LAST UPDATED: Oct 27, 2023
Happy Returns
Merchant Terms and Conditions
These Terms and Conditions (“Terms”) are a legal agreement between you (“Merchant”, “you” or “your”) and Happy Returns LLC, a Delaware limited liability company, and its affiliates (collectively, “HR”, “Happy Returns” or “we”) and shall govern your use or access of the websites, content, products and services made available or provided to you by HR (collectively, the “Services”). You and HR may be referred to herein individually as a “Party” and collectively as the “Parties”. You expressly agree that HR may engage its affiliates or third parties to complete one or more of the Services you elect to use.
1. Acceptance and Changes. By accepting the Terms or by accessing or using the Services in any way, you agree to be bound by, and to comply with, this Agreement (defined below) as updated from time to time in accordance 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 “Merchant” shall refer to such entity. HR may change these Terms from time to time by giving notice of such change by sending an email to the last email address you provided to us and/or posting a notice or the updated Agreement on our website (“Site”). You agree to promptly notify us of any changes in your email address. We will provide reasonable notice prior to materially changing your rights or obligations. By continuing to use our Services after any changes to these Terms, you agree to abide and be bound by those changes. If you do not accept the change, you must stop using the Services.
2. Additional Terms and Policies. These Terms may be subject to supplemental terms, posted guidelines, rules or other terms made available by HR from time to time, including all policies and program terms provided on the Site’s Merchant Dashboard (collectively, the “Additional Terms”), which are incorporated herein by reference. These Terms; Statements of Work (if any, each, an “SOW”) and Addenda or amendments (if any) entered into between you and Happy Returns; any schedules, attachments, insertion orders, exhibits, guidelines, and other documents incorporated hereto or thereto; and the Additional Terms (collectively, the "Policies”) shall constitute one legally binding agreement, referred to herein collectively as the “Agreement.” If there is any conflict or inconsistency between any provision in these Terms and the Policies, these Terms shall take precedence unless the relevant Policy identifies and expressly supersedes the provision in this Agreement.
3. Services. Merchant hereby retains HR to perform, and HR hereby agrees to undertake and perform, the Services you elect to use in accordance with this Agreement and applicable Policies. HR shall reasonably endeavor to provide the Services with reasonable care and skill. Payment terms and fees are described below and in the applicable Policies and shall be subject to amendment or revision in accordance with the Agreement. These Services may include:
a. Return & Exchange Portal. HR operates an online return and exchange service for accepting and managing returns through a hosted web service (the “Portal”); as part of the Portal services HR may also communicate the status of purchases and returns to Merchant’s customers.
b. In-Person Return Bar Service. HR enables Merchant’s customers to make in-person returns and exchanges at HR’s network of return locations (“Return Bars”) (the “Return Bar Service”). Returns received in Return Bars will be received by Return Bar store personnel, aggregated, and shipped on the HR shipping account to an HR sortation facility (“HR Hub”), further aggregated and shipped on HR’s shipping account to the end destination/agent selected by Merchant (“Merchant Consignee”). The Return Bar Service is only available in certain geographies.
c. Carrier Shipping Service. HR enables Merchant’s customers to make returns/exchanges by mail via the Portal (“Carrier Shipping Service”). For some routes and third-party carriers, HR may make available certain shipping rates for your purchase at your option. Merchant’s customers will ship returns/exchanges directly to Merchant or Merchant’s Consignee.
d. Buy Online Return In-Store Service. HR enables Merchant to accept in-person returns and exchanges at Merchant’s physical store locations for purchases made at Merchant’s website using the HR Returnista application (loaded on Merchant’s own devices) (“BORIS”). Where available and agreed upon in an SOW, Merchant may choose to have HR provide reverse logistics for returns made through the BORIS, in which case such returns will be packed by Merchant’s store personnel, shipped on the HR shipping account to an HR Hub, and then aggregated and shipped to the Merchant Consignee. HR will support only the latest version of its Returnista application at all times; upon the availability of a new version, HR will provide an in-app notification to install the new version and the prior version will no longer be available for use. BORIS is only available in certain geographies.
4. Term. Unless otherwise agreed by us, this Agreement shall commence upon your use of the Service (“Effective Date”) and continue in force until terminated in accordance with the provisions of the Agreement, provided that this Agreement shall continue for so long as any one or more SOWs entered into pursuant to this Agreement remain in effect. The term of each SOW, if any, will be for the period set forth therein.
5. Termination. Upon any material breach of this Agreement by HR, you may terminate this Agreement upon thirty (30) days’ written notice to us, effective upon expiration of such period unless such period we have cured such breach. We may suspend or terminate your account or this Agreement or any SOW (if applicable) immediately if (i) you breach any of these Terms or any SOW (if applicable), (ii) we determine that your account has been or may be used for deceptive, fraudulent or illegal activity, (iii) your use of the Services has harmed, or our controls identify that it might harm, other merchants, customers, or our legitimate interests or (iv) in connection with any general discontinuation of the Services.
a. Termination for Insolvency. In the event a Party files for protection under applicable bankruptcy or insolvency 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 SOW) effective immediately upon written notice to the Party.
b. Termination for Convenience. Unless otherwise agreed (including in an SOW), (i) the Parties may terminate this Agreement at any time by providing 60 days’ prior notice; and (ii) you may terminate this Agreement by providing thirty (30) days’ prior written notice to us. For the avoidance of doubt, while any SOWs remain in effect, neither Party may terminate this Agreement pursuant to this Section 5(b).
c. Consequences of Termination. Upon expiration or the earlier termination of the Agreement: (i) HR shall immediately cease performance of Services; (ii) Merchant will pay HR all accrued unpaid fees as of the date of such termination; (iii) you shall promptly deliver to us (or destroy, as applicable) any property and Confidential Information in your possession pursuant to Section 12; (iv) all licenses granted hereunder by HR to Merchant shall immediately and automatically terminate, and Merchant shall cease use of all HR intellectual property; (v) Merchant shall promptly return any hardware or software provided by HR to Merchant within 30 days of termination; (vi) the Parties shall immediately cease any joint marketing activities undertaken pursuant to this Agreement, and (vii) if applicable, HR and Merchant shall promptly arrange for the removal of its goods or merchandise (collectively, “Products”) from HR facilities pursuant to Section 5(d). 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.
d. Removal of Products. After the expiration or termination of this Agreement or to comply with applicable law, HR may require Merchant to remove any Products from HR facilities and, as a condition for removal, pay all amounts due to HR (including removal costs). If the Merchant fails to do so within 14 days, Merchant may be subject to additional storage fees, and HR shall have discretion to exercise rights granted to warehousemen under Article 7 of the Uniform Commercial Code or any similar applicable statutory and rights granted to warehousemen under the laws of the jurisdiction in which the applicable HR facility is located. If after a reasonable effort HR is unable to sell the Products, it may dispose of them without liability in any lawful manner and Merchant shall reimburse HR for all costs associated with disposal of the Products. HR shall have a lien on the Products and upon the proceeds from the sale thereof to secure Merchant’s payment of all fees, charges and expenses hereunder in connection with the storage, transportation, processing, and handling of the Products as well as for like charges and expenses in relation to any other goods whenever deposited with HR by Merchant.
6. Payment.
a. Unless otherwise specified in the Agreement, Merchant payments are due thirty (30) days from invoice date. Payments due hereunder must be made by wire transfer, ACH draft, credit card or such other method as may be agreed upon by the Parties. All payment methods may not be available in all countries. All charges and payments under this Agreement shall be in United States Dollars. Merchant may be required to provide bank information or credit card information for autopayment via HR’s website, including the Merchant Dashboard.
b. If Merchant provides a valid credit card or bank account information for autopayments, Merchant hereby authorizes Happy Returns to collect payments on a recurring basis (in accordance with this Agreement) and to bill Merchant’s credit card or process a debit from Merchant’s bank account for all fees due to Happy Returns hereunder along with any applicable credit card processing fees. The authorization will remain full in force and effect until cancelled by the Merchant. The Merchant can cancel the authorization at any time by contacting Happy Returns.
c. Information on upcoming and executed payments can be found on the Merchant Dashboard. Fees are subject to change from time to time and are posted in the Merchant Dashboard or set forth in an SOW, as applicable.
d. Happy Returns may charge the Merchant a subscription fee (if applicable) for access to the Portal, a fee per item returned, and for the shipping label fees when using Happy Returns’ carrier accounts. Subscription fees are due on a monthly basis, billed in advance; all per-item fees are due on a monthly basis, billed in arrears.
e. With respect to returns/exchanges made via the Carrier Shipping Service, HR shall invoice Merchant on a weekly basis for all carrier fees for which HR has been billed during the prior week. Merchant will be automatically charged for the Services at the time of invoice based on the payment information on record. Merchant is permitted ten (10) business days from the date of the invoice to dispute any invoiced charges. If Happy Returns does not receive a dispute within such ten (10) business days, HR may deny the claim at its discretion.
f. Merchant shall have no right of offset or withholding under this Agreement. HR may withhold payment of any amounts due to Merchant for any reason as a set-off against any unpaid invoiced amounts. Any amounts not paid by Merchant when due to HR shall be subject to interest charges from the date due until paid at the rate of (i) of one and one half percent (1.5%) or (ii) the highest interest rate allowable by law, whichever is greater, payable monthly. HR shall have no obligation to release the Products to Merchant or Merchant’s consignee until all invoices have been paid in full, and Merchant shall be responsible for all applicable fees associated with any storage provided during such time.
g. Fees for other Services shall be billed in arrears and shall be as agreed by the Parties or as described on the Merchant Dashboard, as applicable.
7. Taxes.
a. Except as otherwise specified herein, each Party will bear its own Taxes incurred with respect to or resulting from performing under this Agreement. “Taxes” means all federal, state, provincial, territorial, county, municipal, local or foreign taxes, including but not limited to sales, use, license, excise, good and services, value added, digital services, stamp or transfer taxes, duties, imposts, levies, assessments, tariffs, fees, charges or withholdings of any nature whatsoever levied, imposed, assessed or collected by a governmental authority together with all interest, penalties, fines or other additional amounts imposed in respect thereof. “Excluded Taxes” means (i) Taxes based upon gross or net income, (ii) franchise taxes or (iii) property, personal property or rental taxes.
b. Merchant shall pay, indemnify and hold HR harmless from (i) any Taxes (other than Excluded Taxes) incurred by HR with respect to or resulting from performing its obligations pursuant to this Agreement, and (ii) all government permit fees, customs fees and similar fees incurred by HR with respect to or resulting from performing its obligations pursuant to this Agreement. Such amounts paid by Merchant pursuant to this Section shall not be considered a part of, a deduction from, or an offset against, payments otherwise due to HR hereunder.
c. Merchant confirms it will not withhold any Taxes on amounts payable by Merchant to HR unless required under applicable law; provided, that, in the event Merchant withholds any Taxes on amounts payable to HR or makes any deduction in relation thereto, the amounts payable to HR by Merchant will be increased by such additional amount to ensure that HR receives the full amount which would have been received had there been no withholding or deduction. Upon reasonable request by HR, Merchant will timely deliver to HR written documentation evidencing payment of the Tax to the relevant governmental authorities. Upon reasonable request by Merchant, HR will provide such forms, certifications or other documents in order to reduce any applicable withholding taxes.
d. Except as otherwise specified herein, all amounts payable by Merchant to HR under this Agreement are considered exclusive of any applicable Taxes.
8. Additional Covenants, Representations and Warranties. The representations and warranties contained in or made under or in connection with this Agreement shall survive the Effective Date, and shall be deemed to have been made by each Party upon entering into this Agreement and each amendment, SOW or supplement hereto.
a. Merchant agrees to comply with all applicable laws, rules, and regulations, as well as with all of HR's standard policies and procedures as communicated from time to time to Merchant.
b. Merchant further agrees to comply with United States, European Union, and United Nations export control and trade sanctions laws and regulations ("Export Control and Trade Sanctions") as applicable, to include without limitation the following obligations: (i) Merchant warrants that neither it nor its directors, officers, or subsidiaries are designated or sanctioned parties under Export Control and Trade Sanctions; (ii) Merchant agrees not to request services in connection with goods, countries, regions, and/or parties subject to Export Control and Trade Sanctions (regions currently subject to applicable comprehensive embargoes include Cuba, Iran, Syria, Sudan, North Korea and the Crimea, Luhansk, and Donetsk Regions of Ukraine); (iii) Merchant agrees that HR may refuse to receive, process, or release an order that appears to HR to involve goods, countries, regions, and/or parties subject to Export Control and Trade Sanctions; and (iv) in the case of cross-border transactions for which HR is providing transportation or customs-related services, Merchant agrees to provide HR, within a reasonable time before export or entry, with complete and accurate information required by Export Control and Trade Sanctions, including product descriptions, quantities, weights, values, country of origin, harmonized tariff code, export classification, and any required government authorization.
c. Product Compliance. To the extent that you tender or furnish Products to HR:
i. You represent, warrant and covenant that those Products are not, and do not contain: (a) hazardous materials, including under 49 C.F.R. 171, 172.800 and 173 et. seq., or under any other applicable laws or regulations, (c) dangerous goods under the IATA Dangerous Goods Regulations, or (e) goods for which special equipment (e.g., for temperature-controlled goods), safety precautions or authorizations are required under any applicable laws or regulations, including, without limitation, valuables, military items, tobacco products, alcohol, narcotics or drugs, toxic and harmful substances, flammable and explosive materials, oxides and organic peroxides (collectively, "Prohibited Items");
ii. You shall provide the Material Safety Data Sheet and other documents reasonably requested by HR certifying that the Products are not Prohibited Items or otherwise dangerous cargo; and
iii. Merchant will immediately notify HR if Merchant knows or learns that any of Merchant’s Products furnished or tendered to HR under this Agreement are Prohibited Items or otherwise dangerous goods, in which event Merchant shall use its best efforts to assist and cooperate with HR to remedy any non-compliance issues and suspend or terminate returns of Merchant Products in violation of the forgoing provisions.
d. Merchant further represents, warrants and covenants that:
i. Merchant will fulfill its obligations hereunder in compliance will all applicable laws, rules, and regulations, as well as in compliance with all of HR's policies and procedures as communicated from time to time to Merchant;
ii. Merchant’s execution and performance of this Agreement does not violate, conflict with, or result in a material default under any other contract or agreement to which it is a party or by which it is bound;
iii. Merchant has all requisite right, power, and authority to enter into this Agreement, perform its obligations, and grant the rights, licenses, and authorizations in this Agreement.
iv. Merchant has the right and authority to store the Products with HR and thereafter direct their release and delivery;
v. Merchant will provide HR with all relevant, accurate, and complete information concerning the Products as may be reasonably requested to allow HR to comply with all applicable laws, rules, and regulations; and
vi. There are no actual, threatened, or potential safety, health, or environmental hazards associated with any handling and storage by HR of the Products as contemplated hereunder, other than those which are specifically communicated to HR in writing in sufficient detail and subsequently accepted by HR in writing in advance of any storage under this Agreement.
9. Indemnification.
a. In this section, we use the term “Happy Returns” to refer to Happy Returns LLC and our affiliates, and each of their respective directors, officers, employees, agents, joint venturers, service providers and suppliers. Our affiliates include each entity that we control, we are controlled by or we are under common control with.
b. Merchant shall indemnify and keep indemnified Happy Returns, its affiliates and each of their respective directors, officers, employees, agents, joint venturers, service providers and suppliers for actions related to your Happy Returns account and your use of the Happy Returns services and Site. You agree to defend, indemnify and hold Happy Returns, its affiliates and each of their respective directors, officers, employees, agents, joint venturers, service providers and suppliers harmless from any claim or demand (including reasonable legal fees) made or incurred by any third party due to or arising out of your breach of the Agreement, your improper use of the Happy Return services, your violation of any law or the rights of a third party and/or the actions or inactions of any third party to whom you grant permissions to use your Happy Returns account or access our websites, software, systems (including any networks and servers used to provide any of the Services) operated by us or our affiliates or on our behalf, or any of the Happy Return services on your behalf.
c. We reserve the right to assume the exclusive defense and control of any matter for which you are required to indemnify Happy Returns or its affiliates and you agree to cooperate with Happy Return’s defense of these claims. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
10. Limitation of Liability.
a. Happy Returns’ liability is limited with respect to your use of the Services. Subject to Section 10(e), in no event shall Happy Returns or its affiliates be liable under or in connection with this Agreement for any (i) lost profits, (ii) special, incidental or consequential damages, (iii) loss of data, (iv) loss of business, (v) loss of reputation or goodwill, or (vi) loss of money, in each case arising out of or in connection with our websites, software, systems (including any networks and servers used to provide any of the Services) operated by us or on our behalf, any of the Services, or this Agreement (however arising, including negligence), unless and to the extent prohibited by law.
b. Subject to Section 10(e), to the extent permitted by applicable law, Happy Returns is not liable, and you agree not to hold Happy Returns responsible, for any damages or losses (including, but not limited to, loss of money, goodwill, or reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting directly or indirectly from: (i) viruses or other malicious software obtained by accessing our websites, software, systems (including any networks and servers used to provide any of the Services) operated by us or on our behalf or any of the Services or any website or service linked to our websites, software or any of the Services; (ii) glitches, bugs, errors, or inaccuracies of any kind in our websites, software, systems (including any networks and servers used to provide any of the Services) operated by us or on our behalf or any of the Services or in the information and graphics obtained from them; (iii) the content, actions, or inactions of third parties; (iv) a suspension or other action taken with respect to your Happy Returns account; or (v) your need to modify your practices, content, or behavior, or your loss of or inability to do business, as a result of changes to this Agreement.
c. Product Loss, Damage and Delay.
i. HR shall have no liability for any (A) loss or damage to the Products or (B) delay in delivery of the Products, in each case except to the extent caused by HR’s negligence or intentional misconduct. In the event of such negligence or intentional misconduct, HR’s liability shall be subject to the cap in Section (10)(c)(ii).
ii. To the extent that loss or damage to your Products in connection with the In-Person Returns Service is caused by HR’s negligence or intentional misconduct, HR’s liability under or in connection with this Agreement shall be limited to the greater of (i) the amount paid to HR by you for Services with respect to the lost or damaged Product or (ii) USD$25 per aggregated shipment to you. The remedies in this Section 10(c) shall be your sole and exclusive remedy for any loss, damage or delay of your Products.
iii. Subject to Section 10(e), HR’s liability for loss or damage to Products with respect to any domestic transportation services in Germany shall not exceed the greater of (x) the rate of two special drawing rights per kilo of the gross weight of any product lost or damaged; and (y) the minimum statutory amount.
d. Happy Returns’ total liability arising out of or in connection with the Services and this Agreement shall not exceed the amount paid by you to Happy Returns in the 12 months prior to the act or omission giving rise to such claim.
e. Nothing in this Agreement limits any liability which cannot legally be limited, including: (i) death or personal injury caused by negligence; and (ii) fraud or fraudulent misrepresentation. For the avoidance of doubt, nothing herein shall exclude or limit Happy Returns’ liability pursuant to any applicable mandatory transportation or freight forwarding laws to lower than statutory minimums.
11. DISCLAIMER OF HR WARRANTIES. EXCEPT AS EXPRESSLY STATED IN THESE TERMS, (A) HAPPY RETURNS DOES NOT WARRANT OR REPRESENT THAT THE OPERATION OR USE OF THE SERVICES WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. HAPPY RETURNS SHALL NOT BE RESPONSIBLE FOR ANY DELAY IN DELIVERIES; AND (B) HAPPY RETURNS DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF QUALITY, SUITABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
12. Confidentiality & Non-Disclosure. "Confidential Information" means information relating to us or the Services that is not known to the general public including, but not limited to, reports, insights, and other information about the Services; data derived from the Services except for data (other than customer personal data) arising from the sale of your products comprising of products sold, prices, sales, volumes and time of the transaction; and technical or operational specifications relating to the Services. You shall protect the confidentiality of the terms of this Agreement (including, without limitation, the applicable fees) and shall not disclose such Confidential Information, including source code, to third parties nor use such Confidential Information for any purpose other than solely as required and necessary to perform its obligations under this Agreement. You shall, within thirty (30) calendar days after termination of this Agreement upon written request by us, either: (i) return to the us in a secure manner, all Confidential Information (or such portion requested), including any copies, duplicates, summaries, abstracts or other representations of any such Confidential Information, in whatever form, then in its possession or control; or (ii) permanently delete such Confidential Information from your computer and storage systems and media, and destroy any and all tangible copies thereof. Upon our request, you shall deliver written certification of compliance with this Section signed by your authorized representative. This Section shall survive termination of this Agreement.
13. Intellectual Property Rights.
a. Subject to the terms and conditions of this Agreement, Happy Returns hereby grants to Merchant a non-exclusive, non-transferable, revocable, non-sublicensable, limited license to use the Happy Returns Technology solely as required and necessary to use the Services under the Agreement (the “IP License” and with respect to the application program interfaces provided by HR to Merchant (“APIs”), the “API License”). As used herein, “Happy Returns Technology” means the following intellectual property or proprietary rights of Happy Returns (or licensed to Happy Returns by a third party) used in connection with the Services: (i) published and unpublished works of authorship, whether copyrightable or not (including without limitation databases and other compilations of information), copyrights therein and thereto, and registrations and applications thereof; (ii) all moral rights in the foregoing (that is, the right to claim authorship of or object to the modification of any work); (iii) all applications, renewals, extensions, restorations and reinstatements of the foregoing; and (iv) all tangible embodiments of the foregoing.
b. Happy Returns shall provide Merchant with tools to access and utilize authorized APIs, which may include a confidential identification code specific to Merchant, a certificate, and/or a user ID (“API Tools”). In addition, Happy Returns shall make available to Merchant its API integration and user guides. Merchant shall comply with Happy Returns’ API integration and user guides in connection with the integration and use of APIs. The API Tools are Confidential Information and property of Happy Returns, and the API License may be immediately revoked or terminated by Happy Returns if Merchant shares the API Tools with any third party or otherwise breaches the API License. In connection with Merchant’s use of Happy Returns’ APIs, Merchant is prohibited from doing any of the following: (i) selling, transferring, sublicensing, or disclosing Merchant’s user ID to any third party (other than third party service providers); or (ii) selling, transferring, sublicensing, and/or assigning any interest in the Confidential Information of Happy Returns accessed by the APIs.
c. In the event of degradation or instability of Happy Returns’ system(s) or an emergency, Happy Returns may, in its sole discretion, change or temporarily suspend Merchant’s access to any Happy Returns Service, including but not limited to the APIs and databases and/or information accessed from the APIs, to minimize threats to and protect the operational stability and security of Happy Returns’ systems. Notwithstanding the foregoing, Happy Returns shall notify Merchant of suspension of the Services, except that such notice shall not be required where in the reasonable opinion of Happy Returns such notice would compromise security of the Happy Returns systems or performance of the Services.
d. As between Happy Returns and Merchant, Happy Returns retains all right, title and interest in and to the Services, Happy Returns Technology, and all intellectual property rights therein and any modifications, improvements or derivatives thereto or thereof. Except as licensed herein, this Agreement does not transfer any intellectual property rights. There are no implied licenses under this Agreement, and any rights not expressly granted to Merchant in this Agreement are reserved by Happy Returns or its suppliers. Merchant shall not directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the Services. All rights and licenses granted to Merchant in the Services and the intellectual property shall terminate automatically and revert to Happy Returns upon termination of this Agreement or upon termination of any Service to which the rights and licenses relate.
e. Merchant Data. For purposes of this Agreement, “Merchant Data” shall mean any content, images and information submitted or provided by Merchant to HR in connection with Merchant’s use of the Services, excluding Customer Data (as defined in the Data Protection Terms). Happy Returns does not claim ownership of the Merchant Data that you provide, upload, submit or send to Happy Returns. Nor does Happy Returns claim ownership of the Merchant Data you host on third-party websites or applications that use the Services related to your Merchant Data. Subject to Section 13(f), when you provide Merchant Data to Happy Returns or post Merchant Data using the Services, you hereby grant Happy Returns a non-exclusive, irrevocable, royalty-free, transferable, and worldwide license to use your Merchant Data and associated intellectual property and publicity rights as necessary to provide the Services, to perform analytics and to improve, operate, promote and enhance the Services. Happy Returns will not compensate you for any of your Merchant Data. You acknowledge that Happy Returns’ use of your Merchant Data will not infringe any intellectual property or publicity rights. Further, you acknowledge and warrant that you own or otherwise control all of the rights of the Merchant Data you provide, and you agree to waive your moral rights and promise not to assert such rights against Happy Returns.
f. Marks.
(i) Subject to the terms and conditions of this Agreement and solely in connection with the activities contemplated by this Agreement, Merchant hereby grants HR a non-exclusive, worldwide, royalty-free, license to use, reproduce, distribute and display the Merchant’s Marks during the term of this Agreement (x) in order to provide the Services; (y) to indicate that Merchant is a customer of HR; and (z) for any other purpose in any other publication with the prior written approval of Merchant.
(ii) Subject to the terms and conditions of this Agreement and solely in connection with the activities contemplated by this Agreement, HR hereby grants Merchant a non-exclusive, worldwide, royalty-free, license to use, reproduce, distribute and display HR’s Marks during the term (y) for purposes of identifying HR as the provider of the Services; and (z) for any other purpose in any other publication with the prior written approval of HR.
(iii) Each Party agrees that its use of the other Party’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 the Licensing Party. Any such use shall be in accordance with the other Party’s standard Mark guidelines and this Agreement. A Party shall be entitled to request removal of any use of its Marks if, in its reasonable discretion, the use by the other Party of the Marks tarnishes, blurs, or dilutes the Marks or misappropriates the associated goodwill and such problem is not cured within five (5) business days of the using Party’s receipt of notice of the problem.
(iv) For the purposes of this Agreement, a Party’s “Marks” means the trademarks, including registered and common law trademarks, trade names, service marks, logos, buttons, domain names and designations owned, licensed or used by the Party.
(v) The licenses described in this Section 13 shall terminate automatically upon termination of this Agreement.
g. Merchant License Grant. Subject to the terms and conditions of this Agreement, Merchant grants HR a limited, non-exclusive, non-transferable (except as permitted under Section 18(b) and 18(c)), non-sublicensable, royalty-free license, during the term, to use Merchant’s technology, products, and services solely to the extent necessary or required by HR to provide the Services.
14. Privacy and Data Processing; Content Standards; Acceptable Use.
a. Happy Returns agrees that it will handle all Merchant customer information in connection with this Agreement in accordance with Happy Returns privacy statement, available at https://www.privacypolicy.happyreturns.com/en-us. The Parties also agree to comply with and be bound by the Data Protection Terms, which are incorporated into this Agreement by reference.
b. In using the Services, you agree not to post content that:
i. Is false, misleading, deceiving, inaccurate, or dishonest;
ii. Is defamatory or invasive of another person’s right of privacy or right of publicity;
iii. Is harmful, obscene, harassing, objectionable, violent, or condoning violence or harm, displaying nudity or sexual activity, or otherwise unfit for publication;
iv. Incites hatred of animals or of individuals or groups based on race, ethnic origin, religion, nationality, disability, gender, age, veteran status, sexual orientation or gender identity;
v. Infringes intellectual property or other proprietary rights of any party, or is not authorized, such as content that you did not create or do not have the permission to use; or
vi. Creates a privacy or security risk to any person or exposes others to harm.
c. Merchant shall not use the Services for any unlawful, fraudulent or improper activity. Merchant represents, warrants, and covenants that it does not provide unlawful or illicit products or services. Happy Returns reserves the right to terminate, suspend, restrict or limit Merchant’s access to the Services upon Merchant’s breach of this provision notwithstanding any other provision of this Agreement. Furthermore, HR reserves the right to remove any Merchant Data from its Site or Services if we determine that such data violates applicable law.
d. Merchant agrees and acknowledges that Customer Data (as defined in the Data Protection Terms) may be used by HR..
15. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any claims or legal actions by one Party against the other arising under this Agreement or concerning any rights under this Agreement shall be commenced and maintained in any state or federal court located in Santa Clara County, in the State of California. The Parties hereby submit to the exclusive personal jurisdiction of such courts in any action or suit arising out of this Agreement.
16. No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the Parties to this Agreement may enforce it.
17. Independent Contractors. Merchant and HR are independent contractors and shall have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement shall not be construed to create or imply any partnership, agency, or joint venture. HR and Merchant will be solely responsible for the payment of its employees, agents and contractors’ compensation, including wages, benefits, employee taxes, worker’s compensation, and any similar taxes associated with employment of its employees, agents and contractors. Neither Party shall be liable for the debts, accounts, obligations or other liabilities of the other.
18. Miscellaneous
a. Waiver. In accordance with 49 U.S.C. § 14101(b)(1), the Parties agree to waive any and all rights and remedies that each may have under 49 U.S.C. § 13101 through § 14916 for the transportation provided under this Agreement, but only to the extent that such rights and remedies are inconsistent with the terms and conditions of this Agreement. Registration, insurance, and safety requirements are not waived. Merchant agrees that it (i) has not relied on and has no remedies in respect of any statement, representation, assurance or warranty that is not set out in this Agreement; and (ii) has no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
b. Assignment and Novation. You may not transfer or assign any rights or obligations you have under this user agreement without our prior written consent. Happy Returns may transfer, assign or novate this Agreement or any right or obligation under this Agreement at any time.
c. Delegation. HR may assign or delegate its obligations, rights and duties hereunder, without the need for consent, to an affiliate of HR. Any affiliate of HR will have the right to enter into SOW with Merchant under this Agreement and this Agreement will apply to each such SOW as if the affiliate were a signatory to the Agreement. With respect to such SOWs, such affiliate becomes a Party to this Agreement and references to HR in this Agreement are deemed to be references to such affiliate. Each SOW is a separate obligation of the HR affiliate that execute(s) such SOW, and no other HR affiliate or entity will have any liability or obligation under such SOW.
d. Press Releases. Subject to Section 13(f) (Marks), neither Party shall, or shall permit, issue or cause the publication of any press release or other public announcement relating to the transactions contemplated by this Agreement without the consent of the other Party, which consent shall not unreasonably be withheld. For purposes of clarification, HR’s use of Merchant’s name and logo in accordance with Section 13(f) shall not be considered a press release or public announcement.
e. Force Majeure. Neither Party hereto shall be responsible for any failure to perform its obligations under this Agreement, except for the payment of money, if such failure is caused by acts war, weather, strikes, lockouts, floods, fires, pandemics, epidemics, local disease outbreaks, public health emergencies, communicable diseases, lack or failure of transportation facilities, laws or governmental regulations, quarantines, acts of terrorism, acts of God, war, strikes, or other causes that are beyond the reasonable control of such Party. Obligations hereunder, however, shall in no event be excused but shall be suspended only until the cessation of any cause of such failure. HR shall not be liable for any delay or failure in the provision of the Services if such failure or delay is outside HR’s reasonable control (including failures or delays associated with electronic communication network faults or the disruption in the normal flow of traffic).
f. Severability. If any provision of this Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected.
g. Survival. The provisions of Section 6 through 18 and any other section which by their nature survive, shall survive any termination or expiration of this Agreement in accordance with their terms.
h. Expenses. Except as otherwise specified in this Agreement, each Party will bear its own costs of performance under this Agreement.
19. 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.
20. Notices.
a. You agree that Happy Returns may provide notice to you by email to the email address you provided to us during onboarding, by mail or courier to the address set forth in the Initial Statement of Work or as otherwise communicated in writing from Merchant to Happy Returns.
b. Unless you are communicating with Happy Returns about a matter where Happy Returns has specified another notice address, written notices Happy Returns must be sent by certified or registered mail, postage prepaid, return receipt requested to the address below:
Happy Returns LLC
28790 Chase Place
Valencia, CA 91355
United States
With copy to: legalnotices@happyreturns.com
And copy to:
Notices will be deemed given when received.
This Agreement is concluded in English only. Any translation of this Agreement is provided solely for your convenience and is not intended to modify the terms of the Agreement. In the event of a conflict between the English version of the Agreement and a version in a version other than English, the English version shall be the definitive version.
21. Entire Agreement. This Agreement, including its Statements of Work, exhibits and schedules referenced herein, constitutes the complete, integrated, exclusive, and final statement of the terms and conditions of the Agreement between the Parties, superseding and replacing all prior negotiations, written or oral, regarding the subject matter herein.