Distribution Partnership Terms and Conditions

Last updated October 19, 2015

1. GENERAL

During the length of the Distribution Partnership Agreement, Happy Food Co will provide the Eat Happy Program. In the event of any inconsistency among terms and conditions of the Distribution Partnership Agreement (“Agreement”) and these Distribution Partnership Terms and Conditions ("Terms"), the order of control shall be: (i) Distribution Partner Agreement (ii) Distribution Partnership Terms and Conditions, and (iii) any other exhibits, addenda or attachments to the Distribution Partnership Agreement or Distribution Partnership Terms & Conditions including any links, which are incorporated by reference herein. 

2. INTELLECTUAL PROPERTY RIGHTS

(i) Happy Food Co owns all right, title and interest in and to the Eat Happy Program including, without limitation, any intellectual property rights and any improvements, modifications, enhancements or refinements thereto. Except as set forth in the Agreement, all rights not expressly granted to you are reserved. You agree not to decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any of the Eat Happy Program, intellectual property or ideas, algorithms, file formats, programming, or interoperability interfaces underlying or such intellectual property.

(ii) Happy Food Co owns all right, title and interest in and to all data collected by, or on behalf of Happy Food Co in connection with the Eat Happy Program (“Customer Data”). Happy Food Co.’s Privacy Policy and User Terms & Conditions control use and ongoing governance of Customer Data. Users may review these policies prior to becoming a customer.

3. RESTRICTIONS

You shall use the Eat Happy Program solely for internal business purposes. You may not, for itself, any affiliate or any third party sell, rent, lease, license or sublicense, assign, distribute, or transfer the Eat Happy Program.

4. FEES AND PAYMENT TERMS

Fees, payment terms and payment methods for the use of the Eat Happy Program are set forth in the Partnership Agreement.

5. TERM

The Agreement will remain in full force for the term specified in the Partnership Agreement. At the end of any Subscription Term, the Agreement will automatically renew for a new Subscription Term equal to the current term, unless you select a new Subscription Term or provide written cancellation notice thirty (30) days prior to the renewal date.

6. TERMINATION

(i) Happy Food Co, in its sole discretion, may suspend or terminate the Agreement and corresponding access and right to use the Eat Happy Program, at any time, upon notice to you, (a) for any other material breaches of the Agreement, if (b) your location fails to meet the minimum order threshold specified in the Partnership Agreement, or (c) we are unable to fulfill orders onsite for any reason. 

(ii) Each party shall have the right to terminate the Agreement upon written notice to the other party: (a) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party that is not otherwise dismissed within sixty (60) days of such institution; (b) upon the making of an assignment for the benefit of creditors by the other party; or (c) upon the dissolution of the other party.

7. REPRESENTATIONS, WARRANTIES AND DISCLAIMER

(i) Each Party represents and warrants to the other that: (a) it has the power and authority to enter into the Agreement and perform its obligations under these Terms; (b) it is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or formation; and it is duly qualified to do business and is in good standing in each jurisdiction where the conduct of its business, provision of its goods and/or services, or the ownership of its property requires such qualification; (c) these Terms reflect its legal, valid and binding obligation, enforceable against it; and (d) it shall comply with all laws applicable to its obligations under the Agreement.

(ii) EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 8, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF QUALITY, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF EAT HAPPY PROGRAM OR SERVICES AND THE INTERNET IS AT YOUR SOLE RISK. EAT HAPPY PROGRAM AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.

8. CONFIDENTIAL INFORMATION

Any information that a receiving party knows or has reason to know (either because such information is marked or otherwise identified by the disclosing party orally or in writing as confidential or proprietary, has commercial value, or because it is not generally known in the relevant trade or industry) is “Confidential Information” of the disclosing party and will remain the sole property of the disclosing party. Such Confidential Information includes but is not limited to data, information (including personally identifiable information), ideas, materials, specifications, procedures, schedules, software, technical processes and formulas, source code, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, marketing data and other similar information provided by a party. For avoidance of doubt, Customer Data shall be deemed Confidential Information of Happy Food Co. Each party agrees that it will not disclose, use, modify, copy, reproduce or otherwise divulge such Confidential Information to any third party without the prior written approval of the disclosing party except that the receiving party shall have the right to disclose such Confidential Information to the extent required by applicable law or to the directors, officers or employees of the receiving party who have a need to know such Confidential Information in order to perform its obligations under the Agreement and to the extent such directors, officers or employees are subject to obligations of confidentiality and non-disclosure that are substantially similar to the obligations set forth in the Agreement. The prohibitions contained in this Section will not apply to information (i) already lawfully known to the receiving party prior to such disclosure by the disclosing party; (ii) independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information; (iii) disclosed in published materials; (iv) generally known to the public; or (v) lawfully obtained from any third party. In addition, a party will not be considered to have breached its obligations under the Agreement to the extent Confidential Information is required to be disclosed by any governmental authority, provided that, to the extent legally practicable, the receiving party advises the disclosing party prior to making such disclosure in order that the disclosing party may object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or take such other action as it considers appropriate to protect the Confidential Information. You agree that Happy Food Co may use your company name and logo on its website and in marketing materials and video’s (including press releases) during the term of this agreement.

9. INDEMNIFICATION

Happy Food Co agrees to indemnify, defend and hold Partner harmless in the event a third party claims that Happy Food Co.’s intellectual property has infringed or misappropriated the intellectual property rights granted by Happy Food Co hereunder of a third party which results in liability or damage suffered by Partner. Partner agrees to indemnify, defend and hold Happy Food Co harmless in the event Partner uses the Eat Happy Program in an unauthorized manner, which results in liability or damage suffered by Happy Food Co or for material breaches by Partner of this Agreement.

10. LIMITATION OF LIABILITY

Happy Food Co.’s aggregate liability for all claims (including claims for indemnification of third party damages) arising out of the Agreement, whether in contract, tort or otherwise, will not exceed the amount of total purchases made by Partner participants to Happy Food Co under the Agreement during the six (6) months preceding the date on which the claim occurred. To the maximum extent permitted by applicable law, in no event will Happy Food Co be liable for any loss of business profits, business interruption, loss of data or any special, indirect, exemplary, incidental or consequential damages arising from or in relation to the Agreement or the use of the Services, however caused and regardless of theory of liability.

11. NOTICE

Except where explicitly provided otherwise herein, any notice required or permitted hereunder will be delivered to the contact person listed in the Partner Agreement as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by certified or registered mail, return receipt requested, upon verification of receipt; or (iv) by electronic delivery when receipt is confirmed.

12. ASSIGNMENT

You may not, without the prior written consent of Happy Food Co, assign the Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so will be a material default of the Agreement and will be void. The Agreement will be binding upon and will inure to the benefit of the respective parties hereto, their respective successors in interest, legal representatives, heirs and assigns.

13. FORCE MAJEURE

If either party is prevented from performing any of its obligations under the Agreement due to any cause beyond the party’s reasonable control including, without limitation, an act of God, fire, flood, explosion, terrorism, war, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, or acts of vandals, or hackers. The time for that party’s performance will be extended for the period of the delay or failure to perform due to such occurrence, except that you will not be excused from the payment of any sums of money owed by you to Happy Food Co provided prior to the force majeure event.

14. NO THIRD PARTY BENEFICIARIES

The Agreement is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.

15. AMENDMENT AND WAIVERS

This Agreement may be changed only by written agreement signed by both Happy Food Co and you. The failure of either party to exercise or enforce any of its rights under the Agreement will not act as a waiver of subsequent breaches and the waiver of any breach will not act as a waiver of subsequent breaches. 

16. SEVERABILITY

If a court or other tribunal of competent jurisdiction to be unenforceable holds any provision of the Agreement, that provision will be enforced to the maximum extent permissible under applicable law and the other provisions of the Agreement will remain in full force and effect.

17. COMPLIANCE WITH LAWS

Each party will comply with all applicable laws, regulations, and ordinances relating to their performance hereunder.

18. INDEPENDENT CONTRACTOR

The Agreement will not be construed as creating or constituting joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

19. ENTIRE AGREEMENT

The Agreement will constitute the entire agreement between Happy Food Co and you with respect to the subject matter hereof and all prior oral or written agreements, representations or statements with respect to such subject matter are superseded hereby.