Retail Partner Terms and Conditions

LAST UPDATED: August 14, 2019

1. Acceptance. These Terms and Conditions (“Terms”) are a legal agreement between you (“Company”, “you” or “your”) and Happy Returns, Inc., Delaware corporation with its principal place of business at 1106 Broadway, Santa Monica, CA 90401 (“HR” or “Happy Returns”) regarding the Services (as defined below). You and HR may be referred to herein individually as a “Party” and collectively as the “Parties”. By accepting the terms of this Agreement (defined below) or by performing under this Agreement in any way, you agree to be bound by, and to comply with, this Agreement.  If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case “you” or “your” or “Company” shall refer to such entity.  The Agreement may be subject to supplemental terms, posted guidelines, rules or other terms made available by HR from time to time (collectively, the “Additional Terms”), which are incorporated herein by reference.  If there is any conflict between any provision in this Agreement and the Additional Terms, this Agreement shall take precedence unless the Additional Terms identify and expressly supersede the provision in this Agreement.  HR may change these Terms from time to time at its sole discretion, and if HR makes any material changes, we will attempt to notify you by sending you an email to the last email address you provided to us and/or posting a notice on our website (“Site”).  Therefore, you agree to promptly notify us of any changes in your email address. Any material changes to these Terms will be effective upon the earlier of the dispatch of the email notice to you or the date of posting of notice of the changes on the Site and shall be evidenced by a new “Last Updated” date shown above. HR may require you to provide consent to the updated Terms before continuing under this Agreement. If you do not agree to the updated Terms, in addition to your right to terminate under Section 4, you may terminate the Agreement upon written notice to HR. Otherwise, your continued performance constitutes your acceptance of the changes.  Please regularly check the Site to view the then-current Terms.

2. Schedules.  These Terms and the Schedules (each, a “Schedule” and collectively, the “Schedules”) accompanying these Terms shall constitute one legally binding agreement, referred to herein collectively as the “Agreement.”

3. Services. Company hereby retains HR to perform, and HR hereby agrees to undertake and perform certain services, as defined in the Schedules hereto, in accordance with the terms and conditions of this Agreement and applicable Schedules (collectively, the “Services”). Additional Schedules may be added to this Agreement, and each Schedule may be amended upon mutual agreement of the Parties. Payment terms and fees for the Services shall be set out on Schedule 1 hereto.

4. Term. This Agreement shall commence on the Effective Date and continue for an initial period of twelve (12) months (the “Initial Term”) and thereafter will renew automatically for successive twelve (12) month periods (each, a “Renewal Term”), unless either Party gives the other Party notice of its intention not to renew the Agreement at least ninety (90) days prior to the expiration of the current Term and subject further to the right of either Party to terminate this Agreement as set forth below. The Initial Term and any Renewal Terms shall be referred to collectively as the “Term”. Non-renewal under this Section 3 shall not cause termination of any then outstanding Statement of Work or Schedule and such Statement of Work or Schedule shall continue in accordance with its terms, subject to any termination right under Section 4.

5. Termination.

a. Termination for Breach. Upon any material breach or default under this Agreement (including any Schedules or Statements of Work) by either Party, the Party not in default or breach (the “Non-Breaching Party”) may terminate this Agreement upon thirty (30) days’ written notice to the Party in default or breach (the “Breaching Party”), with such termination to become effective upon expiration of said thirty (30) day period, unless within said thirty (30) day period the Breaching Party shall have cured such breach or default.

b. Termination for Insolvency. In the event a Party files for protection under applicable bankruptcy laws, makes an assignment for the benefit of creditors, appoints or suffers appointment of a receiver or trustee over its property, files a petition under any bankruptcy or insolvency act or has any such petition filed against it which is not discharged within ninety (90) days of the filing thereof, then the other Party may terminate this Agreement (including any Schedules or Statements of Work) effective immediately upon written notice to the Party.

c. Consequences of Termination.  Upon termination: (i) HR shall immediately cease performance of Services and promptly deliver to Company all Company property and/or Company Confidential Information in the possession of HR or its respective personnel unless instructed by Company to destroy such property or Confidential Information; (ii) Company will pay HR all earned but unpaid fees as of the date of such termination; (iii) all licenses granted hereunder shall immediately and automatically terminate, and Company shall cease use of all HR intellectual property; (iv) Company shall promptly return any hardware provided by HR to Company within 30 days of termination and (v) the Parties shall immediately cease any joint marketing activities undertaken pursuant to this Agreement.  Any termination or expiration of this Agreement shall not serve to eliminate any liability arising out of conduct prior to the actual date of termination or expiration, and either Party may, following such termination or expiration, pursue such remedies as may be available with respect to such liabilities.  In addition, notwithstanding the termination or expiration of this Agreement, any provisions of this Agreement specifically providing for survival shall continue in full force and effect.

6. Taxes.   Company will be responsible for and pay to HR, all sales, use, excise taxes and any other similar taxes, duties and charges imposed by any federal, state or local governmental entity on any amounts payable by Company under this Agreement or any Schedule; provided, however, that in no event will Company pay or be responsible for any taxes imposed on, or with respect to, HR’s income. 

7. Covenants, Representations and Warranties.

a. Service Warranty. HR warrants that the Services will materially conform to the descriptions in this Agreement, including the Schedules hereto.

b. Authority.  Each Party represents and warrants to the other that it has the legal right, authority and power to enter into this Agreement, to extend the rights granted or to be granted to the other in this Agreement, to fully perform its obligations hereunder and that its performance will be in compliance with all applicable laws and regulations, and that it has not made and will not make any commitments to others in conflict with or in derogation of such rights or this Agreement.  Each Party further represents to the other that, as of the Effective Date, and to its actual knowledge, it is not aware of any legal obstacles, including, without limitation, intellectual property rights of others, which could reasonably be expected to prevent it from carrying out its obligations under this Agreement. 

c. Business Licenses.  HR agrees to keep current all business licenses and certifications material to the performance of the Services.  

8.   Indemnification.

a. HR Indemnity.  HR shall indemnify, defend and hold harmless Company, and Company’s personnel against any and all third-party liabilities, claims, causes of action, suits, and/or damages, including reasonable attorneys’ fees, costs and expenses (collectively, “Losses”) resulting from (i)  any material breach under this Agreement by HR; (ii) death or serious bodily injury of any person to the extent caused by the misconduct of HR, its employees or agents; and (iii) damage to Company’s property to the extent caused by the misconduct of HR, its employees or agents. 

b. Company Indemnity.  Company shall indemnify, defend and hold harmless HR and HR’s personnel from all Losses resulting from (i) any material breach under this Agreement by Company (ii) death or serious bodily injury of any person to the extent caused by the misconduct of Company, its employees or agents; and (iii) damage to HR’s property to the extent caused by the wrongful conduct of Company, its employees or agents. 

9. Limitations and Disclaimer. EXCEPT AS EXPRESSLY INDICATED IN THIS AGREEMENT AND SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED AS A MATTER OF LAW, HAPPY RETURNS MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES OR ITS PERFORMANCE UNDER THIS AGREEMENT.  HAPPY RETURNS HEREBY DISCLAIMS ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND QUALITY OF PRODUCTS AND SERVICES EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID AS A MATTER OF LAW. HAPPY RETURNS DOES NOT REPRESENT OR WARRANT THAT THE OPERATION OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

10. HAPPY RETURNS WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHER THEORY), OR OTHERWISE) TO COMPANY OR ANY OTHER PERSON FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES OR THIS AGREEMENT, , IN EACH CASE, EVEN IF HAPPY RETURNS HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES. FURTHER, ASIDE FROM ITS INDEMNIFICATION OBLIGATIONS OR A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, HAPPY RETURNS’ TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED WILL NOT EXCEED THE AMOUNT PAID BY COMPANY TO HAPPY RETURNS IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE ACT OR OMISSION GIVING RISE TO SUCH CLAIM.

11. Confidentiality & Non-­Disclosure.

a. The confidential information to be disclosed under this Agreement (“Confidential Information”) includes the other Party’s non-public information communicated in any form, including, without limitation,  in writing, orally, visually, on paper, or electronically, regarding: assumptions, ratings, pricing, theories, products, services, and techniques; information regarding software and hardware (owned or leased), algorithms, computer processing systems, source or object code, configuration, user manuals, systems documentation; information regarding corporate structure, business plans, business relationships, policies and procedures, underwriting,  financial information, marketing goals, customer lists (past, current and prospective) and broker lists; information regarding clients and customers (past, current and prospective); (technical or business information related to proprietary ideas, patentable ideas, trade secrets, existing and/or contemplated products, materials and services, and research and development; any other information which reasonably could give a third party an opportunity to gain an advantage over competitors who did not know such information; information which the receiving Party knows or should know to be valuable to the disclosing Party; and all notes, analyses, reports, compilations,  studies,  interpretations, adaptations, improvements or documents prepared by the receiving Party which contain, reflect or are based upon, in whole or in part, the disclosing Party’s Confidential Information, regardless of form and regardless  whether  the information contained in this paragraph is designated as “Confidential Information” when disclosed.

b. In addition to the Confidential Information listed in 10(a), Confidential Information shall include other confidential or sensitive information, which is: (1) disclosed in documentary form and marked as confidential or similar designation at the time of disclosure or (2) confirmed in writing as confidential within thirty (30) days of disclosure.

c. Each Party shall maintain the other’s Confidential Information in strict confidence and shall not publish, disseminate, disclose or otherwise make such Confidential Information available to any third party without prior written consent of the disclosing Party. Neither Party may refer to or inform any third party about any aspect of the Services performed under this Agreement unless specifically granted permission in writing by the other Party to make such disclosure.

d. Each Party agrees that any Confidential Information of the other Party obtained during the term of this Agreement shall be used solely for the purposes of fulfilling its respective obligations under this Agreement and for no other purposes.  Each Party shall limit the dissemination of and access to Confidential Information of the other Party to those employees within their organizations who have a need to know such information. A Party shall satisfy this paragraph if it takes affirmative action to ensure compliance with these obligations by its employees, agents, consultants, vendors and other parties who are permitted access to or use of the Confidential Information. Notwithstanding the provisions of Section 4 a., disclosure of Confidential Information in violation of this Agreement is an immediate and material breach of this Agreement to which no cure period shall apply and may result in the immediate termination of this Agreement by and at the discretion of the owner of such Confidential Information.

e. Notwithstanding the requirements set forth in this Agreement, the obligations of confidentiality and non­use shall not apply to: (i) information that was publicly known at the time of disclosure; (ii) information that becomes publicly known subsequent to disclosure, provided that such public knowledge is not the fault of, or the result of an improper disclosure by the receiving Party; (iii) is rightfully received from a third party not owing a duty of confidentiality; (iv) is disclosed without a duty of confidentiality to a third party by, or with the authorization of the Confidential Information’s owner; (v) is independently developed; and/or (vi) is information required to be disclosed by applicable law, regulation or legal process, provided that the Party requested to disclose the information shall take all reasonable steps to prevent public disclosure of such Confidential Information and shall provide the owner of the Confidential Information with prompt notice of any such request. Regardless of the nature of the request, in the event such protective order or other remedy  is  not  obtained, the Party requested to disclose the information will  furnish  only  that  portion  of  the Confidential Information which, in the opinion of outside counsel, is legally required to be disclosed and will exercise its best efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.

f. The furnishing of Confidential Information by either Party shall not be construed as granting to the other Party either expressly, by implication, estoppel or otherwise, any license or right to make any use of the Confidential Information.

g. Each Party acknowledges and agrees that a breach of these confidentiality provisions may cause irreparable damage to the other Party; that such damage would be difficult to measure; and that such damage may not be adequately compensated by monetary damages. Consequently, the Parties agree that the Non-breaching Party shall be entitled to seek equitable relief, including injunction and specific performance, in addition to all remedies available to the Parties at law or in equity.

h. Notwithstanding any other provision of this Agreement, this Section 10 (Confidentiality) shall survive termination of this Agreement.

12. Intellectual Property Rights.

a. Services. Except for the express licenses granted herein, HR shall retain all rights, title, interest and intellectual property rights in the Services.

b. Data.  For purposes of this Agreement, “Data” shall mean any content and information submitted or provided by Company to HR in connection with Company’s use of the Services, including its end user customer information. As between the Parties, Company shall retain all rights in the Data. Company hereby grants HR a non-exclusive, worldwide, royalty-free, perpetual license to use the Data to provide the Services and to enhance its service offerings. The parties acknowledge and agree that HR may also collect aggregated usage data relating to use of the Services and may use such data for purposes of analysis and to enhance its service offerings. HR will use industry standard efforts to protect the Data in its possession from unauthorized access or use.

c. Marks. Company hereby grants HR a non-exclusive, worldwide, royalty-free, license to use the Company’s trademarks, service marks, and logos during the Term in order to provide the Services and to indicate that Company is a customer of HR. HR agrees that its use of the Company’s marks shall not create any right, title or interest in or to such marks and that all goodwill associated with its use of such marks shall inure to the benefit of Company.

13. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to any choice of laws provision.

14. Dispute Resolution. Except for any claims seeking injunctive relief, the Parties agree to use their best business efforts to resolve any disputes related to the performance of Services under this Agreement and if any such dispute arising out of or relating to this Agreement cannot be settled through direct discussions,  such dispute shall be litigated in a court of competent jurisdiction in Los Angeles County, California.

15. No Third-Party Beneficiaries.  Nothing in this Agreement is intended or shall be construed to give any person, other than the Parties hereto, any legal or equitable right, remedy or claim under this Agreement or any provision contained herein.

16. Relationship of Parties. The Parties to this Agreement are independent contractors and this Agreement shall not be construed or interpreted to create an association, partnership, joint venture, or relation of principal and agent or employer and employee. The Parties do not have, nor shall they hold themselves out as having, any right, power or authority to create any contract or obligation, either expressed or implied, on behalf of, in the name of, or binding upon the other Party, unless expressly authorized in writing.

17. Miscellaneous.

a. Assignment and Delegation Neither Party shall assign or delegate the Agreement or any rights, duties or obligations hereunder without the express written consent of the other.  Notwithstanding the foregoing, either Party may assign this Agreement to its successor pursuant to a merger, consolidation or sale of substantially all of its assets related to this Agreement, provided it promptly notifies the non-assigning Party in writing of the assignment and the assignee agrees to be bound by the terms of this Agreement. Subject to the foregoing, the Agreement shall inure to the benefit of and be binding upon the successors, legal representatives and assignees of the Parties hereto.

b. Amendments.  Any amendment to this Agreement or Schedule attached hereto shall be effected by an amendment agreement signed by Parties to this Agreement. Any amendment to this Agreement shall apply to all Schedules (unless the amendment expressly states otherwise), and any amendment to a specific Schedule shall apply only to that Schedule.

c. Privacy Policy. HR agrees that it will handle all Company customer information in accordance with HR’s privacy policy, which is available at: https://www.happyreturns.com/terms/.

d. Entire Agreement. This Agreement, including its Schedules and exhibits referenced herein, constitutes the complete, integrated, exclusive, and final statement of the terms and conditions of the Agreement between the Parties, superseding all prior negotiations, written or oral, regarding the subject matter herein. 

e. Force Majeure. Notwithstanding any other provision of this Agreement, in the event  the  performance  of  any  obligation  set  forth  under  this  Agreement is prevented, delayed, altered or rendered impossible by acts of God, war, civil disturbance,  governmental  restriction,  economic  disruption,  fire,  storm,  flood, explosion, terrorist attacks, or any other cause that is beyond the reasonable control of any Party, the obligations so affected shall be deferred or eliminated to the extent necessitated by such event or contingency without liability. In the event of a force majeure condition, HR may take alternative measures, when available, in order to continue performance under this Agreement. The terms of this clause shall not exempt, but merely suspend, any of the Parties from their duties to perform the obligations under this Agreement as soon as practicable after the force majeure condition ceases to exist.

f. Severability. In the event any provision or part of this Agreement is found to be invalid or unenforceable, only that particular provision or part so found, and not the entire Agreement, will be inoperative.

g. Survival. The provisions of Section 7 through 16 shall survive the expiration or termination of this Agreement.

h. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original, but all of which together constitute one instrument. Faxed and electronic copies shall be deemed the same as the originals.

i. Waiver  No waiver of or failure to enforce any term of the Agreement or the Schedules shall affect or limit a Party’s right thereafter to enforce and compel strict compliance with every term thereof.

j. Headings. The headings herein are for the purposes of convenience and reference only, and shall not be deemed to expand or limit the particular sections to which they pertain.

k. Notices. Unless otherwise agreed in writing, the Parties must submit any notice, demand, consent or other communication required or provided under this Agreement in writing and either delivered personally, sent by overnight delivery courier, or sent by certified or registered mail, postage prepaid, return receipt requested, to the representative designated below.  Notices will be deemed given when received.   Notices that are not legal in nature may also be sent to the representative by e­mail and will be deemed received upon sender’s receipt of an electronic receipt or acknowledgment. A notice must be addressed as follows:

     To  Happy Returns, Inc.

     1106 Broadway

     Santa Monica, CA 90401

     Attn: David Sobie, Chief Executive Officer

End of Agreement