This Agreement is entered into by and between Company or User represented by the user identified with electronic mail used for login, (the "CONTRACTING PARTY") and BOTMAKER INC, a legally organized Corporation under the laws of Delaware, United States of America, or any of its subsidiaries or affiliated companies in Argentina and Brazil, (the "CONTRACTOR"), pursuant to the following terms and conditions (the "Terms and Conditions") which govern the granting of the Bot platform license by the CONTRACTING PARTY in favor of the CONTRACTOR.
The CONTRACTOR is the exclusive owner of the master license of a bot platform and its components (the “Technological Platform” and/or the “Software”)
2. GENERAL TERMS
2.1. Consent: The CONTRACTING PARTY agrees and accepts that the sublicense of the Technological Platform involves the understanding, acceptance and automatic approval of these Terms and Conditions. If the CONTRACTING PARTY does not agree to any of the terms stated herein, the CONTRACTING PARTY may rescind these Terms and Conditions as stated below.
2.2. Sublicense: The CONTRACTOR grants to the CONTRACTING PARTY the sublicense to use the Technological Platform pursuant to the terms stated herein and any others stated in the selected option upon registration, intended for the construction of Botmaker bots (the “Technological Platform” and/or “Software”), which have been created, developed and are owned by BOTMAKER INC, as previously stated (the "Sublicense").
2.3. Trial: At the time of registration, if the CONTRACTING PARTY selects the option "free trial plan", the CONTRACTOR shall grant the use of the Technological Platform during the trial period, as stated in Section 3 herein.
2.4. Plans: The CONTRACTING PARTY may opt for contracting the plans available at the CONTRACTOR's website.
The CONTRACTING PARTY hereby states that it is aware that the Sublicense is exclusively granted to be used in its productive infrastructure and that the Technological Platform shall not be installed in any third party's infrastructure, including its clients, without the CONTRACTOR's prior written consent.
This Sublicense is exclusively granted to be used by the legal person belonging to the CONTRACTING PARTY, as registered in the online admission process or by the sales executive. If it is to be used by a different Legal Person, it is necessary to have the CONTRACTOR's prior consent.
The Sublicense grants the CONTRACTING PARTY the right to freely use the Technological Platform, in accordance with the terms and limits established in these Terms and Conditions.
2.5. Performance of Services: The CONTRACTOR may opt for contracting the Virtual Platform support and maintenance services, as part of the Sublicense. These services do not apply if CONTRACTOR opts for the "free messaging trial plan - trial version".
3. TRIAL – TRIAL PERIOD
3.1. Trial: To better evaluate the advantages of the Technological Platform, the CONTRACTING PARTY, when sublicensing the Technological Platform, may select the option "free messaging trial plan", if available. Under this plan, the CONTRACTING PARTY will be given a certain number of messages, with the available number being specified at the selected option and messages may be used until credit is used up (the “Trial Period”). Messages may be used within a 30, 60 or 90-day period, as from the date of exercising the option of “free messaging trial plan”, with the Trial Period ending as from the date when messages have been fully used up or as from expiration of the 30, 60 or 90-day period, whatever happens first.
3.2. While the Technological Platform is being used, the CONTRACTOR shall send alerts / notices to the CONTRACTING PARTY reporting the number of messages still available during the Trial Period. Once the limit of available messages is reached, the Technological Platform will be blocked. The CONTRACTING PARTY may request the unblocking of the platform by contracting another plan, but it will not be entitled to renew the Trial Period.
3.3. Functions: Since the Trial Period is intended for the evaluation and experimentation of the Technological Platform, the CONTRACTING PARTY acknowledges and accepts that it shall have no access to the functions of such platform, which will be available at the time of contracting the plans at the CONTRACTOR's website.
3.4. Support: If the CONTRACTING PARTY needs support, it may use the resources available at the platform such as help-center, support chat and videos. But if the CONTRACTING PARTY wants the CONTRACTOR to provide any support or assistance services personally through consultants, it may contract such services separately by contacting the account manager or sending the request to servicio@botmaker.com.
3.5. The CONTRACTING PARTY acknowledges and accepts that it is not possible to extend the Trial Period, that is, no new free messages will be granted to evaluate the Technological Platform, and the 90 (ninety) day period to use the messages provided during the Trial Period shall not be extended. Once the Trial Period finishes, and after contracting one plan, the CONTRACTING PARTY shall make payments to the CONTRACTOR pursuant to the terms stated in the selected plan description.
3.6. If the CONTRACTING PARTY intends to continue using the Technological Platform after expiration of the Trial Period, it shall contact the CONTRACTOR and/or follow the procedures to include its card information to pay for the services, pursuant to the instructions given at the CONTRACTOR's website. After the relevant notice, the CONTRACTOR shall contact the CONTRACTING PARTY to effectively contract the plan.
4. PLANS
4.1. Plans: Once registered, the CONTRACTING PARTY may choose among the plans available at the CONTRACTOR's website.
4.2. All monthly plans that are calculated according to DAILY USER volume under the following definition: each external user of the platform is counted as a DAILY USER when they send or receive one or more messages to or from the CONTRACTOR, regardless of wether they are responded by the CONTRACTOR with automated messages generated by bots, or by live agents, in one specific conversation channel, during the lesser of the two following cases:
4.2.1. Case 1: the time elapsed since the first message, whether incoming or outgoing, called SESSION START, and a final one executed by an agent or by an automatic rule configured by the CONTRACTOR, called SESSION END; or
4.2.2. Case 2: during a continuous period of time of 24 hours since the first message sent or received.
5. DURATION AND TERMINATION
5.1. Duration: Termination of these Terms and Conditions, for any reason whatsoever, shall cause the immediate interruption of the Software Use Sublicense, as well as of the supply of Services.
5.2. Termination: La terminación de estos Términos y Condiciones, por cualquier motivo, dará como resultado la interrupción inmediata de la Sublicencia de Uso de Software, así como la provisión de los Servicios.Either Party may terminate these Terms and Conditions, without being subject to any penalty therefor, by sending a prior notice to the other Party, if the latter has started bankruptcy or voluntary bankruptcy proceedings, court or out-of-court restructuring or any other legal proceedings of insolvency and/or financial insolvency.
5.3. Termination without cause: Either Party may terminate these Terms and Conditions, at any time, without being it subject to any charge or penalty, after having filed a cancellation request in the Technological Platform.
5.3.1. If the CONTRACTING PARTY rescinds these Terms and Conditions between the 1st and 15th day of the contracting month, the CONTRACTING PARTY shall pay the full month and the CONTRACTOR shall provide the services until the end of such month.
5.4. All the Services provided until the termination date shall be paid, even if they become due after such termination date. The same applies to all unpaid amounts arising from the Sublicense which are due, as long as they have not been fully paid up to such a date.
6.PAYMENT
6.1. Payment: Payment of the Sublicense and the supply of Services shall be by credit card as specified by the CONTRACTING PARTY, pursuant to the terms stated on the CONTRACTOR's website or through a bank transfer depending on the method available at the time of contracting the services.
6.2. In order to start the trial period or service subscription if the CONTRACTING PARTY contracts one of the plans to use the Technological Platform, it shall provide its credit card information so that the amount corresponding to the relevant plan and services are debited from such card and it shall perform the first bank transfer to properly verify payment information.
6.3. If the CONTRACTING PARTY fails to make the payment previously stated in due time and manner, it shall pay a fine equivalent to 2% (two per cent) of the outstanding amount, plus the inflation calculated by the relevant agencies or any other index which may eventually replace it, as from the expiration date. In the event of termination, a monthly 1% (one percent) interest rate shall be added.
7. INTELLECTUAL PROPERTY
7.1. Intellectual Property: the CONTRACTING PARTY expressly states that:
a) it is not acquiring a definitive license for the Technological Platform but the right to use it for the term stated in Section 5 above;
b) it has no intellectual property right over the Technological Platform and the execution of these Terms and Conditions does not transfer any intellectual property rights over such platform;
c) all rights related to the name, trademark, patent, domain or any others associated with the technological property of the Technological Platform belong to the CONTRACTOR and/or its licensor BOTMAKER INC. pursuant to the terms of the agreements executed by and between them; and
d) under these Terms and Conditions the CONTRACTING PARTY is entitled to use the number of licenses of the Technological Platform stated at the time of registration at the CONTRACTOR's website. If there is an increase in the number of licenses or users of the Technological Platform, such new licenses or users shall be charged with the same price as that charged to the CONTRACTOR, as from the date when the number of licenses increased.
7.2. Misuse: The CONTRACTOR shall not be liable, either directly or indirectly, to the CONTRACTING PARTY and/or third parties for the misuse of the Technological Platform and of any patents, trademarks or proprietary rights. Likewise, the CONTRACTOR is responsible for the intentional or unintentional consequences that the improper use of the Technology Platform may cause, including, among others, the following improper uses: hacking, bugs from code or services introduced by the CONTRACTOR, excessive calls to the api causing delays on the CONTRACTING PARTY's infrastructure or additional costs, use of code with infinite loops, use cases not allowed by the law, use cases not allowed by policies from connected channels, and any other misuse that violates the proper functioning, the law, common sense and good manners.
7.3. Rights: The CONTRACTOR is the owner of the copyright and intellectual property rights over computer routines, development processes and any components thereof and it may use them freely in the creation of other products, as well as license them to third parties without the CONTRACTING PARTY's prior approval.The CONTRACTING PARTY shall not modify the features of the Technological Platform, or either expand or change it without the CONTRACTOR's prior consent. Any modification to the Technological Platform agreed by the Parties shall be only performed by the CONTRACTOR or a person expressly authorized by it.The CONTRACTING PARTY shall not transfer, either in whole or in part, assign, lease, pledge, donate or otherwise dispose of the Sublicense, on a temporary or permanent basis, or its manuals or any information related thereto without the CONTRACTOR's prior written consent.If the CONTRACTING PARTY fails to comply with any of the obligations previously stated or otherwise disposes of the intellectual property rights over the Technological Platform, the CONTRACTOR will be entitled to seek compensation.All rights not expressly granted to the CONTRACTING PARTY shall remain with BOTMAKER INC and the CONTRACTOR. BOTMAKER INC and/or the CONTRACTOR shall have the right to make any changes, modifications and improvements to the services on a regular basis. If such improvement or modification is indispensable to operate the Services, BOTMAKER INC and/or the CONTRACTOR shall notify the CONTRACTING PARTY accordingly.
7.4. Professional Services: At the time of registration, the CONTRACTING PARTY shall review the description of the services stated in the contracted plan. If the required service is not within the plan, the CONTRACTING PARTY may contract it by selecting the right option at the time of registration while these Terms and Conditions are effective, at the time of changing the plan at the CONTRACTOR's website or by contacting the CONTRACTOR's sales executive to contract the specific service.
7.5. The services performed by the CONTRACTOR include: support, maintenance, implementation, training and consulting (“Professional Services”). In addition to any provisions of any other agreement between the Parties, the following terms shall be applied: (i) the CONTRACTOR shall keep any rights over the deliverables, excluding any previous technology or material provided by the CONTRACTING PARTY to be incorporated into such deliverable; (ii) the CONTRACTOR shall grant the CONTRACTING PARTY a global non-exclusive and non-transferable sublicense free from any royalties, to use any deliverable, which allows the CONTRACTING PARTY to use the deliverables in compliance with the Services, during the Term of Use; and (iii) the CONTRACTING PARTY shall acknowledge that nothing herein shall either restrict or prevent the CONTRACTOR from providing similar services to a third party.
7.6. To provide support and maintenance services, the CONTRACTOR shall keep in contact with the CONTRACTING PARTY.
8. LIABILITY
8.1. CONTRACTING PARTY's obligations: The CONTRACTING PARTY shall (i) report the CONTRACTOR any irregularity noticed in the Technological Platform so that the necessary corrections be implemented as soon as possible; (ii) facilitate the material and human resources necessary for the installation of the Technological Platform by the CONTRACTOR within CONTRACTOR's usual working hours and on the date previously agreed by the parties; (iii) maintain skilled staff to operate the Technological Platform; and (iv) use the Technological Platform in accordance with the CONTRACTOR's instructions.The CONTRACTING PARTY shall be liable for any activities in the CONTRACTING PARTY's user accounts and agrees to comply with all applicable laws and regulations related to the protection of personal data, international communications, transmission of technical or personal data, export and data control regulations and laws. The CONTRACTING PARTY shall immediately notify the CONTRACTOR about any unauthorized use of any password or account or any real or threatened security violation in connection with the Services.
8.2. CONTRACTOR's obligations: The CONTRACTOR shall protect the security and integrity of the Services and shall comply with all laws and regulations applicable in [the Argentine Republic], related to the provision of Services, protection of personal data and transmission of technical or personal information. The CONTRACTOR's data security program shall include reasonable and effective technical, organization and security measures against the destruction, loss, unavailability, unauthorized access or tampering of the CONTRATING PARTY's personal data, or those of third parties which are held or controlled by the CONTRACTOR (the "Controls").The CONTRACTOR is not the owner of any data of the CONTRACTING PARTY. The CONTRACTING PARTY shall be the sole liable for the accuracy, quality, integrity and legality of its data and for the protection of the intellectual property related to, and the right to use, such data. The CONTRACTOR shall not be liable for the removal, correction, destruction, damage or loss of the CONTRACTING PARTY's data not arising from the CONTRACTOR's fault. The use of the CONTRACTING PARTY's data by the CONTRACTOR shall be restricted to the supply of the Services to the CONTRACTING PARTY and with the purpose that the CONTRACTOR may comply with the obligations stated herein.
9. DATA PROTECTION AND CONFIDENTIALITY
9.1. Data Protection: The CONTRACTING PARTY hereby states that it knows, accepts and shall comply with all laws, decrees, regulations and any other existing rule about data protection, related to any data stored, filed, compiled, processed, received, accessed and/or obtained by any means.
9.2. The CONTRACTOR hereby states that, pursuant to laws pertaining Personal Data Protection, it acknowledges the need to have its clients/users ́ written consent to treat personal data through the Technological Platform. Such consent shall be exclusively obtained by the CONTRACTING PARTY with the CONTRACTOR being exempted from any liability related to the terms of such laws.
9.3. The consent shall be expressly requested by the CONTRACTING PARTY. It shall further inform the client/server where personal data are used, the purpose of their use, the period of use and who shall have access to such data. The CONTRACTING PARTY agrees to provide the client/user with any forms necessary to modify, remove or correct their personal data, including, without limitation, the option not to receive any messages / notices from the CONTRACTING PARTY.
9.4. The CONTRACTOR states that it shall protect the owner's personal data as well as their rights to privacy, to personal data protection and to the confidentiality of private communications and records, pursuant to [Argentine] laws. Likewise, it shall adopt any technical procedures to guarantee the fulfillment of such legal obligations. Furthermore, it is forbidden to share with third parties any personal data received, except if required by law or expressly authorized by the CONTRACTING PARTY.
9.5. In the event of an administrative or out-of-court legal requirement from a regulatory or government authority requiring any clarifications about the CONTRACTING PARTY's behavior and the data included in the Technological Platform, the CONTRACTOR shall authorize the violation of the confidentiality obligation related to the provisions stated herein, and agrees to maintain any personal data confidential except if required by courts via judicial order.
9.6. Confidentiality: the parties acknowledge that, under this Agreement, they shall have access to confidential information, procedures, documents or other data. The parties agree that any information, procedures, documents and/or other data owned by one party and which are provided to the other party, shall be kept confidential and under no circumstances will they be disclosed, either in whole or in part, without the written consent of the owner of such information and/or document.
10. GENERAL TERMS
10.1. Representations and statements: Every representative of the parties warrants that they have the legal power and authority necessary to execute these Terms and Conditions. The CONTRACTOR represents and warrants that: (a) the Services will be performed in accordance with the product information available at www.botmaker.com (the "Website"), pursuant to these Terms and Conditions and in compliance with the description of the contracted plan, in normal conditions; (b) it will use any reasonable technical means to guarantee that the Services provided to the CONTRACTING PARTY do not include any disabling devices, viruses, Trojans, "Easter eggs", "trap-doors", "back doors", "cancelbots" or other programming routines to damage, impair, intercept or take any software or data belonging to the CONTRACTING PARTY. Failure to comply with this guarantee will oblige the CONTRACTOR to do its best to cure such violation. If it cannot be cured within 30 (thirty) days after the written notice sent by the CONTRACTING PARTY, the latter may terminate these Terms and Conditions and be reimbursed for the amounts paid.
10.2. Exemption of additional guarantees: Other than the statements and warranties stated herein, the CONTRACTOR does not make any additional representation or warranty, whether express, implied or legal, regardless of their origin. The CONTRACTOR expressly waives all implied warranties of marketing and suitability for a specific purpose. The CONTRACTOR does not warrant that the services are or will be free from errors, that they comply with all the CONTRACTING PARTY's requirements or that they are suitable or safe. The CONTRACTING PARTY shall not make any representations or warranties on behalf of the CONTRACTOR to third parties.
10.3. Network limitations: The CONTRACTOR's services may be subject to restrictions, delays and other inconveniencies inherent to the use of the services provided by third parties such as Facebook, Messenger, Whatsapp, etc., or inconveniencies arising from the use of the Internet and/or electronic communications. The CONTRACTOR is not responsible for any delivery failures or delays or for any other damage arising from such inconveniencies which are not exclusively caused by the CONTRACTOR's fault.
10.4. Limitation of liability: The CONTRACTOR's full liability arising out of or resulting from these Terms and Conditions, shall be limited to the amounts actually paid and/or owed by the CONTRACTING PARTY, during the 12 (twelve) month period preceding the event that originated such liability. Under no circumstances will the CONTRACTOR and/or its licensors be liable for indirect, future, uncertain or other damages or for the loss of profits, loss of chance, loss of income, earnings, use or other similar ones, arising from or somehow related to these Terms and Conditions, even if the party or such party's licensors have been previously notified of the possibility of such damages.
10.5. Marketing: The CONTRACTING PARTY authorizes the CONTRACTOR to use the name, trademark and logotype of the CONTRACTING PARTY at the CONTRACTOR's website, in the marketing and communication materials of the CONTRACTOR and to identify the CONTRACTING PARTY as the CONTRACTOR's client/partner.
10.6. Amendments: the CONTRACTOR may make any changes and include any addenda and annexes to these Terms and Conditions, by giving at least a 30-day notice to the CONTRACTING PARTY.The CONTRACTING PARTY's failure to object to any new conditions within 10 (ten) days after such notice shall be construed, by operation of law, as if the CONTRACTING PARTY has fully accepted the new conditions.However, if the CONTRACTING PARTY does not agree with the new conditions, it may immediately rescind these Terms and Conditions and shall pay for the services provided until the date of actual termination.
10.7. Assignment: Neither party shall assign these Terms and Conditions to any third party, unless with the other party's prior written consent.
10.8. Force majeure: Neither party shall be responsible for any defaults or delays in the fulfillment of the obligations under these Terms and Conditions to the extent that such default or delay has been caused by events beyond the control of such party. Such events shall include, without limitation, acts of God or of the public enemy, acts of the State or sovereign acts, fires, floods, strikes, civil unrest or other similar ones.
13.9. Relationship: The relationship between the CONTRACTING PARTY and the CONTRACTOR shall not be that of a partnership, commercial or operating company, joint venture or agency in connection with the execution of these Terms and Conditions or as a result of the use of the Services.
13.10. Conflicts, applicable law, jurisdiction: These Terms and Conditions shall be ruled by the laws of [Argentina]. The parties agree to submit themselves to the jurisdiction of the [ordinary courts of the city of Buenos Aires], expressly waiving any other jurisdiction, with those courts being the only authority to resolve any conflict or controversy resulting from the interpretation or execution of these Terms and Conditions.
June 23, 2022
BOTMAKER, INC.
