THIS MENCH.AI SERVICES AGREEMENT (this “Agreement”) is between MENCH.AI LLC, a Nevada LLC that does business as MENCH.AI (“MENCH.AI”) and you. For purposes of this Agreement, “you” means the company identified in an Account that registers to use the MENCH.AI Services (defined below). By using the MENCH.AI Services, you indicate that you have read and agree to be bound by all terms and conditions of this Agreement, without limitation or qualification, and by all applicable laws and regulations, as if you had written your name on a contract. MENCH.AI’s provision of the MENCH.AI Services and all payments under this Agreement are conditioned upon your assent to all terms and conditions of this Agreement.
1. The MENCH.AI Service
A. MENCH.AI Service.
The “MENCH.AI Service” consists of the tools, technology, dashboard, platform and services offered by MENCH.AI through https://mench.ai, https://menchlist.com, and other domains, subdomains, applications, or URLs operated by MENCH.AI, including https://menchlist.ai if and when operated by MENCH.AI (collectively, the “Website”), to facilitate the purchase, sale, auction, placement and monetization of online advertisements, as such may be revised from time to time. Subject to the terms and conditions of this Agreement, MENCH.AI grants you a limited, revocable, non-exclusive, non-transferable, license to access and use the MENCH.AI Services that are available and for which you qualify, as set forth on the Website or that MENCH.AI otherwise provides in writing. “Account” means an account to use the MENCH.AI Service that is created through the Website or any insertion orders mutually agreed in writing between the parties.
B. Registration.
You must create an Account to access and use the MENCH.AI Service. If MENCH.AI accepts your registration, then it will provide you log-in information or the log-in information you provide will be activated. If you utilize any aspect of the MENCH.AI Se rvices, you agree to include on your Site(s) all code, tags, cookies and other information required, including the domain information and other required information of MENCH.AI and our demand affiliates in your ad.txt file (or any equivalent or replacement format or file). If you do not have an ad.txt file, you agree to create one. You are responsible for keeping your log-in information secret. You are responsible for all actions and activities that occur through or under your Account. You sh ould promptly notify MENCH.AI of any unauthorized use or access to your Account. If you utilize any aspect of MENCH.AI Services, you agree that MENCH.AI has the exclusive right to operate the ad inventory for any placements created by the MENCH.AI Services. “Site(s)” means the websites, web pages and applications you designate to use the MENCH.AI Service.
C. Reporting.
You can view and monitor advertising activity through your Account. In the event your Account is not available for any reason, MENCH.AI will, upon your reasonable written request, provide you with any information that would otherwise be available through your Account. MENCH.AI will calculate all statistics, information and activity under your Account in its commercially reasonable discretion and as provided in Sections 1(E) and 2(A), as a result, all activity shown in your Account is subject to change.
D. Delivery of the MENCH.AI Service.
MENCH.AI will endeavor to make the MENCH.AI Service available twenty-four hours a day, seven days a week, except during downtime for maintenance and as otherwise provided in this Agreement. You understand and agree that (i) MENCH.AI may change, suspend, or stop providing the MENCH.AI SERVICE at any time in MENCH.AI's sole discretion, (ii) you are responsible for providing the necessary resources to enable you to use the MENCH.AI Services and to integrate all video player(s), Site(s), application(s), and server(s) with the MENCH.AI Service in accordance with the technical integration specifications made available on the Website, and (iii) you must meet certain qualifications, requirements and specifications to use parts of the MENCH.AI Service.
E. MENCH.AI Service Rules and Prohibitions.
i. You agree not to (and such agreement includes not attempting to, and not assisting or permitting any third party to): (a) copy, reproduce, disassemble, decompile, reverse engineer or create derivative works from the MENCH.AI Service (or any part of the MEN CH.AI Service); (b) disable, interfere with, alter, damage, or develop or use any workaround for, the MENCH.AI Service (or any part of the MENCH.AI Service or the servers and systems on which it operates); (c) pass personally identifiable information to MENCH.AI without obtaining consent to do so; (d) use any part of the MENCH.AI Service in violation of any laws, ordinances, regulations, statutes, orders or industry rule (“Laws”); (e) restrict or inhibit any other person from using the Website or MENCH.AI Service (or part of either); (f) resell, license, provide, store or otherwise transfer data and content through the MENCH.AI Service unless you own it or have a license permitting you to make such uses; (g) distribute to, or allow, any third party to use or access the MENCH.AI Service, unless permitted as a Service Retailer pursuant to Section (1)(G) below; (h) not modify or interfere in any way with any tag, computer code or advertisement provided to you or placed on your Site(s) by MENCH.AI, including addi ng any features to advertisements; (i) alter any metric or parameter reported or calculated through your Account, whether through manual or automated means ; (j) cause any visitor clicking on any advertisement to be sent to any site other than the advertiser’s page, except as expressly authorized in writing by either such advertiser or by MENCH.AI; (k) use the MENCH.AI Service for any obscene, defamatory, tortuous, violent, hateful, or illegal content or purpose; (l) submit or allow any other person to submit on your behalf any registration form after you have been disapproved for or prohibited from using the MENCH.AI Service; (m) engage in any deceptive act or practice with respect to any Site(s); and (n) use any code or similar automatic items, programs, or processes, such as automated software, data mining software, scrapers, and ‘bots on the Website or to interfere with or manipulate any aspect of the MENCH.AI Service.
ii. Compliance with MENCH.AI Policies.
You agree to comply with the provisions of this Agreement and all policies and procedures that MENCH.AI may provide to you through the Website as well as all of MENCH.AI’s then -current specifications, qualifications, and requirements for the MENCH.AI Service (“MENCH.AI Policies”). MENCH.AI Policies are effective as soon as they are posted to the Website.
F. Beta Services.
MENCH.AI may invite you to try features and tools that are in development (“Beta Services”). Beta Services may be subject to additional terms. You understand and agree that you use Beta Services at your own risk. IN NO EVENT WILL MENCH.AI HAVE OR INC UR ANY LIABILITY IN RELATION TO OR RESULTING FROM ANY BETA SERVICE. You have the right to accept or reject to participate in the testing of any new features and tools that are in development.
G. Offering MENCH.AI Services to Your Clients.
If we agree in writing, you may offer, market, manage and resell the MENCH.AI Services to Clients in accordance with the following terms and conditions (persons who sell MENCH.AI Service to Clients are referred to in this Agreement as “Service Retailers”):
i. Promotional Efforts.
You agree to use commercially reasonable efforts to promote the MENCH.AI Service, including maintaining an organization that is sufficient to promote and manage the MENCH.AI Service. MENCH.AI will provide reasonable efforts to support your marketing eff orts, including providing reports and information through your Account for each Client. “Client” means a third party that uses the MENCH.AI Services through you and is associated with your Account. You must create a separate Account for each Client that uses the MENCH.AI Services through you.
ii. Registering Clients.
You agree to follow and comply with the requirements and procedures provided on the Website, or otherwise provided by MENCH.AI, to register each Client. You agree, and covenant to obtain consent from each Client, to associate your Account with the Client Account and to share information between such Accounts and with MENCH.AI.
iii.
Non-exclusive Engagement . You understand and agree that being a Service Retailer is a non -exclusive engagement. MENCH.AI may have or develop a direct relationship with a Client, and a Client may have or develop a relationship with other parties who offer and sell MENCH.AI Services. MENCH.AI will not be liable in any way for any contacts made by it or any other party with Clients, or for any sales or other business transactions made directly between a Client and MENCH.AI, or between a Client and any other party. You understand and agree that MENCH.AI may disassociate a Client Account with you upon request of the Client or upon termination of this Agreement for any reason and transfer the Client Account to a third party or establish a direct relationship with the Client.
iv. Payment to Clients.
You shall designated in your Account whether you or MENCH.AI is responsible for paying Clients all amounts owed pursuant to a Client’s use of MENCH.AI Services through you. If you have responsibility for paying Clients and MENCH.AI becomes aware that you are not paying a Client any amounts owed, then MENCH.AI may deduct amounts due to the Client from the amounts it would have paid to you, and remit such amounts directly to the Client. In such event, MENCH.AI will remit 80% of Payments associated with a Client to such Client. If MENCH.AI has responsibility for paying any Client, then you must specify what percentage of Payments should be remitted to each Client.
v. Compliance with this Agreement.
You shall comply with all the terms of this Agreement and all applicable laws in connection with all activities you undertake with regard to the offering, marketing, managing and reselling the MENCH.AI Services as a Service Retailer.
vi. Use of MENCH.AI Marks.
You shall identify MENCH.AI as the source of the MENCH.AI Service. Subject to the terms of this Agreement, MENCH.AI hereby grants you a non- exclusive, non-transferable, revocable, non-transferable license to use the trademarks, service marks and source indicators that MENCH.AI designates from time to time (“MENCH.AI Marks”) solely to undertake and perform the Service Retailer obligations set forth in this Section 1(G). You agree that the nature and quality of your efforts and servic es related to the MENCH.AI Service, and all related advertising, marketing, promotional and other uses of the MENCH.AI Marks by you will be of a high standard so as to protect and enhance the MENCH.AI Marks and the goodwill pertaining thereto. You further agree that all materials bearing the MENCH.AI Marks shall conform to the guidelines MENCH.AI may establish from time to time. You shall obtain MENCH.AI’s written approval prior to using the MENCH.AI Marks in any manner that is different from or inconsist ent with this Agreement or MENCH.AI’s guidelines, or in any manner that is not covered by this Agreement or MENCH.AI’s guidelines. MENCH.AI must pre-approve, in writing, all materials you use to market the MENCH.AI Service. You shall properly mark all packaging, labels, advertising and promotional materials, and all other printed materials on or in connection with which the MENCH.AI Marks appear in accordance with MENCH.AI’s instructions, guidelines, all applicable laws and good trademark practices. Without the prior written approval of MENCH.AI, you shall (i) use the marks only in the form provided and in the manner prescribed from time to time by MENCH.AI, (ii) not vary the colors, shapes or any other element of the MENCH.AI Marks, and (iii) not use any other trademark, service mark or other source indicator in combination with any of the MENCH.AI Marks. You shall provide samples showing all uses of the MENCH.AI Marks to MENCH.AI upon request. You agree to stop use of any MENCH.AI Mark upon receipt of a notice from MENCH.AI requesting or demanding that you stop such use. You agree to cooperate, at MENCH.AI’s request and expense, in any action (including legal proceedings) which MENCH.AI deems necessary or desirable to establish, preserve or defend MENCH.AI’s exclusive rights in and to the MENCH.AI Marks. You shall notify MENCH.AI promptly of any unauthorized use of the MENCH.AI Marks as such use comes to your attention.
H. Mench Social Media
Mench Social Media is an optional feature of the MENCH.AI Service that allows you to connect authorized social media accounts and, at your direction, create, schedule, upload, or publish content to supported third-party platforms, including TikTok and YouTube. Your use of Mench Social Media is also subject to the terms, developer policies, community guidelines, privacy policies, and other rules of the third-party platform whose account you connect.
By connecting a social media account, you authorize MENCH.AI to request and use only the permissions and data reasonably necessary to provide the Mench Social Media features you choose to use. Depending on the platform and permissions you approve, this may include account identifiers, basic profile information, authorization scopes, access tokens, refresh tokens, and information needed to create, schedule, upload, or publish content on your behalf.
MENCH.AI will use social media credentials and authorization tokens only to authenticate the connected account, maintain the authorized connection, and perform actions you initiate or specifically authorize. MENCH.AI does not sell social media credentials, access tokens, or content obtained through connected social media APIs. MENCH.AI does not use content or private account data obtained through connected social media APIs to train generalized artificial intelligence or machine-learning models, build advertising profiles, or conduct unrelated advertising or analytics.
You retain responsibility for the content you submit or authorize Mench Social Media to publish, including ensuring that you have all necessary rights, licenses, permissions, disclosures, and consents and that the content complies with applicable law and the rules of the destination platform. MENCH.AI will not intentionally perform a social-media write action, such as publishing or uploading content, unless the action is initiated or specifically authorized by you through the MENCH.AI Service.
MENCH.AI may securely store authorization tokens where necessary to maintain the connection you requested. You may revoke MENCH.AI's access through the applicable platform's account settings or by contacting MENCH.AI. Following revocation, MENCH.AI will cease using the revoked authorization and will delete associated authorization tokens when reasonably practicable, except to the extent retention is required by law, necessary for security or fraud prevention, or otherwise permitted under the applicable platform rules and MENCH.AI Privacy Policy.
I. Mench Calendar Buddy
Mench Calendar Buddy is an optional feature of the MENCH.AI Service that allows you to connect a supported calendar account, including Google Calendar, so that you or your authorized AI Buddy may display availability, create or update appointments, send booking information, and perform other calendar actions that you expressly request or configure.
By connecting Google Calendar or another supported calendar service, you authorize MENCH.AI to request and use only the permissions and data reasonably necessary to provide the calendar functionality you select. Depending on the permissions you approve, this may include calendar identifiers, event information, availability or free/busy information, attendee information, time-zone information, authorization scopes, access tokens, and refresh tokens.
MENCH.AI will use Google user data obtained through Google APIs only to provide and improve the user-facing Mench Calendar Buddy functionality that you request, consistent with the permissions you grant and the MENCH.AI Privacy Policy. MENCH.AI does not sell Google Calendar data, use Google Calendar data for advertising, or use Google Workspace user data to develop, improve, or train generalized artificial intelligence or machine-learning models.
Mench Calendar Buddy's use and transfer of information received from Google APIs will comply with the Google API Services User Data Policy, including applicable Limited Use requirements, and, where Google Workspace scopes are used, the Google Workspace User Data and Developer Policy. You acknowledge that use of Google Calendar and other third-party calendar services is also subject to the applicable provider's own terms and policies.
You are responsible for ensuring that appointments, attendee information, instructions, and other calendar content you create or authorize through Mench Calendar Buddy are lawful and accurate and that you have authority to invite or communicate with the relevant attendees. MENCH.AI will not intentionally create, modify, or delete a calendar event unless that action is initiated or specifically authorized by you through the MENCH.AI Service or through an automation you have configured.
You may revoke MENCH.AI's access to your calendar account through the applicable provider's account or security settings or by contacting MENCH.AI. Following revocation, MENCH.AI will cease using the revoked authorization and will delete associated authorization tokens when reasonably practicable, except to the extent retention is required by law, necessary for security or fraud prevention, or otherwise permitted under the applicable provider rules and MENCH.AI Privacy Policy.
2. Payments and Fees.
A. From MENCH.AI to You.
MENCH.AI will remit to you any amounts legitimately incurred under your Account and collected by MENCH.AI for your use of the MENCH.AI Services, less any fees owed to MENCH.AI and other parties (“Payments”) as provided in your Account. First Payment is made 60 days following the month end of first use and then every month end thereafter. MENCH.AI will remit Payments only when the amount due exceeds $50, except upon termination of this Agreement, when MENCH.AI will remit any balance to you. MENCH.AI has t he right to withhold any amount that MENCH.AI determined, in its sole discretion, was not legitimately incurred, and, if you are a Service Retailer, is due to a Client as provided in Section 1(G)(iv).
B. From You to MENCH.AI.
MENCH.AI will invoice you for any fees you incur through use of the MENCH.AI Service, and you agree to pay all undisputed amounts on such invoice to MENCH.AI within forty five (45) days after your receipt of the applicable invoice. Any invoice remaining unpaid for more than forty five (45) days from receipt, which remains unpaid for five (5) days following MENCH.AI’s notice to you of non-payment, will accrue interest at a rate of the lesser of one and one-half percent (1.5%) per month or the highest rate allowed by law. If there is a good faith dispute with regard to any portion of an invoice, you will provide notice and detail of the dispute prior to the invoice due date, and, on or before the invoice due date, you will pay the undi sputed portion of the invoice as provided in this Agreement. Upon resolution of the dispute, you will promptly pay to MENCH.AI any agreed- upon amounts owed to MENCH.AI, together with interest at the rate above, calculated from the date the amounts were originally due.
C. Currency; Taxes.
All payments made under this Agreement will be made in U.S. dollars. Each party is responsible for its own income taxes with regard to any income derived from this Agreement. MENCH.AI’s fees do not include applicable taxes and MENCH.AI does not deduct any taxes from amounts paid to you. You are responsible for, and agree to pay, all taxes in connection with this Agreement and your use of the MENCH.AI Service, including sales, use, excise, value-added, business, service, goods and services, consumption, withholding, payroll, employment and other taxes or duties, but specifically excluding any taxes which are based on or measured by the income of MENCH.AI. The parties will cooperate in good faith to minimize taxes to the extent legally permissible. Each party will provide to the other party any resale exemption, multiple points of use certificates, treaty certification and other exemption information reasonably requested by the other party.
3. Suspension and Termination.
A. Term.
The term of this Agreement will begin when you register and MENCH.AI accepts your Account and will continue until terminated.
B. Suspension.
MENCH.AI reserves the right to suspend your use of the Website or MENCH.AI Service without notice at any time for any reason or no reason in its sole discretion.
C. Termination.
Either party may terminate this Agreement at any time for any or no reason by providing written notice to the other party.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT MENCH.AI MAY SUSPEND AND
TERMINATE YOUR USE OF THE MENCH.AI SERVICE AND ACCESS TO ACCOUNTS AT
ANY TIME AND WILL NOT BE LIABLE SHOULD IT EXERCISE THAT RIGHT.
D. Effect of Termination.
i. Generally.
Upon termination of this Agreement for any reason, (i) you will immediately remove all tags and any other MENCH.AI code or other identifiers from all of your Site(s) and otherwise cease all use of the MENCH.AI Service (if you are a Service Retailer, then you shall not remove MENCH.AI tags, code and other identifiers from Client website(s) unless expressly instructed to do so by a Client), (ii) each party shall return or destroy any Confidential Information of the other party in its possession or control, (iii) MENCH.AI will provide you with any final reports that you may reasonably request, and (iv) each party will remit to the other party all amounts due and payable as of the termination date in accordance with Section 2.A. and 2.B. From and aft er the date of termination, neither party shall, directly or indirectly, disparage the other party or its officers, directors, stockholders, shareholders, employees, agents, and affiliates in any media or format whatsoever.
ii. Service Retailers.
If you are a Services Retailer, then the following terms apply following termination of this Agreement for any reason:
a. You shall immediately stop all offering, marketing, managing, reselling and any other activities related to the MENCH.AI Services. You shall send each Client that has used the MENCH.AI Service in the prior twelve -month period a notice, approved by MENCH.AI, informing such Clients that you are no longer authorized to offer the MENCH.AI Service. Each Client may continue using the MENCH.AI Service if it chooses.
b. Your Account will be terminated following termination of this Agreement.
MENCH.AI will remit any Payments for amounts you earn prior to the termination date as provided in this Agreement, on the Website, or as otherwise agreed in writing.
c. You understand and agree that MENCH.AI may disassociate a Client Account from you and transfer the Client Account to a third party or establish a direct relationship with the Client.
E. Survival.
All provisions of this Agreement which are by their nature intended to survive the termination of this Agreement, including Sections 1(F), 3(D), 3(E), 4- 12 and 14-19 will survive such termination.
4. Confidentiality
A. Each party agrees that pursuant to this Agreement it will have access to and acquire confidential and proprietary knowledge, material, data, and information concerning the operation, business, financial affairs, products, customers and trade secrets of the other party that are designated as confidential (or in a similar manner) or that should be reasonably understood to be confidential (“Confidential Information”). MENCH.AI’s Confidential Information includes MENCH.AI’s software, code, tags, technology, and all non-public aspects of the MENCH.AI Service. The receiving party agrees to keep the disclosing party’s Confidential Information secret, use reasonable measures to protect the disclosing party’s Confidential Information, and not disclose the disclosing party’s Confidential Information to any other person or use the disclosing party’s Confidential Information except as permitted under this Agreement. A violation of this Section 4 may cause great and irreparable harm to the disclosing party, and the disclosing party may seek temporary and preliminary injunctive relief for any violation or threatened violation of these provisions without the necessity of proving irreparable harm or posting a bond or other security, in addition to any other legal or equitable remedies as may otherwise be available to the disclosing party.
B. Confidential Information will not include any information that the receiving party can establish (a) was known to the public before the receiving party received it, (b) became known to the public without any action or omission on the receiving party’s part, (c) was already known by the receiving party (except by reason of a prior disclosure on a confidential basis), or (d) was received by the receiving party without any obligation of confidentiality from a third party lawfully having possession of such information and having the right to disclose it. The receiving party may disclose Confidential Information pursuant to an order, decree, rule, or procedure of a court or other tribunal, on the condition that, to the extent legally permissible, the receiving party first notifies the disclosing party before the required disclosure and provide the disclosing party the opportunity to seek a protective order or other relief.
5. Your Representations, Warranties and Responsibilities
A. Generally.
You represent, warrant and covenant that you (i) have, and will have, all necessary rights and authority to enter into this Agreement and perform your obligations under it, including all rights and permissions to use and allow MENCH.AI to use User Provided Content (defined below) and Site(s); (ii) are and will be solely responsible for all use of the MENCH.AI Services and activity under your Account; (iii) will use the Services in full compliance with all of your other agreements; (iv) will comp ly with all Laws, and will not cause or attempt to cause MENCH.AI to violate any applicable Law; (v) provide only correct and accurate information in your Account, and you will update such information promptly during the term of this Agreement; (vi) are an authorized representative of the entity on whose behalf you are using the MENCH.AI Service and such entity is duly organized; (vii) conduct business in a manner that reflects favorably on the MENCH.AI Service and MENCH.AI; (viii) will not make, use or employ (either actively or through omission) any false, deceptive, misleading or unethical statements, representations or practices with regard to the MENCH.AI Service; and (ix) will not use the MENCH.AI Service in connection with or to publish any misleading or false advertisements.
B. Service Retailers.
If you use the MENCH.AI Service as a Service Retailer, then you represent, warrant and covenant that you are and will be authorized to act on behalf of all Clients and that you will be liable for their acts and omissions in connection with the MENCH.AI Services that occur through you.
C. Your Site(s) and User Provided Content.
You are solely responsible for the development, maintenance, and operation of your Site(s), for all of your User Provided Content, for the transmission of information between Site(s) and the MENCH.AI Service, and for compliance with all MENCH.AI Policies. “User Provided Content” means all creative elements, content, media, video, tags, advertisements, links, applications, code or widgets that you provide. MENCH.AI is not responsible for, and has no obligation to pr ovide notice of, any instance in which any Site is not properly operating in connection with the MENCH.AI Service. MENCH.AI makes no representation regarding the placement of, and disclaims any liability or responsibility for the display of, any User Provided Content.
D. Cookies and Privacy.
You agree to inform visitors of your Site(s) about the use of “cookies,” “shared objects,” tags, and similar browser functionalities, the collection of information from and about visitors to your Site(s), the options that visitors have with respect to the use of cookies, tags and other means of information collection, the use of information from and about visitors to your Site(s), and that third parties may gather information through your Site(s) and use such information for lawful pur poses. You agree to abide by and comply with all relevant laws regarding the privacy of persons to your Site(s) and to provide a mechanism on your Site to obtain, with respect to the MENCH.AI Services, all necessary and appropriate prior and informed consent from persons with regard to the use of third- party technology and to maintain reasonable evidence of such consent, which shall be provided to MENCH.AI upon request, in accordance with applicable Law.
6. MENCH.AI’s Representations and Warranties.
MENCH.AI represents and warrants that it has all rights necessary to enter this Agreement and to provide the MENCH.AI Service. MENCH.AI agrees to take commercially reasonable steps to prevent the knowing inclusion of viruses or other contaminant that damage, interfere with, modify, deactivate, surreptitiously intercept or misappropriate the MENCH.AI Service or your use of the MENCH.AI Service.
7. DISCLAIMER OF WARRANTIES; NO GUARANTEE.
EXCEPT AS EXPLICITLY PROVIDED IN THIS AGREEMENT, MENCH.AI MAKES NO
REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR
OTHERWISE, WITH RESPECT TO THE MENCH.AI SERVICE, THE WEBSITE OR WITH RESPECT
TO ANY ADVERTISEMENTS, TAGS, CONTENT, OTHER TECHNOLOGY, INFORMATION,
MATERIALS, SERVICES, OR OTHERWISE AND PROVIDES THEM TO YOU STRICTLY “ AS IS”
AND “ AS AVAILABLE .” WITHOUT LIMITING THE GENERALITY OF THE FOREGOING
STATEMENTS, EXCEPT AS EXPLICITLY PROVIDED IN THIS AGREEMENT, MENCH.AI (1)
HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS,
INCLUDING IMPLIED WARRANTIES OF NON -INFRINGEMENT, MERCHANTABILITY, AND
FITNESS FOR A PARTICULAR PURPOSE, EVEN IF MENCH.AI IS OR BECOMES AWARE OF THE
PURPOSE, AND (2) PROVIDES NO REPRESENTATION OR WARRANTY OF ANY KIND AS TO
YOUR RESULTS USING THE MENCH.AI SERVICE OR ANY PART THEREOF.
MENCH.AI DOES NOT GUARANTEE THE MENCH.AI SERVICE, OR ANY PART THEREOF,
WILL BE OPERABLE AT ALL TIMES OR WILL BE UNINTERRUPTED, ERROR -FREE OR
SECURE.
8. LIMITATIONS OF LIABILITY
EXCEPT IN CONNECTION WITH EACH PARTY’S INDEMNIFICATION AND
CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, FOR WHICH LIABILITY WILL
NOT BE SO LIMITED, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS
AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE
DAMAGES, INCLUDING LOSS OF REVENUE OR PROFITS, LOST BUSINESS OR COST OF
REPLACEMENT SERVICES, WHETHER IN CONTRACT, TORT, OR ANY OTHER LEGAL
THEORY, EVEN IF SUCH PARTY HAS PRIOR NOTICE OF THE POSSIBILITY OF SUCH
DAMAGES, AND NOTW ITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
REMEDY, AND (B) EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER OR WITH
RESPECT TO THIS AGREEMENT FOR ANY AND ALL CLAIMS, REGARDLESS OF THE NUMBER
OR NATURE OF THE CLAIMS, WHETHER ARISING IN CONTRACT, TORT , REGULATORY
LAW, OR OTHERWISE, SHALL BE LIMITED TO DIRECT DAMAGES OBJECTIVELY MEASURED
IN AN AMOUNT THAT SHALL NOT EXCEED THE TOTAL PAID OR PAYABLE TO YOU IN THE
TWELVE (12) MONTHS PRECEDING THE INCIDENT THAT GAVE RISE TO THE CLAIM.
EACH PARTY ACKNOWLEDGES AND AGREES THAT THE DISCLAIMER OF WARRANTIES
AND LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT ARE PART OF AN
ALLOCATION OF RISKS AND BENEFITS BETWEEN THE PARTIES AND THAT WITHOUT SUCH
ALLOCATION OF RISKS AND BENEFITS, NEITHE R PARTY WOULD BE WILLING TO ENTER
INTO THIS AGREEMENT.
9. Indemnification.
A. Each party (the “Indemnifying Party”) will defend, indemnify and hold harmless the other party and its officers, directors, employees, and agents (each, an “Indemnified Party”) from all third-party claims, damages and liabilities (including reasonable attorneys’ fees and expenses) (“Claims”) arising out of or related to the Indemnifying Party’s (i) breach or alleged breach of this Agreement or (ii) infringement or misappropriation of such third party’s patent, trademark, trade secret or copyright in connection with (a) where MENCH.AI is the Indemnifying Party, the software and other technology that it owns and uses to provide the MENCH.AI Service, and (b) where you are the Indemnifying Party, the Sites, User Provided Content and software, creative, content, technology, data, and other materials you provide to MENCH.AI or use, store or make available through the MENCH.AI Service. Section 9(A)(ii) states the sole liability of the Indemnifying Party, and the sole remedy of the Indemnified Party, with respect to any third-party claim concerning intellectual property infringement or misappropriation. Neither party will be obligated to indemnify the other party under Section 9(A)(ii) for Claims that are caused by (y) the Indemnified Party’s use of products or services in breach of this Agreement or (z) because of use in combination with third party products or services. In the event of a third-party infringement claim, the Indemnifying Party may, in its discretion, obtain a license to the allegedly infringing product, service or intellectual property, remove such product, service or intellectual property (in which case the Indemnified Party agrees to stop all use of such product, service or intellectual property), or terminate this Agreement.
B. Upon receipt of a Claim, the party seeking indemnification hereunder must (1) notify other party of the Claim, except that failure to give such notification shall not affect the Indemnifying Party’s obligations except to the extent the Indemnifying Party is materially prejudiced as a result of such failure; (2) allow the Indemnifying Party to control the defense of the Claim, except that the Indemnified Party shall have the right, at its sole expense, to have its own legal counsel participate in all aspects of such defense; (3) allow the Indemnifying Party to settle the Claim; except that the Indemnifying Party will have no right to compromise or settle any Claim in a manner which affects the Indemnified Party’s rights or intellectual property, makes admissions on the Indemnified Party’s behalf or obligates the Indemnified Party to take or not take any action, including, without limitation, the payment of money, without the Indemnified Party’s prior written approval; and (4) cooperate with the Indemnifying Party and provide the Indemnifying Party all authority, information, and assistance (at the Indemnifying Party’s request and expense) that are reasonably necessary for the Indemnifying Party to defend against or settle the Claim. Notwithstanding, the foregoing provision, if, in the Indemnified Party’s good-faith judgment, the Indemnifying Party fails to aggressively pursue the defense of any Claim, or the Indemnified Party’s interests with respect to the Claim conflict with the Indemnifying Party’s interests, the Indemnified Party may elect to control the defense of the Claim, with counsel of its own selection, and the Indemnifying Party shall reimburse the Indemnified Party for all costs and expenses associated with such defense.
10. Proprietary Rights
A. Ownership of the MENCH.AI Service and MENCH.AI Marks.
You understand and agree that, as between you and MENCH.AI, MENCH.AI owns all right, title, and interest in and to the MENCH.AI Service and MENCH.AI Marks, and every part thereof, including all intellectual property rights therein, and you will not acquire any right, title, or interest in or to the MENCH.AI Service, MENCH.AI Marks or any part thereof, or in any of MENCH.AI’s other intellectual property as a result of this Agreement or your use of the MENCH.AI Service. All use of the MENCH.AI Marks, as well as all goodwill associated therewith, will inure to the benefit of and be on behalf of MENCH.AI. You agree not to remove, alter, obliterate, conceal, cover, and/or render unreadable, directly or indirectly, in whole or in part, any MENCH.AI Mark or any intellectual property notice delivered through or with the MENCH.AI Service. MENCH.AI shall have the sole right, but not the obligation, to bring infringement, misappropriation, dilution, unfair competition or any other proceedings involving the MENCH.AI Service and MENCH.AI Marks.
B. User Marks and Content; MENCH.AI Provided Creative Content.
MENCH.AI agrees that, as between you and MENCH.AI, you own all right, title and interest in and to the User Provided Content and all trademarks, service marks and other source indicators that you provide for use as part of the MENCH.AI Service (“User Marks”), including all intellectual property rights therein. You hereby grant MENCH.AI a non-exclusive, non-transferable (except with a permitted assignment of this Agreement), royalty-free, fully paid up, worldwide right and license to use, copy, display, distribute and modify the User Provided Content and to use the User Marks, in connection with providing the MENCH.AI Service, listing you as a customer of the MENCH.AI Service, and as you otherwise agree to in writing. MENCH.AI agrees to comply with any written guidelines you provide with regard to use of the User Marks and to use the User Marks in accordance with your written quality standards, and commercially acceptable trademark practices.
C. Your Data.
As between you and MENCH.AI, you will own all data you provide through your Account. You hereby grant MENCH.AI the right to use and disclose such data: (i) in the aggregate and as statistics in connection with the MENCH.AI Service; (ii) to provide, manage, maintain, and enhance the MENCH.AI Services (including disclosure of information and statistics to the relevant counterparties in transactions you engage in through the MENCH.AI Service); (iii) as elected by you in connection with your use of the MENCH.AI Service; and (iv) to third parties whose services you elect to use, such as application and data providers.
D. Privacy Policy.
You understand and agree (i) MENCH.AI may have access to and collect personally-identifiable information relating to you and your use of the MENCH.AI Service as provided in our privacy policy, (ii) MENCH.AI may use such information as provided in the privacy policy and to enable and facilitate your use of the MENCH.AI Service, and (iii) you agree not to transfer or otherwise provide to MENCH.AI or store through the MENCH.AI Service any personally-identifiable information of any other person, other than a Client, without consent. You consent to the transfer of your personal information to jurisdictions that have been deemed to have inadequate security. If you are a Service Retailer, you covenant that you have obtained the consent of all of your Clients to the transfer of your personal information to jurisdictions that have been deemed to have inadequate security and to MENCH.AI’s use of the Client’s information as provided in our privacy policy.
E. Suggestions.
MENCH.AI welcomes User’s comments and suggestions regarding the MENCH.AI Service (“Suggestions”). MENCH.AI will not, however, be required to treat any Suggestions as confidential or proprietary. Do not make any Suggestion that contains any materials, information, ideas, or other content that you do not want to be made public or used. You hereby grant to MENCH.AI a non-exclusive, irrevocable, fully paid up, royalty free, transferable license to use, copy, distribute, display, disclose, exploit and create derivative works from all Suggestions without charge by or remuneration to you and without providing credit to you.
11. Relationship of the Parties.
In performing this Agreement, both parties are acting in their separate capacities as independent contractors and not as employees, partners, joint ventures, associates, or agents of one another. Each party acknowledges and agrees that it does not have the authority to act for or in the name of the other party, to direct the other party’s operations, or to commit the other party in any manner whatsoever with respect to the performance of this Agreement. Each party shall be responsible for its costs of performing this Agreement and for its own business filings, taxes, and other obligations outside of this Agreement.
12. Construction.
The section and subsection headings in this Agreement are for reference purposes only. This Agreement will not be construed against the drafter. The word “or” as used in this Agreement is non-limiting. The word “including” shall be construed to mean “including, without limitation.” For purposes of this Agreement, the term “person” may refer to an individual or an entity.
13. Force Majeure.
Each party will be excused from performance under this Agreement for any failure arising from causes beyond its control, including fire, storm, flood, earthquake, explosion, accident, theft, terrorism, acts of public enemies, war, insurrection, sabotage, i llness, labor disputes or shortages, product shortages, failure or delays in transportation, electricity or connectivity, inability to secure materials, parts or equipment, outages to any internet backbones, networks or servers, any failures of equipment, systems or local access services, acts of God, or acts of any governmental authority or agency thereof.
14. Notice.
Except as otherwise provided in this Agreement, all notices provided in connection with this Agreement will be made in writing and shall be deemed given (a) upon delivery, if personally delivered; (b) five (5) days after being deposited in the U.S. mail, postage prepaid, certified or registered, return - receipt requested; (c) one (1) day after being sent by overnight courier, charges prepaid, with tracking and delivery confirmation to such address. Notices will be sent to you at the address you provide in your account, or (d) via email if the recipient confirms receipt. Notices sent to MENCH.AI must be sent to the address specified for MENCH.AI on the Website. Notices sent to you will be sent to the address provided in your Account.
15. Texts.
If you provide a phone number in your Account, then you consent to receive text messages from MENCH.AI at that number, including any messages delivered from an automatic dialing system. You understand that text messages may assist in the provision of products or services. You also understand that you are not required to consent to receive texts to obtain products or services from MENCH.AI, but if you do not consent you will not be able to receive text messages. MENCH.AI uses your phone number as provided in our Privacy Policy, which is incorporated into this Agreement by reference and as it may be amended from time to time. In the event that the MENCH.AI sends you messages to your mobile device, you are solely responsible for any rates and fees charged by your mobile carrier. You also agree to update your mobile device account information within 48 hours of any deactivation of a mobile device so that a person who acquires your old number will not incur charges or receive your messages from MENCH.AI.
16. SMS Messaging Terms.
MENCH may offer members the option to engage in conversations with MENCH via text messaging. Message frequency may vary. Message and data rates may apply. Text HELP for help. You may reply STOP to any message to cancel. MENCH and mobile carriers are not liable for delayed or undelivered messages.
17. Governing Law.
THE JURISDICTION AND VENUE FOR ALL DISPUTES UNDER THIS
AGREEMENT WILL BE THE STATE AND FEDERAL COURTS IN THE STATE OF UTAH,
COUNTY OF SALT LAKE, AND THE PARTIES HEREBY CONSENT TO PERSONAL
JURISDICTION IN THOSE COURTS. THE PARTIES AGREE THAT NEITHER OF THEM WILL
REQUEST A JURY FOR ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT
AND EACH PARTY EXPRESSLY WAIVES ANY AND ALL SUCH RIGHTS TO A JURY TRIAL
THAT MAY EXIST UNDER STATE, FEDERAL, OR OTHER LAW.
18. Successors and Assigns.
This Agreement will inure to the benefit of and be binding on the parties and their respective successors, heirs, devisees, representatives, administrators, and permitted assigns. Either party may assign this Agreement in whole or in part at any time to a ny person, by assignment, merger, or any other form of acquisition. You shall not otherwise assign this Agreement or any portion of it, or delegate any of your duties under this Agreement, without the express written consent of MENCH.AI. Any attempted assignment in violation of this Section 17 will be void and of no effect.
19. Remedies.
Except as expressly provided in this Agreement, no remedy conferred by any of the specific provisions of the Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder, now or hereafter existing at law or in equity or by statute or otherwise. The election of any one or more remedies by either party shall not constitute a waiver of the right to pursue other available remedies. In the event an action or proceeding is brought to enforce any provision of or declare a breach of this Agreement, the party that substantially prevails in any such action or proceeding by enforcing the provisions of this Agreement shall be entitled to recover, in ad dition to any other amounts awarded, its costs and reasonable attorneys’ fees, including those incurred in collections efforts and in any and all appeals or other higher court reviews.
20. Miscellaneous.
This Agreement, including all documents referenced in this Agreement, which are incorporated into this Agreement by such reference, is the entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject, incl uding any prior agreements related to the MENCH.AI Service executed prior to the effective date of this Agreement. MENCH.AI reserves the right to change this Agreement at any time on ten (10) days advance notice to you, except that any changes made for legal reasons will be effective immediately upon MENCH.AI’s sending of the notice. If any provision of the Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s e ssential purpose and all other provisions of this Agreement will remain unaffected. Each party is permitted to use subcontractors in connection with this Agreement, but is liable for their acts and omissions. No waiver of any provision of this Agreement or of any right, power, or privilege under this Agreement will be valid or enforceable unless made in writing and signed by the duly authorized representative of the party making the waiver. The waiver by either party of a breach of any term, condition, or provision of this Agreement will not operate as, or be construed as, a waiver of any subsequent breach of such term, condition, or provision. Nothing in the Agreement will limit the right of either party to enter into similar arrangements with third parties.
NO MENCH.AI SALESPERSON, ACCOUNT REPRESENTATIVE, TECHNICIAN, SUPPORT OR
HELP DESK REPRESENTATIVE, OR OTHER SIMILAR PERSON IS AUTHORIZED TO MODIFY
THIS AGREEMENT OR TO MAKE ANY REPRESENTATION, WARRANTY OR PROMISE WITH
RESPECT TO THE MENCH.AI SERVICE OR ANY ELEMENT THEREOF THAT IS DIFFERENT
THAN, OR IN ADDITION TO, ANY REPRESENTATION, WARRANTY OF PROMISE EXPRESSLY
SET FORTH IN THIS AGREEMENT.