Terms & Conditions
Last Updated: October 30, 2024
Terms and Conditions
These Terms and Conditions (“Terms”) are entered into by and between Mocktalk Inc., a corporation, with principal offices located at [new address here] (the “Company,” “we,” “Mocktalk,” or “our”), and you (as defined below), hereinafter referred to as “Customer,” “you,” or “your.”
BY ACCEPTING THESE TERMS, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER FORM, STATEMENT OF WORK, OR OTHER DOCUMENT THAT REFERENCES THESE TERMS, BY USING (OR MAKING ANY PAYMENT FOR) THE COMPANY PLATFORM AND/OR ANOTHER MOCKTALK OFFERED SERVICES, OR BY OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THESE TERMS, YOU: (i) AGREE TO THESE TERMS ON BEHALF OF YOUR ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT; (ii) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE ANY COMPANY PLATFORM AND/OR ANOTHER MOCKTALK OFFERED SERVICES, OR RECEIVE PROFESSIONAL SERVICES FROM MOCKTALK INC. THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN COURTS OR JURY TRIALS, AND LIMITS THE REMEDIES AVAILABLE IN THE EVENT OF A DISPUTE.
These Terms, together with any (if applicable) Order Forms and/or Statements of Work, constitute the “Agreement” by and between Company and Customer.
Definitions
APIs: Refers to any (i) application programming interface information or instructions, (ii) software development kits, or (iii) other software code snippets provided by the Company to Customer from time to time.
Mocktalk Competitor: A person or entity in the business of developing, distributing, or commercializing products or services substantially similar to or competitive with Mocktalk’s products or services.
Authorized Users: Employees of Customer who have paid all applicable fees for access to the Company’s Platform. The Company grants Customer and its Authorized Users a non-exclusive, non-sublicensable, non-transferable right and license to use and access the Company Platform, solely for use by Authorized Users in accordance with the terms and conditions herein. The Company Platform is subject to modification at Company’s discretion, provided such modifications do not materially diminish its functionality.
Company Platform: Access and usage of Company’s web-based software platform, which enables SaaS businesses to easily power their integration practices, including updates or enhancements the Company may provide to the Customer and any associated products or services offered by the Company in any form.
Confidential Information: Any oral, written, electronic, graphic, or machine-readable information that includes, but is not limited to, Company patents, patent applications, research, product plans, products, trade secrets, know-how, security information, developments, inventions, processes, designs, and other confidential information.
Documentation: User manuals, technical manuals, and any other materials provided by or on behalf of the Company with the Company Platform in printed, electronic, or other form that describe the installation, operation, use, or technical specifications of the Company Platform.
Effective Date: The date the Customer signed an Order Form or other binding agreement to use the Company Platform.
End User: An entity that accepts and agrees to these Terms by clicking a button indicating acceptance and/or using the Company Platform to enable an integration.
Initial Subscription Term: The term length specified in Section 2.1 (or defined in the applicable Order Form) for as long as Customer’s account remains in good standing as determined solely by the Company.
“Order Form” means an ordering document or online order executed by both parties (including signing up to use the Mocktalk Platform and agreeing to these terms) specifying the details of access to the Mocktalk Platform to be provided, including any addenda and supplements thereto.
“Order Term” means the term length specified in the applicable Order Form or for however long a customer's account remains in good standing as determined solely by Mocktalk.
“Proof of Concept” (“POC”) shall mean a written understanding between Mocktalk and Customer, wherein Mocktalk shall provide the Customer access to its Platform for a period defined in the Order Form (or if not defined, for a maximum of 30 days) during which the Customer shall, in good faith, work towards implementing Mocktalk’s SDKs and/or APIs within their systems. The POC shall be limited to one (1) integration (or as defined in the Order Form), and Mocktalk shall commit to provide up to two (2) support meetings with the Customer. The POC Term shall start after Mocktalk notifies the Customer of its readiness via email. The Customer may, at any point during the POC Term (but not sooner), notify Mocktalk in writing of its intent to terminate the POC at which point the Customer shall not owe any further amounts to Mocktalk (aside from fees already paid and/or other fees as specified on an Order Form). If such notice is not provided within the POC Term, then the Order Form shall be automatically accepted, and the Customer shall be bound by the full terms of the Order Form. For the avoidance of doubt, POCs are not provided by default in any Order Form and must be explicitly referenced in the Order Form to be valid.
"Project Ready" means the date Mocktalk completes any Statement(s) of Work and notifies the Customer of said completion (only if the Customer has purchased a paid support package). If no date is provided, Mocktalk shall determine the date.
“Professional Services” means any consulting services provided to Customer pursuant to a SOW which may include things like configuration services, providing onsite support, or any other services outside the scope of Support Services.
“Scope Limitations” means any limitations on Customer’s use of the Mocktalk Platform as specified in the applicable Order Form.
“SOW” means a statement of work executed by both parties specifying the details of professional services to be provided.
“Support Services” means basic customer support relating to the implementation of the Mocktalk Platform for the Customer (this does not include any custom work or software engineering services).
Recital
WHEREAS, Mocktalk is engaged in designing and developing a no-code software as a service integration and automation platform and related products and has created a cloud-based software platform. Further details on the Mocktalk Platform can be found on Mocktalk’s website;
WHEREAS, these Terms are sometimes referred to as the Agreement (“Agreement”);
WHEREAS, Mocktalk has developed an API-first software product designed to simplify authentication, configuration, and set up of third-party integrations;
WHEREAS, Mocktalk has developed a user-facing automation software product designed to simplify authentication, configuration, and set up of third-party integrations;
WHEREAS, Mocktalk has developed a unified API software product to standardize API schemas, authentication, and implementation;
WHEREAS, Mocktalk and Customer believe it is in their mutual interest and desire to enter into an Agreement whereby Customer would use the Mocktalk Platform for the purposes mentioned above pursuant to the terms and conditions hereinafter provided.
WHEREAS, the Parties acknowledge that each Order Form, SOW, and any addendums or amendments are subject to and governed by these Terms.
WHEREAS, the Customer may intend to use the Mocktalk Platform in its business operations pursuant to this Agreement. Subject to the terms and conditions of this Agreement and Customer’s payment of all fees, Mocktalk grants to Customer a limited right during the applicable Order Term to access the Mocktalk Platform by and through its Authorized Users solely in connection with Customer’s internal business operations, any Scope Limitations, and in the manner described by any accompanying Documentation.
NOW, THEREFORE, in consideration of the promises and the mutual covenants of this Agreement, the parties hereto agree as follows:
1. License, Access, and General Use. 1.1 License Overview. Mocktalk hereby grants to Customer, for the term of this Agreement, a non-assignable right and license to use the Mocktalk Platform to be delivered as a Software as a Service online platform in connection with its business. Customer is prohibited from making any copies, archival or otherwise, of the Mocktalk Platform.
1.2 Statements of Work. Each SOW is subject to and governed by this Agreement. If there is a conflict between this Agreement and an SOW, this Agreement will control unless the SOW states that a specific provision of this Agreement will be superseded by a specific provision of the SOW. Mocktalk will perform any Professional Services in accordance with this Agreement and the applicable SOW.
1.3 Ownership. Mocktalk retains all right, title, and interest in and to any software programs, tools, specifications, ideas, concepts, inventions, know-how, processes, and techniques that Mocktalk uses or develops in connection with performing Professional Services, as well as all intellectual property rights therein. Unless otherwise provided in a SOW, and subject to Customer’s payment of all applicable fees, Mocktalk grants Customer a limited, nonexclusive, worldwide, royalty-free, non-transferable license during the applicable SOW Term to use such materials solely in connection with Customer’s permitted use of the Mocktalk Platform and APIs.
1.4 License to Marks. Customer trademarks or logos shall be known as Marks (collectively, the “Marks”). By agreeing to these Terms, the Customer hereby grants to Mocktalk an irrevocable, non-exclusive, royalty-free, worldwide right and license to copy, reproduce, use, display, publicly perform, modify, and resize the Marks and use any Customer-provided testimonials, case studies, or quotes on its internal and external-facing marketing assets (including but not limited to its websites, marketing materials, etc).
1.5 Warranties Regarding Marks. Customer represents and warrants that Customer is the sole and exclusive owner of the Marks and testimonials/quote(s), and that Customer has the right to grant the licenses agreed to in this Section. Customer agrees to indemnify, defend, and hold Mocktalk harmless from and against any first and third-party claim(s) arising out of or related to Mocktalk’s use of the Marks as permitted by this Agreement. The Customer may not use the name, trade name, trademark, logo, acronym, or other designation of Mocktalk externally in connection with any press release, advertising, publicity materials, or otherwise without the prior written consent of Mocktalk.
1.6 Restrictions. The access and use rights set forth in this section do not include any rights to, and Customer will not, with respect to the Mocktalk Platform (or any portion thereof): (i) employ or authorize a Mocktalk Competitor to use or view the Mocktalk Platform or any confidential information, or to provide management, hosting, or support for the Mocktalk Platform; (ii) alter, publicly display, translate, create derivative works of, or otherwise modify the Mocktalk Platform; (iii) sublicense, distribute or otherwise transfer the Mocktalk Platform to any third party; (iv) allow third parties to access or use the Mocktalk Platform (except for Customer contractors who are bound by confidentiality agreements as expressly permitted herein); (v) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code (if any) for the Mocktalk Platform (except to the extent that such prohibition is expressly precluded by applicable law), circumvent its functions, or attempt to gain unauthorized access to the Mocktalk Platform or its related systems or networks; (vi) use the Mocktalk Platform to circumvent the security of another party’s network/information, develop malware, unauthorized surreptitious surveillance, data modification, data exfiltration, data ransom or data destruction; (vii) remove or alter any notice of proprietary right appearing on the Mocktalk Platform; (viii) conduct any stress tests, competitive benchmarking, or analysis on, or publish any performance data of, Mocktalk Platform (provided, that this does not prevent Customer from comparing the Mocktalk Platform to other products for Customer’s internal use); (ix) use any feature of Mocktalk's APIs for any purpose other than in the performance of, and in accordance with, this Agreement; or (x) cause, encourage, or assist any third party to do any of the foregoing. Customer agrees to use the Mocktalk Platform in accordance with laws, rules, and regulations directly applicable to Customer and acknowledges that Customer is solely responsible for determining whether a particular use of the Mocktalk Platform is compliant with such laws.
2. Term.
2.1 Overview. This Agreement shall begin on the date of this Agreement and continue for twelve months. This Agreement shall be automatically renewed for successive renewal terms equal to the length of the Initial Subscription Term stated in the Order Form (the “Extended Term”) unless Customer provides Mocktalk notice in writing of its intention not to renew the Agreement, said notice to be provided at least ninety (90) days prior to the expiration of the then in-effect Order Term.
2.2 Inflation Adjustments. Upon renewal, the dollar amounts indicated in the Order Form shall be adjusted for any increases in inflation during the term of this Agreement based on the Consumer Price Index.
2.3 Termination upon Insolvency. Mocktalk may terminate the Agreement, effective immediately upon written notice, if Customer files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
2.4 Breach of Agreement. Mocktalk may terminate this Agreement and any Order Forms or SOWs immediately effective with or without notice thereof; other termination terms may be stipulated in an Order Form or SOW. Any failure by Customer to timely pay to Mocktalk any amounts owed under an Order Form or SOW will constitute a material breach of the Agreement and the applicable Order Form or SOW. If Customer fails to timely pay any fees or otherwise breaches or threatens to breach this Agreement, Mocktalk may, without limitation to any of its other rights or remedies, suspend access to the Mocktalk Platform until it receives all amounts due or terminate the Agreement entirely at its sole discretion. Further, failure by Customer to pay any overdue invoice(s) shall entitle Mocktalk to payment from the Customer equal to the then in effect annual term plus three percent interest per week as a reasonable estimate of liquidated damages to Mocktalk. This payment is payable in full by the Customer within seven days after Mocktalk notifies the Customer of its breach.
2.5 Survival of Terms. Upon termination of this Agreement, all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including any license restrictions and terms and conditions relating to intellectual/proprietary rights, sales tax/compensation which the Customer may owe, license to marks, ownership, confidentiality, warranties, notices, disputes, disclaimers, indemnification, limitations of liability, and termination, and the general provisions below.
3. Compensation, Payment for Usage of Mocktalk Platform.
3.1 Cost of Mocktalk Platform. In consideration for the licenses granted hereunder and during the Initial Subscription Term and for each Extended Term, Customer agrees to pay fee(s) to Mocktalk in accordance with the fee and schedule(s) outlined in the Order Form and any additional usage costs outlined in the Order Form. Any and all fees including payments of any kind made by Customer to Mocktalk are non-refundable. All invoices to Customer shall be due upon receipt. Usage of the Mocktalk Platform shall be limited to the initial amount of App Actions provided under the applicable platform fee as defined in the Order Form. Any overage incurred shall be billed to Customer as A La Carte Fees.
All legacy customers (defined as customers with an Order Form beginning prior to November 21, 2023) shall be limited to a maximum of 100,000 app actions per month for each end user account and a maximum of 100 end user accounts. Usage may be limited to a certain number of integrations as listed on the Order Form.
3.2 Delinquency Charges. The Customer shall pay a delinquency charge of the lesser of three percent (3%) per month or the highest rate allowed under applicable law on all overdue amounts until the amounts are paid. If Mocktalk, in its sole discretion, refers Customer's delinquent account to a debt collection or legal firm after any period (as determined by Mocktalk due to non-payment, default by Customer, or breach of contract), then Mocktalk may charge an additional thirty-five (35%) debt recovery fee or a fee approximately equal to the costs needed to retain a legal or debt collection firm, whichever is higher, to the total debt owed (the "Debt Recovery Fee"). Customer shall be and hereby accepts full liability for the Debt Recovery Fee in addition to any other fees it may owe Mocktalk.
3.3 Professional Services. Anything above and beyond the scope of any SOW entered into between the Parties shall be charged at a fixed rate of Three Hundred Fifty Dollars per hour ($350.00/hour) or at a rate as mutually defined in an SOW by the parties.
3.4 Sales Tax. All amounts payable hereunder are exclusive of any sales, use, and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Mocktalk. Customer will not withhold any taxes from any amounts due to Mocktalk.
3.5 Automatic Payments. Customer hereby authorizes Mocktalk to automatically charge Customer's credit card and/or financial institution pursuant to the terms of the Order Form. Customer agrees it shall pay a three percent (3%) surcharge on any fees owed if the Customer wishes to pay any invoice(s) via credit card.
3.6 A La Carte Fees. Usage of the Mocktalk Platform exceeding the maximum allotted "App Actions" (as described in the Order Form) purchased by Customer will result in Customer being charged overage fees (“A La Carte Fees”) consistent with the Documentation, at the rate described in the Order Form. Customer shall be obligated to pay any A La Carte Fees the following month.
3.7 Pricing Changes. Mocktalk reserves the right, in its sole discretion, to modify the pricing of its services and Mocktalk Platform including the A La Carte Fees, add new services or pricing plans for additional fees and charges, or amend fees and charges for existing services, at any time without prior notice to Customer. Notwithstanding the foregoing, the fees set forth on an Order Form shall remain fixed for the duration of the Initial Subscription Term set forth therein, and any new pricing, additional fees, and/or charges shall become effective at the start of a new subscription term unless otherwise agreed to in writing by the parties.
4. Intellectual Property, Confidentiality, Privacy & Data Compliance
4.1 Confidentiality, Mocktalk Ownership to Intellectual Property. Mocktalk will retain exclusive interest in and ownership of its intellectual property rights in and to the Mocktalk Platform and expressly reserves all rights not expressly granted under this Agreement. Customer recognizes that the Mocktalk Platform is the proprietary and confidential property of Mocktalk. Accordingly, Customer shall not, without the prior express written consent of Mocktalk, during the term of this Agreement and in perpetuity thereafter, disclose or reveal to any third party or utilize for its own benefit other than pursuant to this Agreement, any software provided by Mocktalk, provided that such information was not previously known to Customer or to the general public. Customer further agrees to take all reasonable precautions to preserve the confidentiality of Mocktalk Platform and shall assume responsibility that its employees, contractors, affiliates, directors, associates, officers, sub-customers, etc., will similarly preserve this information against third parties. The provisions of this clause shall survive termination of this Agreement. Customer shall take no steps in attempting to reverse engineer the Mocktalk Platform. All Mocktalk property and Intellectual Property, including but not limited to the usage of Mocktalk’s Platform, software code, designs, documents, proposals, accounts, etc., shall remain at all times the sole and exclusive property of Mocktalk.
4.2 Data Collection. Mocktalk may collect various data. Please refer to Mocktalk's privacy policy (the “Privacy Policy”) for information on how we collect, use, and share personal information of Authorized Users. Customer acknowledges and agrees that its use of the Mocktalk Platform is subject to Mocktalk’s Privacy Policy, which may be updated from time to time. The Privacy Policy is accessible at https://mocktalk.com/privacy.
4.3 Personal & Sensitive Data. Customer will not use the Mocktalk Platform to transmit or provide Mocktalk any financial or medical information of any nature or any sensitive personal data (e.g., social security numbers, driver’s license numbers, birth dates, personal bank account numbers, passport or visa numbers, and credit card numbers).
4.4 Third-Party Integrations & Apps. Customer’s use of third-party products or services that are not licensed to Customer directly by Mocktalk (“Third Party Apps”) shall be governed solely by the terms and conditions applicable to such Third Party Apps, as agreed to between Customer and the third party. Mocktalk does not endorse or support, is not responsible for, and disclaims all liability with respect to Third Party Apps, including, without limitation, the privacy practices, data security processes, or other policies related to Third Party Apps. Customer agrees to waive any claim against Mocktalk with respect to any Third-Party Services. Customer may enable integrations between the Mocktalk Platform and Third Party Apps (each, an “Integration”). By enabling an Integration between the Mocktalk Platform and its Third-Party Apps, Customer is instructing Mocktalk to share the Customer/Client Data necessary to facilitate the Integration. Third-party access keys, tokens, etc. (including access tokens generated via OAuth flows, API keys supplied to Mocktalk, secret keys, etc.) are the sole property of Mocktalk. Customer is responsible for providing all instructions to the Third Party App provider about the use and protection of Customer Data. Mocktalk and Third-Party App providers are not sub-processors of each other. Customer shall indemnify and hold harmless Mocktalk from any and all claims arising out of violations by the Customer or its user(s) due to improper usage of the Third-Party Integrations.
4.5 Compliance of Authorized Users, End Users, and Sub-Users in Accordance with Data Privacy. Customer acknowledges and agrees that the Mocktalk Platform will require Authorized Users and End Users to share with Mocktalk certain information which may include personal information regarding Authorized Users or End Users (such as usernames, passwords, email addresses, and/or phone numbers) to provide and improve the Mocktalk Platform. Prior to authorizing an individual to become an Authorized User or End User, Customer is fully responsible for obtaining the consent of that individual, in accordance with applicable law, to the use of his/her information by Mocktalk, per the Privacy Policy. Customer represents and warrants that all such consents have been or will be obtained before authorizing any individual to become an Authorized User or End User.
4.6 Use of Confidential Information. All Confidential Information will be used by Customer solely for the purpose of providing information and input in the further advancement of this Agreement and shall not be disclosed to any person, except that Customer may disclose the Confidential Information or portions thereof to persons to whom such disclosure is permissible, collectively called “Representatives,” who (i) need to know such information and (ii) have agreed to be bound by the terms of this Agreement. Customer further agrees to be responsible for any breach of this Agreement by any of its Representatives. Within 48 hours of Customer becoming aware of the unauthorized use, disclosure, publication, or dissemination of Mocktalk's Confidential Information while in Customer's control, Customer shall provide Mocktalk with notice thereof.
4.7 Exceptions. Customer may disclose Mocktalk's Confidential Information: (i) to the extent required by applicable law or regulation; (ii) pursuant to a subpoena or order of a court or regulatory, self-regulatory, or legislative body of competent jurisdiction; (iii) in connection with any regulatory report, audit, or inquiry; or (iv) where requested by a regulator with jurisdiction over Customer. In the event of such a requirement or request, Customer shall, to the fullest extent legally permitted: (a) give Mocktalk prompt written notice of such requirement or request before such disclosure; and (b) give Mocktalk a reasonable opportunity to review and comment upon the disclosure and request confidential treatment or a protective order before Customer making such disclosure.
4.8 Destruction, Return of Confidential Information. All Confidential Information, including but not limited to any and all accounts, logins, on-premise software, documents, records, proposals, SDKs, API implementations, plans, writings, and other items that Mocktalk has supplied to Customer containing or relating to the Mocktalk Platform, its implementation, and/or any Confidential Information disclosed by Mocktalk to Customer under this Agreement shall, together with all copies thereof, be promptly returned to Mocktalk and destroyed upon termination. Upon Mocktalk's request, Customer will provide Mocktalk with written confirmation of destruction in compliance with this provision.
5. Warranties & Disclaimers.
5.1 Mocktalk Warranty. THE WARRANTY PROVIDED FOR HEREIN IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, THAT MAY ARISE EITHER BY THIS AGREEMENT BETWEEN THE PARTIES OR BY OPERATION OF LAW, INCLUDING THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5.2 Liability. LIMITATION OF LIABILITY: IN NO EVENT WILL MOCKTALK BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTIONS IT CONTEMPLATES OR RELATES TO (WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, OR OTHER FORM OF ACTION) AND IRRESPECTIVE OF WHETHER MOCKTALK HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGE. THE MOCKTALK PLATFORM SHALL BE DELIVERED TO THE CUSTOMER “AS IS,” AND NO WARRANTY OF ANY KIND IS MADE BY MOCKTALK. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, MOCKTALK MAKES NO REPRESENTATIONS OR WARRANTIES, AND CUSTOMER HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY OF THE MATERIALS, INFORMATION, SERVICES, OR LICENSES PROVIDED PURSUANT TO THIS AGREEMENT. IN NO EVENT WILL MOCKTALK'S (OR ANY OF ITS AFFILIATES, CONSULTANTS, ASSOCIATES, CONTRACTORS, ETC. – EXCLUDING THE CUSTOMER) LIABILITY FOR ALL CLAIMS, LIABILITIES, AND DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR BY WAY OF INDEMNITY OR OTHERWISE, EVER EXCEED ONE THOUSAND DOLLARS ($1,000) UNDER THIS AGREEMENT OR ANY AGREEMENTS RELATING TO IT.
5.3 Reliability Warranty. CUSTOMER EXPRESSLY AGREES THAT USE OF THE SITE IS AT ITS SOLE RISK. NEITHER MOCKTALK, ITS PRESENT OR FUTURE PARENTS, SUBSIDIARIES, OR RELATED ENTITIES, NOR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, THIRD-PARTY CONTENT PROVIDERS, OR LICENSORS WARRANT THAT THE MOCKTALK PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE MOCKTALK PLATFORM OR AS TO THE ACCURACY, RELIABILITY, OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH THE MOCKTALK PLATFORM.
5.4 Organization; Authority. Customer warrants (if Customer is an entity) that it is duly organized, validly existing, and in good standing in the jurisdiction in which it is registered or resides. Further, Customer warrants that it has all requisite right, power, and authority to enter into this Agreement, perform its obligations, and grant the rights and authorizations in this Agreement.
5.5 OFAC, EU, UK Regulatory Compliance. Customer warrants it is not associated with any person or entity subject to any United States, United Kingdom, European Union, or Japanese economic sanctions, embargoes, or restrictive measures (including any measures contemplated by Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering, and transit of dual-use items) (any such person or entity, a “Denied Person”). Customer agrees not to export or provide items to persons ineligible under United States, United Kingdom, European Union, or Japanese law to receive those items, including any Denied Person. In connection with this Agreement, Customer will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws, such as the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, and economic sanctions programs implemented by the U.S. Office of Foreign Assets Control.
5.6 Other Warranties. Each party represents and warrants to the other that: (a) the Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against the executing party per its terms; (b) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of the Agreement by the executing party; and (c) the execution, delivery, and performance of the Agreement by the executing party does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
5.7 Claims. In the event of a claim by Customer under this warranty, Mocktalk shall have the option to repair the Mocktalk Platform. In the event that Mocktalk fails to repair the Mocktalk Platform within a reasonable period (as defined solely by Mocktalk), Customer's sole recourse shall be to terminate the Agreement. Customer must obtain Mocktalk's written approval to commence termination and may be subject to an early termination fee (which shall be calculated as the cost of the then-in effect term multiplied by one hundred fifty percent). Upon termination, Customer must pay out all remaining balances owed to Mocktalk under the applicable Order Form or SOW. No refunds of any kind will be made by Mocktalk.
5.8 Voluntary Acceptance of Agreement. Customer represents and warrants that Mocktalk has given it a reasonable period of time to consider all of the terms of this Agreement and for the purpose of consulting with an attorney should it so choose. Customer represents that it has freely and willingly elected to enter into this Agreement. Customer represents and warrants that it has carefully read each and every provision of this Agreement and that it fully understands all of the terms and conditions of this Agreement. Customer represents and warrants that it enters into this Agreement voluntarily, of its own free will, without any pressure or coercion from any person or entity, including, without limitation, Mocktalk.
6. Setup & Go-Live.
6.1 Setup and Training. Mocktalk shall set up the Mocktalk Platform in accordance with any timelines provided on the Order Form. For the avoidance of doubt, the initial setup and training shall only extend to limited (non-technical) email support pertaining to basic inquiries Customer may have regarding installing Mocktalk's SDK for the first two weeks from the initial date of the Order Form. No other setup support will be provided, and Customer is not entitled to any support whatsoever unless Customer has purchased a standalone, paid support plan from Mocktalk. If no such timeline is provided, Mocktalk will determine a time at its discretion. At the time of setup and “go live” of the Mocktalk Platform and for no additional consideration, Mocktalk may train a Customer employee or representative in the use of the Mocktalk Platform. If Customer fails to notify Mocktalk of any difficulties or problems with the Mocktalk Platform within seven (7) days after installation or within seven (7) days of Project Ready thereof, Customer shall be deemed to have accepted the Mocktalk Platform. Prior to acceptance of such Mocktalk Platform, Mocktalk shall have the right to repair the Mocktalk Platform at its sole discretion. Upon acceptance of such Mocktalk Platform changes, Mocktalk shall be under no obligation to repair such Mocktalk Platform except as provided for in the Warranties provision of this Agreement.
6.2 Time is of the Essence. To preserve project and implementation timelines, Customer shall promptly respond to all Mocktalk inquiries within three (3) business days via email. If such notice is not received, then the Mocktalk request shall automatically be deemed accepted. Notwithstanding the foregoing, if Customer is disengaged or unresponsive for fourteen business days, Mocktalk shall consider any implementation complete and will collect any remaining balances.
7. Indemnity.
7.1 General Indemnification. To the fullest extent permitted by law, Customer (as an indemnifying party) shall indemnify, defend, and hold harmless Mocktalk (as an indemnified party) against any and all losses, claims, allegations, demands, suits, proceedings, investigations, prosecutions, actions, threats, causes of action, liabilities, obligations, costs, expenses, assessments, settlements, judgments, interest, penalties (including legal expenses and reasonable attorneys’ fees), court costs and all other litigation expenses, damages or injuries of any kind or nature whatsoever (whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals and including any breaches of this Agreement by Customer) in connection with: (i) any proceeding arising out of or in any way connected with this Agreement, (ii) any infringement of the patent rights, copyright, trade secret, or any other proprietary right or trademark, and all other intellectual property claims of any person, entity, or persons in consequence, or any of Customer’s officers or agents, of articles or services to be supplied in the performance of this Agreement.
7.2 IP Indemnification. In addition to the foregoing, the Customer hereby and irrevocably forever explicitly waives any claims against Mocktalk and agrees to also indemnify, defend, and hold harmless related to Customer’s unauthorized customization, modification, or other alterations to the Mocktalk Platform, violations of this Agreement and/or any other agreements between Mocktalk and Customer, Mocktalk's performance or non-performance of the duties outlined in this Agreement, any third-party APIs/services and their associated terms and conditions, privacy policies, etc. (including any possible violations by the Customer of said terms and conditions), privacy requirements, infringement of any patent, copyright, trademark, or trade secret, intellectual property, the handling of any intellectual property and confidential information by Mocktalk and its affiliate(s), etc. and/or misuse or non-compliance of third-party APIs/services, including claims that its customization, modification, or other alterations infringe a third party's Intellectual Property rights.
7.3 Attorneys' Fees. The foregoing indemnity shall include, without limitation, reasonable fees of attorneys, consultants, and experts and related costs and Mocktalk’s costs of investigating any claims. In addition to Customer’s obligation to indemnify Mocktalk, Customer specifically acknowledges and agrees that it has an immediate and independent obligation to defend Mocktalk from any claim which actually or potentially falls within this indemnification provision, even if the allegations are or may be groundless, false, or fraudulent, which obligation arises at the time such claim is raised to Mocktalk and continues at all times thereafter.
7.4 Customer’s Compliance. Customer will be fully responsible for Authorized Users’ compliance with this Agreement, and any breach of this Agreement by an Authorized User shall be deemed to be a breach by Customer. Mocktalk’s relationship is with Customer and not individual Authorized Users or third parties using the Mocktalk Platform through Customer, and Customer will address all claims raised by its Authorized Users directly and shall not hold liable Mocktalk.
8. Notices.
8.1 Procedure for Notices. Any notice made to Mocktalk required to be given pursuant to this Agreement shall be in writing by hand directly at its address hereinabove first mentioned. Customer consents to delivery of notices: (i) personally delivered, (ii) by a recognized international or overnight courier, (iii) by certified mail, or (iv) via email. Either party may change the address to which notice or payment is to be sent by written notice to the other party pursuant to the provisions of this paragraph.
8.2 Dispute Resolution. Any and all disputes, controversies, or claims arising under or in connection with this Agreement shall be settled exclusively by confidential arbitration, conducted before a single arbitrator selected mutually by the Parties in New York State or in another location as may be reasonably determined by Mocktalk at its sole written discretion, in accordance with the rules of the American Arbitration Association then in effect (subject to Section 8.4). The arbitration shall be final and binding on the Parties. Each party will, upon written request of the other party, promptly provide the other with copies of relevant documents. There shall be no other discovery allowed. The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party's actual damages, except as may be required by statute.
8.2 Dispute Resolution (Continued). The arbitrator shall not award consequential damages in any arbitration. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
8.3 General Dispute Procedures. The Parties hereto will use their reasonable best efforts to resolve any dispute hereunder through good faith negotiations. A party hereto must submit a written notice to any other party to whom such dispute pertains, and any such dispute that cannot be resolved within sixty (60) calendar days of receipt of such notice (or such other period to which the parties may agree) will be submitted to an arbitrator selected by the parties. Notwithstanding the foregoing, Mocktalk shall have the right to commence arbitration proceedings against Customer within fourteen (14) days after any notice of a dispute is made by Mocktalk. Customer agrees that, to the fullest extent permitted by law, Customer may only bring a claim against Mocktalk in an individual capacity, and not participate as a plaintiff, claimant, or class member in any class, collective, consolidated, private attorney general, or representative proceeding relating to, arising out of, or in any way connected with this Agreement. Customer agrees that, by entering into this Agreement, Customer is waiving the right to participate in a class action and to a trial by jury to the fullest extent permitted by applicable law.
8.4 ARBITRATION AGREEMENT.
8.4.1 Claims Subject to Arbitration. To the fullest extent permitted by applicable law, Mocktalk and Customer agree to arbitrate all disputes and claims between the parties (also referred to as “us”). This arbitration clause is intended to be broadly interpreted and shall govern all disputes. It includes, but is not limited to:
Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, fraud, misrepresentation, or any other statutory or common-law legal theory;
Claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);
Claims for mental or emotional distress or injury not arising out of physical bodily injury;
Claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
Claims that may arise after the termination of this Agreement.