1. Haekka Subscription

A. Scope of Agreement

These Terms and Conditions set forth the terms and conditions in which Haekka provides its Subscription (defined in Section 1.b) to Customer. The pricing, subscription period, and other details of Customer’s subscription are as set forth in each mutually executed order form (each a “Service Order”). A Service Order may be executed by a subsidiary, division or other corporate affiliate of Customer, in which case (with respect to that Service Order only) references to “Customer” throughout this Agreement will be deemed to refer to the affiliate of Customer that signed the Service Order. Each Service Order is a separate contract between HaekkaHaekka and the entity that executed it. If there is a conflict between the terms of any Service Order and these Terms and Conditions, these Terms and Conditions shall supersede unless the Service Order specifically overrides, in the Service Order itself, these Terms and Conditions.

Haekka Subscription

These Terms and Conditions govern Customer’s use of Haekka’s applications (mobile, web, integrated and accessed via 3rd party application), including all features and modules (collectively, the “Subscription”). Subject to the terms and conditions of these Terms and Conditions, Haekka will make the Subscription available throughout the Subscription Term set forth in the applicable Service Order.

Beta Services

As used in this Agreement and to the extent specified as Beta Services in an applicable Service Order, the term “Subscription” excludes any features, modules or applications labeled as “Pre-Release,” “Alpha,” “Beta” or the like (“Beta Services”). Beta Services are experimental, trial applications that may “break” or cease to be available at any time. Haekka may remove or suspend access to Beta Services at any time. Beta Services are not required in order to use the Subscription and are not part of the Subscription, even if Customer elects to integrate them with the Subscription. BETA SERVICES ARE AVAILABLE ONLY ON AN “AS IS” BASIS. HAEKKA MAKES NO WARRANTY AS TO THE ACCURACY, RELIABILITY, COMPLETENESS, USEFULNESS, NON-INFRINGEMENT, AVAILABILITY OR QUALITY OF ANY BETA SERVICES OR THE CONTENT MADE AVAILABLE THROUGH BETA SERVICES, AND SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, FOR THE BETA SERVICES, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE FOREGOING DISCLAIMER APPLIES EVEN IF CUSTOMER INTEGRATES BETA SERVICES WITH THE SUBSCRIPTION SERVICE.

2. Subscription Fees and Payments

Fees

Customer will pay the fees for the Subscription specified in the Service Order (collectively, “Subscription Fees”). The Subscription Fees are based on the total dollar amount of the Subscription in the Service Order minus adjustments and/or rejections (“Total Fees”). All Subscription Fees are nonrefundable once paid except as expressly otherwise provided in these Terms and Conditions.

Payment

All invoices are payable net 30 days from the date of the invoice. Customer may choose to be invoiced through the Haekka payment processor Stripe. The Subscription Fees do not include local, state or federal taxes or duties of any kind; any such taxes will be assumed and paid by the Customer. Unless otherwise provided in a Service Order, Subscription Fees are payable in U.S. dollars. If Customer believes that Haekka has billed Customer incorrectly, Customer must contact Company no later than 30 days after the closing date on the first invoice in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Haekka’s customer support department. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

3. Subscription Use and Restrictions

Authorized Users

Customer may designate and provide access to Haekka applications to Customer (or its corporate affiliates’) employees, independent contractors, or other agents as authorized users (“Authorized User”). Each set of credentials may be used only by a single, individual Authorized User. Customer remains responsible for all use and misuse of the Subscription that occurs under Authorized Users’ login credentials and for any breach of this Agreement by any Authorized Users. Customer agrees to promptly notify Haekka of any unauthorized access or use of which Customer becomes aware.

Permitted Use

Haekka hereby grants Customer a non-exclusive, non-transferable, non-sublicense right to access and use the Subscription, during the subscription term set forth in the Service Order (“Term”), for Customer’s internal business purposes, all subject to the terms and conditions of this Agreement.

Prohibited Use

Customer will not (and will use diligent efforts to ensure that its Authorized Users do not): (a) “frame,” distribute, resell, or permit access to the Subscription by any third party other than for its intended purposes; (b) permit multiple Authorized Users to access the Subscription using a single account; (c) use the Subscription other than in compliance with applicable federal, state, and local laws; (d) copy, distribute, or otherwise access Haekka content outside of the Haekka application, (e) interfere with the Subscription or disrupt any other user’s access to the Subscription; (f) reverse engineer, attempt to gain unauthorized access to the Subscription, or attempt to discover the underlying source code or structure of the Subscription; (g) knowingly submit to the Subscription any content or data that is defamatory, harassing, discriminatory, infringing of third party intellectual property rights, or unlawful; (h) submit to the Subscription any routine, device or other undisclosed feature, including a so-called time bomb, virus, software lock, drop dead device, malicious logic, worm, Trojan horse or trap or back door or software routine, that is designed to delete, disable, deactivate, interfere with or otherwise harm any software, program, data, device, system or service, or which is intended to provide unauthorized access or to produce unauthorized modifications; or (i) use any robot, spider, data scraping or extraction tool or similar mechanism with respect to the Subscription.

4. Subscription Term

Term

These Terms and Conditions are effective from the earliest initiation date of any Customer Service Orders and do not terminate until the latest termination date or expiration date of any Customer Service Order (the “Term”).

5. Termination of Subscription

Termination for Cause

Either party may terminate an individual Service Order immediately if the other party materially breaches any material provision of these Terms and Conditions and fails to materially cure its breach within 30 days after receiving the other party’s written notice identifying the breach. In addition, Haekka may suspend Customer’s access to the Subscription immediately if (a) Customer fails to make a payment for more than thirty (30) days following Haekka’s notice of late payment, or (b) Customer has (or Haekka reasonably suspects that Customer has) misappropriated or infringed Haekka’s intellectual property or proprietary rights in the Subscription.

Effect of Termination

Upon expiration or termination of all Customer Service Orders: (a) all rights and obligations of the parties under these Terms and Conditions will cease except that the following sections survive any such termination or expiration: 2 (with respect to amounts accrued but unpaid as of the effective date of termination), 3, 6. 9, 10, 11, 12, and 14 through 18; (b) notwithstanding any provision of any surviving section, Customer will have no further right to use the Subscription under the terminated or expired Service Order; and (c) Customer will not be entitled to any refund of fees paid; provided however if Customer has terminated a Service Order for Haekka’s uncured breach, Customer will be entitled to a refund of the prorated portion of the Subscription Fees. Thereafter, Haekka may delete the Customer Data in the Subscription.

6. Haekka Audit Guarantee

The Haekka Audit Guarantee (“Audit Guarantee”) is included as a part of some, but not all, Customer Subscriptions and Service Orders. The Audit Guarantee is explicitly listed on Service Orders in which it is included.

  • Refund. The Audit Guarantee entitles customers to a refund of the lesser of either the total of annual payments to Haekka on the Service Order or the total of payments made to Haekka.
  • Required Conditions. In order to receive a refund as a part of the Audit Guarantee, the customer must do all of the following:
  • Undergo an 3rd party audit against a regulation to which the Customer uses Haekka as their exclusive privacy and compliance training provider;
  • Provide audit evidence from the Haekka application to Customer 3rd party auditor; and
  • If the Customer 3rd party auditor requires more evidence of compliance training than what is provided by the Haekka application, the Customer is required to contact Haekka and allow Haekka to provide evidence additional to Customer 3rd party auditor.

7. Customer Data and Haekka Data

Ownership of Customer Data

As between the parties, Customer retains all right, title and interest in any and all data, files, attachments, text, images, personally identifiable information, and other content that Customer or its Authorized Users uploads, submits to, or collects via the Subscription (collectively, “Customer Data”). Customer Data includes data and content collected by Customer and its Authorized Users from third parties via the Subscription. Customer represents and warrants that it has all rights, permissions and consents necessary (a) to collect, store and process all Customer Data, including all personal data, on the Subscription, (b) to grant Haekka the limited license to use Customer Data set forth in this Agreement, and (c) for any transfer or disclosure of Customer Data among Authorized Users or as otherwise authorized by Customer. If an individual whose personally identifiable information is hosted by Haekka in connection with the Subscription requests access to their personal information, Customer is responsible for providing reasonable access to, modification of, or deletion of their data and in addition, handling any claims, disputes or proceedings. Haekka will provide its best efforts in assisting with any of the above at either Customer’s or the individual¹s request and Haekka will provide resources at its standard billing rates.

Use of Customer Data by Haekka

Customer agrees that Haekka may use the Customer Data to make the Subscription and its features available in accordance with this Section 3 of these Terms and Conditions, including without limitation by making Customer Data available for viewing, download and modification by Authorized Users. Haekka will have no liability for any collection, distribution, publication, display, use or disclosure of Customer Data by Customer and its Authorized Users via the Subscription. Customer may, from time to time, grant Haekka explicit permission to use, redistribute, modify, or publish Customer Data. Customer agrees that Haekka can use subcontractors (and sub-processors), including resources located outside of the United States, in providing Subscription. Haekka may allow its service providers to host and access Customer Data in order to assist Haekka in providing the Subscription Service, provided that (a) such service providers are subject to confidentiality obligations substantially as protective of the Customer Data and (b) Haekka will be responsible for any breach of this Agreement by such service providers acting on its behalf in connection with the Subscription Service. Haekka will maintain commercially reasonable administrative, technical and procedural safeguards designed to safeguard the Customer Data from unauthorized access, disclosure or loss. Haekka may use Customer Data, without limitation, for product improvement, analysis, benchmarking, and only other similar purposes.

8. Connection to 3rd Party Services

Haekka may integrate with certain third-party software applications and content providers licensed by Customer or Haekka (“Third-Party Applications”) for use in connection with the Subscription. These Third Party Applications are not part of the Subscription and these Terms and Conditions do not apply to such Third Party Applications, even if Customer or Haekka elects to integrate Third-Party Applications with the Subscription. Each Third-Party Application is made available exclusively in accordance with the terms and conditions of the end-user license agreement accompanying it, and Haekka has no liability whatsoever with respect to Third-Party Applications or any transfers of data to such Third Party Applications.

9. Requests and Questions

Any issues, requests, or questions relating to these terms and conditions should be directed to legal@getdayzero.com.

10. Intellectual Property, Trademarks, and Patents

As between the parties, Haekka retains all right, title and interest in and to (a) the Subscription, the technology and software used to provide it, and all intellectual property and proprietary rights therein; (b) the content delivered in the Subscription, all intellectual property and proprietary rights therein; and (c) all electronic and print documentation and other content and data (excluding Customer Data) made available through the Subscription Service. Except for Customer’s rights to access and use the Subscription set forth in these Terms and Conditions, nothing in these Terms and Conditions conveys any of Haekka’s intellectual property or proprietary rights to anyone, including Customer. Customer agrees that Haekka will have a perpetual right to use and incorporate into the Subscription any feedback or suggestions for enhancement that Customer or an Authorized User provides to Haekka concerning the Subscription, without any obligation of compensation.

11. Confidentiality

Confidential Information

As used herein, the “Confidential Information” of a party (the “Disclosing Party”) means all financial, technical, or business information of the Disclosing Party that the Disclosing Party designates as confidential at the time of disclosure to the other party (“Receiving Party”) or that the Receiving Party reasonably should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. These Terms and Conditions are the Confidential Information of each party, Customer Data is Customer’s Confidential Information, and the Haekka Application and Content. Except as expressly permitted in these Terms and Conditions, the Receiving Party will not disclose, duplicate, publish, transfer or otherwise make available Confidential Information of the Disclosing Party in any form to any person or entity without the Disclosing Party’s prior written consent. The Receiving Party will not use the Disclosing Party’s Confidential Information except to perform its obligations under this Agreement (including, in the case of Haekka, to provide the Subscription Service). Furthermore, Customer shall not host any Confidential Information acquired pursuant to this Agreement outside the United States without Haekka’s prior written consent. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by law, provided that the Receiving Party: (a) gives the Disclosing Party prior written notice of such disclosure so as to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure (if such notice is not prohibited by applicable law); (b) uses diligent efforts to limit disclosure and to obtain confidential treatment or protective order; and (c) allows the Disclosing Party to participate in the proceeding. Further, Confidential Information does not include any information that: (i) is or becomes generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party’s breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party’s breach of any obligation owed to the Disclosing Party. The Receiving Party will return or destroy all Confidential Information upon the Disclosing Party’s request after the termination or expiration of this Agreement and (if requested by the Disclosing Party) certify such return or destruction in writing.

12. Privacy

Haekka respects the privacy of customers and users. We have outlined our privacy practices in our Privacy Principles. For questions or issues related to privacy practices at Haekka, please email Privacy.

13. Representations and Warranties

General

Each party represents and warrants that it has the necessary authority to enter into this Agreement.

Limited Warranty for Subscription Service

Haekka represents and warrants that the Subscription will operate substantially as described in the online documentation made available with the Subscription.

Remedies

Customer must notify Haekka in writing of any alleged failure by Haekka comply with any section of these Terms and Conditions within 30 days of Customer’s discovery of the non-compliance. Haekka’s entire liability and Customer’s sole remedy for Haekka's failure to perform will be for Haekka to: (i) use commercially reasonable efforts to cure or correct such failure, and (ii) if Haekka is unable to cure or correct such failure within a reasonable time period, to terminate the Agreement (or the applicable Service Order) upon written notice for a pro rata refund of any portion of the Subscription Fees prepaid by Customer that remain unused as of the effective date of termination.

Disclaimer

Customer acknowledges that, as an internet-delivered software application, the Subscription may experience periods of downtime, including but not limited to scheduled maintenance. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE IN THIS SECTION 12, HAEKKA MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SUBSCRIPTION, DOCUMENTATION, APPLICATION, WORK PRODUCT, HAEKKA APIS, OR ANY DATA OR CONTENT MADE AVAILABLE THROUGH THE SUBSCRIPTION SERVICE, WHETHER EXPRESS OR IMPLIED. HAEKKA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY. HAEKKA DOES NOT WARRANT THAT THE SUBSCRIPTION WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.

14. Liability

HAEKKA AND ITS AFFILIATES, VENDORS, LICENSORS, AND OTHER THIRD PARTIES MENTIONED ON THE SITE OR IN THE HAEKKA APPLICATION ARE NEITHER RESPONSIBLE NOR LIABLE CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, SITE-RELATED SERVICES AND PRODUCTS, CONTENT OR INFORMATION CONTAINED WITHIN THE SITE, AND/OR ANY HYPERLINKED WEB SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE, SITE-RELATED SERVICES, AND/OR HYPERLINKED WEBSITES IS TO STOP USING THE SITE AND/OR THOSE SERVICES. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

15. Indemnification

Haekka

Haekka will defend, indemnify and hold harmless Customer and its corporate affiliates, directors, officers, employees, successors, assigns and agents from and against any third party claim, demand or action, and all resulting damages, settlement amounts, penalties, costs, and expenses, to the extent such claim, demand or action alleges that the Subscription Service or any work performed by Haekka, when used by Customer in compliance with this Agreement, infringes or violates any intellectual property or proprietary right of any third party; provided, however, that Haekka’s obligations under this Section 12 will not apply to the extent any infringement or violation arises from (a) use of the Subscription Service in combination with technology or services not provided by Haekka if such infringement would have been avoided but for such use, operation or combination, (b) Customer Data, (c) Haekka’s compliance with designs, specifications or instructions provided by Customer where those designs, specifications or instructions cause the infringement, or (d) use by Customer after notice by Haekka to discontinue use, provided that Haekka subsequently refunds amounts paid for the allegedly infringing material after Customer’s discontinuance. THIS SECTION CONSTITUTES THE ENTIRE LIABILITY OF HAEKKA, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY THIRD-PARTY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION ARISING OUT OF THE SUBSCRIPTION SERVICE.

Customer

Customer will defend, indemnify and hold harmless Haekka and its corporate affiliates, directors, officers, employees, successors, assigns and agents from and against any third party claim, demand or action, and all resulting damages, settlement amounts, penalties, costs, and expenses, that arises out of or relates to Customer Data (except to the extent such claim arises from Haekka’s use of Customer Data in violation of this Agreement). THIS SECTION CONSTITUTES THE ENTIRE LIABILITY OF CUSTOMER, AND HAEKKA’S SOLE AND EXCLUSIVE REMEDY, FOR ANY THIRD-PARTY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION ARISING OUT OF THE SUBSCRIPTION SERVICE.

Conditions

The indemnifying party’s obligations under this section are contingent on the indemnified parties: (a) promptly providing written notice of the claim to the indemnifying party, (b) giving the indemnifying party sole control of the defense and settlement of the claim, and (c) providing the indemnifying party, at the indemnifying party’s expense, all reasonable assistance in connection with such claim. In no event will an indemnified party be liable for any settlement that admits any fault of or imposes any monetary liability on an indemnified party without its prior written consent.

16. Publicity

Haekka may use the Customer’s name, logo, marks, or other identifiers, including from Customer properties such as website, to identify Customer as a Haekka customer on Haekka website, marketing and sales material, and other publicly available content.

17. Changes to Terms and Conditions

From time to time, changes may be made to these Terms and Conditions. Notice will be provided to Customer via email to the administrator for the account.

18. Entire Agreement

These Terms and Conditions, as may be amended from time-to-time by Haekka, constitute the entire agreement between Haekka and Customer. Certain provisions of these Terms and Conditions may be superseded by expressly designated legal notices or terms in subsequent documents and contracts.

19. Governing and Disputes

These Terms and Conditions are entered into in the State of Colorado and shall be governed by and construed in accordance with the laws of the State of Colorado, exclusive of its choice of law rules. Any dispute, controversy or claim arising under, out of, in connection with or in relation to the Site or these Terms and Conditions, will be resolved in Colorado. In the event that any of the Terms and Conditions are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms and Conditions shall otherwise remain in full force and effect.

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