Last Updated: June 30th, 2023
We have replaced Our Terms of Service with this Master Subscription Agreement (“Agreement”). For the previous version of Our Terms of Service, please click here.
THIS AGREEMENT IS A BINDING CONTRACT AND GOVERNS THE USE OF AND ACCESS TO THE SERVICES BY YOU, AGENTS AND END-USERS WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION OR FREE TRIAL FOR THE SERVICES.
By clicking a box indicating your accepting this Agreement, by accessing or using a Service, or by authorizing or permitting any Agent or End-User to access or use a Service, You agree to be bound by this Agreement between you and Billow Myndbend, Inc. (“Myndbend,” “Vendor,” “We,” “Our,” and “Us”) as of the date of such access or use of the Service, however if you are an existing Subscriber who has agreed to our previous Terms of Service, this Agreement goes into effect on the date you accept this updated Agreement (the “Effective Date”). If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Myndbend that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Subscriber,” “Client,” “You,” or “Your” herein refers to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not use or authorize any use of the Services. Subscriber and Myndbend shall each be referred to as a “Party” and collectively referred to as the “Parties” for purposes of this Agreement.
In the event of any inconsistency or conflict between the terms of the Master Subscription Agreement and the terms of any Service Order or Statement of Work, the terms of the Service Order or Statement of Work shall control and any unaffected provision of the Master Subscription Agreement shall continue in full force and effect.
Table of Contents:
- Access to the Services
- Use of the Services
- Term, Cancellation and Termination
- Billing, Plan Modification and Payments
- Confidential Information
- Temporary Suspension
- Free Trials
- Intellectual Property Rights
- Representations, Warranties and Disclaimers
- Limitation of Liability
- Assignment, Entire Agreement and Amendment
- Export Compliance and Use Restrictions
- Relationship of the Parties
- Governing Law
- Federal Government End Use Provisions
SECTION 1. ACCESS TO THE SERVICES
1.1 Services. Vendor is a provider of online applications and Internet hosting services (“Software”), as well as related technical support and Professional Services, as described in Exhibit A and in your applicable SOW (collectively referred to as the “Services.”) We will make the Services and Your Service Data available to You pursuant to this Agreement and the applicable Service Order(s) and Documentation in accordance with Your Service Plan. We will use commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week, except during (a) Planned Downtime (of which We will give advance notice via Our Site or to the Account owner); and (b) Force Majeure Events.
1.2 Support. We will, at no additional charge, provide You standard technical and customer support for the Services as detailed in Exhibit A and on the applicable Site and Documentation. We will provide You upgraded support if purchased.
1.3 Professional Services. Upon Your request, We may provide Professional Services subject to the terms and conditions as described in the applicable SOW.
1.4 Modifications. You acknowledge that Myndbend may modify the features and functionality of the Services during the Subscription Term. Myndbend shall provide You with thirty (30) days’ advance notice of any deprecation of any material feature or functionality.
1.6 Extension of Rights to Affiliates. You may extend Your rights, benefits and protections provided herein to Your Affiliates and to contractors or service providers acting on Your or Your Affiliates’ behalf, provided that You remain responsible for Your and their compliance hereunder.
SECTION 2. USE OF THE SERVICES
2.1 Login Management. Access to and use of certain Services is restricted, such as to the specified number of individual Agents permitted under Your subscription to the applicable Service, and as detailed in the Documentation. For Services that are Agent-based, You agree and acknowledge that an Agent Login cannot be shared or used by more than one (1) individual per Account. However, Agent Logins may be reassigned to new individuals replacing former individuals who no longer require ongoing use of the Services. You and Your Agents are responsible for maintaining the confidentiality of all Agent Login information for Your Account. Absent a written license from Myndbend expressly stating otherwise, You agree and acknowledge that You may not use the Services, including but not limited to the API, to circumvent the requirement for an individual Agent Login for each individual who (a) leverages the Services to interact with End-Users; (b) Processes data related to interactions with End-Users; or (c) Processes data related to interactions originating from a Non-Myndbend Service that provides functionality similar to functionality provided by the Services and which would, pursuant to this Agreement, require an individual Agent Login, if utilizing the Services for such interaction. Further, Subscriber shall not use the API or any Software in such a way to circumvent applicable Service Plan restrictions or Agent licensing restrictions that are enforced in the Service user interface. Myndbend reserves the right to charge You, and You hereby agree to pay, for any overuse of a Service in violation of this Agreement or the Service Plan features and limitations on Our Site or Documentation, in addition to other remedies available to Us.
2.2 Compliance. As between You and Myndbend, You are responsible for compliance with the provisions of this Agreement by Agents and End-Users and for any and all activities that occur under Your Account, which Myndbend may verify from time to time. Without limiting the foregoing, You will ensure that Your use of the Services is compliant with all applicable laws and regulations as well as any and all privacy notices, agreements or other obligations You may maintain or enter into with Agents or End-Users.
2.3 Content and Conduct. In Your use of the Services You agree not to (a) modify, adapt or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (b) attempt to bypass or break any security or rate limiting mechanism on any of the Services or use the Services in any manner that interferes with or disrupts the integrity, security or performance of the Services and its components; (c) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; or (d) to the extent You are subject to the U.S. Health Insurance Portability and Accountability Act of 1996, and its implementing regulations (HIPAA), use the Services to store or transmit any “protected health information” as defined by HIPAA, unless expressly agreed to otherwise in writing by Myndbend.
2.4 System Requirements. A high-speed Internet connection is required for proper transmission of the Services. You are responsible for procuring and maintaining the network connections that connect Your network to the Services including, but not limited to, browser software that supports protocols used by Myndbend, including the Transport Layer Security (TLS) protocol or other protocols accepted by Myndbend, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Agents or End-Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Myndbend. We assume no responsibility for the reliability or performance of any connections as described in this Section.
2.5 Internal Business Purposes Only. Unless otherwise authorized by Myndbend in this Agreement or expressly agreed to otherwise in writing by Myndbend, You may not use the Services in any manner where You act as a service bureau or to provide any outsourced business process services on behalf of more than one (1) third party (other than Affiliates) through a single Account. This provision is not intended to prevent or inhibit the use of the Services to provide business support to multiple End-Users; however, You agree not to license, sublicense, sell, outsource, rent, lease, transfer, assign, distribute, time-share or otherwise commercially exploit or resell the Services to any third party, other than authorized Agents and End-Users in furtherance of Your internal business purposes as expressly permitted by this Agreement, unless expressly agreed to otherwise in writing by Myndbend. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by Myndbend from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in accordance with this Agreement.
2.6 No Competitive Access. You may not access the Services for competitive purposes or if You are a competitor of Myndbend.
SECTION 3. TERM, CANCELLATION AND TERMINATION
3.1 Term. Unless Your Account and subscription to a Service are terminated in accordance with this Agreement or the applicable Service Order or SOW (a) Your subscription to a Service will renew for a Subscription Term equivalent in length to the then-expiring Subscription Term; and (b) the Subscription Charges applicable to any subsequent Subscription Term shall be Our standard Subscription Charges for the applicable Service at the time of such renewal.
3.2 Termination for Convenience. You may terminate this Agreement at any time upon 30 days’ prior written notice to Myndbend, in accordance with Section 16.
3.3 Mutual Termination for Cause. A Party may terminate this Agreement for cause (a) upon written notice to the other Party of a material breach by the other Party if such breach remains uncured after thirty (30) days from the date of receipt of such notice; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. However, We may immediately terminate this Agreement for cause without notice if You violate Section 2.1, 2.3 or 2.5, in our sole discretion. We will refund any prepaid fees covering the remainder of the Subscription Term as of the effective date of termination if this Agreement is terminated by You in accordance with this Section for Myndbend’s uncured material breach.
You must pay any unpaid fees covering the remainder of the Subscription Term pursuant to all applicable Service Order if We terminate this Agreement for Your material breach in accordance with this Section. In no event will Our termination for cause relieve You of Your obligation to pay any fees payable to Us for the period prior to termination.
3.4 Payment Upon Termination. Except for Your termination under Section 3.3, if You terminate Your subscription to a Service or cancel Your Account prior to the end of Your then-effective Subscription Term, in addition to any other amounts You may owe Myndbend, You must immediately pay any and all unpaid Subscription Charges associated with the remainder of such Subscription Term.
3.5 No Refunds. Except for Your termination rights under Section 3.3, no refunds or credits for Subscription Charges or other fees or payments will be provided if You terminate a subscription to a Service or cancel Your Account prior to the end of a Subscription Term.
3.6 Export of Service Data. Upon Your written request, We will make Service Data available to You for export or download as provided in the Documentation for thirty (30) days after the effective date of termination, expiration or migration of Your Account, unless We have suspended or terminated Your Account due to Your breach of the Agreement, in which case Your Service Data will be available for download until We notify You of such suspension or termination. Thereafter, We will have no obligation to maintain or provide any Service Data and We will delete Your Service Data in accordance with Our Service Data Deletion Policy available on Our Agreements and Terms Website unless prohibited by law or legal order.
SECTION 4. BILLING, PLAN MODIFICATIONS AND PAYMENTS
4.1 Payment and Billing. Unless otherwise expressly set forth in this Agreement, a Service Order, a Statement of Work, or as otherwise agreed for Usage Charges, all Subscription Charges are due in full upon commencement of Your Subscription Term. You are responsible for providing valid and current payment information and You agree to promptly update your Account information, including payment information, with any changes that may occur (for example, a change in Your billing address or credit card expiration date). If You fail to pay Your Subscription Charges or any other charges indicated on any Service Order or Statement of Work within five (5) days of Our notice to You that payment is delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend access to and use of the Services by You, Agents and End-Users.
4.2 Upgrades. If You choose to upgrade Your Service Plan or increase the number of Agents authorized to access and use a Service during Your Subscription Term, any incremental Subscription Charges associated with such upgrade will be charged in accordance with the remaining Subscription Term. In any subsequent Subscription Term, Your Subscription Charges will reflect any such upgrades.
4.3 Downgrades. You may not downgrade Your Service Plan or reduce the number of Agents during any Subscription Term. If You desire to downgrade Your Service Plan or reduce the number of Agents under any Service Plan for a subsequent Subscription Term, You must provide Myndbend with thirty (30) days written notice prior to the end of Your then current Subscription Term. You must demote any downgraded Agents prior to the beginning of the subsequent Subscription Term. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and Myndbend is not responsible for such loss.
4.4 Taxes. Unless otherwise stated, Our charges do not include any Taxes. You are responsible for paying Taxes assessed in connection with Your subscription to the Services except those assessable against the Myndbend measured by its net income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced. We agree to exempt You from any taxes for which You provide to Us a tax exemption certificate; provided, however, that no such exemption shall be extended to You following written notice to Us from a taxing authority of appropriate jurisdiction that You do not qualify for the claimed exemption.
4.5 Payment Agent. If You pay by credit card or certain other payment instruments, the Services provide an interface for the Account owner to change credit card information (e.g., upon card renewal). Payments made by credit card, debit card or certain other payment instruments for the Myndbend Service are billed and processed by Myndbend’s Payment Agent. You hereby authorize the Payment Agent to bill Your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Service Plan for the Services until Your subscription to the Services terminates, and You further agree to pay any Subscription Charges so incurred. If applicable, You hereby authorize Myndbend and the Payment Agent to charge Your credit card or other payment instrument to establish prepaid credit. The Account owner will receive a receipt upon each acceptance of payment by the Payment Agent, or they may obtain a receipt from within the Services to track subscription status. To the extent the Payment Agent is not Myndbend, the Payment Agent is acting solely as a billing and processing agent for and on behalf of Myndbend and shall not be construed to be providing the applicable Service. The Payment Agent uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for the Payment Agent.
4.6 Payment Portals. If You mandate Myndbend use a vendor payment portal or compliance portal that charges Myndbend a subscription fee or a percentage of any uploaded invoice as a required cost of doing business, You shall be invoiced by Myndbend for, and You are obligated to pay, the cost of this fee.
SECTION 5. CONFIDENTIAL INFORMATION
5.1 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 Service 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”). 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.
5.2. 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.
5.3. 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.
5.4. 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.
5.5. 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.
5.6. 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.
5.7. 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.
5.8. Security. In performing its services for Client, the Vendor will maintain commercially reasonable and appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data to comply with the Vendor’s Information Security Program, as amended, which may be provided to Client upon written request to the Vendor.
SECTION 6. TEMPORARY SUSPENSION
We reserve the right to restrict functionalities or suspend the Services (or any part thereof), Your Account or Your and/or Agents’ or End-Users’ rights to access and use the Services and remove, disable or quarantine any Service Data or other content if (a) We reasonably believe that You, Agents or End-Users have violated this Agreement; or (b) We suspect or detect any Malicious Software connected to Your Account or use of a Service by You, Agents or End-Users. This right includes the removal or disablement of Service Data or other content in accordance with Our DCMA Notice pursuant to Section 8 “Intellectual Property Rights.” We also reserve the right to immediately suspend Your Account for Your violation of the Myndbend User Content and Conduct Policy. Unless legally prohibited from doing so or where We are legally required to take immediate action, We will use commercially reasonable efforts to contact You via email to notify You when taking any of the foregoing actions. We shall not be liable to You, Agents, End-Users or any other third party for any modification, suspension or discontinuation of Your rights to access and use the Services. We may refer any suspected fraudulent, abusive, or illegal activity by You, Agents or End-Users to law enforcement authorities at Our sole discretion.
SECTION 7. FREE TRIALS
If You register for a free trial for any of the Services and provided such option is made available by Myndbend, We will make the Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered for; (b) the start date of any Subscription Term for the Services purchased by Client; (c) termination of the trial by Myndbend, at our sole discretion.
SECTION 8. INTELLECTUAL PROPERTY RIGHTS
8.1 Intellectual Property Rights. Each Party shall retain all rights, title and interest in any of its respective Intellectual Property Rights. The rights granted to You, Agents and End-Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or in any Intellectual Property Rights of Myndbend associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all hardware, Software and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with Myndbend and belong exclusively to Myndbend.
8.2 Feedback. Myndbend shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback regarding the Services that We receive from You, Agents, End-Users, or other third parties acting on Your behalf. Myndbend also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by suggestions, enhancement requests, recommendations or other feedback regarding the Services that We receive from You, Agents, End-Users, or other third parties acting on Your behalf.
8.3 Use of Myndbend Marks. Myndbend and other Myndbend logos, designs, graphics, icons, scripts and service names are trademarks or trade dress of Myndbend in the United States and/or other countries (collectively, the “Myndbend Marks”). You may not use any of the Myndbend Marks unless you have a written agreement with Myndbend that contains a license or permission to use the Myndbend Marks.
8.4 Ownership of Service Data. Subscriber shall retain ownership rights, including all Intellectual Property Rights, to all Service Data Processed under the terms of this Agreement.
8.5 DMCA Complaints. Myndbend respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Myndbend of your infringement claim in accordance with the procedure set forth below. Myndbend will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Myndbend Copyright Agent at [firstname.lastname@example.org] (Subject line: “DMCA Takedown Request”). To be effective, the notification must be in writing and contain the following information:
(1) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; and
(2) A description of the copyrighted work or other intellectual property that you claim has been infringed; and
(3) A description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service; and
(4) Your address, telephone number, and email address; and
(5) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
(6) A statement by you, made under penalty of perjury, that the above information in your Notice (as hereinafter defined) is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
SECTION 9. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
9.1 Warranties. Each Party represents and warrants to the other that (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of this Agreement; and (c) the execution, delivery and performance of the Agreement does not and will not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
9.2 Myndbend Warranties. We warrant that during an applicable Subscription Term (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data; and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty in this section, Your exclusive remedies are those described in Section 3.3 herein. The warranties herein do not apply to any misuse or unauthorized modification of the Services made by You, Your Agents or Your End-Users.
9.3 Disclaimers. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 11.2, THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
SECTION 10. INDEMNIFICATION
10.1 Indemnification by Us. We will indemnify and defend You from and against any claim brought by a third party against You alleging that Your use of a Service as permitted hereunder, infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including reasonable fees and expenses of attorneys engaged by Myndbend for such defense, provided that (a) You promptly notify Myndbend of the threat or notice of such IP Claim; (b) We will have sole, exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim (however, We shall not settle or compromise any claim that results in liability or admission of any liability by You without Your prior written consent); and (c) You fully cooperate with Myndbend in connection therewith. If use of a Service by You, Agents or End-Users has become, or, in Our opinion, is likely to become, the subject of any such IP Claim, We may, at Our option and expense (i) procure for You the right to continue using the Service(s) as set forth hereunder; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by Myndbend, terminate Your subscription to the Service(s) and repay You, on a pro-rata basis, any Subscription Charges paid to Myndbend for the unused portion of Your Subscription Term for such Service(s). We will have no liability or obligation under this Section 12.1 with respect to any IP Claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by You; (y) modification of the Service(s) by anyone other than Myndbend or Myndbend Personnel; or (z) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing. The provisions of this Section 12.1 state the sole, exclusive and entire liability of Myndbend to You and Your sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by You, Agents or End-Users.
10.2 Indemnification by You. You agree 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 Your gross negligence or willful misconduct of Client; (ii) results from Your breach of this Agreement including without limitation, its representations, warranties or covenants; (iii) results from Your use of the services and Software under this Agreement; (iv) any violation of applicable foreign, provincial, federal, state or local laws, rules or regulations; and (v) any violation of any third party rights, patent, trademark, copyright, trade secret, contracts or licenses.
SECTION 11. LIMITATION OF LIABILITY
11.1 EXCLUSION OF DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) SHALL EITHER PARTY TO THIS AGREEMENT, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS, BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (WHERE SUCH DATA IS LOST IN THE COURSE OF TRANSMISSION VIA YOUR SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF MYNDBEND), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY OTHER TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR FOR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ITS AFFILIATES IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR PROFESSIONAL SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
11.2 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, MYNDBEND’S AGGREGATE LIABILITY TO YOU, YOUR AFFILIATES, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, THE SERVICES OR PROFESSIONAL SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES AND/OR PROFESSIONAL SERVICES FEES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 13.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES AND PROFESSIONAL SERVICES FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE SERVICES AND/OR THE PROFESSIONAL SERVICES PROVIDED FOR IN THIS AGREEMENT. THE LIMITATIONS SET FORTH IN SECTION 13.2 SHALL NOT APPLY TO CLAIMS OR DAMAGES RESULTING FROM MYNDBEND’S IP CLAIMS INDEMNITY OBLIGATIONS IN SECTION 12.1 OF THIS AGREEMENT.
11.3 LIMITATION OF LIABILITY IN THE AGGREGATE. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN APPLIES IN AGGREGATE TO ANY AND ALL CLAIMS BY SUBSCRIBER AND ITS AFFILIATES, AND SHALL NOT BE CUMULATIVE.
11.4 Jurisdiction-specific exclusions. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or for a party’s own fraud, willful injury to the person or property of another, or violation of law which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, THE MYNDBEND GROUP’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
11.5 Enforceable against Myndbend. Any claims or damages that You may have against Myndbend shall only be enforceable against Myndbend and not any other entity, nor any officers, directors, representatives or agents of Myndbend or any other entity.
SECTION 12. ASSIGNMENT, ENTIRE AGREEMENT AND AMENDMENT
12.1 Assignment. You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement, or delegate performance of Your duties under this Agreement, without Our written prior consent, which consent will not be unreasonably withheld. Notwithstanding the foregoing, subject to Section 2.6 herein, You may, without Our consent, assign this Agreement to an Affiliate or in connection with any merger or change of control of You or the sale of all or substantially all of Your assets, provided that (i) any such successor agrees to fulfill its obligations pursuant to this Agreement, and (ii) You and the assignee execute Myndbend’s assignment form. We may assign this Agreement to any affiliate or in connection with any merger or change of control of Myndbend or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. If requested by Myndbend, You must execute Our form to give effect to Myndbend’s assignment. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
12.2 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes any and all prior agreements between You and Myndbend with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order, request for information, request for proposal, or other order documentation You or any entity which You represent provide(s) and all such terms or conditions in such purchase order, request for information, request for proposal, or other order documentation are null and void. Except as expressly stated herein, there are no other agreements, representations, warranties or commitments which may be relied upon by either Party with respect to the subject matter hereof. There are no oral promises, conditions, representations, understandings, interpretations or terms of any kind between the Parties, except as may otherwise be expressly provided herein. The headings used herein are for convenience only and shall not affect the interpretation of the terms of this Agreement.
12.3 Amendment. We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You not less than thirty (30) days prior to the effective date of any such amendment and Your continued use of the Services following the effective date of any such amendment may be relied upon by Myndbend as Your consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
SECTION 13. SEVERABILITY
If any term in this Agreement is determined to be invalid or unenforceable by a competent court or governing body, such term shall be replaced with another term consistent with the purpose and intent of this Agreement, and the remaining provisions of this Agreement shall remain in effect.
SECTION 14. EXPORT COMPLIANCE AND USE RESTRICTIONS
The Services and other Myndbend technology, and derivatives thereof, may be subject to export controls and economic sanctions laws and regulations of the United States and other jurisdictions. Subscriber agrees to comply with all such laws and regulations as they relate to the access to and use of the Services and other Myndbend technology. Each Party represents that it (nor its parents or controlling shareholders) is not named on any U.S. government or other applicable restricted-party list, and Subscriber will not, and will not permit any Agent or End-User to: (a) access or use any Service in a U.S.-embargoed or U.S.-sanctioned country or region, (e.g., Cuba, Iran, North Korea, Syria, Crimea, or any other country or region embargoed or sanctioned during the Subscription Term); (b) access or use any Service if Subscriber, Agent, or End-User is named on any U.S. government or other applicable restricted-party list; (c) place any information in the Services that is controlled under the U.S. International Traffic in Arms Regulations or other similar laws; or (d) access or use any Service for any purpose prohibited by the United States or applicable international import and export laws and regulations.
Myndbend reserves the unconditional right to refuse to enter into a contractual relationship with any particular company, legal entity or individual on the basis of export control restrictions, embargoes, sanctions or other considerations to the extent permitted by law.
SECTION 15. RELATIONSHIP OF THE PARTIES
The Parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, general agency, fiduciary or employment relationship between the Parties.
SECTION 16. NOTICE
16.1 Notices to Subscriber. All notices provided by Myndbend to You under this Agreement may be delivered in writing by (a) nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by You on any Service Order; or (b) electronic mail to the electronic mail address provided for Your Account owner.
16.2 Notices to Myndbend. All Legal Notices provided by You to Myndbend under this Agreement must be delivered in English and in writing by (a) Courier or U.S. mail to Billow Myndbend, Inc., PO Box 150306, Brooklyn, New York 11215; or (b) electronic mail to [legalnotice@Myndbend.com]. All other notices provided by You to Myndbend under this Agreement must be delivered in English and in writing by electronic mail to [support@Myndbend.com].
16.3 All notices provided by either Party to the other shall be deemed to have been given immediately upon delivery by electronic mail; or upon the earlier of proof of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.
SECTION 17. GOVERNING LAW
This Agreement shall be governed by the laws of the State of New York, without reference to conflict of laws principles. 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. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement, or relating to access to or use of the Services by You, Agents or End-Users. Notwithstanding any of the foregoing, the Parties will undertake reasonable efforts to solve any disputes in an amicable manner.
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.
SECTION 18. FEDERAL GOVERNMENT END USE PROVISIONS
If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, each of the Services is a “Commercial Product” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are licensed to You with only those rights as provided under the terms and conditions of this Agreement.
SECTION 19. SURVIVAL
Sections 2.1, 3.5, 3.6, 4.4, 5, 8-20 shall survive termination of this Agreement with respect to use of the Services by You, Agents or End-Users. Termination of this Agreement shall not limit a Party’s liability for obligations accrued as of or prior to termination or for any breach of this Agreement.
SECTION 20. DEFINITIONS
When used in this Agreement with initial letters capitalized, these terms have the following meaning:
“Account” means any accounts or instances created by, or on behalf of, Subscriber or its Affiliates within the Services.
“Affiliate(s)” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
“Agent(s)” means an individual (including those of Your Affiliates) authorized to use the Service(s) through Your Account as an agent, account owner and/or administrator, each as identified through an individual Agent Login.
“Agent Contact Information” means Personal Data about Your Agents, such as their name and email address, that Myndbend stores separate from the Services in order to, among other things, communicate with Your Agents and provide customer support. Agent Contact Information is not considered Service Data.
“Agent Login” means a unique username and associated password provisioned to an individual to permit them to access the Services.
“Agreement” means the Master Subscription Agreement together with any and all, Service Order, Statement of Work and other mutually executed documents.
“API” means the application programming interfaces developed, made available and enabled by Myndbend that permit Subscribers to access certain functionality provided by the Services, including, without limitation, the REST API that enables the interaction with the Services automatically through HTTP requests and the application development API that enables the integration of the Services with other web applications.
“Documentation” means any written or electronic documentation, images, video, text or sounds specifying the functionalities or limitations of the Services or describing Service Plans, as applicable, provided or made available by Myndbend to You in the applicable Myndbend Documentation center or Site (https://developer.Myndbend.com/); provided, however, that Documentation shall specifically exclude any “community moderated” forums as provided or may be accessible through such knowledge base(s).
“End-User(s)” means any person or entity other than Subscriber or Agents with whom Subscriber, its Agents, or its other End-Users interact while using a Service.
“Force Majeure Event” means any circumstances beyond Our reasonable control, including, but not limited to, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, pandemic, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, or acts undertaken by third parties, including without limitation, denial of service attack.
“Intellectual Property Rights” means any and all of a Party’s patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights.
“Legal Notice” means any notice provided by Subscriber to Myndbend under Sections 3.3 and 12.1 of this Agreement.
“Malicious Software” means any viruses, malware, Trojan horses, time bombs, or any other similar harmful software.
“Myndbend” means Billow Myndbend, Inc., a Delaware corporation, or any of its Affiliates, successors or assignees.
“Personnel” means employees and/or non-employee contractors of Myndbend engaged by Myndbend in connection with performance hereunder.
“Planned Downtime” means planned downtime for upgrades and maintenance to the Services scheduled in advance of such upgrades and maintenance.
“Professional Services” means consulting or professional services (including any training, success and implementation services) provided by Myndbend Personnel as indicated on a Service Order or other written document such as an SOW. Professional Services may also be referred to as Consulting Services in the Documentation or SOW.
“Service Data” means all data submitted, generated or stored in connection within a Service by You, Agents and End-Users in connection with Your use of such Service, excluding Agent Contact Information.
“Service Data Breach” means an unauthorized access or improper disclosure that has been verified to have affected Your Service Data.
“Service Order” means Our generated service order form(s) or online ordering document or process completed, executed or approved by You with respect to Your subscription to a Service, which may detail, among other things, the number of Agents authorized to use a Service under Your subscription and the Service Plan applicable to Your subscription.
“Service Plan(s)” means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Site and in Documentation applicable to the Service) for the Services.
“Site” means a website operated by Myndbend, including www.Myndbend.com, as well as all other websites that the Myndbend Group operates (but shall not include the Services).
“Software” means online applications, internet hosting services and software provided by Myndbend (either by download or access through the internet) that allows Agents or End-Users to use any functionality in connection with the applicable Service, as described in Exhibit A and in your applicable Statement of Work.
“Subscription Charges” means all charges associated with Your access to and use of an Account.
“Subscription Term” means the period during which You have agreed to subscribe to a Service.
“Taxes” means taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction.
“Usage Charges” means additional Subscription Charges that are incurred by Subscriber relating to the use of certain features and functionality that Subscriber enables within the Service.
“We,” “Us” or “Our” means Myndbend as defined below.
Software and Hosting Services; Technical Support and Other Services
- Description of Software
- 1.1 Software. "Myndbend Process Manager", "Myndbend Ticket Reminder", "Myndbend Article Search and Subscribe" installed from the Myndbend Marketplace; "Myndbend Pro" app for Hootsuite found in the Hootsuite marketplace and any other marketplace or website.
- 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 Software and the Service Data. Hosting services shall include the following services:
- (a) Ensure that Client has on-line access to the Software.
- (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 Software.
- (f) Install and maintain appropriate IT security measures for the Software.
- (g) Maintain the Software and network infrastructure in a manner that is designed to prevent unauthorized modification of Service Data or the Data Center and unauthorized disruption of the Software, and designed to protect the privacy of Service 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.
“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 Service 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)