempt to unlock or bypass any initialization system, encryption method or copy protection devices in the Platform; (h) alter, remove or obscure any patent, trademark or copyright notice in the Platform or Documentation; (i) use components of the Platform independent of the Platform; (j) post, send, process or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material, including violating any Third Party’s rights using the Platform; (k) use the Platform to perform any activity which does or may violate any applicable Law, or is or may be, directly or indirectly, harmful, threatening, abusive, harassing, tortious or defamatory, or to perform any activity which violates the rights of any Third Party; (l) use any Confidential Information of Happyrobot to contest the validity of any intellectual property of Happyrobot; (m) publish or disclose to any third party any evaluation of the Platform; or (n) interfere with or disrupt the integrity or performance of the Platform.
5.5 Feedback. Customer hereby grants to Happyrobot a perpetual, irrevocable, worldwide, transferable, sublicensable (through multiple tiers), royalty-free, non-exclusive license to suggestions, comments or other feedback regarding the Platform, Documentation and Services, to reproduce, distribute, prepare derivative works of, modify, translate, adapt, publicly perform, and otherwise exploit any such suggestion, comment or other feedback provided by Customer or any User to Happyrobot with respect to the Platform or other Services (collectively, “Feedback”).
5.6 Improvements. Happyrobot has the right to collect and analyze data relating to provision, use and performance of the Platform and Services, including by Customer and its Users, and Happyrobot may use such data to improve the Platform and Services, including through the use of automatic or machine learning, and for other development, diagnostic and corrective purposes in connection with the Platform and Services.
5.7 Aggregated Data. Happyrobot has the right to collect, analyze, compile, use and disclose aggregate or de-identified data, statistics, measurements or other metrics relating to the provision, use or performance of the Platform and Services including by Customer and its Users, to improve the Platform and Services and for Happyrobot’s internal business purposes, solely in a manner such that the aggregate or de-identified data does not identify Customer or any individual (except in connection with technical support and related services provided to Customer) (“Aggregated Data”). Aggregated Data is the sole and exclusive property of Happyrobot. All model improvements, algorithmic learnings, performance optimizations, and know-how (collectively, “Learnings”) derived from Customer’s use of the Platform or from processing Customer Content shall be the sole and exclusive property of Happyrobot; provided that Learnings will not include or disclose any Customer Confidential Information.
5.8 No Sale; No Implied Licenses. Except for the express license set forth in these Terms, these Terms do not grant to Customer any license, by implication, estoppel or otherwise. The licenses granted hereunder and any grant of rights to the Platform is not a sale of the Platform or any portion thereof. Happyrobot retains all right, title and interest in and to the Platform, including any modifications, alterations or enhancements thereto.
5.9 No Challenge. Customer shall not, and shall ensure that each Affiliate of Customer shall not, make any claim against Happyrobot, any Affiliate of Happyrobot or any of its or their direct or indirect customers or licensees for infringement of any patent or other intellectual property right owned by Customer or any related entity of Customer relating to intellectual property developed by or for Customer using the Platform.
5.10 Customer Content.
(a) Customer shall be solely responsible for the accuracy, quality, integrity, legality and appropriateness of Customer Content and the right of Happyrobot to process, store and otherwise use any Customer Content for the purposes set forth in this Agreement. Customer shall be responsible for obtaining any consent or other right necessary for Happyrobot to process, store or otherwise use any Customer Content in accordance with the terms of this Agreement.
(b) Customer acknowledges and agrees that while the Platform is designed to retain all Customer Content and to display Customer Output to Users during the Term, the Platform is not a storage service and Customer, not Happyrobot, is solely responsible for backing up all Customer Content and any Customer Output.
6. Confidentiality
6.1 Confidential Information. Each Party may from time to time disclose confidential information to the other Party in connection with this Agreement, whether or not marked as such, and whether disclosed in writing, orally, visually or otherwise (“Confidential Information”). Customer Content and Customer Output shall be deemed to be the Confidential Information of Customer. The Platform, any Feedback and any information regarding Fees shall each be deemed to be Confidential Information of Happyrobot. Notwithstanding the foregoing, Confidential Information does not include any information that: (a) is or becomes available to the public other than through a breach of this Agreement by the receiving Party; (b) is received by the receiving Party from a Third Party not subject to any confidentiality obligation in favor of the disclosing Party; or (c) is independently developed by the receiving Party without access or reference to Confidential Information of the disclosing Party.
6.2 Obligations. The receiving Party agrees to safeguard all Confidential Information of the disclosing Party with at least the same degree of care (which in no event shall be less than reasonable care) as the receiving Party uses to protect its own Confidential Information. The receiving Party shall not use any Confidential Information of the disclosing Party for any purpose other than in furtherance of this Agreement and shall not disclose any Confidential Information of the disclosing Party except to those of its employees, consultants or representatives with a “need to know” such Confidential Information for purposes of fulfilling its obligations under this Agreement and who are bound by confidentiality obligations at least as stringent as those set forth herein. The receiving Party shall be responsible for any action or omission by any such employee, consultant or other representative as if made by the receiving Party. The receiving Party shall promptly notify the disclosing Party of any breach of this Section 6.2.
6.3 Permitted Disclosures. Notwithstanding Section 6.2, the receiving Party may disclose Confidential Information of the disclosing Party to the extent that the receiving Party is required or requested to do so pursuant to applicable Law by any governmental authority or rules of a stock exchange; provided, however, that prior to any such disclosure, the receiving Party shall: (a) assert the confidential nature of the Confidential Information of the disclosing Party to such governmental authority; (b) promptly notify the disclosing Party of the governmental authority’s requirement or request to disclose (unless legally prohibited); and (c) cooperate with the disclosing Party, at the disclosing Party’s expense, in contesting any such disclosure or obtaining a protective order, confidential treatment or the like at the expense of the disclosing Party.
7. Warranties
7.1 Mutual. Each Party represents and warrants to the other Party that: (a) if it is an organization, it is duly organized and validly existing under the Laws of the jurisdiction in which it is organized; (b) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement, to perform its obligations and to grant the rights hereunder; (c) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (d) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
7.2 Happyrobot Warranties. Happyrobot represents and warrants to Customer that: (a) the Platform and the Services shall perform materially in accordance with the Documentation during the Term; and (b) the Professional Services, if any, shall be performed in a professional and workmanlike manner by personnel of sufficient qualification and experience. In the event that the Platform or Services fail to satisfy the foregoing warranty, Happyrobot will, at its option and expense, either: (i) modify the affected Services or Platform component to remedy such with a solution that materially conforms to the Documentation; or (ii) promptly repair the Services so that they materially conform to the Documentation. The Parties agree that the foregoing representations and warranties by Happyrobot set forth in Section 7.1 and this Section 7.2 shall not extend to Customer during any Pilot Term or any period of access authorized under the last sentence of Section 5.1. As Customer’s sole and exclusive remedy in the event of a breach of such warranty, Happyrobot shall use commercially reasonable efforts to correct any failure to comply with such warranty.
7.3 Customer Warranties. Customer represents, warrants and covenants to Happyrobot that Customer owns all right, title and interest in and to the Customer Content or otherwise has secured all necessary rights in and consents relating to the Customer Content as necessary to permit the access, use and processing thereof by Happyrobot in accordance with the terms of this Agreement.
7.4 Disclaimers.
(a) EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, THE PLATFORM, SERVICES AND OUTPUT ARE PROVIDED “AS IS” AND “AS-AVAILABLE”. HAPPYROBOT DOES NOT WARRANT THAT THE PLATFORM OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR OPERATE ERROR-FREE, WITHOUT INTERRUPTION, OR THAT HAPPYROBOT WILL CORRECT ANY ERROR. TO THE MAXIMUM EXTENT PERMITTED BY LAW, HAPPYROBOT HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM, SERVICES OR OUTPUT, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, CUSTOMER ACKNOWLEDGES THAT AI SYSTEMS, BY THEIR NATURE, ARE CAPABLE OF HALLUCINATION, BIAS OR OTHER ERRORS AND THAT HAPPYROBOT DOES NOT AND CANNOT GUARANTEE THAT ANY OUTPUTS WILL BE FREE OF ANY HALLUCINATION, BIAS OR OTHER ERROR AND MAY OTHERWISE BE INACCURATE OR MISLEADING IN ANY PARTICULAR CONTEXT, WHETHER OR NOT SUCH OUTPUT IS ERROR-FREE OR ATTRIBUTED TO HAPPYROBOT.
(b) Customer acknowledges and agrees that Customer Output may be generated through use of generative Artificial Intelligence. Customer acknowledges and agrees that: (i) Customer, its Affiliates and its and their Users will not include any unnecessary or deceptive input in connection with its use of the Platform (including in an attempt to cause the generation of inaccurate, biased or otherwise problematic Customer Output); (ii) generative AI is a rapidly evolving field of study and given the probabilistic nature of machine learning, use of generative AI may in some situations result in inaccurate, biased or otherwise problematic Customer Output; (iii) Customer, its Affiliates and its and their Users must verify the accuracy and appropriateness of any Customer Output before relying on any such Customer Output; (iv) relying upon any Customer Output without first verifying accuracy with a qualified human could cause harm, including but not limited to legal, financial, and physical harm; (v) Customer Output may bear resemblance to output generated by other users of the Platform who provide similar input, and Customer’s rights to Customer Output generated based on Customer Content shall not be interpreted to limit the rights of other users; and (vi) Customer and its Affiliates have no rights to output generated by the Platform for other users, regardless of any level of similarity. Happyrobot cannot control and has no liability with respect to, or duty to take any action regarding, how Customer may distribute, interpret, rely on or use any Customer Output or what action Customer may take as a result of having been exposed to Customer Output.
8. Limitation of Liability
8.1 SUBJECT TO SECTION 8.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF DATA, PROFITS, REVENUES OR USE OF THE SERVICE, OR FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, MULTIPLE, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SERVICES OR THE PLATFORM.
8.2 SUBJECT TO SECTION 8.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, FOR AN AMOUNT IN EXCESS OF THE AGGREGATE FEES PAID TO HAPPYROBOT IN THE TWELVE (12) MONTHS PRECEDING THE EVENTS GIVING RISE TO THE MOST RECENT CLAIM UNDER THE ORDER FORM UNDER WHICH THE CLAIM AROSE (OR, IF NO FEES HAVE BEEN PAID, TEN THOUSAND UNITED STATES DOLLARS (US$10,000)).
8.3 THE LIMITATIONS AND EXCULPATIONS OF LIABILITY SET FORTH IN SECTIONS 8.1 AND 8.2 SHALL NOT APPLY IN RESPECT OF: (a) ANY FEES OWED BY CUSTOMER HEREUNDER; (b) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9; (c) A PARTY’S INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (d) A PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY); (e) CUSTOMER’S BREACH OF SECTION 5.4 (GENERAL USE RESTRICTIONS); OR (f) A PARTY’S GROSS NEGLIGENCE, FRAUD OR WILFUL MISCONDUCT, BUT SHALL OTHERWISE APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS AND EXCULPATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 ARE AN ESSENTIAL BASIS OF THE BARGAIN AND THAT, ABSENT SUCH LIMITATIONS AND EXCULPATIONS, THE FEES WOULD HAVE NECESSARILY BEEN MUCH HIGHER.
8.4 ANY CLAIM BY CUSTOMER SHALL BE BROUGHT WITHIN TWELVE (12) MONTHS FOLLOWING THE EVENTS GIVING RISE TO SUCH CLAIM.
9. Indemnification
9.1 Customer Indemnification. Subject to Section 9.4, Customer hereby agrees to defend, indemnify and hold harmless Happyrobot and its Affiliates and their respective principals, partners, members, managers, trustees, beneficiaries, directors, officers, stockholders, representatives, and the successors and assigns of each of the foregoing, for, from and against any and all Losses suffered or incurred by any of them directly or indirectly arising from or in connection with any Claim brought by a third party arising from or related to: (i) any failure by Customer to comply with any applicable Laws; or (ii) any violation of privacy rights of any third party, whether by or on behalf of Customer (other than Happyrobot in connection with the provision of the Services).
9.2 Happyrobot Indemnification. Subject to Sections 9.3 and 9.4, Happyrobot hereby agrees to defend, indemnify and hold harmless Customer and its Affiliates and their respective directors, officers, and employees, and the successors and assigns of each of the foregoing, for, from and against any and all Losses suffered or incurred by any of them directly or indirectly arising from or in connection with Third Party Claims arising from or related to: (a) the gross negligence or intentional misconduct of Happyrobot; or (b) the Platform infringing a United States patent, copyright, trademark or trade secret of such Third Party (any claim subject to this subsection (b), an “IP Claim”). If Customer’s use of the Platform is, or in Happyrobot’s opinion is likely to be, the subject of an IP Claim, Happyrobot may at its cost and option, in its sole discretion: (i) modify the infringing element of the Platform to be non-infringing without materially degrading the functionality of the Platform; (ii) procure for Customer the right to continue using the Platform; or (iii) terminate the affected Order Form and refund to Customer the pro rata portion of any prepaid Fees associated with the Platform for any unused portion of the Term. THIS SECTION 9.2 SETS FORTH HAPPYROBOT’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY IP CLAIM.
9.3 Exceptions. The defense and indemnification obligations of Happyrobot shall not apply to the extent the alleged infringement arises out of: (a) use of any Service by Customer in combination with products or software not provided by Happyrobot; (b) any modification, alteration or enhancement of any Service not created by or on behalf of Happyrobot with Happyrobot’s prior written consent; (c) failure to implement the latest release of the Platform; or (d) any matter indemnified by Customer in Section 9.1.
9.4 Indemnity Conditions. As a condition to the indemnity obligations of a Party hereunder, the indemnified party shall: (a) provide prompt notice of any indemnifiable claim; (b) tender the defense of such claim to the indemnifying Party at the indemnifying Party’s request; (c) cooperate with the indemnifying Party in the defense of such claim at the indemnifying Party’s expense; and (d) not settle or compromise any such claim without the consent of the indemnifying Party. The indemnifying Party shall pay all Losses incurred by the indemnified Party in connection with any such Claim.
10. Term; Termination
10.1 Term. The effectiveness of this Agreement commences on the Effective Date and continues until the date that is the later of: (a) the one (1) year anniversary of the Order Form Effective Date for the first Order Form; or (b) such later date as there is no then-active Order Form. If the Parties have not entered into an Order Form, this Agreement continues for so long as Happyrobot authorizes Customer’s access to the Platform under Section 5.1, and Happyrobot may terminate this Agreement and such access at any time upon notice to Customer.
10.2 Termination. This Agreement may be terminated by either Party immediately upon notice to the other Party: (a) if the other Party materially breaches this Agreement and does not cure such breach within thirty (30) days after notice of such breach, effective as of the date set forth in such notice; or (b) if the other Party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other Party’s property, or the other Party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within ninety (90) days, or the other Party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
10.3 Effect of Termination. Upon termination of this Agreement: (a) all Order Forms will terminate; (b) Customer’s license to the Platform and Services shall immediately cease; (c) all amounts owing, including Fees for Services rendered up to the effective date of such termination, will be immediately due and payable; and (d) each Party will promptly return or destroy any Confidential Information of the other Party (except as otherwise set forth in Section 6).
10.4 Survival. Sections 2.5 (the second sentence only), 4, 5, 6, 7.1, 7.4, 8, 9, 10.3, 10.4, 11 and 12 will survive termination of this Agreement or any Order Form.
11. Governing Law; Dispute Resolution
11.1 Governing Law and Venue. This Agreement will be governed by, and construed in accordance with, the Laws of the State of California, USA, without giving effect to the conflict of Laws principles thereof.
11.2 Scope; Governing Rules. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”), including, if appropriate, the International Commercial Arbitration Supplementary Procedures.
11.3 Selection of Arbitrator. There shall be one arbitrator agreed to by the Parties within twenty (20) days of receipt by the respondent of the request for arbitration or in default thereof appointed by the AAA in accordance with its Commercial Rules.
11.4 Proceedings. The seat or place of arbitration shall be San Francisco County, California, USA. The arbitration shall be conducted and the award shall be rendered in the English language. The award rendered by the arbitrator shall be final and binding on the Parties and may be entered and enforced in any court having jurisdiction, and any court where a Party or its assets is located (to whose jurisdiction the parties consent for the purposes of enforcing the award). Judgment on the award shall be final and non-appealable.
11.5 Confidentiality. Except as may be required by law, neither a Party nor the arbitrator may disclose the existence, content or results of any arbitration without the prior written consent of both Parties, unless to protect or pursue a legal right or as otherwise permitted in accordance with Section 6.
11.6 Equitable Relief. Notwithstanding any other provision of this Agreement, each Party acknowledges that any use of Confidential Information of the other Party in a manner inconsistent with this Agreement, or a Party’s infringement, misappropriation or violation of the intellectual property rights of the other Party, may cause the other Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, each Party agrees that, in addition to any other remedy to which the other Party may be entitled hereunder, at Law or in equity, the other Party shall be entitled to seek injunctive or other equitable relief without regard for the arbitration procedures set forth in this Section 11, without the posting of any bond and without proof of actual damages, to restrain such use in addition to any other applicable remedy available under applicable Law. Nothing in this Section 11 shall be interpreted as limiting the powers of the arbitrator with respect to any dispute subject to arbitration under this Agreement.
12. Miscellaneous
12.1 Notices. Any communication, demand, approval, consent or other notice from one Party to the other Party required to be given under this Agreement shall be in writing and personally delivered, sent via certified mail, postage prepaid and return receipt requested, sent via internationally recognized courier service or sent via email with a copy sent by one of the other previous means, to the other Party at the address set forth on the applicable Order Form (or, if there is no Order Form, to Happyrobot at legal@happyrobot.ai and to Customer at the email address associated with Customer’s account) or such other address as either Party may from time to time designate in writing to the other Party. No change of address shall be binding upon the other Party until notice thereof is received by such Party. Each notice shall be in English. Each notice shall be effective: (a) on personal delivery; (b) five (5) days after delivery by certified mail, postage prepaid and return receipt requested; (c) two (2) business days after being sent via internationally recognized courier service; or (d) the next business day after being sent via email with a copy sent by one of the other previous means. This Section 12.1 will not apply to communication between the Parties made in the ordinary course of business.
12.2 Force Majeure. Except for Customer’s payment obligations, neither Party is responsible for any delay or failure to perform resulting from any cause beyond such Party’s reasonable control, which may include, but is not limited to, any act of God, fire, hurricane, flood, terrorism, act of war, labor disturbance, telecommunications failure, utility failure, network failure, pandemic, act of governmental authorities or change of applicable Laws (each, a “Force Majeure Event”), as long as such Party promptly notifies the unaffected Party of the Force Majeure Event and uses commercially reasonable efforts to mitigate the effects thereof and resume performance of the affected obligations as soon as reasonably practicable.
12.3 Assignment. Customer is not permitted to transfer or assign (by operation of law or otherwise) any of its rights or obligations under this Agreement without the prior consent of Happyrobot, which consent will not be unreasonably withheld, delayed or denied. Any such transfer or assignment without Happyrobot’s consent will be void and of no force and effect.
12.4 Publicity. Customer hereby grants to Happyrobot a worldwide, non-exclusive, royalty-free, non-transferable license to use Customer’s trademarks, service marks or logos for the purpose of identifying Customer as a customer of Happyrobot in order to promote the Platform. Except as set out in this Section, neither Party will use the name of the other Party in publicity releases or similar activity without the consent of the other Party.
12.5 Severability. If any provision of this Agreement, or portion thereof, is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be severed and the remaining provisions of this Agreement will remain in full force and effect.
12.6 Independent Contractor. Each Party will act as an independent contractor and employees of one Party will not be considered to be employees of the other Party. No agency, partnership, joint venture or other joint relationship is created by this Agreement. Neither Party may make any commitments binding on the other Party, nor may either Party make any representation that they are acting for, or on behalf of, the other Party.
12.7 Headings; Interpretation. Captions and headings contained in these Terms have been included for ease of reference and convenience and shall not be considered in interpreting or construing these Terms. Except where the context expressly requires otherwise: (a) the use of the singular will be deemed to include the plural (and vice versa); (b) the words “include”, “includes”, “including” or “e.g.” will be deemed to be followed by the phrase “without limitation”; (c) the word “will” will be construed to have the same meaning and effect as the word “shall”; (d) the words “herein”, “hereof” and “hereunder”, or any word of similar import, will be construed to refer to this Agreement in its entirety and not to any particular provision hereof, including each Order Form that references these Terms; and (e) the term “or” will be interpreted in the inclusive sense commonly associated with the term “and/or”.
12.8 Order Forms. Customer’s purchase of the Services and use of the Platform is subject to the terms of this Agreement. In the event of a conflict between these Terms and any Order Form, these Terms shall govern except as specifically stated in these Terms or any such Order Form. Any terms which may appear as pre-printed language or otherwise be on, attached to or inserted within any order form, quote, invoice, bill or other form or document issued by Customer shall be of no force or effect even if such form or document is accepted or executed by Happyrobot.
12.9 Entire Agreement. This Agreement, including these Terms and any Order Forms, and all appendices, exhibits, schedules and attachments thereto and hereto, constitutes the sole and complete agreement between the Parties with regard to its subject matter. This Agreement may not be modified or amended except by a writing signed by both Parties, and supersedes all proposals, understandings, representations, prior agreements or communications relating to the Platform and the subject matter of this Agreement. This Agreement will not be construed against the drafting Party, but instead will be construed as if both Parties prepared this Agreement.