MobileMonkey Inc Master Service Agreement

Effective date: November 28, 2017

Welcome

Welcome to MobileMonkey. MobileMonkey is an online platform that allows developers, individuals, companies, and agencies to easily build, host, and manage chatbots. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”).

In order to make use of the services (the “Application”) offered by us (collectively with the Application, the “Services”), you must agree to be bound by these Terms of Use (the “Terms”) and by our Privacy Policy. If you object to anything in these Terms or the Privacy Policy, you are prohibited from using the Services.

These Terms and Privacy Policy are subject to change by us at any time, effective upon posting through the Services; by accessing the Services after any such change, you accept the Terms as modified.

 

These Terms of Use (the “Terms”) are a binding contract between you and MobileMonkey Inc. (“MobileMonkey,” “we” and “us”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at tos@mobilemonkey.com, 359 Newbury Street, 5th floor, Boston MA 02115.

FaceBook Messenger:

Your use of the Services connected to Facebook Messenger is also governed by and subject to the Facebook Platform Policies (located at https://developers.facebook.com/policy) and Facebook Commerce Product Merchant Agreement (currently located here: https://www.facebook.com/legal/commerce_product_merchant_agreement), which are hereby incorporated by reference and are a part of these Terms. You are solely responsible and liable for complying with the Facebook Platform Policies and Facebook Commerce Product Merchant Agreement. You must agree to and accept all of the Terms, or you don’t have the right to use the Services. Your using the Services in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Services. These Terms include the provisions in this document, as well as those in the Privacy Policy and Copyright Dispute Policy.

 

License Grant & Restrictions

MobileMonkey hereby grants you a non-exclusive, non-transferable, limited, revocable, worldwide right to use the Service during the License Term, solely for your own internal business purposes, subject to the terms and conditions of this Agreement.  In the event that your online ordering process or your Order Confirmation provided for a specific number of Users, your license to use the Service is limited to the specified number of Users.  All rights not expressly granted to you are reserved by MobileMonkey and its licensors.  You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking, reverse engineering, or other competitive purposes. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service, MobileMonkey Technology or the MobileMonkey Content in any way; (ii) modify or make derivative works based upon the Service, MobileMonkey Technology or the MobileMonkey Content; (iii) embed the Service as a “iframe” or “frame” from within another application; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using ideas, features, functions or graphics that are similar to those related to the Service, or (c) copy any ideas, features, functions or graphics of the Service. The Service cannot be shared or used by more than one individual unless (and solely to the extent that) the Order Confirmation allows for sharing within your internal organization.  Sharing of the Service outside your organization is never allowed.  The proper assignment of username and passwords for the Service and adherence to all terms of this Agreement and Order Confirmation are your sole responsibility.  You are responsible for maintaining the confidentiality of your usernames, passwords and accounts.  Usernames and passwords may not be shared by more than one individual, and may not be transferred from one individual to another unless the original User no longer requires, and is no longer permitted, access to the Service.  You may use the Service only for your internal business purposes and shall not: (i) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (ii) interfere with or disrupt the integrity or performance of the Service or the data contained therein, or MobileMonkey’s sites, servers or networks; (iii) attempt to gain unauthorized access to the Service or its related systems or networks; or (iv) take any action that imposes an unreasonably or disproportionately large load on MobileMonkey’s infrastructure.  MobileMonkey shall be entitled to adjust the scope of the Service and the underlying technical infrastructure to reflect the continuing development of the Service and technical advances.

 

Intellectual Property Ownership

MobileMonkey alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the MobileMonkey Technology, the MobileMonkey Content and the Service and any derivatives, suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service, and any aggregated metrics, data and trends compiled by MobileMonkey. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the MobileMonkey Technology or the Intellectual Property Rights owned by MobileMonkey, Inc. The MobileMonkey name, the MobileMonkey logo, and the product and service names associated with the Service and MobileMonkey Content are trademarks of MobileMonkey or third parties, and no right or license is granted to use them hereunder.  The Site may include trademarks, service marks or logos of third parties, all of which are the property of their respective owners.  In addition, all content published on the Site belongs to MobileMonkey and/or its licensors under applicable copyright law.

 

Use of the Service

A. Resale and Commercial Use. You are fully permitted to use our Application and Services (as well as our API) in commerce as a means to resell or build goods and services which you use or offer commercially, with the exception of cases in which your product is materially similar or designed to compete directly with the Services offered by MobileMonkey.

B. You will only use the Services only in a manner that complies with all laws that apply to you, except that you may build chatbots using the Services and sell and/or otherwise exploit and commercialize the chatbots you have built. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law. You will not share your account or password with anyone, and you must protect the security of your account and your password. You’re responsible for any activity associated with your account.

C. Personal Safety. Our Services promote sharing of personal information among Users. We do not and cannot assure that it is safe for you to have direct contact with any other individual that you come into contact with through the Services. If you believe that any individual is harassing you or is otherwise using personal information about you for unlawful purposes, we encourage you to first inform local law enforcement authorities and then to contact us at TOS@MobileMonkey, so that we may take appropriate action to block further use of the Services by any individuals who may have accessed them for improper purposes.

D. Location-Based Services. We may offer features that are based on the location of Users and which may report on those Users’ current locations (the “Location-Based Services”). Use of Location-Based Services is solely at your discretion. Should you use Location-Based Services, you consent to collection and dissemination of your location information through the Services. Under no circumstances shall we be liable for claims or for any damages therefrom, arising out of your informed decision to disseminate your location information together with your profile information through the Services.

E. Disclaimers of Responsibility for User Actions. No Reliance on Content. Opinions, votes, advice, statements, offers, or other information or content made available through the Services are those of their respective authors and should not necessarily be relied upon. Such authors are solely responsible for such content. We do not: (i) guarantee the accuracy, completeness, or usefulness of any information on the Services or (ii) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party that appears on the Services. Under no circumstances will we or our affiliates be responsible for any loss or damage resulting from your reliance on information or other content posted through the Services or transmitted to or by any Users.

 

MobileMonkey Code of Conduct

  • By accessing the Services, you agree to the following code of conduct:
  • You will not publish, display or use (hereinafter “post”) any defamatory, abusive, obscene, profane, threatening, harassing, racially offensive, discriminatory or otherwise offensive or illegal material.
  • You will treat all fellow Users with dignity and respect.
  • You will notify us promptly of any User’s violation of these Terms.
  • Any information contained in your Facebook profile and made accessible to other Users—including any telephone numbers, street addresses, last names, URLs, email addresses or other contact information—is posted at your own risk and we assume no responsibility for use of such information.
  • You will not impersonate any person or entity.
  • You will not “stalk” or otherwise harass any User or other individual accessing the Services.
  • You will not express or imply that any statements you make are endorsed by us without specific prior written consent.
  • You will not use manual or automatic processes to retrieve, index, datamine, or in any way reproduce or circumvent the navigational structure or presentation of the Services or their contents. This prohibition does not include standard indexing by Internet search engines, which hereby is explicitly permitted.
  • You will not post, distribute or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior consent of the owner of such proprietary rights.

Responsibly & Liability

Any information or content publicly posted or privately transmitted through the Services, and any chatbots created using the Services, are the sole responsibility of the person from whom such content originated, and you access all such information and content at your own risk, and we aren’t liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it.

We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.

You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Services.

The Services may contain links or connections to third party websites or services that are not owned or controlled by MobileMonkey. When you access third party websites or use third party services, you accept that there are risks in doing so, and that MobileMonkey is not responsible for such risks. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third party website or service that you visit or utilize.

MobileMonkey has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Services. In addition, MobileMonkey will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third party website or service. Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that MobileMonkey shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between participants on this site, or between users and any third party, you agree that MobileMonkey is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release MobileMonkey, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services.

If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”

Billing Policies

MobileMonkey is continually adding new products and services to its offering and offers a variety of payment plan and options granting each customer the ability to select a custom service plan thatr fits their unique needs. The following describes the general payment terms agreement upon:

  • For paying users, the service is billed in advance on a monthly basis based on the “start date” of a subscription and is non-refundable.
  • There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open accountUnless otherwise agreed to in writing,
  • Service fees are charged in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable.
  • The initial charges at Sign up will be equal to the current list price of the chosen edition of the Service Plan selected plus any add-ons selected.
  • Subsequent monthly payments may have Add-on services or usage charges applied which are described in your monthly online billing statement.
  • All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.
  • Unless agreed upon in writing in advance, MobileMonkey reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail.

Validation

You must provide MobileMonkey with a valid credit card as a condition to signing up for the Service.  You hereby represent that you are authorized to provide any credit card you use to sign up for the Service.  You agree to provide MobileMonkey with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, MobileMonkey reserves the right to terminate your access to the Service in addition to any other legal remedies. All invoices and payments to MobileMonkey will be in US $.  If you believe your invoice is incorrect, you must contact MobileMonkey in writing within 45 days of the date of the invoice setting forth details regarding the inaccuracy to be eligible to receive an adjustment or credit.

Auto Renewal

MobileMonkey will automatically renew your monthly or annual subscription and bill your credit card or submit electronic invoices as mutually agreed upon. The renewal charge will be equal to the Service fee in effect during the prior term, unless MobileMonkey has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter.

Non-Payment and Suspension

In addition to any other rights granted to MobileMonkey herein, MobileMonkey reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum rate permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for the Service during any period of suspension. If you or MobileMonkey initiates termination of this Agreement, you will be obligated to pay the balance due on your account for the applicable Initial Term or Renewal Term, as the case may be, computed in accordance with the Charges and Payment of Fees section above. You agree that MobileMonkey may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees. MobileMonkey reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that MobileMonkey has no obligation to retain Customer Data or Customer Content and that such Customer Data and Customer Content may be irretrievably deleted if your account is 30 days or more delinquent.

Termination for Cause

Any breach of your payment or other material obligations or unauthorized use of the MobileMonkey Technology or Service will be deemed a material breach of this Agreement. Without limiting its ability to pursue other remedies, MobileMonkey, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement.

Warranty Disclaimer.

Neither MobileMonkey nor its licensors or suppliers makes any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services.

THE SERVICES AND CONTENT ARE PROVIDED BY MOBILEMONKEY (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

 

Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL MOBILEMONKEY (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO MOBILEMONKEY IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

Indemnity

To the fullest extent allowed by applicable law, You agree to indemnify and hold MobileMonkey, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).

Assignment

You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without MobileMonkey’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.

Choice of Law; Arbitration.

This Agreement shall be governed by Massachusetts law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Boston, Massachusetts. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Confirmation, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and MobileMonkey as a result of this Agreement or use of the Service. The failure of MobileMonkey to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by MobileMonkey in writing. This Agreement, together with any applicable Order Confirmation, comprises the entire agreement between you and MobileMonkey and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.  In the event that any of your Users are contractors to your organization, you agree that such contractors shall be required by written agreement to comply with all applicable restrictions set forth in this Agreement, and you shall be fully liable for and indemnify MobileMonkey with respect to any failure of any contractor to so comply.

Miscellaneous.

You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the MobileMonkey may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and MobileMonkey agree that these Terms are the complete and exclusive statement of the mutual understanding between you and MobileMonkey, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of MobileMonkey, and you do not have any authority of any kind to bind MobileMonkey in any respect whatsoever. You and MobileMonkey agree there are no third party beneficiaries intended under these Terms.