Terms & Conditions

Effective Date:  March 22, 2023

This Terms of Service agreement (“Agreement”) between you (“you,” “your,” or “Customer”) and Hapn Holdings Inc., dba Spytec, (“Hapn” or “us”) sets forth the terms and conditions that apply to your use of any GPS-based tracking devices (“Products” or “Devices”) offered for sale by Hapn or its affiliates, any subscription service for GPS tracking offered by Hapn, the Hapn and Spytec websites (https://www.gethapn.com and https://spytec.com/ respectively) (the “Sites”), Hapn software platform (“Platform”), and the associated data, services, information, tools, functionality, updates and similar materials delivered or provided by us (collectively, together with the Sites, Platform, and Products, the “Service”). Subject to your continued compliance with this Agreement, Hapn shall provide the Services.

This Agreement is subject to change. If this Agreement changes, we will let you know by posting the revised Agreement on the Service and/or otherwise making you aware of the changes. Your continued use of the Service following our notice of changes to this Agreement (or other method of legal acceptance) means you accept such changes. Please refer to the “Effective Date” date above to see when this Agreement was last updated.

By ordering or using Products, or subscribing to or using Services, or using the Platform, you hereby agree to the following terms and conditions:

IMPORTANT: USE OF A GPS TRACKING DEVICE AND RELATED TRACKING SERVICES AND SOFTWARE IS SUBJECT TO VARIOUS LAWS, REGULATIONS AND ORDINANCES, WHICH MAY VARY DOMESTICALLY AND INTERNATIONALLY DEPENDING ON THE LOCATION OF THE DEVICE AND USER. YOU REPRESENT AND WARRANT THAT YOU SHALL COMPLY WITH ALL SUCH LAWS AND REGULATIONS.  PLEASE CONSULT WITH AN ATTORNEY REGARDING SUCH LAWS OR REGULATIONS IF YOU HAVE ANY QUESTIONS.

DUE TO THE INHERENT NATURE OF GPS TECHNOLOGY AND DEPENDENCE UPON OTHER TECHNOLOGIES THAT MAY BE PROVIDED BY THIRD PARTIES, NO GUARANTEE CAN BE MADE AS TO THE PRODUCT’S, SERVICE’S OR PLATFORM’S FITNESS FOR A PARTICULAR PURPOSE OR USE.

CUSTOMER UNDERSTANDS AND AGREES THAT HAPN HAS NO CONTROL OVER AVAILABILITY OF SERVICE ON A CONTINUOUS, ERROR-FREE, UNINTERRUPTED BASIS, IN LIGHT OF FACTORS THAT MAY AFFECT THE SERVICE, MANY OF WHICH MAY BE OUTSIDE HAPN’S CONTROL, INCLUDING, WITHOUT LIMITATION: (I) EQUIPMENT DAMAGE OR MALFUNCTIONS; (II) PERIODIC MAINTENANCE PROCEDURES OR REPAIRS WHICH HAPN MAY UNDERTAKE; (III) LOCATION-BASED INTERFERENCE WITH GPS SIGNAL; (IV) CELLULAR SERVICE COVERAGE OR CONNECTIVITY; OR (V) CAUSES BEYOND THE CONTROL OF HAPN OR THAT ARE NOT REASONABLY FORESEEABLE, INCLUDING, WITHOUT LIMITATION, INTERRUPTION OR FAILURE OF TELECOMMUNICATION OR DIGITAL TRANSMISSION LINKS, HOSTILE NETWORK ATTACKS, NETWORK CONGESTION OR OTHER FAILURES.  NOTE THAT EVEN WHEN SERVICE IS FULLY FUNCTIONING, LOCATION CHECKS ARE NOT CONTINUOUS, BUT INTERMITTENT, WITH A PERIOD BETWEEN PINGS TO THE DEVICE THAT MAY BE BETWEEN SEVERAL SECONDS TO SEVERAL MINUTES.

CUSTOMER UNDERSTANDS AND AGREES THAT HAPN HAS LIMITED ITS LIABILITY, INCLUDING IN CONNECTION WITH THE PRODUCT, SERVICE AND PLATFORM INCLUDING WITH REGARD TO ACCESS OUTAGES OR ERRORS.  CUSTOMER SHALL NOT BE ENTITLED TO ANY SETOFF, DISCOUNT OR OTHER CREDIT FOR ANY INTERRUPTION IN SERVICES SET FORTH HEREIN.  PLEASE SEE THE SECTION BELOW ENTITLED LIMITATION OF LIABILITY FOR FURTHER INFORMATION CONCERNING THE LIMITATIONS OF LIABILITY.

 

Product and Use

Hapn offers consumer surveillance products, including but not limited to GPS location trackers for vehicles, persons and other assets. Hapn also provides the Platform that enables live tracking of the Products through smartphones, tablets and computers for Customers who have purchased a Product and subscribed to a Service. Use of the Platform requires an active subscription to a Service with Hapn, and may require certain minimum system requirements, such as the version of operating system being used, browser version, cpu and memory requirements.

 

Binding Agreement

By using Products, Services or the Platform, you agree that you have read and understood the terms and conditions set forth in this Agreement, and agree to be bound by this Agreement and any other policies or agreements made part of this Agreement by reference, together with any new, different or additional terms, conditions or policies that Hapn may establish from time to time and make available to you. If you do not agree with these terms, or any updated or changed terms or policies, you have the right to reject the terms, change or update by canceling the Service and no longer using the Service or Platform.

 

Safe and Lawful Use 

As a condition of Customer’s use of the Product, Service and Platform, Customer agrees that it will use the Product, Service and location information provided through the Platform solely for lawful purposes and in accordance with this Agreement, and will comply with any applicable local, state, federal and foreign laws, government rules or requirements.  Customer agrees to be fully responsible for obtaining any necessary consent from the persons, vehicles, or assets that will be tracked.

Customer is responsible and liable for all uses of the Services resulting from Customer’s access to the Services, Platform and Products. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of any users under Customer’s account, or allowed use of Customer’s products, including any use that would constitute a breach of this Agreement if taken by Customer.

Customer agrees that it shall not make any Improper Use of the Product or Services.  “Improper Use” shall mean:

• Providing false or inaccurate information during the registration process;
• Using the Product, Service, or Platform in violation of any domestic or foreign law, regulation, or ordinance;
• Removing the SIM card from a Product;
• Using the SIM card from a Product in connection with any other product or service;
• Opening, dismantling, mutilating or reverse engineering of any Product;
• Using the Product, Service or Platform to harass, stalk, defame, threaten, or otherwise violate the legal rights of others;
• Attempting or assisting another to access, alter, or interfere with the communications or information of another Customer or other user of the Service; or
• Any breach of this Agreement, or violation of any applicable Hapn policy.

Hapn reserves the right, in its sole discretion, to terminate or suspend your Service if Hapn believes that you have engaged in any Improper Use or your usage of the Product, Service or Platform results in, or is the subject of, legal action or threatened legal action, against Hapn or any of its affiliates or partners, without consideration for whether such legal action is ultimately determined to be with or without merit. Customer shall be liable for any costs incurred by Hapn in connection with any Improper Use by Customer.

Customer shall not be entitled to a refund or other offset of any fees paid to Hapn if, for any reason, Hapn takes corrective action with respect to actions taken by Hapn in its reasonable belief of Customer’s Improper Use of the Product, Service or Platform.

Hapn reserves the right to disclose any information deemed necessary to satisfy any applicable law, regulation, subpoena or other legal process, or government request. Customer agrees that information and tracking records in connection with the use of any Product may be released to any law enforcement agency that requests the information in connection with an ongoing investigation, with or without a subpoena or warrant.

Notwithstanding anything else in this Agreement, Hapn has no obligation to monitor Customer’s use of the Product, Services, or Platform.

For Products that contain Li-polymer or Li-ion batteries, Customer shall read and follow all applicable rechargeable battery instructions. Customers are solely responsible for proper charging, usage, maintenance and periodic inspection of batteries to ensure safety and proper working order.  Customer understands and assumes all risk associated with Li-polymer or Li-ion batteries and Hapn shall have no liability with regard to the functionality or safety of any such batteries.

 

Charges 

All fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments.  Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Hapn’s income.  Customer shall be responsible for any data or other usage charges that the Customer incurs from its carrier(s) for cellular, Wi-Fi, or other data or communications services in order to access the Platform.

Your plan will be billed monthly to the credit card or debit card associated with your account. Customer is responsible for informing Hapn of any changes in billing information to avoid interruption in service or cancellation of your account.

Hapn reserves the right to change pricing, from time to time, subject to the terms of any pricing commitment in any Service plan that you have selected.  Subject to applicable law, you accept the new price by continuing to use the Service (or any other form of legal acceptance) after the price change takes effect. If you do not agree with a price change, you have the right to reject the change by canceling the Service prior to the price change going into effect.

If you believe that you have been billed improperly or if you believe there is a discrepancy in your account, please notify us immediately through our Customer Service Department at 1-877-212-7400.

 

Cancellation and Termination of Service Plans

Monthly GPS Services are non-refundable but may be canceled by following the directions on our Cancellation Policy page.

Hapn reserves the right to review Customer’s use of the Service and Platform, and to cancel or discontinue the Service to such Customer in its sole discretion, with or without notice, provided that Hapn shall refund any prepaid and unused Service fees, in the event that Customer has not breached the terms of this Agreement or otherwise engaged in any Improper Use.

No expiration or termination will affect the Customer’s obligation to pay all fees that may have become due before or concurrent with such expiration or termination.  Hapn shall have no obligation to retain any customer data, whether aggregated or not, after termination or expiration of the Agreement.

 

Suspension of Service

Hapn may temporarily suspend Customer’s access to any portion or all of the Services or deactivate any active Product(s) if: (i)  Hapn reasonably determines that (A) there is a threat or attack on the Platform or Services; (B) Customer’s use of the Platform or Services disrupts or poses a security risk to the Platform or Services or to any other customer or vendor of Hapn; (C) Customer is using the Platform or Services for fraudulent or illegal activities; or (D) Hapn’s provision of the Services to Customer is prohibited by applicable law; (ii) any vendor of Hapn has suspended or terminated Hapn’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) Customer’s failure to timely pay any fees due (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Hapn shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Hapn shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured, unless Hapn or Customer otherwise terminates this Agreement pursuant to the terms herein. Hapn will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.

 

Return Policy

If the Customer is dissatisfied with a GPS tracking device for any reason, a GPS tracking device may be returned within 30 days of receipt, subject to certain requirements, for full refund of the price of the Product, even if opened or used. After 30 days, returns are subject to the terms of the Warranty for the GPS tracking device.

You are responsible for return shipping costs, except in the case of a defective Product, in which case Hapn shall cover the cost of return shipping. Hapn is not liable for packages lost or damaged during return shipment.

Please see our Return Policy for complete terms and procedures.

 

Location Services

THE LOCATION INFORMATION PROVIDED IS AN APPROXIMATE LOCATION OF THE PRODUCT. HAPN DOES NOT REPRESENT, WARRANT, OR GUARANTEE THE RELIABILITY, ACCURACY, COMPLETENESS OR TIMELINESS OF ANY LOCATION INFORMATION PROVIDED THROUGH THE SERVICE OR THAT THE SERVICE SHALL BE AVAILABLE, ERROR FREE, OR UNINTERRUPTED.

You consent and permit Hapn to disclose location and related information to you or any person or entity using your username/password about the person(s), vehicle or other asset that is tracked in connection with delivery of the Service.

Subject to any other written agreement or plan that Customer has entered into with Hapn, Hapn assumes no obligation to store Customer Data for any particular period of time.  Data that has been deleted by Hapn may not be able to be restored.

 

Right of Access

Hapn grants Customer a limited, non-exclusive, non-transferable right to access and use the Service and Platform solely for the purposes for which they are provided, subject to Customer’s on-going compliance with the terms and restrictions of this Agreement.

 

Proprietary Rights

Customer acknowledges and agrees that the Product, Service, and Platform may include patent, copyright, trademark, service mark, trade secrets, or other intellectual property rights (collectively “Proprietary Rights”) of Hapn, its affiliates, licensors and/or partners and that Hapn, its affiliates, licensors and/or partners retain title to and ownership of those Proprietary Rights and any and all improvements, modifications, fixes or enhancements made by or for Hapn, its affiliates, licensors and/or the partners to the Product, Service or Platform, regardless of whether such items or services are created or suggested by Customer.

Customer acknowledges that third-party mapping software and data are provided by a third-party service provider which retains copyright ownership in any third-party data, materials, graphical output or other resources that it provides in connection with the Services.

 

Prohibited Conduct

Customer agrees that with respect to the Service, it shall not, nor shall it permit any third party to (a) assign, transfer, lease, rent, sell, distribute or import such Service to any third party; (b) combine, embed or incorporate the Service into any other product or service for purposes of receiving the data feed delivered from the Product and Service, unless expressly authorized by Hapn; (c) remove or alter any proprietary notices in the Services; (d) use the Services in connection with the transmission, sale, license, or delivery of any infringing, defamatory, offensive, or illegal products, services, or materials; (e) use the Service in any manner that threatens the integrity, performance, or availability of the Services; (f) use the Product(s), Platform, or Services in any manner that violates local, state, federal or foreign laws, regulations or orders, (g) open, modify or alter any Product, (h) place any SIM card (or similar) provided by Hapn in any other product or device, or (i) assist in creating a competing third-party product or service.  With regard to the Platform or the associated software, and the software associated with the Product(s), Customer shall not directly or indirectly, or permit any party to (x) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms; (y) copy, modify, translate, or create derivative works therefrom, or (z) tamper with or modify any security features therein.

 

Modifications and Maintenance

Hapn may alter or modify all or part of the Product, Service, or Platform from time to time, provided such alterations or modifications shall not materially adversely alter the fundamental nature of the Service or Platform. Subject to the foregoing, such alterations and modifications, or both, may include, without limitation, the addition or withdrawal of features, information, products, services, software or changes in instructions. Hapn reserves the right to perform scheduled maintenance for the Service and Platform from time to time. This may include application and database maintenance as well as general website maintenance and may involve Service or Platform unavailability.

Customer agrees to follow all rules and policies applicable to the Service and Platform, including but not limited to the installation of required or automated updates, modifications and/or reinstallations of software related to the Platform and obtaining available patches to address security or performance issues.

 

Feedback

If Customer or any of its employees, agents or contractors sends or transmits any communications or materials to Hapn by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services or Products, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Hapn is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby irrevocably assigns to Hapn on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in and to, and Hapn is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Hapn is not required to use any Feedback.

 

No Substitute for Direct Supervision

The Product, Service and Platform are not substitutes for responsible childcare, adult care, or any other form of monitoring for a dependent person who may or may not need competent adult supervision, and should not be used as such.

 

Account Security

Customer is responsible for maintaining the confidentiality of the login, password and other information associated with your account. You accept responsibility for all activities that occur under your account. You agree to notify Hapn immediately of any unauthorized use of your account or any other breach of security. You agree that, to the extent permitted by law, Hapn will not be liable for any loss you may incur as a result of someone other than you using your account access information, either with or without your knowledge. You further agree that you could be held liable for losses incurred by Hapn or another party because of someone else’s use of your account access information.

 

Accuracy of Customer Information

Customer agrees to provide Hapn with accurate contact and billing information. The customer further agrees that Hapn may use and rely on the information provided, subject to Hapn’s privacy policy. Hapn may suspend or terminate Service and close Customer’s account, in its sole discretion, if it has grounds to believe that false, misleading, or materially inaccurate information was provided.

 

Software Security Notice

USE OF THE SERVICE OR PLATFORM MAY EXPOSE A MOBILE DEVICE OR COMPUTER TO AN OPEN NETWORK, WHICH CUSTOMER AGREES TO USE AT HIS/HER OWN RISK. HAPN CANNOT AND DOES NOT GUARANTEE THE SECURITY OF CUSTOMER’S DATA AND COMMUNICATIONS WHILE USING A MOBILE DEVICE OR COMPUTER IN CONNECTION WITH THE PRODUCT, SERVICE, OR PLATFORM.  CUSTOMER UNDERSTANDS AND AGREES THAT HAPN CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS, AND THAT IT SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RESULTING FROM AN ALLEGED OR ACTUAL LACK OF SECURITY RELATING TO CUSTOMER’S USE OF HAPN’S PRODUCT, SERVICE, OR PLATFORM.

 

Privacy

Customers may view our Privacy Policy at our website. Any dispute over privacy is subject to this Agreement, including limitations on damages and application of the law.  To establish your customer account and serve you as a customer, Hapn will initially collect information, such as name, physical address, e-mail address, telephone number, and billing information.  Subject to your on-going compliance with the other terms and conditions of this Agreement, upon creation of an account the Customer will be able to begin using the Service and Devices.

We request that customers contact us directly at privacy@getHapn.com or by telephone toll-free at 1-877-931-0721 with any questions or concerns about privacy in connection with our Products, Services or Platform.

 

Data Ownership

As between Hapn and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the individual data provided by Customer (“Customer Data”). Customer hereby grants to Hapn a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary or reasonable for Hapn to provide the Services to Customer.  Customer consents and permits Hapn to disclose location and related Product information from the Customer Data to any person or entity using Customer’s account.

Notwithstanding anything to the contrary in this Agreement, Hapn may monitor Customer’s use of the Services and collect and compile aggregated statistics concerning Customer’s use of the Service, and compile such data with other user’s information and anonymize such data (“Aggregated Statistics”). As between Hapn and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Hapn. Customer acknowledges that Hapn may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Hapn may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Personal Data, as defined in Hapn’s Privacy Policy.

 

Disclaimer of Warranty

EXCEPT FOR THE LIMITED PRODUCT RETURN POLICY SET FORTH HERE (RETURN POLICY), HAPN MAKES NO WARRANTY OR GUARANTEE OF ANY KIND WITH RESPECT TO THE PRODUCT, DEVICE, SERVICE OR PLATFORM WHICH ARE ALL PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, HAPN DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO: IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, ACCURACY, AVAILABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. HAPN DOES NOT WARRANT THAT THE RECEIPT OF DATA, MAPPING INFORMATION, AND OTHER CONTENT FROM THE PRODUCT, SERVICE OR PLATFORM WILL BE AVAILABLE AT ALL TIMES, AT ALL GEOGRAPHIC LOCATIONS, UNINTERRUPTED OR ERROR-FREE, OR THAT THE TRANSMISSION OF DATA, MAPPING INFORMATION, AND OTHER CONTENT PROVIDED TO THE CUSTOMER WILL ALWAYS BE ACCURATE, TIMELY OR COMPLETE.  HAPN DOES NOT WARRANT THAT ANY DEVICE PURCHASED OR OTHERWISE USED WILL NOT BECOME SLOW, MALFUNCTIONING, NONFUNCTIONAL, OR OBSOLETE DUE TO CHANGES IN TECHNOLOGY.

 

GPS and Cellular Service Disclaimer

HAPN IS NOT RESPONSIBLE FOR LIABILITIES OF ANY KIND RESULTING FROM DELAYS IN DELIVERY OR PROVIDING SERVICES, REGARDLESS OF THE CAUSE OF THE DELAY.

CUSTOMER UNDERSTANDS AND AGREES THAT: (I) THE PRODUCT IS A WIRELESS DEVICE AND THAT THE SERVICE WORKS BY USING GPS (GLOBAL POSITIONING SYSTEM) AND OTHER WIRELESS COMMUNICATION TO DETERMINE A PERSON’S, VEHICLE’S OR OTHER ASSET’S LOCATION AND RELAY SUCH INFORMATION TO HAPN; (II) THE SERVICE WILL NOT OPERATE UNLESS A PERSON, VEHICLE OR OTHER ASSET IS IN AN AREA THAT HAS ADEQUATE WIRELESS COMMUNICATIONS AND GPS COVERAGE AND, EVEN IF IN SUCH AREA, THE SERVICE IS SUBJECT TO WIRELESS SERVICE NETWORK AND GPS TRANSMISSION LIMITATIONS AND MAY BE ADVERSELY AFFECTED BY TERRAIN, SIGNAL STRENGTH, WEATHER AND ATMOSPHERIC CONDITIONS, OR OTHER THINGS THAT HAPN DOES NOT CONTROL; AND (III) INFORMATION ABOUT A PERSON’S, VEHICLE’S OR OTHER ASSET’S LOCATION WILL NOT BE RECEIVED BY THE PRODUCT UNLESS THE PRODUCT IN USE IS ABLE TO RECEIVE GPS SIGNALS, AND WILL NOT BE RELAYED TO HAPN UNLESS AND UNTIL THE PRODUCT IS ABLE TO RECEIVE ADEQUATE CELLULAR SERVICE.

 

Limitation of Liability

HAPN SHALL NOT BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INDIRECT, PUNITIVE, OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS OR LOST DATA, WHETHER ARISING OUT OF OR ARE IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICES, OR THE ACTIONS YOU TAKE AS A RESULT THEREOF, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF HAPN IS INFORMED THAT THOSE DAMAGES MAY OCCUR. HAPN’S CUMULATIVE LIABILITY IN RELATION TO THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF THE AMOUNT PAID OR PAYABLE TO HAPN UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE LIABILITY ACCRUES FOR A CLAIM.

UNDER NO CIRCUMSTANCES SHALL HAPN, ITS SUPPLIERS, ITS LICENSORS OR ITS AFFILIATES BE LIABLE TO YOU, ANY USER, OR ANY THIRD PARTY AS A RESULT OF YOUR, OR THAT PARTY’S USE OR MISUSE OF, OR RELIANCE ON, THE DATA OBTAINED FROM THE USE OF THE PRODUCT, SERVICE OR PLATFORM, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE OF THE PRODUCT, SERVICE OR PLATFORM.

UNDER NO CIRCUMSTANCES SHALL HAPN, ITS SUPPLIERS, ITS LICENSORS OR ITS AFFILIATES BE LIABLE TO YOU, ANY USER, OR ANY THIRD PARTY AS A RESULT OF YOUR, OR THAT PARTY’S LOSS OF ANY EQUIPMENT, WHETHER INTENTIONAL OR UNINTENTIONAL.

UNDER NO CIRCUMSTANCES SHALL HAPN, ITS SUPPLIERS, ITS LICENSORS OR ITS AFFILIATES BE LIABLE TO YOU, ANY USER, OR ANY THIRD PARTY AS A RESULT OF THE INABILITY TO USE THE PRODUCT, SERVICE OR PLATFORM, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF ANY RELATED SERVICES, OR FROM YOUR RELIANCE ON OR USE OF THE INFORMATION OBTAINED BY YOUR USE OF THE PRODUCT, SERVICE OR PLATFORM. IN FURTHER LIMITATION, TO THE FULLEST EXTENT ALLOWED BY LAW, HAPN, ITS SUPPLIERS, ITS LICENSORS AND ITS AFFILIATES SHALL NOT BE RESPONSIBLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, LOST PROPERTY, DAMAGED PROPERTY, INJURY, LOST DATA, OR ANY OTHER LOSS RESULTING FROM YOUR USE OF, OR THE FAILURE OR MALFUNCTION OF, THE SERVICE, THE PRODUCT, OR THE PLATFORM.

WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL HAPN, ITS SUPPLIERS, ITS LICENSORS OR ITS AFFILIATES, BE LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING IN ANY WAY FROM FORCES OR CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING WITHOUT LIMITATION INTERNET FAILURES, COMPUTER FAILURES, THIRD PARTY SERVICES, ANY TYPE OF EQUIPMENT FAILURE, ACTS OF NATURE, ACTS OF GOVERNMENTS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, OR ENVIRONMENTAL CONDITIONS.

THE ABOVE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.

 

Indemnification

Customer agrees to indemnify and hold harmless Hapn, including its affiliates, directors, officers, agents, licensees, employees and contractors, from any claim, liability, loss, damage, cost or expense (including, without limitation, suits, judgments, litigation, costs and attorney’s fees of every kind and nature) arising out of or related to: (i) Customer’s breach of this Agreement; (ii) any negligence or willful misconduct of Customer; (iii) any action or conduct of Hapn undertaken pursuant to this Agreement at the direction of the Customer (iv) any claim related to Customer’s use of Product, Service or Platform alleging a violation of any third party’s rights, violations of law, or a breach of the foregoing, or (v) any Improper Use by Customer.

 

Dispute Resolution

Any claim, controversy or dispute that arises between the parties, their agents, employees, officers, directors or affiliates (“Dispute”) that the parties are unable to settle through consultation and negotiation shall be exclusively resolved by binding arbitration, and not in court, except that customer may assert claims in small claims court for disputes within the jurisdiction of such court. Customer or Hapn may also bring suit in court to seek injunctive or declaratory relief for infringement or other misuse of intellectual property rights.

In any arbitration under this Agreement, a single arbitrator shall be selected by mutual agreement of the parties in accordance with AAA procedures from a list of qualified arbitrators maintained by the AAA and will conduct the arbitration under the rules of the AAA then in effect, except as otherwise provided in this Agreement. The AAA rules may be found at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879. If the parties are unable to agree to an arbitrator, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The arbitration shall be conducted in New York County, New York and all expedited procedures prescribed by the AAA rules will apply. You may choose to have the arbitration conducted by telephone, on the basis of written papers and documents submitted to the arbitrator, or in person. The arbitration shall be treated as confidential.

Before commencing an arbitration, you must send a letter describing your claim and the specific relief you seek to Hapn GPS, Inc., Attention: LEGAL, 4522 W. Village Dr., #1088, Tampa, FL 33623 by certified mail, Federal Express, UPS, or Express Mail (signature required). Hapn shall have thirty (30) days to attempt in good faith to resolve your claim before you commence arbitration. If Customer and Hapn are unable to reach a settlement within 30 days, either party may commence an arbitration.

IN CONNECTION WITH CUSTOMER’S AGREEMENT TO ARBITRATE, THE CUSTOMER WAIVES ANY RIGHT TO PURSUE DISPUTES ON A CLASS-WIDE BASIS, THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF ANY CLASS OR REPRESENTATIVE PROCEEDING UNLESS ALL PARTIES CONSENT IN WRITING.

This Agreement and all matters arising out of, or otherwise relating to, this Agreement shall be governed exclusively by the laws of the State of New York, excluding its conflict of law provisions.  CUSTOMER UNDERSTANDS THAT THERE IS NO JURY IN ARBITRATION AND THAT COURT REVIEW OF AN ARBITRATOR’S DECISION IS LIMITED.  CUSTOMER AND Hapn BOTH WAIVE ANY RIGHT TO A TRIAL BY JURY.

Any decision or award as a result of an arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact. The arbitrator’s decision and award shall be final, conclusive and binding, and judgment may be entered upon the decision and award in accordance with applicable law in any court having jurisdiction thereof. Subject to the terms of this Agreement, the arbitrator shall have the right to award any damages permitted by law, including, if otherwise permitted by statute, Customer’s reasonable attorney’s fees and costs incurred in connection with an arbitration. Hapn waives any right to seek recovery of its own attorney’s fees and costs unless the arbitrator determines that Customer’s claims were frivolous or asserted for an improper purpose. Payment of all filing and AAA fees will be governed by the AAA’s rules. Hapn shall cover the cost of all AAA fees in the event that Customer is financially unable to do so or if the arbitrator determines it would be unreasonable to have Customer split the cost of arbitration.

 

Force majeure

If the performance of any part of this Agreement by Hapn is prevented, hindered, delayed or otherwise made impracticable by unforeseen circumstances or causes beyond Hapn’s reasonable control, including without limitation: acts of God; war; riot; embargoes; acts of civil or military authority; judicial or governmental action; terrorism; labor disputes; large scale illness; shortages in transportation, facilities, fuel, energy or labor materials; failure of telecommunications infrastructure; hacking; or failure of any computer, server or software, Hapn shall not be held responsible for failure to perform for so long as such event continues to delay Hapn’s performance.

 

Miscellaneous

All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of this Agreement.

This Agreement constitutes the entire agreement between the parties with respect to Customer’s use of the Product, Service and Platform, and supersedes and replaces all prior understandings or agreements, written or oral, regarding such subject matters.

Any provision that, in order to give proper effect to its intent, should survive the expiration or termination, shall survive the expiration or earlier termination of this Agreement.

No waiver of or by Hapn shall be deemed a waiver of any subsequent default of the same provision of this Agreement.

If any term or provision of this Agreement is invalid, illegal, or unenforceable either in its entirety or by virtue of its scope or application to given circumstances, in any jurisdiction, such invalid, illegal, or unenforceable provision shall be modified only to the extent necessary to render same valid, enforceable, or not applicable to given circumstances, or excised from this Agreement, as the situation may require, and shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction, and this Agreement will be construed and enforced as if such provision had been included herein as so modified in scope or application, or had not been included herein, as the case may be.

Hapn reserves the right to change any of the provisions set forth herein, and to update its website to reflect such changes. Customer’s continued use of the Product, Service or Platform following the posting or other notice to you, including a notice sent to the email address that we have associated with your account, of any updates or changes to these terms and conditions constitutes acceptance of such changes. If you do not agree with any updated or changed terms or policies, you have the right to reject the terms, change or update by canceling the Service and no longer using the Service or Platform.  Notwithstanding the foregoing, Hapn does not assume any obligation to provide Customer with notice of any change to these terms and conditions.

Each party agrees that the electronic signatures, whether digital or encrypted, including any electronic symbol or process attached to or logically associated with a record, including check boxes, and executed and adopted by a party with the intent to sign such record, in connection with this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures.