Effective as of: February 1st, 2020
By accepting these Terms of Service (the “Terms” or “Agreement”), either by accessing or using an Application, or authorizing or permitting any agent or end-user to access or use an Application, You (the “Client”) agree to be bound by this Agreement between you and Billow Myndbend, Inc. (“Vendor”) as of the date of such access or use of the Application (the “Effective Date”). Client and Vendor may each be referred to herein as a “party” or collectively as the “parties”.
- Vendor is a provider of online applications (“Applications”) and Internet hosting services, as well as related technical support and consulting services, as described in Exhibit A and in your applicable Statement of Works (the “SOW”);
- Client desires to have Vendor provide the Applications and the hosting services and related technical support and other services (together, the “Cloud Service”); and
- The parties desire to agree upon the terms and conditions upon which the Cloud Service and the related services are provided.
1. Applications and Services
1.1. Applications. Vendor hereby grants to Client a nonexclusive, limited, non-transferable, worldwide, royalty-free right and license to access, use, display and perform the Applications during the Term. Notwithstanding the foregoing, nothing in this Agreement shall be construed as giving Client, its Affiliates and its and their contractors, any right to, and Client, its Affiliates and its and their contractors shall not, and shall not permit or assist any other party to, modify any of the Applications or otherwise make copies of all or part of the Applications onto any media, except as may be expressly and clearly permitted by this Agreement. Client, its Affiliates and its and their contractors agree that they shall not, and shall not permit or assist any other party to, disassemble, decompile or reverse engineer all or any part of the Applications. Except as expressly set forth herein, Client, its Affiliates and its and their contractors shall not use, duplicate, transfer, sell, distribute or otherwise disclose the Applications to any other party. Vendor shall own and retain all intellectual property rights in the Application and all back-end components and software code (both in compiled and source code form), that are proprietary to Vendor and/or incorporated by Vendor into the Applications; and any enhancements, modifications, or derivatives of any of the foregoing.
1.3. Cloud Service; Consulting Services. Vendor shall provide Client and its Affiliates the Cloud Service and certain consulting services (the “Consulting Services”) during the Term, as described in Exhibit A and the applicable SOW.
1.4. Client Data. Client hereby authorizes Vendor to access, use and display Client Data (as defined below) as requested by Client solely for the purpose of providing the Cloud Service under the terms of this Agreement for the benefit of Client and its Affiliates and for no other purpose of Vendor or of any other party. Nothing in this Agreement shall be construed as giving Vendor any right to, and Vendor shall not, and shall not permit or assist any other party to, modify any of the Client Data or otherwise make copies of all or part of the Client Data onto any media, except as may be expressly and clearly permitted by this Agreement. Except as expressly set forth herein, Vendor shall not use, duplicate, transfer, sell, distribute or otherwise disclose the Client Data to any other party. “Client Data” means data provided by Client or its Affiliates in any form, and data used, generated or stored in connection with Client’s and its Affiliates’ use of the Cloud Service. Client Data shall include Personal Information as defined below.
1.5. Reservation of Rights. Vendor shall be free at all times to use and employ its general skills, know-how, methodologies, algorithms, techniques and expertise relating to the Cloud Services, and the other activities undertaken by it in the course of this Agreement, provided that in doing so Vendor does not breach its obligations of confidentiality to Client under this Agreement. So long as the Vendor is in compliance with the provisions of this Agreement relating to the confidentiality of the Client Data, Client acknowledges and agrees that Vendor shall have the right to provide to third parties services that are the same or substantially similar to the Cloud Services, and to use or otherwise use any Vendor materials in providing such services.
1.6. Competitors. Client may not use our Services if you are a direct competitor of the Vendor, except with Vendor's prior written consent. Client may not use the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes.
1.7. Free Trial. If the Client registers for a free trial for any of the Services and provided such option is made available by Vendor, Vendor will make the Services available to Client on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Client registered for; (b) the start date of any subscription to the Services purchased by Client; (c) termination of the trial by Vendor in Vendor’s sole discretion.
2.Term and Termination
2.1. Term. This Agreement shall commence upon the Effective Date hereof and, unless otherwise terminated in accordance with the terms of this Agreement, shall remain in full force and effect for an undetermined amount of time and will remain in effect for as long as Client is paying for Cloud Service hereunder (the “Term”).
2.2. Termination for Convenience. Either party may terminate this Agreement at any time upon 30 days’ prior written notice to the other party. In such event, Client’s sole obligation and liability to Vendor shall be to pay a prorated amount of any unpaid fees specified in the SOW based on use of the Cloud Service up to the date of termination. Vendor shall promptly refund to Client any prepaid fees above that amount.
2.3. Termination for Cause. Either party may terminate this Agreement if the other party is in breach of this Agreement and fails to cure such breach within 15 days after the non-breaching party provides notice of the breach. Either party also may terminate this Agreement immediately upon notice if the other party (a) is liquidated, dissolved, or adjudged to be in a state of bankruptcy or receivership, (b) is insolvent, unable to pay its debts as they become due, makes an assignment to or for the benefit of its creditors or takes advantage of any law for the benefit of debtors, (c) ceases to conduct business for any reason on an ongoing basis leaving no successor in interest, or (d) enters into a contract for the sale of more than 50% of its business or assets or a contract related to a merger or consolidation of its business, or transfers control of any portion of its business or assets, and the party has reasonable grounds for insecurity with respect to such anticipated acquirer’s or successor’s performance or ability to perform or compliance or ability to comply with the other party’s obligations under this Agreement. If Client terminates hereunder, Vendor shall promptly provide to Client a refund of any prepaid fees, prorated from the date of termination. If Vendor terminates hereunder, Client shall promptly pay Vendor all fees due until the end of the original Term.
3. Fees and Payment
3.1. Invoices. Vendor shall invoice Client for the fees for the Cloud Service according to the pricing set forth in the SOW. All invoices and payments shall be in United States Dollars.
3.2. Taxes. Client shall pay all sales and use taxes (excluding any franchise taxes or taxes based on Vendor’s net income or property) assessed by any governmental authority with respect to the transactions contemplated by this Agreement. All such taxes shall be separately stated on the invoices issued by Vendor to Client.
3.3. Payment. Client shall remit payment for the Cloud Service provided under this Agreement at the due date of each Vendor’s invoice. If Client pays by credit card, debit card, or other payment service, Client hereby authorizes Vendor to bill Client’s credit card or other payment service in advance on a periodic basis in accordance with the SOW. Client agrees to promptly update its account information with any changes that may occur. Vendor uses a third-party intermediary to manage credit card processing and does not store, log, or host payment card data.
3.4 No Refund for Downgrade. No refunds or credits for subscription charges or other fees or payments will be provided to Client if Client elects to downgrade its service plan. Downgrading a service plan may cause loss of content, features, or capacity of the Services as available to Client under its account, and Vendor does not accept any liability for such loss.
Vendor shall be entitled to use or engage consultants or independent contractors (“Subcontractors”) to provide any of the services hereunder.
Insurance. Vendor shall, at its sole expense, throughout the performance of its services pursuant to the Agreement, maintain commercial general liability insurance and applicable Technology, Cyber, Data Risk, and Media Insurance.
6. Confidentiality; Security; Privacy;
6.1. Confidential Information. Either party or any of its Affiliates may, during the course of its provision of the Cloud Service hereunder, have access to, and acquire knowledge (the “Receiving Party”) from discussions with the other party or any of its Affiliates (the “Disclosing Party”) and from material, data, systems and other information of or with respect to the Disclosing Party which may not be accessible or known to the general public, including, but not limited to, any Client Data, information concerning hardware, software, designs, drawings, specifications, techniques, processes, procedures, data, research, development, future projects, products or services, projects, products or services under consideration, content under development, business plans or opportunities, business strategies, contracts, relationships, finances, costs, vendors, customers or employees and other third party proprietary or confidential information that the Disclosing Party treats as confidential (“Confidential Information”). The Receiving Party shall treat the existence of this Agreement and the provision of the Cloud Service hereunder as Confidential Information. All Confidential Information and any knowledge acquired by the Receiving Party from any discussions, materials, data, systems, information or otherwise through its engagement hereunder shall be held in confidence and shall not be used by the Receiving Party other than for the limited purposes provided under this Agreement (including disclosure to third parties at the direction of the Disclosing Party of information specifically approved for disclosure to such parties by the Disclosing Party) or used, published or divulged by the Receiving Party in connection with any products sold or services rendered by the Receiving Party to any other person, firm or corporation, in any advertising or promotion regarding the Receiving Party or its products or services, or in any other manner or connection whatsoever without first having obtained the written permission of an officer of the Disclosing Party (Vice President or higher), which permission may be withheld by the Disclosing Party in its sole discretion.
6.2. Limitation on Disclosure. The Receiving Party further agrees to limit disclosure of the Confidential Information to those of its employees and Subcontractors who have a need to know the information to effect the use permitted herein. The Receiving Party agrees to protect the Confidential Information with the same degree of care normally used to protect its own similar confidential information, but in no event less than that degree of care as may be reasonably necessary to prevent any Confidential Information from being disclosed or used for other than the purpose specified in this Agreement.
6.3. Ownership of Confidential Information. All rights in and title to the Confidential Information supplied by the Disclosing Party or an Affiliate, shall remain in that party. Neither the execution and delivery of this Agreement, nor the furnishing of any Confidential Information shall be construed as granting to the Receiving Party either expressly, by implication, estoppel or otherwise, any license under any invention, copyright, trade secret or patent now or hereafter owned or controlled by the party furnishing the same, nor any right to use, sell, develop, exploit or copy the Confidential Information made available to the Receiving Party, except to fulfill the purpose of this Agreement.
6.4. Return of Confidential Information. The Receiving Party agrees that, unless earlier returned, any Confidential Information disclosed to it and all copies thereof shall be returned to the Disclosing Party promptly following the Disclosing Party’s written demand therefor or at the completion of the use by the Receiving Party permitted herein. In the event of termination or expiration of this Agreement, the Receiving Party shall, within 14 days following the date of termination or expiration, provide to the Disclosing Party all Confidential Information in a commercially standard database export format, together with a certification by an officer of the Receiving Party that all Confidential Information has been removed from the Receiving Party’s systems.
6.5. Exclusions. Confidential Information shall not include any information that: (a) has entered or subsequently enters the public domain without the Receiving Party’s breach of any obligation under this Agreement, (b) was known to the Receiving Party prior to the Disclosing Party’s or an Affiliate’s disclosure of such information to the Receiving Party, (c) is obtained from a third party without violation of an obligation of nondisclosure and without restrictions on its disclosure, or (d) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s or its Affiliates’ Confidential Information.
6.6. Export Restriction. The Receiving Party agrees not to export, directly or indirectly, any technical data acquired from the Disclosing Party or an Affiliate hereunder or any product utilizing any such data to any country for which the U.S. Government or any agency of the U.S. Government at the time of export requires an export license or other governmental approval, without first obtaining such license or approval.
6.7. Information Request. Upon receipt by the Receiving Party of any request, demand, notice, subpoena, order or other legal information request relating to legal proceedings or investigations by third parties relating to Confidential Information (each a “Legal Information Request”), the Receiving Party shall immediately notify the Disclosing Party and provide the Disclosing Party with a copy of all documentation of such Legal Information Request, to the extent the Receiving Party may legally do so, and shall cooperate with the Disclosing Party in responding to such Legal Information Request. the Receiving Party and any Subcontractor shall not disclose any Confidential Information to any such third party without advance consent from the Disclosing Party, or until the Disclosing Party has had a reasonable opportunity to contest the Legal Information Request or, if the Receiving Party or such Subcontractor is legally prohibited from informing the Disclosing Party of such Legal Information Request prior to disclosure, the Receiving Party or such Subcontractor shall resist such Legal Information Request on behalf of the Disclosing Party to the extent it can reasonably do so. In any event, the Receiving Party or any Subcontractor must notify the Disclosing Party of any such Legal Information Request at the earliest time it is not legally prohibited from doing so.
6.8. Security. In performing its services for Client, the Vendor will undertake commercially reasonable efforts to comply with the Vendor’s Information Security Program, as amended, which may be provided to Client upon written request to the Vendor.
7. Indemnification; Disclaimer; Limitation of Liability
7.1. By Vendor. Vendor, at its own expense, shall defend, indemnify and hold Client, its Affiliates and each of their officers, directors, employees, agents, successors and assigns harmless from and against all suits, claims, demands, penalties, fines, charges, proceedings, causes of action, damages, losses, liabilities, costs and expenses of any nature whatsoever (including attorneys’ fees) (“Losses”), that result from or arise out of the actual or alleged misappropriation or infringement of any Intellectual Property Rights in connection with the Cloud Service.
7.2. By Client. Client agrees to indemnify, defend and hold harmless Vendor, its officers, directors, and employees, from and against any and all Losses, to the extent arising out of a third party claim that: (i) arises out of the gross negligence or willful misconduct of Client; (ii) results from breach by Client of this Agreement including without limitation, its representations, warranties or covenants; (iii) results from Client’s use of the services and Applications under this Agreement; and (iv) any violation of applicable foreign, provincial, federal, state or local laws, rules or regulations; and (v) any violation of any third party rights, contracts or licenses.
7.3. Disclaimer of Warranties. The Cloud Services and the Applications are provided to Client "as is." Except as expressly set forth herein, Vendor expressly disclaims all warranties, express, implied or statutory, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, and non-infringement, and any warranties arising out of course of dealing, usage, or trade. Vendor does not warrant that the Cloud Services will meet Client's requirements or that the operation of the Cloud Services will be error-free or uninterrupted. Vendor shall not be liable to Client or any third party for any unavailability or inoperability of the Cloud Services, telecommunications systems or the Internet, third party subcontractors, technical malfunction, failure of third party software used to provide the Cloud Services, computer error, corruption or loss of information, or other injury, damage or disruption of any kind beyond the reasonable control of Vendor. Vendor makes no representations or warranties with respect to any third party licensed products, services, or web sites.
7.4 Limitation of Liability. In no event will Vendor be liable to Client, its Affiliates and each of their officers, directors, employees, agents, successors and assigns, for (i) any special, indirect, incidental or consequential damages (including without limitation, loss of use, data, business or profits or costs of cover) arising out of or in connection with this Agreement whether such liability arises from any claim based upon contract, warranty, tort (including negligence), product liability or otherwise, and whether or not such party has been advised of the possibility of such loss or damage; (ii) any damages or Losses relating to the functioning of any applications provided by third parties, including, without limitation, such applications provided by Zendesk, Inc., Hootsuite, Inc. or their affiliates. Vendor’s cumulative liability to Client or any third party, from all causes of action and all theories of liability, will be limited to and will not exceed the fees paid to Vendor under this Agreement in the twelve (12) months preceding the claim.
This Agreement is not transferable or assignable by either party, whether in whole or in part, voluntarily or by merger, consolidation or sale, or otherwise by operation of law without the prior written consent of the other party; provided that Vendor may assign the Agreement to a parent, majority or minority owned affiliate, and provided further that Vendor may assign this Agreement to any entity that acquires all or substantially all of its assets or upon any other event of merger, consolidation or change of control. Subject to the foregoing, this Agreement and each and every provision hereof, shall be binding upon and shall inure to the benefit of the parties and their respective permitted successors and assigns.
If approved in writing by Client, Vendor may use, the name of the Client or any of its Affiliates in any advertising, publicity or promotion or other disclosure.
10.1. Notices. Any notice or other communication required or permitted to be given hereunder shall be given in writing and delivered in person, mailed or delivered by recognized courier service, properly addressed and stamped with the required postage, to the intended recipient at its address specified below and shall be deemed effective upon receipt. Either party may from time to time change its address by giving the other party notice of the change in accordance with this Section 10.1:
If to Client: To Client’s address, as described in the applicable SOW
If to Vendor: Billow Myndbend, Inc.
PO Box 150306
Brooklyn, New York 11215
10.2. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future law effective during the Term, such provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision never comprised a part hereof, and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance here from.
10.3. Waivers. Waivers, to be binding, must be made by writing, referring to this Agreement and signed by the party whose right is waived. No waiver of the terms of this Agreement or failure by either party to exercise any option, right or privilege on any occasion or through a course of dealing shall be construed to be a waiver of the same on any other occasion.
10.4. Headings. The section headings used in this Agreement are provided solely for reference and the convenience of the parties, form no part of this Agreement and shall not affect its interpretation.
10.5. Disputes. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach hereof, shall be referred to senior management of the parties for good faith discussion and resolution. If any dispute, controversy, or claim cannot be resolved by such good faith discussion between the parties, then each shall have all remedies available to them at law and in equity.
10.6. Governing Law. The laws of the State of New York and the laws of the United States shall govern the interpretation and enforcement of this Agreement, without giving effect to principles of conflicts of law. The provisions of the United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act, however designated, are excluded and shall not apply to this Agreement or any transactions hereunder. Any action or proceeding brought by either party against the other party arising out of or related to this Agreement shall be brought exclusively in a state or federal court of competent jurisdiction located in New York City, New York. Notwithstanding any of the foregoing, the Parties will undertake reasonable efforts to solve any disputes in an amicable manner. THE PARTIES HEREBY WAIVE TRIAL BY JURY WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING.
10.7. Remedies. No remedy herein conferred is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise.
10.8. Independence. Vendor is an independent contractor and nothing herein shall be construed to create a partnership, employment, agency, or other joint venture relationship between Vendor and Client.
10.9. Entire Agreement. This Agreement, the Vendor’s online documents found at myndbend.com and the exhibits attached hereto constitute the entire agreement of the parties as to the subject matter covered herein and supersede all prior oral or written agreements, proposals, understandings, representations, conditions and promises relating thereto and any shrink-wrap, click license or web-posted terms and conditions (whether made available before, on or after the date hereof). In the event of a conflict between the terms and conditions of this Agreement (without exhibits) and the terms of the exhibits, the terms and conditions of this Agreement (without exhibits) shall govern. This Agreement may not be modified or amended except by a written instrument referring to this Agreement and signed on behalf of both parties.
10.10. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
10.11. Force Majeure/Failure of Suppliers. Neither party shall be in breach of this Agreement or responsible for damages caused by delay or failure to perform, in full or in part, its obligations hereunder, provided that there is due diligence in attempted performance under the circumstances and that such delay or failure is due to fire, earthquake, unusually severe weather, strikes, government sanctioned embargo, flood, act of God, act of war or terrorism, act of any public authority or sovereign government, civil disorder, delay or destruction caused by public carrier, or any other circumstance reasonably beyond the control of the party to be charged. Vendor shall endeavor to guard against any loss to Client as the result of the failure of third party suppliers to properly execute their commitments, but Vendor shall not be responsible for any such failure under any circumstance.
10.12. Exhibits. Exhibits A and the SOW are incorporated into this Agreement wherever referenced.
10.13. Survival. Sections 1.3, 2, 4, 5, 6, 7, 8, 9 and 10 shall survive termination or expiration of this Agreement.
Applications and Hosting Services; Technical Support and Other Services
Description of Applications
- 1.1 Applications. "Myndbend Process Manager", "Myndbend Ticket Reminder", "Myndbend Article Search and Subscribe" installed from the Zendesk Marketplace; "Zendesk Pro" app for Hootsuite found in the Hootsuite marketplace.
- 1.2 Documentation The Application(s) shall perform all functions and include all features described in Vendor's online documentation for the Application(s), as described in the articles found in the Vendor's help center.
Description of Hosting Services
2.1. Hosting Services. Vendor will be responsible for installing, hosting, operating, maintaining and securing the Applications and the Client Data. Hosting services shall include the following services:
(a) Ensure that Client has on-line access to the Applications.
(b) Provide reasonable routine monitoring and corrective action.
(c) Implement routine back-up procedures.
(d) Implement recovery procedures.
(e) Provide helpdesk support and other technical support as set forth in this Exhibit to assist Client with the optimal operation of the Applications.
(f) Install and maintain appropriate IT security measures for the Applications.
(g) Maintain the Applications and network infrastructure in a manner that is designed to prevent unauthorized modification of Client Data or the Data Center and unauthorized disruption of the Applications, and designed to protect the privacy of Client Data.
(h) Implement a token-based access control system and/or other mutually agreed upon security mechanisms designed to prevent unauthorized access to the Client server environment, and evolve the environment as required to address ongoing security needs and threats as these may evolve from time to time.
- Description of Consulting Services. Vendor shall provide the consulting services described in the applicable SOW.
Technical Support and Other Services
1. Technical Support Services
1.1. Error Correction. Vendor will undertake reasonable commercial efforts to respond to errors or failures of the Applications (“Errors”) within the Error Response Times set forth below and resolve or correct the Errors within the Error Resolution Times set forth below. Vendor, in its reasonable judgment, will determine the priority level of Errors. For avoidance of doubt, Vendor shall in no manner be liable for any failure to comply with any Target Error Resolution Time set out below.
|Priority Level||Definition||Error Response Time||Target Error Resolution Time|
|1 Critical||An event and/or problem that has a significant business impact, or an immediate severe impact to a core business process. The event and/or problem may render the Myndbend application non-functional.||4 hours||24 hours|
|2 High||An event and/or problem that has a major business impact to our customer. The event and/or problem may severely limit the operations of the Myndbend application.||8 hours||48 hours|
|3 Medium||An event and/or problem that disrupts the operations of the application. A workaround is available and use of the Myndbend application can continue.||1 day||Next maintenance release|
|4 Low||An event and/or problem that has limited business impact, is not critical in nature, or does not have any significant impact to the users.||1 day||
Release identified by Vendor
“Maintenance Release” means a subsequent version of an Application that includes Error corrections and/or upgrades. Vendor will use commercially reasonable efforts to provide Maintenance Releases not less than four times per year.
1.2. Telephone and E-Mail Support. Throughout the term of this Agreement, Vendor shall provide the following minimum levels of telephone and e-mail support to Client:
- Telephone and e-mail consultation services, including problem solving, bug reporting, documentation clarification and technical guidance for the Cloud Service. Vendor will assist Client in identifying, verifying and attempting to resolve problems in the Cloud Service. Telephone and e-mail consultations will be available during the hours of 9 a.m. to 5 p.m. Eastern Time, Monday through Friday.
- Priority processing of technical assistance requests.
1.3. Back-Up and Recovery Requirements. Vendor shall perform the regular back-up services with respect to all Client Data stored in connection with Client’s use of the Cloud Service.
1.4. Maintenance Windows. Vendor shall establish maintenance windows during which time Vendor may take down the Cloud Service to conduct routine maintenance checks. Vendor may change its maintenance window without notice to Client.
(End of Exhibit A)