Last Updated: February 2, 2024
This Terms of Service (this “Agreement”) is a legally binding contract between you and Halda Inc. (“Halda,” “us,” “we,” or “our”) regarding your use of the Service (defined below). References to “Customer,” “you,” and “your” refer to the individual, company or other entity that accepts this Agreement, either by executing an Order (defined below), or otherwise affirmatively accepting this Agreement through another means.
YOU AGREE TO RECEIVE TEXTS FROM OR ON BEHALF OF HALDA AT THE PHONE NUMBER YOU PROVIDE TO HALDA. THESE TEXTS MAY INCLUDE OPERATIONAL MESSAGES ABOUT YOUR USE OF THE SERVICE. YOU UNDERSTAND AND AGREE THAT THESE TEXTS MAY BE CONSIDERED TELEMARKETING UNDER LAW, THEY MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A CONDITION OF ANY PURCHASE.
1. DEFINED TERMS
Certain capitalized terms used in this Agreement are defined in Section 14 (Definitions) and others are defined contextually in this Agreement.
The “Service” is Halda’s proprietary software solution powered by artificial intelligence for enrollment marketers.
3. APPLICABILITY OF AGREEMENT
If the Service is being used on behalf of a company or other entity by an individual authorized to accept this Agreement on its behalf, then all references to “Customer,” “you,” or “your” refer to the company or other entity. If you are a company or other entity, the individual accepting this Agreement on your behalf represents and warrants that they have authority to bind you to this Agreement. If you are accepting this Agreement on behalf of a company or other entity and an authorized representative of the entity has already accepted this Agreement on behalf of the entity or entered into a separate agreement regarding the use of the Service (“Separate Agreement”) prior to the date upon which you accept this Agreement (“Effective Date”), this Agreement will not apply to you and your and the entity’s rights and obligations with respect to the Service will at all times during the term of the Separate Agreement be governed by, and subject to, the Separate Agreement. If you are not eligible, or do not agree to the terms and conditions of this Agreement, then you do not have our permission to use the Service. Your use of and our provision of the Service to you constitutes a legally binding commitment by Halda and by you to be bound by this Agreement.
If Customer purchases the Service from an authorized partner or reseller of Halda (“Reseller”), Customer’s use of the Service will be governed by this Agreement, and this Agreement is hereby incorporated into and made part of the agreement between Customer and Reseller. Customer must require that each individual who accesses or uses the Service on behalf of or as a result of Customer’s use of the Service (an “End User”) is bound by this Agreement. Customer is responsible for all End Users’ access to and use of the Service. If Customer becomes aware of any unauthorized use of the Service or noncompliance with this Agreement by any End User, Customer will immediately notify Halda and, at Halda’s direction, use its best efforts to assist Halda in enforcement of this Agreement.
4. THE SERVICE
4.1 Access. Subject to Customer’s complete and ongoing compliance with this Agreement, Halda grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service.
4.2 Account Registration. To access certain features of the Service, Customer and its Authorized Users must register for an account (“Account”) and, in doing so, may be required to provide Halda with certain information (such as name, email address, or other contact information). Customer agrees that the information it and its Authorized Users provides to Halda is accurate, complete, and not misleading, and that it will keep it accurate and up to date at all times. Only Authorized Users, using the mechanisms designated by Halda (“Log-in Credentials”), may access and use the Service. Each Authorized User must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its Authorized Users’ compliance with this Agreement and all actions taken through their Log-in Credentials (excluding misuse of the Log-in Credentials caused by Halda’s breach of this Agreement). Customer will promptly notify Halda if it becomes aware of any compromise of any Log-in Credentials. Halda may Process Log-in Credentials in connection with Halda’s provision of the Service or for Halda’s internal business purposes. Customer represents and warrants to Halda that: (a) it has not previously been suspended or removed from the Service; and (b) its registration and use of the Service is in compliance with all Laws.
4.3 Restrictions. Customer will not (and will not permit End Users or anyone else to) do any of the following: (a) provide access to, distribute, sell, or sublicense the Service to a third party (other than End Users); (b) use the Service to develop a similar or competing product or service; (c) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to the Service, except to the extent expressly permitted by Law (and then only with prior notice to Halda); (d) modify or create derivative works of the Service or copy any element of the Service; (e) remove or obscure any proprietary notices in the Service; (f) publish benchmarks or performance information about the Service; (g) interfere with the operation of the Service, circumvent any access restrictions, or conduct any security or vulnerability test of the Service; (h) transmit any viruses or other harmful materials to the Service; (i) take any action that risks harm to others or to the security, availability, or integrity of the Service; (j) access or use the Service in a manner that violates any Law; or (k) use the Service with Prohibited Data or for High Risk Activities. Customer acknowledges that the Service is not intended to meet any legal obligations for these uses. Notwithstanding anything else in this Agreement, Halda has no liability for Prohibited Data or use of the Service for High Risk Activities.
4.4 Support. Halda will use commercially reasonable efforts to provide Customer with support for the Service (“Support”).
4.5 Use of Customer Data. Customer grants Halda the non-exclusive, worldwide, sublicensable right to use, copy, store, disclose, transmit, transfer, publicly display, modify, and create derivative works from Customer Data only as necessary to: (a) provide the Service; (b) derive or generate Usage Data; (c) create and compile Aggregated Data; and (d) as otherwise required by Laws or as agreed to in writing between the parties.
4.7 Usage Data; Aggregated Data. Halda may Process Usage Data and Aggregated Data for internal business purposes, including to: (a) track use of Service for billing purposes; (b) provide Support; (c) monitor the performance and stability of the Service; (d) prevent or address technical issues with the Service; (e) develop and improve the Service and Halda’s other products and services; and (f) conduct any lawful business practices, such as generating analytics, benchmarking, and reports. Customer will not interfere with Halda’s Processing of Usage Data.
4.8 Customer Obligations. Customer is responsible for Customer Data, including its content and accuracy, and will comply with Laws (and any other policies that Halda may make available from time to time) when using the Service. Customer represents and warrants that it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for Halda to Process Customer Data as set forth in this Agreement without violating or infringing Laws, third-party rights, or terms or policies that apply to Customer Data.
4.9 Suspension. Halda may immediately suspend Customer’s and any End Users’ access to the Service if: (a) Customer breaches Section 4.3 (Restrictions) or Section 4.8 (Customer Obligations); (b) Customer’s Account is 30 days or more overdue; (c) changes to Laws or new Laws require that Halda suspend the Service or otherwise may impose additional liability on us; or (d) Customer or an End User actions risk harm to any of Halda’s other customers or the security, availability, or integrity of the Service. Where practicable, Halda will use reasonable efforts to provide Customer with prior notice of such suspension. If the issue that led to the suspension is resolved, Halda will use reasonable efforts to restore your access to the Service.
4.10 Modifications to the Service. Halda may modify or discontinue all or any part of the Service at any time (including by limiting or discontinuing certain features or functionality of the Service), temporarily or permanently, without notifying Customer (except that Halda will use commercially reasonable efforts provide Customer with 30 days’ prior notice in the event of any deprecation of any material feature or functionality of the Service). Halda will have no liability for any change or modification to the Service or any suspension or termination of access to or use of the Service as a result thereof; provided that, if Halda discontinues the Service completely, Halda (or a Reseller, if applicable) will refund to Customer a pro-rata portion of Fees (defined below) received for the remainder of the applicable the Subscription Term (defined below). Notwithstanding the foregoing, any such change or modification will only apply on a going-forward basis with respect to any Order entered into or renewed after Halda’s implementation thereof.
4.11 Customer Systems. Customer will provide and maintain any hardware, software, other technology, and infrastructure that Customer requires to access and use the Service as defined in the current version of Halda’s usage guidelines and standard technical documentation for the Service that Halda makes generally available to Halda’s customers (the “Documentation”).
4.12 Third-Party Platforms. Use of Third-Party Platforms are subject to Customer’s agreements with the relevant provider and not this Agreement. Halda does not control and will have no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Service or how the Third-Party Platforms or their providers use Customer Data. By enabling a Third-Party Platform to interact with the Service, Customer authorizes Halda to access and exchange Customer Data with such Third-Party Platform on Customer’s behalf. Third-Party Platforms may be subject to eligibility requirements, certification requirements, or other terms as set out by the third party that Customer must ensure that they are in compliance with.
5. COMMERCIAL TERMS
5.1 Subscription Term. If you have purchased a subscription to the Service, the Subscription Term will be set forth in the applicable Order. You must place a new Order to renew your subscription. Customer may cancel its subscription in accordance with Section 7.2.
5.2 Fees. Fees for the Service are described in the Order. All fees for the Service (“Fees”) will be paid in US dollars unless otherwise provided in an Order. Fees are invoiced or charged as described in the Order. Unless the Order provides otherwise, all Fees are due within 30 days of the invoice date. Your Account will be charged a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less, and Customer is responsible for Fees or charges that are incidental to any chargeback or collection of any the unpaid amount including any collection Fees. All Fees and other expenses are non-refundable. Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to Orders, whether domestic or foreign, other than Halda’s income tax (“Taxes”). Fees are exclusive of all Taxes.
5.3 Authorization. You authorize Halda (and its third-party payment processors) to charge all sums for the Orders that you make and any level of Service you select, including all applicable Taxes, to the payment method specified in your Account. If you pay any Fees with a credit card, then Halda may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. You agree that Halda may seek pre-authorization of the credit card account Customer provide to Halda for payment prior to any purchase to verify that the credit card is valid and has the necessary funds or credit available to cover such purchase. If your payment method is no longer valid at the time a any Fees are due, then Halda reserves the right to delete your Account and any information or Customer Data associated with your Account without any liability to you.
5.4 Pricing. Halda reserves the right to determine pricing for the Service to Customer (except where Customer is purchasing from a Reseller, in which case prices will be determined by the Reseller). We will use reasonable efforts to keep any pricing information that we make generally available up to date. Unless Halda and Customer otherwise agree in an Order executed by the parties, Halda may change the Fees for the Service (including any feature or functionality of the Service) and Halda will notify Customer of any such changes before they apply. Halda may make promotional offers with different features and different pricing to any of Halda’s other customers. These promotional offers, unless made to Customer, will not apply to your Order or this Agreement.
6. LIMITED WARRANTY; DISCLAIMER
6.1 Limited Warranty. Halda warrants to Customer that the Service will perform materially as described in the Documentation during the applicable Subscription Term (“Limited Warranty”).
6.2 Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 6.1, THE SERVICE IS PROVIDED “AS IS.” HALDA, ON ITS OWN BEHALF AND ON BEHALF OF ITS SUPPLIERS AND LICENSORS, MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. WE DO NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT HALDA WILL REVIEW CUSTOMER DATA FOR ACCURACY, OR THAT IT WILL MAINTAIN CUSTOMER DATA WITHOUT LOSS. HALDA IS NOT LIABLE FOR DELAYS, FAILURES, OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE HALDA’S CONTROL. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE PERFORMANCE TO THE SHORTEST LEGALLY PERMITTED PERIOD.
6.3 Warranty Remedy. If Halda breaches a Limited Warranty during the Subscription Term and Customer makes a reasonably detailed warranty claim in the manner required by Halda within 30 days of discovering a breach of the Limited Warranty for the Service, then Halda will use reasonable efforts to correct the non-conformity. If Halda cannot do so within 30 days of receipt of Customer’s warranty claim, either party may terminate the affected Order as it relates to the Service. Halda will then refund to Customer any pre-paid, unused Fees for the terminated portion of the applicable Subscription Term. This Section 6.3 sets forth Customer’s exclusive remedy and Halda’s entire liability for breach of the Limited Warranty. This warranty does not apply to: (a) issues caused by Customer’s or End Users’ misuse of, or unauthorized modifications to, the Service; (b) issues in or caused by Third-Party Platforms or other third-party systems; (c) use of the Service other than according to the Documentation; or (d) trial or beta versions of the Service, or other free or evaluation use.
7. TERM AND TERMINATION
7.1 Term. This Agreement commences on the Effective Date and continues in effect until it is terminated in accordance with the terms of this Agreement.
7.2 Termination. Either party may terminate this Agreement (including any or all Orders) if the other party: (a) fails to cure a material breach of this Agreement (including a failure to pay Fees) within 30 days after notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days. If Customer violates any provision of this Agreement, then your authorization to access the Service and this Agreement automatically terminates. In addition, Halda may, in its sole discretion, terminate this Agreement or any Account on the Service, or suspend or terminate Customer’s or any End Users’ access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to Customer arising from such termination; provided that, if Halda terminates this Agreement or Customer’s (and not just a specific End User’s) access to the Service other than for Customer’s material breach, Halda (or a Reseller, if applicable) will refund to Customer a pro-rata portion of Fees received for the remainder of the applicable the Subscription Term.
7.3 Effect of Termination. Upon expiration or termination of an Order, Customer’s access to and use of, and Halda’s obligations to provide, the Service will cease. During a Subscription Term and for the 30-day period immediately following the date of expiration or earlier termination of the applicable Subscription Term, Customer may export Customer Data from the Service using the export features described in the applicable Documentation. After such 30-day period, Halda will have no obligation to store or retain the applicable Customer Data and may delete the applicable Customer Data at any time in its sole discretion. Customer Data and other Confidential Information (defined below) may be retained in Recipient’s (defined below) standard backups notwithstanding any obligation to delete the applicable Confidential Information, but such retained Confidential Information will remain subject to this Agreement’s confidentiality restrictions.
7.4 Survival. The following Sections survive any expiration or termination of this Agreement: 4.3 (Restrictions), 4.7 (Usage Data; Aggregated Data), 4.8 (Customer Obligations), 5.2 (Fees), 5.3 (Authorization), 6.2 (Disclaimer), 7.3 (Effect of Termination), 7.4 (Survival), 8 (Ownership), 9 (Limitations of Liability), 10 (Indemnification), 11 (Confidentiality), 13 (Miscellaneous), and 14 (Definitions). Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
Neither party grants the other any rights or licenses not expressly set forth in this Agreement. Except as expressly provided in this Agreement, as between the parties, Customer retains all intellectual property rights and other rights in Customer Data. Except for Customer’s use pursuant to this Agreement, Halda and its licensors retain all intellectual property rights and other rights in the Service, Software, Documentation, Usage Data, Aggregated Data, and Halda’s technology, templates, formats, and dashboards, including any modifications or improvements to the foregoing (collectively, “Halda IP”). If Customer provides Halda with any feedback or suggestions regarding the Service or Halda’s other products or services, Halda may use such feedback or suggestions without restriction or obligation in perpetuity.
9. LIMITATIONS OF LIABILITY
Except for breaches of Sections 4.1 (Access), 4.3 (Restrictions), 11 (Confidentiality), and Customer’s indemnification obligations in Section 10 (Indemnification), neither Halda’s, Customer’s, or their respective suppliers or licensors will have any liability arising out of or related to this Agreement: (1) for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business, or any indirect, special, incidental, reliance, or consequential damages of any kind, even if informed of their possibility in advance; and (2) that in the aggregate exceeds the amounts paid or payable by Customer to Halda pursuant to this Agreement during the 12 months prior to the date on which the applicable claim giving rise to the liability arose under this Agreement. The waivers and limitations in this Section 9 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
Customer will defend Halda from and against any third-party claim to the extent resulting from Customer Data or Customer’s breach or alleged breach of Section 4.8 (Customer Obligations), and will indemnify and hold Halda harmless against any damages and costs awarded against Halda (including reasonable attorneys’ fees) or agreed in a settlement by Customer resulting from the claim.
11.1 Definition. “Confidential Information” means any information disclosed to the receiving party (“Recipient”) under this Agreement that is marked or designated by the disclosing party (“Discloser”) as proprietary or confidential or, at the time of disclosure, should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Our Confidential Information includes the terms and conditions of this Agreement, Halda IP, and any technical or performance information about the Service. Confidential Information does not include information that Recipient can reasonably demonstrate: (a) is or becomes public knowledge through no act or omission of Recipient; (b) is rightfully known or possessed by Recipient prior to disclosure by Discloser; (c) is rightfully received from a third party without any breach of confidentiality obligations; or (d) is independently developed without reference to or use of Confidential Information.
11.2 Obligations. As Recipient, each party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 4.5 (Use of Customer Data); and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser’s request, Recipient will delete all Confidential Information, except, in the case where Halda is the Recipient, Halda may retain the Customer’s Confidential Information to the extent required to continue to provide the Services. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know such Confidential Information to exercise it rights or perform its obligations pursuant to this Agreement (“Recipient Representatives”); provided that, in each case (i) Recipient Representatives are bound by confidentiality and nonuse obligaitons with respect to such Confidential Information that are no less protective that the terms of this Agreement; and (ii) Recipient remains responsible for Recipient Representatives’ compliance with this Section 11.
11.3 Required Disclosures. Nothing in this Agreement prohibits Recipient from disclosing Confidential Information if required by Law, subpoena, or court order; provided that, (if permitted by Law) Recipient notifies the other party in advance of such required disclosure and cooperates in any effort by Discloser to obtain confidential or other protective treatment of such Confidential Information.
11.4 Injunctive Relief for Breach. In the event of a violation or threat of violation by a party, directly or indirectly, of the terms of this Section 11, the party who would be harmed by such violation, will have the right, and in addition to all other remedies available to it at law, in equity or under this Agreement, to request affirmative or negative injunctive relief from a court of competent jurisdiction. Each party acknowledges that a violation of this Section would cause irreparable harm and that all other remedies may be inadequate.
Halda may modify this Agreement from time to time upon notice to Customer. Modifications will take effect upon commencement of Customer’s next Subscription Term or Order unless Halda indicates an earlier effective date. If Halda requires modifications with an earlier effective date and Customer objects, Customer’s exclusive remedy is to terminate this Agreement with notice to Halda, in which case Halda will provide Customer a refund of any pre-paid but unused Fees. To exercise this termination right, Customer must notify Halda of its objections within 30 days after Halda’s notice of the modified Agreement. Once the modified Agreement takes effect, Customer’s continued use of the Service constitutes its acceptance of the modifications. Halda may require Customer to click to accept the modified Agreement.
13.2 Governing Law. This Agreement is governed by the laws of the State of Utah and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in Utah County, Utah, and both parties submit to the personal jurisdiction of those courts.
13.3 Additional Terms. Customer’s use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that Halda may post on or link to from the Service (“Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, this Agreement.
13.5 Contact Information. The Service is offered by Halda Inc., located at 560 South 100 West Street, Suite 7, Provo, Utah 84601. Customer may contact Halda by sending correspondence to that address or by emailing Halda at firstname.lastname@example.org.
13.6 Notice to California Residents. If Customer is a California resident, then under California Civil Code Section 1789.3, Customer may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
“Aggregated Data” means Customer Data that has been deidentified or aggregated with other data such that the resulting data no longer reasonably identifies Customer or a specific individual.
“AuthorizedUser” means any employee or contractor of Customer that Customer allows to use the Service on Customer’s behalf.
“Customer Data” means any data or information that Customer or any End User submits, posts, uploads, transfers, or otherwise transmits to the Service, including from Third-Party Platforms.
“Customer Systems” means Customer’s hardware, software, other technology, and infrastructure that Customer is required to provide and maintain in order for Customer to access and use the Service.
“High Risk Activities” means activities where use or failure of the Service could lead to death, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control.
“Laws” means all applicable relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications, and export of data, including Customer Personal Data and Customer Personal Information.
“Order” means any purchase order or other ordering document regarding provision of the Service to Customer and that is mutually executed by the parties.
“Process” means to collect, access, use, disclose, transfer, transmit, store, host, or otherwise process.
“Prohibited Data” means any: (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (b) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (c) credit, debit, or other payment card data subject to the Payment Card Industry Data Security Standards; (d) other information subject to regulation or protection under specific Laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations); (e) social security numbers, driver’s license numbers, or other government ID numbers; or (f) any data similar to the above protected Laws.
“Software” means any software, scripts, or other code required by Halda to operate the Service.
“Subscription Term” means the period during which Customer’s subscription to access and use the Service is in effect, as identified in the applicable Order.
“Third-Party Platform” means any third-party platform, add-on, service, or product not provided by Halda that Customer elects to integrate or enable for use with the Service.
“Usage Data” means information generated from Customer’s and End Users’ use of the Service, which data does not identify any End User, natural human persons, or Customer. Usage Data may include data such as technical logs and learnings about Customer’s and End Users’ use of the Service, but excludes any identifiable Customer Data.