TERMS OF SERVICE

TERMS OF SERVICE

These Terms of Service (these "ToS") are incorporated into the HappiLabs Virtual Lab Manager Services Agreement and Order Form (the "Order Form") between HappiLabs, Inc. ("HappiLabs") and the "Customer" set forth on the Order Form. These ToS and the Order Form are collectively referred to as the "Agreement." Any capitalized term that is used in these ToS, but is not defined herein, shall have the meaning given such term in the Order Form (for example, "Service Model" and "Membership Level").

1.SERVICE MODEL

In all Service Models, HappiLabs provides Customers with virtual lab management services ("Services"), including ordering lab equipment and supplies ("Products"). The Service Model applicable to Customer is indicated on the Order Form and is described at www.happilabs.org/offerings, which description is incorporated herein. The Services provided to Customer are set forth on the Order Form. In Service Models 1 and 2 Customer pays the vendor directly for Product purchases; in Service Model 3 (“SIMPLIFIED INVOICING”) HappiLabs invoices Customer for Product purchases and Customer pays HappiLabs directly.

2. CUSTOMER CONTACTS AND APPROVED COMMUNICATION METHODS

All authorizations and approvals by Customer under this Agreement must be given by an authorized Customer Contact. The initial Customer Contacts are stated on the Order Form, and Customer may add or change Customer Contacts at any time by notice to HappiLabs using an Approved Communication Method. HappiLabs may continue to rely on the authorization of any Customer Contact which was given prior to being removed or replaced by Customer as an authorized Customer Contact. All communications by Customer with HappiLabs under this Agreement must be made using one of following (each, an "Approved Communication Method"): (a) submission via HappiLabs' mobile or website application; (b) in writing; (c) email to the address designated by HappiLabs, (d) by electronic chat or messaging service approved by HappiLabs; (e) using purchasing software approved by HappiLabs; or (f) another method expressly approved by HappiLabs. A Customer Contact may authorize, from time to time by notice to HappiLabs, certain Customer personnel to initiate and approve orders, and to authorize other actions by HappiLabs, and HappiLabs may rely on such authorizations and approvals until it receives written notice from a Customer Contact that such authority has been terminated.

3. SERVICES

HappiLabs will take actions on behalf of Customer such as creating accounts with third party vendors, placing orders for Products, and communicating with vendors. HappiLabs will provide Services professionally.

(a) Customer authorizes to HappiLabs and its employees, officers, or contractors ("HappiLabs Personnel") to act as a purchasing representative of Customer, including without limitation to (i) login to Customer's online accounts or to otherwise contact and deal with vendors on Customer's behalf, (ii) place orders on Customer's behalf with vendors, and (iii) sign or otherwise accept, on Customer's behalf, related and required vendor contracts, online terms, purchase orders, and similar. Except in the case of orders submitted by HappiLabs in bad faith or in a grossly negligent manner, Customer shall be bound by such orders, acceptance or signature as though Customer itself directly and expressly agreed thereto. The foregoing authority does not carry with it any fiduciary duty to Customer and HappiLabs and the HappiLabs Personnel shall have no liability or obligation with respect to such orders, contracts, or other terms. Customer acknowledges that if it requires HappiLabs to use Customer's ordering and order approval processes which deviate from HappiLabs’ standard processes, this may cause erroneous orders for which Customer shall be responsible, and Customer shall reasonably consider enhancements or clarifications to its ordering and approval process suggested by HappiLabs.

(b) Except as set forth above, neither party is granted any right or authority to assume or to create an obligation or responsibility, express or implied, on behalf of or in the name of the other party, or to bind the other party in any manner whatsoever. HappiLabs is an independent contractor of Customer, and nothing contained herein, and no course of dealing between the parties, will create an agency, partnership, joint venture or any other relationship between the parties hereto, each of which is hereby expressly disclaimed. Each party assumes sole responsibility for the direction and control of its employees involved in performing its obligations under and associated with this Agreement, who shall for all purposes remain employees of such party.

(c) Customer represents and warrants to HappiLabs that all information provided by Customer for use by HappiLabs with vendors is true, correct, and accurate. Services not expressly included on the Order Form are excluded and additional fees may apply for other services or higher volumes of Service usage.

4. SERVICE MODELS AND OBLIGATIONS

(a) With respect to the standard Services provided under Service Model 1 or 2:

(i) Products may be ordered using HappiLabs' ordering procedure, or such other procedure agreed to between Customer and HappiLabs. HappiLabs will use the payment information in Customer's account with a vendor to pay for Customer's Product orders, or will charge the Product order with the payment card information provided by Customer. Customer will make timely payments to vendors or to its payment card issuers. Any order placed by HappiLabs using Customer's vendor accounts shall be a valid and binding agreement between Customer and such vendor.

(ii) Products will be shipped from the vendor directly to Customer. The vendor's shipping terms shall apply. Customer assumes all risk, responsibility, and liability relating to or arising out of shipping, transportation, delivery, storage, and importing and exporting such items. HappiLabs shall not be deemed to have, at any time any right, title, bailment, possession, risk, or other interest in such Products, and both title and possession shall pass directly from the vendor to Customer according to the vendor's terms of shipment as though the order was placed directly by Customer. HappiLabs is not responsible for the payment of any extraordinary shipping charges, customs, duties, taxes, or any other amount related to the transportation, import or export of the Products.

(iii) HappiLabs shall assist Customer in arranging returns of Products, subject to the vendors' return policies. Customer shall be responsible for packing and shipping such returns, and meeting return deadlines and other terms, each as required by the vendor.

(iv) HappiLabs shall have no liability in connection with any Product orders or payment therefor, shipping problems or charges, or Product returns.

(b) With respect to SIMPLIFIED INVOICING Services, HappiLabs will purchase Products and resell them to Customer upon the terms set forth below.

(i) Products may be ordered using HappiLabs' ordering procedure, or such other procedure agreed to between Customer and HappiLabs. HappiLabs will invoice Customer for Products, including shipping and handling, according to the invoicing terms set forth on the Order Form. Products will be shipped by HappiLabs or the vendor to Customer. When shipped by the vendor, the vendor's shipping terms apply. When shipped by HappiLabs, HappiLabs will select the appropriate shipper for the Products and Products will be shipped FOB, destination (title and risk of loss to the Product transfers to Customer at delivery to Customer).

(ii) HappiLabs shall use reasonable efforts to assist Customer in arranging returns of Products, subject to the vendors' return policies. At HappiLabs' direction, Products will be returned either to the vendor or HappiLabs. Customer shall be responsible for packing and shipping such returns, and meeting return deadlines and other terms, each as required by the vendor's and/or HappiLabs' return policy. Other than refunds where applicable, HappiLabs shall incur no charges or liability in connection with any returns.

(c) Warranty obligations for Products are the direct responsibility of the manufacturer or vendor, and Customer should contact the manufacturer or vendor directly for warranty information and fulfillment. HAPPILABS HEREBY DISCLAIMS ALL WARRANTIES OR GUARANTEES WITH RESPECT TO THE PRODUCTS, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, SUITABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

(d) HappiLabs will use commercially reasonable efforts to notify Customer of Product recalls. HappiLabs does not ship Products outside the United States, and Customer is responsible for any export, deemed export, or re-export activities.

5. FEES FOR SERVICES; PAYMENT TERMS

(a) Customer agrees to pay to HappiLabs all (i) fees, charges, expenses, and any other amounts described on the Order Form for the Services ("Fees"), as set forth on the Order Form (or if not so specified, on a monthly basis beginning on the Effective Date), and (ii) amounts for resold Products pursuant to SIMPLIFIED INVOICING Services upon invoice as set forth on the Order Form (or, if not so specified, upon semi-monthly invoice). The first month's Fees are due upon execution of the Agreement, and each month thereafter HappiLabs shall invoice Customer in advance, and payment is due 30 days following the invoice date. During any Renewal Period, HappiLabs may modify Fees on 30 days' prior written notice to Customer.

(b) The initial Membership Level is set forth on the Order Form and is subject to adjustment as provided herein. HappiLabs determines Customer's Membership Level based on a number of factors, including the current and projected number of Customer employees, estimated Product orders per month, and the time required for Services based on the foregoing factors. If Customer's actual usage of Services changes during the term of this Agreement (unless Customer is able to reduce its usage to its then-current Membership Level), HappiLabs may, upon mutual agreement, adjust Customer's Membership Level to the level that reflects Customer's actual usage. Customer acknowledges that if Customer’s usage exceeds its then-current Membership Level but it does not agree to adjust its Membership Level upon HappiLabs’ request, Happilabs may temporarily suspend Services until the next billing and Service cycle so as to avoid excess usage by Customer (and that Customer may need to provide its own lab management and related services during such suspension).

(c) If a prepayment or security deposit is required under this Agreement, HappiLabs need not provide any Service until it is received. At any time during the term of this Agreement if HappiLabs reasonably determines that Customer represents a credit risk (without limitation, if Customer files for bankruptcy, becomes insolvent, suffers a degraded financial condition, or has a history of repeated late payments), HappiLabs may require prepayment at its discretion, or other security, before continuing with the Services (or with respect to Model 3, before fulfilling Product orders). Amounts past due beyond 30 days accrue interest at the lower of 15% per annum or the highest rate allowed by law. Time is of the essence for payments, and Services/Product order fulfillment may be suspended or terminated (at HappiLabs' discretion) if payment is more than 15 days late. Customer is responsible for all costs and expenses of collecting any amounts due, including attorneys' or collectors' fees and expenses. Billing disputes must be provided in writing and in reasonable detail within 30 days after the applicable invoice date or shall be deemed waived. All taxes (and similar charges) relating to or arising out of the Services shall be paid by Customer in addition to fees or other charges. Customer acknowledges that HappiLabs may withhold return of the Customer materials, if any, pending Customer's full payment of fees then due.

6. TERM

The Agreement shall remain in effect for the Term, as described on the Order Form. At least 30 days prior to any renewal date, either party may send the other party written notice of non-renewal, in which case the Term shall expire at the end of the current Renewal Period (or Initial Term if applicable). In addition, without limitation to any other remedy available, a party (a "Terminating Party") may terminate this Agreement or suspend performance under it, if the other party: (x) breaches any material term of this Agreement and fails to cure such breach within 30 days after written notice from the Terminating Party (provided, however, such period shall be 15 days with respect to a breach of Customer's payment obligations); or (y) ceases to conduct business in the ordinary course, makes an assignment for the benefit of creditors, suffers the appointment of a receiver or trustee in bankruptcy or similar officer or files a voluntary petition under federal bankruptcy laws or such a petition is filed against the other party. Upon termination of this Agreement, each party shall return or destroy all tangible materials containing Confidential Information of the other , and Customer shall pay HappiLabs for all Services rendered and Products ordered, and all reimbursable expenses incurred by HappiLabs, through the effective date of such termination. Any term or provision which by its nature should survive the termination of this Agreement shall survive.

7. CONFIDENTIALITY

Each party (a "disclosing party") may from time to time disclose to the other (a "receiving party") confidential information relating to its business and affairs or the Services, which information may be comprised of (a) any information or materials expressly designated as "confidential" (or like designation) by the disclosing party, or (b) such information which a reasonable person in its capacity as a receiving party, by nature of the information or circumstance of its disclosure, would understand to be considered by the disclosing party to be its confidential, proprietary or trade secret information (collectively, "Confidential Information"). The receiving party shall (x) avoid disclosure of the other's Confidential Information to any third party without the written consent of the disclosing party, except that HappiLabs may provide the Confidential Information to HappiLabs Personnel so long as such persons agree to protect such Confidential Information substantially as set forth herein; (y) not use the other's Confidential Information except for use in relation to the Services and Products (it being understood that HappiLabs may use and disclose, in performing the Services and purchasing or selling Products, without further consent of Customer, passwords and login credentials to Customer's online accounts, payment card information, and other Customer information provided by Customer); and (z) use at least the same degree of care to protect the other's Confidential Information as it uses with respect to its own Confidential Information and in no event less than a reasonable degree of care. Notwithstanding the foregoing, the following is not Confidential Information: information (i) in the public domain through no beach or fault of the receiving party; (ii) already known to the receiving party prior to disclosure by the disclosing party; (iii) received by the receiving party rightfully from a third party; (iv) independently developed by the receiving party without reference to the disclosing party's Confidential Information; and (v) required to be disclosed by law. The receiving party agrees that money damages may not be an adequate remedy for breach of this Section 7 and that an aggrieved party may, without limitation to other remedies available, apply to any competent court of law or equity for specific performance or injunctive relief to enforce this Section 7. This Section 7 shall survive for three years after termination of this Agreement.

8. PROPERTY RIGHTS

HappiLabs shall retain all right, title, and interest in all materials, software, and information used in providing the Services, except for materials provided by the Customer.

9. LIMITATION OF LIABILITY

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, HAPPILABS DISCLAIMS ALL WARRANTIES, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL SERVICES AND PRODUCTS ARE PROVIDED ON AN "AS IS, WHERE IS" AND "AS AVAILABLE" BASIS. HAPPILABS DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE SERVICES OR PRODUCTS. IN THE EVENT HAPPILABS IS LIABLE TO CUSTOMER OR ITS AFFILIATES FOR ANY MATTER RELATING TO, OR ARISING IN CONJUNCTION WITH, THIS AGREEMENT, ON ANY THEORY OF LIABILITY, THEN THE AMOUNT OF DAMAGES RECOVERABLE AGAINST HAPPILABS FOR ALL EVENTS, ACTS, AND OMISSIONS SHALL NOT EXCEED THE AMOUNTS RECEIVED BY HAPPILABS FOR SERVICES (NOT PRODUCTS) FROM CUSTOMER PURSUANT TO THIS AGREEMENT DURING THE SIX (6) CALENDAR MONTHS IMMEDIATELY PRECEDING SUCH CLAIM OR DISPUTE UNDER THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY AMOUNTS REPRESENTING INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOSS OF PROFITS, LOSS OF BUSINESS, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT OR TORT (INCLUDING NEGLIGENCE OR PROFESSIONAL ERRORS AND OMISSIONS) AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE, EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES. HAPPILABS SHALL NOT BE LIABLE OR IN DEFAULT UNDER THIS AGREEMENT FOR ANY FAILURE TO PERFORM ITS OBLIGATIONS RESULTING FROM ANY CAUSE BEYOND ITS REASONABLE CONTROL. This Section 9 shall survive termination of this Agreement.

10. INDEMNIFICATION

Customer shall defend, at its expense, indemnify, and hold harmless HappiLabs, the HappiLabs Personnel, and its directors, officers, employees, and corporate affiliates from and against any and all claims, allegations, demands, suits and proceedings brought or asserted by any third party (collectively, "Claims"), and from and against any liability, judgments, awards, damages, settlements, fees and costs (including attorney's fees) (collectively, "Damages") relating to such Claims, that result from, arise out of, or are related to: (i) any breach by Customer of the Agreement; (ii) the gross negligence, bad faith, or willful misconduct of Customer or its directors, officers, employees, contractors, or corporate affiliates; (iii) any activity of HappiLabs on behalf of Customer and the performance of Services hereunder, unless such activity or Services constitute willful misconduct or are in breach of the express provisions or limitations set forth herein or (iv) failure by Customer to pay the applicable vendor for Products. HappiLabs will provide, at Customer's expense, any information in its possession with respect to such Claims, and will provide prompt notice of such Claims to Customer. This Section 10 shall survive termination of this Agreement.

11. MISCELLANEOUS

(a) Notwithstanding any other terms submitted by Customer in connection with any Services or order of Products on its purchasing forms, or in any correspondence, as between Customer and HappiLabs, solely the terms of the Agreement shall apply to the Services and any Products purchased from or through HappiLabs.

(b) During the term of the Agreement plus two years, Customer will not solicit for employment or engagement, or otherwise hire, any HappiLabs Personnel unless expressly agreed in writing by HappiLabs. If Customer breaches the foregoing restrictions, HappiLabs shall be entitled to liquidated damages (which are not a penalty) equal to two times the annualized salary or other compensation paid to the employee or contractor by HappiLabs.

(c) This Agreement shall be construed and enforced in accordance with the laws of the State of Illinois without reference to its conflicts of laws or choice of law principles. Any legal suit, action, or proceeding arising out of or related to this Agreement shall be instituted exclusively in the federal courts of the United States or the courts of the State of Illinois, in each case located in the City of Chicago, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding, provided that actions for equitable relief, specific performance, or the like may be brought where necessary for enforcement. If any action at law or in equity is necessary to enforce or interpret the rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees, costs, and necessary disbursements in addition to any other relief to which it may be entitled.

(d) The Agreement contains the entire agreement between the parties, and supersedes all express or implied prior written or oral agreements or understandings between the parties concerning the same subject matter hereof (for clarity, this Agreement does not supersede, but rather shall coexist with, any HappiLabs terms of website or application use, which shall govern the use of such sites and applications, while this Agreement covers the substantive Services provided by HappiLabs). The Agreement cannot be amended or modified except in a written document signed by duly authorized representatives of each party. No term or provision of the Agreement will be waived, and no breach excused, unless such waiver or consent is in writing and signed by the party claimed to have waived or consented. No waiver of any default hereunder will be deemed to be a waiver of a different or subsequent default with respect to the same or any other provision hereof. The rights and remedies of HappiLabs hereunder shall be cumulative and not alternative. The holding of any provision of the Agreement to be illegal, invalid, or unenforceable by a court of competent jurisdiction shall not affect any other provision of the Agreement, which shall remain in full force and effect, and any such invalid provisions shall be deemed and construed to be reduced to the maximum duration, scope, or subject matter allowable by law. The Agreement is for the sole benefit of the parties identified on the Order Form, and does not provide any third party the right to enforce or bring an action for any remedy, claim, cause of action, or other right or privilege, except as expressly so stated in the Agreement. This Agreement may be executed by the parties in any number of identical counterparts, each of which, for all purposes will be deemed to be an original, and all of which will constitute, collectively, one instrument. If any signature is delivered by email, such signature shall create a valid and binding obligation of the executing party with the same force and effect as if such signature were an original. Any notice required or otherwise made under this Agreement shall be in writing, sent by courier service or registered or certified mail, to the address set forth on the Order Form, or at such other address as may be designated pursuant to the foregoing, and shall be deemed to be received on day after dispatch by courier, or on the fourth business day after mailing. The Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties.

(e) HappiLabs may, so long as no Confidential Information of Customer is disclosed, and with Customer's approval, list Customer's name, among a selection of other HappiLabs customers, on web pages and in other marketing materials listing HappiLabs' customers and representative projects, using Customer's main corporate logo (if Customer has such a logo, and subject to Customer's reasonable branding or logo usage guidelines provided to HappiLabs in writing).

CONTACT AND FEEDBACK

We welcome and encourage feedback, comments and suggestions for improvements to the Services (“Feedback”). You may submit Feedback by emailing us at hello@happilabs.org. You agree that all Feedback will become the sole and exclusive property of the Company and you hereby irrevocably assign to the Company all of your right in and to all Feedback.

If you are a resident of California, you may request additional information or submit claims or complaints regarding the Services by calling the Complaint Assistance Unit of the Division of Consumer Services of California Department of Consumer Affairs at (916) 445-1254, or in writing at:

Complaint Assistance Unit Division of Consumer Services California Department of Consumer Affairs 1625 N. Market Blvd., Suite N 112 Sacramento, California 95834

Last updated: APRIL 1, 2022