Last Updated: September 27th, 2018
These Mmuze Terms of Service (“Terms“) and the Order Form (the “Order“, and together with the Terms, the “Agreement“) executed between MMuze and the entity set forth in the Order govern the use by (“Client“) of Mmuze’s artificial intelligence conversational commerce service which allows the Client to provide its customers with smart product recommendations from the Client’s ecommerce website and other digital channels (the “Client Properties“) as detailed in the Order.
1.1 Subject to the terms of the Agreement, Mmuze shall provide the Client with access to its conversational commerce AI APIs (the “API“) and, its Facebook Messenger chatbot application (the “Chatbot“), or its speech-to-text application (the “STT“), as set forth in the Order, to enhance customers shopping experience on Client Properties (the “Service“) through its proprietary technology as hosted on a third party cloud service (the “Platform“). Technical support and availability of the Platform shall be in accordance with the Mmuze’s Service Level and Support Agreement (the “SLA“). Client hereby grants Mmuze a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Client’s (i) online catalog and inventory on the Client’s Properties (the “Inventory”); and (ii) display any image or link to or associated with the Inventory to end users through the Service, solely for the purpose of providing the Service to Client. Mmuze shall, and require its third party cloud service to, maintain in confidence all unpublished information relating to the Inventory, if any, to which it has been granted access, and shall not disclose same to any person or entity under any circumstances.
1.2 During the Term and subject to Client’s compliance with the terms and conditions of this Agreement, Mmuze grants Client a non-exclusive, non-transferable, non-sublicenseable, limited term revocable right (i) for Client’s employees, agents, representatives and contractors to access the Platform solely for Client’s internal business use; and (ii) to implement the API in Client Properties, according to the associated documentation provided by Mmuze or available through the Platform (the “Documentation“).
2. INTELLECTUAL PROPERTY RIGHTS & RESTRICTIONS
All intellectual property rights in the Service and any part thereof, including the API, the Documentation and any and all derivatives, changes and improvements thereof (the “Mmuze Technology”) lie exclusively with Mmuze. Client shall not, and shall not knowingly let any third party; (i) attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Mmuze Technology or any part thereof for any purpose; (ii) represent that it possesses any proprietary interest in the Mmuze Technology or any part thereof; (iii) directly or indirectly, take any action to contest Mmuze Technology’s intellectual property rights or infringe them in any way; (iv) except as specifically permitted hereunder, use the name, trademarks, trade-names, and logos of Mmuze. All intellectual property rights in the Client Properties, including the Inventory, lie exclusively with Client or its licensors.
3. CLIENT’S WARRANTIES
Client hereby warrants, represents and covenants that: (i) the Client Properties, content provided on the Client Properties and the products and services offered by Client do not infringe upon any third party’s rights, including but not limited to intellectual property rights, privacy rights and publicity rights; (ii) Client has fully complied with any third-party licenses, permits and authorizations required in connection with such Client Properties; (iii) the Client Properties do not, to the best of Client’s knowledge, contain any viruses, worms, Trojan horses or other harmful or destructive code or content; (iv) the Client Properties do not, to the best of Client’s knowledge, install any hidden components or bundle any additional software; (v) the Client will comply with all applicable laws in its performance of this Agreement, including all applicable privacy laws and regulations; and (vi) the Client Properties and the products offered by Client thereon are not offensive, obscene or libelous, do not include any offer or contain gambling products, counterfeit goods, tobacco, firearms, sexually explicit content, illegal products and does not violate the right of privacy or publicity of any end user or other third party.
In consideration for the provision of the Service, the Client shall pay Mmuze the Fees, as set forth in the order. The Client shall pay any and all amounts due under this Agreement within 30 days of the date of invoice, unless otherwise stated in the Order. All amounts payable under this Agreement are exclusive of any taxes (including, without limitations, sales tax and, if applicable, VAT). Client is solely responsible for payment of any such taxes resulting from the Service and any right granted hereunder. If any such taxes are required to be withheld, Client shall pay an amount to Mmuze such that the net amount payable to Mmuze after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement. All payments not made when due, shall be subject to a late charge of 1.5% per month or the maximum lawful rate, whichever is less.
5. WARRANTIES OF MMUZE
Mmuze warrants that: a) the Service will be performed in a professional, timely, and workmanlike manner, free of defects and consistent with industry standards, provided that Client’s sole remedy for breach of this warranty shall be for Mmuze to re-perform the non-conforming Services; b) it has all necessary power and authority to execute and deliver this Agreement and to perform its obligations hereunder; (c) entry into this Agreement does not breach its obligations, duties or contracts with respect to any third party; and (d) it owns or has licenses or sublicenses to all right, title and interest to any materials, technology, know-how and intellectual property used in connection with the Service identified in this Agreement and the applicable Order(s), and that such materials, technology, know-how and intellectual property do not infringe any third party’s rights. EXCEPT FOR THE WARRANTIES PROVIDED IN THIS AGREEMENT, MMUZE PROVIDES THE SERVICE ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, AND FITNESS FOR PARTICULAR PURPOSE OR ACCURACY. MMUZE DOES NOT WARRANT THAT THE SERVICE WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION. THE SERVICES MAY USE THIRD-PARTY TECHNOLOGY, WEBSITES OR RESOURCES. MMUZE IS NOT RESPONSIBLE OR LIABLE IN ANY WAY FOR THE CONTENT, PRODUCTS OR SERVICES ON OR AVAILABLE THROUGH THE USE OF SUCH THIRD PARTY TECHNOLOGY, WEBSITES OR RESOURCES.
6. DATA PROTECTION AND PRIVACY
6.1 For the purposes of this Section 6: “Personal Data” means any data related to an end customer on Client Properties (the “End Customer”) or identifies an End Customer or may with reasonable effort identify an End Customer; and “Technical and Organizational Security Measures” means measures aimed at protecting Personal Data against accidental, unauthorized or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access and against all other unlawful forms of processing.
6.2. In respect of Personal Data, Mmuze acknowledges that it is considered to be a “data controller” under the Data Protection Act of the United Kingdom (collectively “Data Protection Law”).
6.4 Mmuze undertakes, warrants and agrees that: (a) it will process Personal Data in accordance with Data Protection Laws and such Laws do not prevent it from fulfilling its obligations in regard to the processing of Personal Data; (b) it has in place appropriate Technical and Organizational Security Measures to protect the Personal Data and provide a level of security appropriate to the risk represented by the processing and nature of such Personal Data; (c) it will respond properly to reasonable inquiries from the Client and from any law enforcement authority relating to its processing and secure handling of the Personal Data; and (d) any person or third party acting under the authority of Mmuze, including a data processor and the third party cloud service referenced above, shall be obligated to process and handle the Personal Data in accordance with instructions from Mmuze, which instructions shall ensure compliance with all Data Protection Laws.
6.5 The parties will take commercially reasonable steps to limit access to only those employees, agents, subcontractors, data processors or consultants strictly necessary to perform their respective obligations under the Agreement. The Parties will have in place written procedures, disclosed to each other upon request, so that any third party it authorizes to have access to Personal Data will respect and maintain the confidentiality and security of the Personal Data.
6.6 The parties will promptly notify each other about (a) any legally binding request for disclosure of Personal Data by a law enforcement authority unless otherwise prohibited and (b) any request received directly from an End Customer without responding to that request, unless it has been otherwise authorized to do so.
7. Client acknowledges and agrees that Mmuze shall be entitled to collect technical information and statistics in anonymized form regarding use of the Services and the API for as long as Client receives the Services hereunder, which shall not include conversation content. Mmuze may create statistical, aggregated data relating to use of the Services by End Customers for analytical purposes and insights gained from such data to our customers and other third parties. Any insights intended to be used other than for performance of the Services hereunder to Client, shall be solely on an anonymized basis. Aggregated data may be derived from data collected hereunder, or other data but in its aggregated and anonymized form that will not identify any individual or product. This data is used to understand the end users needs and to develop, improve and market the Services, as permitted by applicable law.
Each party acknowledges that it may have access to certain confidential information of the other party (“Confidential Information”). Confidential Information will include all information in any form that under the circumstances of its disclosure, should reasonably be considered confidential, including but not limited to trade secrets. Each party agrees that it will not use Confidential Information of the other party in any way, except as expressly required for the purposes of this Agreement, nor will it disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary on a need to know basis) any of the other party’s Confidential Information and it will take reasonable precautions to protect Confidential Information.
9.1. Client shall defend, indemnify and hold harmless Mmuze, from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) (“Loss”) arising out of or related to: (a) the Client Properties; and (b) Client’s breach of its obligations and warranties under this Agreement.
9.2. Mmuze shall defend, indemnify and hold Client harmless, from and against any Loss arising out of or related to a third party claim arising out of an allegation that the Service infringes any intellectual property right of a third party; but this indemnification shall not apply to any claims relating to any infringement due to the images and links of Inventory provided by the Client or the Client Properties.
9.3. The indemnified party shall provide the indemnifying party with: (a) prompt written notice of such claim; (b) sole control over the defense and settlement of such claim; and (c) information as may be reasonably requested by the indemnifying party.
10. LIMITATION OF LIABILITY
THE PARTIES’ MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID BY CLIENT TO MMUZE DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE PARTIES BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. TERM AND TERMINATION
The Agreement shall commence on the Effective Date of the Order and shall be automatically renewed for 12 consecutive months each time unless a) stipulated differently in an Order or b) termination notice is provided in writing by either party 30 days’ prior to the end of each Term or as otherwise agreed upon in writing by the parties. Either party may terminate this Agreement by giving written notice to the other party if: (i) the other party breaches a material provision of this Agreement and fails to cure the breach within fourteen days after being given written notice thereof; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party; or any petition by or on behalf of such party is filed under any bankruptcy or similar laws. Upon termination or expiration of this Agreement for any reason whatsoever, Client will immediately cease use of the Service and each party shall return to the other party all of the other party’s Confidential Information in its possession. Sections 1.1 (last sentence), 2 (last two sentences), 6 and 8, shall survive any expiration or termination of this Agreement.
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13. CHANGES TO THE TERMS
hese Terms may be subject to periodical revisions or amendments, from time to time with or without notice, at our sole discretion; we encourage you to review the Terms regularly. The last revision will be reflected in the “Last Updated” heading. Your continued use of our website following any such amendments will be considered as your consent to the amended Terms. At all times, the latest version of these Terms shall be binding and prevail over any other version.
This Agreement is governed by and construed exclusively in accordance with the laws of the State of New York, without regard to the principles of conflict of laws. Neither party may transfer or assign its rights or obligations under this Agreement without the prior written consent of the other party, except for an assignment to an affiliated entity or in the case of a merger, reorganization, or acquisition of substantially all assets of the applicable party. Any purported assignment contrary to this section shall be void. This Agreement constitutes the entire agreement between the parties and supersedes any previous agreements or representations, either oral or written with respect to the subject matter of this Agreement. All notices shall be in writing and delivered either personally, or by registered mail or courier, to the address and contact of the parties or by email, as set forth in the Order. Any such notice shall be deemed given five business days after being placed in the mail, or one business day after personal delivery or email. Any failure by a party to insist upon or enforce performance by the other of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver of such right. Neither party shall hold itself out as or be deemed to be an employee, agent, partner, joint venture, or legal representative of the other for any purpose, and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other.