DataHappy – Terms of Use

These Terms of Use apply to your use of DataHappy service provided by Drivn Limited of 20 Craven Avenue Ealing, London, England, W5 2SX (“Drivn”). By using DataHappy, you (referred to in this Agreement as the “Customer”) agree to be bound by them in relation to all use of DataHappy.

Definitions

The following definitions apply in this document:

DataHappy means the data analytics tracking service made available to the Customer and its Users on and subject to the terms of this Agreement and as specified in any invoice or order form sent to you by Drivn. This includes any individual element of the service made available on its own, including the Javascript Software Development Kit.

Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for business in England.

Confidential Information means all information (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of either party, including, without limitation customer data, all technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records; all business and marketing plans and projections, details of agreements and arrangements with third parties, and User and supplier information and lists; all financial information, pricing schedules and structures, product margins, remuneration details and investment outlays; all information concerning any employee, customer, contractor, supplier or agent of the relevant party; the party’s policies and procedures, but excludes information that the other party can establish is known by or is in the other party’s possession or control other than through a breach of this document and is not subject to any obligation of confidence; or is in the public domain other than by a breach of this document or any obligations of confidence.; or is independently developed by or on behalf of the receiving party without reference to or use of the disclosing party’s Confidential Information.

Customer Data means any information that the Customer or any of its Users uploads to DataHappy, including Customer Personal Data.

Customer Personal Data means any Personal Data that the Customer or any of its Users uploads to DataHappy.

Data Protection Legislation means the Data Protection Act 2018, Regulation (EU) 2016/679 of the European Parliament and of the Council, (the General Data Protection Regulation); any other existing or future law, directive or regulation (anywhere in the world) relating to the Processing of Personal Data or privacy, to which Drivn is subject.

Data Controller, Data Processor, Data Subject, Processing and Personal Data have the meanings given to those expressions or any equivalent or corresponding expressions in the Data Protection Legislation.

Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party: act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions; act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic or pandemic; the effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.

Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trade marks, brand names, business names, domain names and other forms of intellectual property;

Intellectual Property Rights means, for the duration of the rights in any part of the world, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.

User means any individual authorised by the Customer to use an account for DataHappy purchased by the Customer.
The DataHappy service
1. Subject to payment of the applicable fees, Drivn shall make DataHappy available to the Customer and its Users.
2. DataHappy provides the Customer with the ability to develop better visibility of the success of its marketing activity and to enhance and optimise the Customer’s marketing campaigns. DataHappy operates across web-based and mobile app-based marketing campaigns to fill in gaps in Customer’s data analytics with a view to reducing the costs of a customer acquisition.
3. The Customer acknowledges that in order to receive the benefit of DataHappy service, it must integrate such code and tools as Drivn may reasonably specify into Customer’s own systems and Customer’s third party social media and other marketing channel accounts. If the Customer does not permit such integration, Drivn accepts no liability for the inoperability of DataHappy service.
4. The Customer agrees and accepts that the full DataHappy service is hosted by Drivn and its infrastructure providers, and shall only be maintained by Drivn, and is not available locally from the Customer’s systems. The Customer also acknowledges that DataHappy is managed and supported exclusively by Drivn and that no ‘back-end’ access to DataHappy is available to the Customer or its Users. In relation to the Javascript Software Development Kit, the Customer is responsible for incorporating it into the Customer’s own systems in accordance with Drivn’s instructions.
5. Drivn reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter DataHappy at its sole discretion. Drivn shall not amend DataHappy in a manner that would intentionally cause the Customer to lose access to Customer Data or fundamentally decrease the utility of DataHappy to the Customer, other than in accordance with the terms of this Agreement.
Payment of fees
1. The Customer shall pay the fees notified to it by Drivn for use of DataHappy. The fees for the use of DataHappy are payable monthly in full and are based on the applicable tier of Customer’s usage of the DataHappy service. No refunds are payable for any fees under any circumstances.
2. All invoices for the use of DataHappy must be paid within 14 days of receipt. If full payment is not received by such date, Drivn may suspend or withhold access for all Users until such payment is received. Drivn reserves the right to charge interest for any late payments at 4% above the prevailing Bank of England base rate.
3. All prices are exclusive of applicable local, state, federal and international sales, value added, withholding and other taxes and duties of any kind unless otherwise stated.
4. The Customer shall pay all invoices for the use of DataHappy in full and shall have no right of set off for any liability it may claim to be owed to it by Drivn at any time.
5. Drivn may make DataHappy (or any part of it) available to you for a limited period at no charge at its discretion. All the terms and conditions of this Agreement apply to your use of DataHappy during any such period. The terms and conditions of this Agreement will apply to your use of DataHappy regardless of whether you pay for it or not.
Licence to use DataHappy
1. Subject to compliance with the terms and conditions of this Agreement, the Customer and its Users are granted a limited, non-exclusive and revocable license to access and use DataHappy for the duration of this Agreement.
2. The Customer is solely responsible for the security of user names and passwords issued to it for access to DataHappy.
3. Drivn may revoke or suspend access to DataHappy at any time if the Customer or any User is in breach of this Agreement and has failed to comply with Drivn’s reasonable request to remedy such breach within a reasonable time period.
4. The Customer shall ensure that each of its Users is aware of and complies with the terms of this Agreement, and the Customer shall remain liable to Drivn for any breach of this Agreement by its Users, and any losses or damages that Drivn may suffer as a result of any such breach.
5. The Customer agrees that it shall only use DataHappy for its own internal marketing purposes and shall not use it to engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by Drivn in its sole discretion. The Customer shall not provide access to DataHappy to any third party.
6. Drivn shall endeavour to respond to all support requests within 3 Business Days. Drivn reserves the right to require the payment of reasonable fees for non-standard support requests prior to the provision of such support.
Customer Data
1. The Customer shall provide Drivn with access to such Customer Data as Drivn may reasonably request in order to provide the DataHappy service.
2. Drivn obtains no right, title or interest in Customer Data including any Intellectual Property found within it. The Customer grants Drivn a licence to use the Customer Data solely for the purposes of providing DataHappy in accordance with this Agreement.
3. Drivn accepts no liability for the content of Customer Data.
4. The Customer and its Users are responsible for the accuracy, quality and legality of Customer Data. The Customer shall ensure that it is has an appropriate legal basis (including consents where required by law) for making any Customer Data available to Drivn for use on DataHappy. The Customer hereby indemnifies Drivn in relation to any claims, losses, damages and costs that Drivn or its related parties may suffer as a result of any claim that Drivn’s possession or use of the Customer Data to provide DataHappy in accordance with this Agreement infringes any applicable Data Protection Legislation or the Intellectual Property Rights or any other rights of any third party, or that the Customer has acted in breach of the Data Processing Addendum.
5. Drivn shall be entitled to delete Customer Data where any outstanding payments due to Drivn by Customer remain unpaid in accordance with the terms of this Agreement.
6. Drivn shall not access, use, modify or otherwise deal with Customer Data except to provide DataHappy, where required by compulsion of law, or upon the Customer or any User’s authority (such as to provide technical support for DataHappy), or as part of internal testing and troubleshooting. Notwithstanding the foregoing, Drivn shall be permitted to use anonymised sets of Customer Data which do not contain Personal Data at its discretion without limitation.
Compliance with data privacy laws
1. Drivn and the Customer will comply with all applicable requirements of the Data Protection Legislation.
2. To the extent that Drivn acts as a Data Processor of Customer Personal Data in the course of making DataHappy available to the Customer, both parties shall comply with the terms of the Data Processing Addendum.
3. The Customer acknowledges that it may control the Customer Personal Data that is processed by Drivn on the DataHappy platform and shared by DataHappy with Customer’s third party social media and other marketing channel accounts. The Customer is responsible for ensuring that appropriate consents and permissions are in place for any sharing of Customer Personal Data that is required by DataHappy.
4. Drivn hereby indemnifies the Customer in relation to any claims, losses, damages and costs that the Customer may suffer as a result of any claim that Drivn has acted in breach of the Data Processing Addendum. This indemnity shall not apply to any claim which arises from use of DataHappy by the Customer or any User otherwise than in accordance with Drivn’s reasonable instructions or the terms of this Agreement or in breach of the Data Processing Addendum.
Security
1. Drivn takes the security of DataHappy and the privacy of its Customers and Users very seriously. Drivn shall use industry-standard systems and processes to protect the security of Customer Data.
2. The Customer agrees that its Users shall not do anything to prejudice the security or privacy of Drivn’s systems (and the systems of Drivn’s infrastructure providers) or the information on them.
Intellectual Property
1. The Customer shall not copy, alter, or use the DataHappy name without the prior written consent of Drivn.
2. DataHappy may incorporate software and other proprietary systems and Intellectual Property owned by Drivn or which Drivn has appropriate authority to use, and the Customer agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally.
3. The Customer warrants that it shall not infringe on any third-party rights through the use of DataHappy.
4. The Customer agrees and accepts that DataHappy is the Intellectual Property of Drivn and the Customer further warrants that by using DataHappy the Customer and its Users will not:
  1. copy DataHappy or the services that it provides for their own commercial purposes; and
  2. directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in DataHappy or any documentation associated with it.
5. All content (with the exception of Customer Data) remains the Intellectual Property of Drivn, including (without limitation) any source code, ideas, enhancements, feature requests, suggestions or other information provided by the Customer or any other party with respect to DataHappy .
6. Drivn hereby indemnifies the Customer in relation to any claims, losses, damages and costs that the Customer may suffer as a result of any claim that the Customer’s use of DataHappy in accordance with this Agreement and any instructions provided by Drivn to the Customer infringes the Intellectual Property Rights of any third party. This indemnity shall not apply to any use of DataHappy by the Customer or any User otherwise than in accordance with Drivn’s reasonable instructions.
Confidentiality
1. Drivn agrees to keep all Customer Data in the strictest confidence, and to the extent Customer Data is accessed and/or received by DataHappy it shall be deemed as Confidential Information for the purposes of this Agreement.
2. Each party acknowledges and agrees that:
  1. the Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);
  2. it owes an obligation of confidence to the Discloser concerning the Confidential Information;
  3. it must not disclose the Confidential Information to a third party except as permitted in this Agreement;
  4. all Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
  5. any breach or threatened breach by the receiving party of an obligation under this Agreement may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.
3. A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
  1. any actual, suspected, likely or threatened breach by it of any obligations it has in relation to the Confidential Information.
  2. any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
  3. any actual, suspected, likely or threatened theft, loss, damage, or unauthorized access, use or disclosure of or to any Confidential Information.
4. The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:
  1. any actual, suspected, likely or threatened breach of a term of this Agreement; or
  2. any theft, loss, damage or unauthorized access, use or disclosure of or to any Confidential Information that is or was in its possession or control.
Warranties
1. Drivn warrants that DataHappy will conform to all representations and descriptions of functionality and service made available to the Customer and that DataHappy will operate to a 99.2% uptime availability level, excluding downtime for scheduled and emergency maintenance, which shall be notified in advance to Customer wherever possible, and scheduled to minimize disruption to Customer’s operations.
2. Drivn warrants that it will use industry standard measures to maintain the security of DataHappy as described in this Agreement, and that it will fix defects in the software in a prompt manner.
3. Except as otherwise provided in this Agreement, the Customer acknowledges and agrees that DataHappy (including all content, function, and services) is provided “as is,” without additional warranty of any kind, either express or implied, including any additional warranty for information, data, data processing services or uninterrupted access, any warranties concerning the availability, accuracy, completeness, usefulness, or content of information, and any warranties of title, non-infringement, merchantability or fitness for a particular purpose.
4. Drivn does not warrant that DataHappy (or the function, content or services made available within it) will be timely, secure, uninterrupted or error free. Drivn makes no warranty that DataHappy will meet the Customer’s expectations or requirements. No advice, results or information, or data whether oral or written, obtained through DataHappy shall create any warranty not expressly made herein. If a Customer is dissatisfied with DataHappy, the sole remedy is to discontinue using DataHappy.
5. Drivn makes no guarantee that use of DataHappy will result in any particular changes to customer engagement with the Customer’s marketing activities, or that use of DataHappy will lead to any specific improvements in customer attribution or conversion.
6. The Customer acknowledges that DataHappy is hosted on third party infrastructure, and Drivn shall not be liable to Customer for any costs, losses, damages, downtime, or other liability arising from the use of or reliance upon such third party infrastructure.
7. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
Liability & Indemnity
1. THE CUSTOMER AGREES THAT IT USES DATAHAPPY AT ITS OWN RISK.
2. THE CUSTOMER ACKNOWLEDGES THAT DRIVN IS NOT RESPONSIBLE FOR THE CONDUCT OR ACTIVITIES OF ANY USER AND THAT DRIVN IS NOT LIABLE FOR SUCH UNDER ANY CIRCUMSTANCES.
3. THE CUSTOMER ACKNOWLEDGES THAT THE EFFICACY OF DATAHAPPY IS SUBJECT TO CHANGES TO THIRD PARTY DEVICES, OPERATING SYSTEMS, SOFTWARE, AND TRACKING FUNCTIONALITY ON INTERNET PLATFORMS THAT IS OUTSIDE OF DRIVN’S CONTROL. DRIVN SHALL ENDEAVOUR TO ADAPT TO ANY SUCH CHANGES, BUT SHALL NOT BE LIABLE TO THE CUSTOMER IN THE EVENT SUCH CHANGES LIMIT OR MATERIALLY AFFECT THE USE OF DATAHAPPY.
4. THE CUSTOMER AGREES TO INDEMNIFY DRIVN FOR ANY LOSS, DAMAGE, COST OR EXPENSE THAT DRIVN MAY SUFFER OR INCUR AS A RESULT OF OR IN CONNECTION WITH THE USE BY CUSTOMER OR ITS USERS OF DATAHAPPY OR CONDUCT IN CONNECTION WITH DATAHAPPY, INCLUDING ANY BREACH BY THE CUSTOMER OR ANY OF ITS USERS OF THIS AGREEMENT.
5. EXCEPT AS REQUIRED BY LAW, DRIVN’S MAXIMUM LIABILITY TO THE CUSTOMER OR ANY USER IN RELATION TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID IN THE TWELVE MONTHS PRECEDING THE DATE OF THE LIABILITY ARISING.
6. IN NO CIRCUMSTANCES WILL DRIVN BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, LOSS OR CORRUPTION OF DATA, LOSS OF PROFITS, GOODWILL, BARGAIN OR OPPORTUNITY, LOSS OF ANTICIPATED SAVINGS OR ANY OTHER SIMILAR OR ANALOGOUS LOSS RESULTING FROM THE CUSTOMER OR ANY USER’S ACCESS TO, OR USE OF, OR INABILITY TO USE DATAHAPPY, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, IN EQUITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT DRIVN KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGE, TO BUSINESS INTERRUPTION OF ANY TYPE, WHETHER IN TORT, CONTRACT OR OTHERWISE.
Termination
1. This Agreement shall remain in force unless it terminates or expires in accordance with this clause 12.
2. If the Customer is on an annual price plan , this Agreement shall have an initial term of 12 months from the Customer’s first use of DataHappy and it shall automatically renew for further periods of 12 months thereafter unless either party provides written notice to the other party of its intention to terminate no later than 60 days before the end of the then-current 12 month period. If the Customer is on a monthly price plan, this Agreement shall remain in force for one calendar month and shall automatically renew for subsequent calendar months unless either party provides written notice to the other party of its intention to terminate no later than 7 days before the end of the then-current month. Drivn may make certain parts of the DataHappy service available for use on an indefinite basis at its discretion.
3. Where a party is in material breach of this Agreement, and has failed to remedy such breach within 28 days of notification by the other party, the other party may terminate this Agreement by giving written notice of termination, which shall become effective 5 Business Days after the date of the notice.
4. Either party may terminate this Agreement immediately by notice, if either party:
  1. stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
  2. is insolvent under company law;
  3. has an administrator appointed in respect of it;
  4. has an order made or a resolution passed for its winding up or dissolution or it enters into an arrangement, compromise or composition with or assignment for the benefit of its creditors or a class of them;
  5. has any security enforced over, or a distress, execution or other similar process levied or served against, the whole or a substantial part of its assets or undertaking; or
  6. is subject to any event which, under the law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events listed above.
5. Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.
6. Rights and obligations under this Agreement shall survive termination of this Agreement where reasonably required to give commercial effect to such rights and obligations.
Force Majeure
1. If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:
  1. specify the obligations and the extent to which it cannot perform those obligations;
  2. fully describe the event of Force Majeure;
  3. estimate the time during which the Force Majeure will continue; and
  4. specify the measures proposed to be adopted to remedy or abate the Force Majeure.
2. Following a notice of Force Majeure in accordance with section 13.1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.
3. The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.
4. The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this Agreement.
5. The term of this Agreement will not be extended by the period of Force Majeure.
Other provisions
1. The Customer may not assign or otherwise license or transfer any of its rights and obligations under this Agreement.
2. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
3. The relationship of the parties to this Agreement does not form a joint venture or partnership.
4. The Customer agrees that Drivn may reference the Customer’s use of DataHappy in its promotional materials.
5. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
6. Any clause of this Agreement, which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
7. Any part of this Agreement may be amended by Drivn at any time, and any aspect of the DataHappy service may be updated or discontinued at any time, provided that the core functionality of the software will not be varied in a way that materially affects the Customer’s use of DataHappy. Any changes to this Agreement or to DataHappy which will significantly affect the rights and obligations of the Customer will be notified to the Customer in advance of such changes taking effect.
8. This Agreement shall be governed by and construed and enforced in accordance with the laws of England and Wales.
9. Each Party expressly agrees that exclusive jurisdiction for resolving any claim or dispute between the Customer and Drivn relating in any way to use of DataHappy shall be with the courts of England and Wales.