Master Service Agreement
Effective date: February 18, 2020
Welcome to MobileMonkey. MobileMonkey is an online platform that allows developers, individuals, companies, and agencies to easily build, host, and manage chatbots (i.e., on mobile and web sites, including Facebook Messenger), and provides short message service (“SMS”) products, features, services and transmissions. These are offered by MobileMonkey, Inc. (“MobileMonkey,” “we”, “us”, “our” and similar terms). Please read on to learn the rules and restrictions that govern any user’s (“you”, “your”, “yourself” and similar terms) use of any or all of our website(s), products, services, programs, portals, applications, programming interfaces (i.e., our API), and telecommunications services, as may be modified, enhanced and updated from time to time, in any and all media (individually and collectively, the “Services”). Unless otherwise specified herein for a particular type of Services (e.g., Facebook Messenger or SMS), whenever we mention the “Services” herein, we mean to refer to any or all of our Services.
Binding Contractual Terms and Conditions
These Terms, all incorporated documents and policies, along with any online order form or other order form (“Order Confirmation”) are a binding contract between you and MobileMonkey. You represent that you have all necessary power and authority to enter into these terms and bind yourself and/or any entity or organization that you are acting on behalf of. If you have any questions, comments, or concerns regarding these Terms or the Services, please contact us at firstname.lastname@example.org, 359 Newbury Street, 5th floor, Boston MA 02115.
“Customer Information” consists of data and other information made available to us by or for you through the use of the Services under these Terms. You agree that we have the right to use and disclose Customer Information as necessary to (a) provide the Services consistent with these Terms, including detecting, preventing, and investigating security incidents, fraud, spam, or unlawful use of the Services, and (b) respond to any technical problems or your queries and ensure the proper working of the Services. You warrant and represent to MobileMonkey that you have all rights, title, and interests necessary to provide such information to us and that your provision of the information to us does not infringe any third party’s proprietary or personal rights, including, but not limited to, any trademark, copyright, patent, or trade secret, or violate any applicable laws, rules or regulations. You acknowledge that chatbot messaging and SMS are an insecure medium and security of information transmitted through the Services can never be guaranteed and, accordingly, we are not responsible for any interception or interruption of any communications through the Services or for changes to or loss of Customer Information in connection with the Services.
Special Considerations for Chatbots on Facebook Messenger
Your use of the Services connected to Facebook Messenger is also governed by and subject to the Facebook Platform Policies (currently located at https://developers.facebook.com/policy) and Facebook Commerce Product Merchant Agreement (currently located at 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.
Special Considerations for SMS Services: Your Responsibility for Legal Compliance; Our Limited Responsibility
Legal and Other Compliance Issues
You are required to use the SMS Services in full compliance with all applicable laws, rules and regulations, including without limitation, all local, state, federal and foreign laws, rules and regulations. This includes but is not limited to the Telephone Consumer Protection Act, as amended (“TCPA”), the Federal Trade Commission rules, Federal Communications Commission rules, the National DNC list registry rules, and various other laws, rules and regulations which place restrictions on certain types of phone calls and text messages. Without limiting the foregoing, you agree to familiarize yourself with, and at all times comply with, all of the foregoing and any other relevant legal requirements triggered by any messages, calls, broadcasts, and campaigns transmitted through our SMS Services. You are solely responsible for all acts or omissions that occur under your account, including, without limitation, the content of the messages that you create and initiate through our Services. You understand that in some cases, applicable state and local restrictions are more restrictive than the federal rules. You should review any and all applicable laws, rules and regulations with your own legal counsel to ensure that you understand and comply. MobileMonkey will not assume responsibility for ensuring that your activities meet applicable legal requirements. MobileMonkey will not assume any liability if you are ever held guilty or found liable for any law violation. Also, in order to confirm your compliance with these Terms, we may, from time to time, periodically check the messages and broadcasts that you send.
You represent and warrant that the owners of the phone numbers you initiate messages or broadcasts to through our SMS Services have consented or otherwise opted-in to the receipt of such messages as required by any applicable law, rule or regulation. You agree that you will include clear opt-out/unsubscribe information in your messages or broadcasts when required to do so by any applicable law, rule or regulation, and that you will otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, if it is applicable to your messages.
You will not attempt to use our SMS Services to access or allow access to any so-called “Emergency Services.”
You represent and warrant that if you record or monitor SMS messages or other communications using the Services, then you will comply with all applicable laws prior to doing so and will secure all required prior consents to record or monitor communications using the Services. We make no representations or warranties with respect to recording or monitoring of SMS messages or other communications.
We are in no way attempting to interpret any laws, rules, or regulations. This information is provided merely as a courtesy, and it is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your messages and campaigns prior to using the SMS Services. You are ultimately responsible to make your own informed decisions regarding your messages and campaigns.
Availability; Routes; Networks; Timing
Our Services may or may not be available in all countries or regions of the world, may be available under different names in different countries, and, where applicable, may be approved or cleared by a government regulatory body for sale or use with different indications and restrictions in different countries.
We transmit messages initiated by you or sent to you by others through different routes, and the level of reliability and support for special features varies according to the route. You are responsible for obtaining and maintaining all computer hardware, software, and communications equipment needed to access the Services and for paying all access charges (e.g., Internet service provider, telecommunications) incurred while using the Services.
We only attempt to transmit messages to the applicable third party network. We are not responsible for the final delivery of any communication initiated through our SMS Services, as this is out of our control and is the responsibility of downstream communications carriers.
We transmit and receive messages via other major telecommunications companies and mobile network operators, and thus our influence over the timing of the transmission of your messages is only within the technical constraints imposed upon MobileMonkey. While we shall use commercially reasonable efforts to transmit your messages to the applicable network for final delivery to your designated recipients as fast as possible, we cannot commit to, and do not guarantee, a specific maximum delivery time. Such times depend on various network and system-related factors among the various entities involved in the transmission of your messages across the public switched telephone network and/or Internet. You should know that communications carriers assign messages with a default lifetime and any message that cannot be delivered successfully within the lifetime assigned to it will be discarded by the communications carrier without any notice. We are not liable for any loss incurred by the failure of a message to be delivered, and you acknowledge that damages for financial or other loss resulting from delivery failure cannot be claimed from MobileMonkey for any such non-deliveries. Furthermore, you agree that message contents are deemed to have zero value.
We reserve the right to reclaim any phone number from your account and to return that number to the relevant numbering plan if you do not send sufficient traffic over that phone number, such that the phone number is unutilized or underutilized, as defined by any local or federal regulatory agency and/or governmental organization with oversight over the relevant phone number and numbering plan. When reclaiming unutilized or underutilized phone numbers, we will notify you at least fourteen (14) days in advance, unless we are prevented from doing so by the relevant carrier regulatory agency or governmental organization.
We also reserve the right to reclaim phone numbers with no notice to you if your account is suspended for failure to pay or for suspected fraud, as well as if your free trial account is unutilized for more than thirty (30) days.
You acknowledge that MobileMonkey is the “customer of record” for all phone numbers provided as part of our Services. As the customer of record, we have certain rights with respect to porting phone numbers. You understand and agree that you may use the phone numbers provided as part of our Services subject to these Terms. Unless otherwise required by law, we reserve the right to refuse to allow you to port away any phone number in our sole discretion.
License Grant & Restrictions
Upon payment of the fees charged by us for your use of the Services, MobileMonkey hereby grants you a non-exclusive, non-transferable, limited, revocable, worldwide right to use the Services solely during the term for which you have paid for such Services, and solely for your own internal business purposes, subject to the terms and conditions of this Agreement. In the event that your Order Confirmation provided for a specific number of end-users of the Services (“Users”), your license to use the Services is limited to the specified number of Users. All rights not expressly granted to you are reserved by MobileMonkey and its parents, subsidiaries, affiliates and/or licensors. You may not access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or other competitive purposes. You will not reverse engineer, decompile, disassemble, derive, or otherwise create, attempt to derive or create, or assist anyone else to derive or create, the source code of any software provided in connection with our Services. You shall not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services, or the platform, software, technology, functionality, infrastructure, methods, know-how or other intellectual property included within or otherwise underlying such Services (“MobileMonkey Technology”), or any of the names, the logos, designs, copyrights, service marks, trademarks, trade dress, or other intellectual property used or associated with the Services (the “MobileMonkey Content”) in any way; (ii) modify or make derivative works based upon the Services, MobileMonkey Technology or the MobileMonkey Content; (iii) embed the Services as an “iframe” or “frame” from within another application; or (iv) reverse engineer or access the Services 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 Services, or (c) copy any ideas, features, functions or graphics of the Services. The Services 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 Services outside your organization is never allowed. The proper assignment of username and passwords for the Services 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 Services. You may use the Services 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 Services or the data contained therein, or MobileMonkey’s sites, servers or networks; (iii) attempt to gain unauthorized access to the Services or its related systems or networks; or (iv) take any action that imposes an unreasonably or disproportionately large load on MobileMonkey’s or its service providers’ infrastructure. MobileMonkey shall be entitled to adjust the scope of the Services and the underlying technical infrastructure to reflect the continuing development of the Services 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 (i) the MobileMonkey Technology, the MobileMonkey Content and the Services, including but not limited to any modifications, enhancements, improvements, applications, registrations, and derivative works thereof, (ii) any suggestions, ideas, requests, feedback, recommendations or other information provided by you or any other party relating to the Services, MobileMonkey Technology, and MobileMonkey Content, and (iii) any aggregated metrics, data, information, materials, and trends compiled by MobileMonkey (collectively, all of the foregoing in subclauses (i), (ii), and (iii) shall be defined herein as the “Intellectual Property Rights”). This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Intellectual Property Rights. You are not granted a license to use the Intellectual Property Rights except as otherwise specifically provided within the Order Confirmation or this Agreement. The websites connected to the Services 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 such sites belongs to MobileMonkey and/or its licensors under applicable copyright law.
Use of the Services
Subject to the terms and conditions of this Agreement, you are being granted a limited right to use our Services in commerce as a means to resell goods and services which you use or offer commercially (including, with respect to the chatbot Services, the right to build chatbots using the Services and sell and/or otherwise exploit and commercialize the chatbots you have built), with the exception of cases in which your product is materially similar or designed to compete directly with the Services offered by MobileMonkey.
You will only use the Services in a manner that complies with all laws that apply to you. 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 or any misuse of the Services. You will not share your account or password with anyone, and you must protect the security of your account and your password. You are responsible for any activity associated with your account.
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.
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 MobileMonkey, its parents, subsidiaries, affiliates, and licensors, and their respective directors, officers, employees, agents, and successors and assigns (“MobileMonkey Parties”), be liable for claims or for any damages therefrom, arising out of your dissemination of your location information together with your profile information through the Services.
We are not responsible for the views and opinions contained in any of your messages. We are transmitting them under the assumption that you are using the Services in accordance with these Terms. 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, transmit or use (hereinafter “post”) any unlawful, defamatory, abusive, obscene, profane, threatening, harassing, demeaning, immoral, harmful, vulgar, pornographic, 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 posted by you in any message or on any site, or 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 mislead others as to the identity of the sender of your messages by creating a false identity, impersonating the identity of someone/something else, or by providing contact details that do not belong to you.
- 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, transmit, or reproduce in any way any copyrighted material, trademarks, or other proprietary information, or information that may infringe upon the intellectual property rights or other rights of third parties (including rights of publicity), without obtaining the prior consent of the owner of such proprietary rights.
- You will not send unsolicited marketing messages or broadcasts (i.e., spam).
- You will not send any prohibited calls to life-line services, such as hospitals, fire, police, 911, or utility- related telephone numbers.
- You will not use strings of numbers, as it may be unlawful to engage two or more lines of a multi-line business.
- You will not harvest or otherwise collect information about others without their consent.
- You will not transmit any material that contains viruses, trojan horses, worms, time bombs, cancel-bots, or any other harmful or deleterious programs.
- You will not interfere with, or disrupt, networks connected to the Services or violate the regulations, policies, or procedures of such networks.
- You will not interfere with another’s use and enjoyment of our Services.
- You will not engage in any other activity that we believe could subject us to criminal or civil liability.
Responsibility & Liability
Any information or content publicly posted or privately transmitted through the Services by you or third parties and any chatbots or SMS messages created using the Services (collectively, the “Message Content”), are the sole responsibility of the person from whom such Message Content originated, and you use and access all such Message Content at your own risk, and the MobileMonkey Parties are not liable for any errors or omissions in that Message 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 Message Content or what actions you may take as a result of having been exposed to the Message Content, and you hereby release the MobileMonkey Parties from all liability for you having acquired or not acquired Message 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 Message 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.
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 the MobileMonkey Parties 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 the MobileMonkey Parties 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 the MobileMonkey Parties 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.”
MobileMonkey is continually adding new products and services to its offering and offers a variety of payment plan and options. The following describes the general payment terms, and you hereby consent to such terms:
- 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 account unless otherwise agreed to in writing.
- Services 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 Services plan selected plus any add-ons selected and or discounts applied.
- 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.
- Cancellation of a paid subscription must be made within 7 days of your billing date in order to stop payment for the next month of service.
You must provide MobileMonkey with a valid credit card as a condition to signing up for the Services. You hereby represent that you are authorized to provide any credit card you use to sign up for the Services. If the contact information you have provided is false or fraudulent, MobileMonkey reserves the right to terminate your access to the Services in addition to any other legal remedies. All invoices and payments to MobileMonkey will be in United States Dollars ($USD). 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.
MobileMonkey will automatically renew your monthly or annual subscription and bill your credit card or submit electronic invoices as mutually agreed upon.
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 Services 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 Services 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 this Agreement. 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 Services. You agree and acknowledge that MobileMonkey has no obligation to retain any data or content of its customers and that such data and/or 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 Intellectual Property Rights or Services 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 Services if you breach or otherwise fail to comply with this Agreement.
Warranty Disclaimer and Limitations of Liability
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. MobileMonkey will not be liable or responsible for failure or delay in fulfilling or performing its obligations if such failure or delay is caused by or results from causes beyond its reasonable control (including fires, floods, embargoes, shortages, epidemics, quarantines, acts of war (whether declared or not) or terrorism, insurrections, riots, civil commotion, failure of the internet, strikes, lockouts or other labor disturbances, acts of God or acts, omissions or delays of any governmental authority).
MOBILEMONKEY DISCLAIMS ALL WARRANTIES RELATED TO THIRD PARTY INTERNET AND/OR TELECOMMUNICATIONS PROVIDERS. MOBILEMONKEY WILL NOT BE LIABLE AND WILL HAVE NO OBLIGATION TO INDEMNIFY YOU FOR SENSITIVE DATA THAT YOU SEND OR THAT ANY END USER SENDS TO YOU.
NEITHER MOBILEMONKEY NOR ITS REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND YOU WILL HOLD US HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE THE SERVICES TO CONTACT ANY SO-CALLED EMERGENCY SERVICES. OUR OUTBOUND COMMUNICATIONS SERVICES SHOULD NOT BE USED FOR CONTACTING SUCH EMERGENCY SERVICES.
THE SERVICES AND ALL INTELLECTUAL PROPERTY RIGHTS 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.
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 THE 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.
To the fullest extent allowed by applicable law, you agree to indemnify and hold the MobileMonkey Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), costs, losses and expenses (including attorneys’ fees) arising from or in any way connected 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).
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; Dispute Resolution
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. Except for (a) small claims disputes in which we reserve the right to seek to bring an individual action in small claims court located in the applicable location of your billing address or (b) disputes in which we reserve the right to seek injunctive or other equitable relief for the alleged unlawful use of Intellectual Property Rights, you waive your rights to a jury trial and to have any dispute arising out of or related to this Agreement or our Services resolved in court. Instead, in the event of any dispute or disagreement related to this Agreement (a “Dispute”), upon the written request of either party, the parties will meet for the purpose of resolving such dispute. The parties agree to discuss the problem and negotiate in good faith without the necessity of any formal proceedings related thereto. No formal proceedings for the resolution of such dispute may be commenced until either party concludes in good faith that resolution through continued negotiation of the matter in issue does not appear likely. The parties further agree that all Disputes which cannot be settled in through such discussions will be settled by final and binding arbitration administered by JAMS pursuant to its Streamlined Arbitration Rules & Procedures. Judgement upon the award rendered in any such arbitration may be entered in any court having jurisdiction thereof, or application may be made to such court for a judicial acceptance of the award and enforcement, as the law of such jurisdiction may require or allow. The venue for the arbitration shall be in Boston, Massachusetts, unless otherwise mutually agreed to by the parties in writing. The arbitration panel will consist of a sole arbitrator. In the event the parties are unable to agree upon an arbitrator, either party may apply to a court of competent jurisdiction for the appointment thereof. No person may be appointed as an arbitrator unless he or she is independent of all parties, is skilled in the subject matter of the Dispute and is not directly or indirectly carrying on or involved in a business being carried on in competition with the businesses of the parties. The parties and arbitrators shall keep confidential all awards in the arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain, save and to the extent that disclosure may be required of a party or arbitrator by legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a court or other judicial authority. The parties hereto agree that any claims or controversies between us must be brought against each other on an individual basis only. That means neither you and your affiliates on one hand, nor MobileMonkey and its affiliates on the other hand, can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other MobileMonkey’s customers, and cannot be used to decide other disputes with other customers.
No text or information set forth on any other purchase order, preprinted form, electronic communication, or document (other than an Order Confirmation, if applicable) shall add to or vary the terms and conditions of this Agreement, unless otherwise mutually agreed in writing by the parties. 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 Services, 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 this Agreement. 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, and any policies, terms and conditions incorporated by reference, comprise the entire agreement between you and MobileMonkey and supersede 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. 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 MobileMonkey may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit.