121 Services Terms of Service
This 121 Services Terms of Service Agreement (the “Agreement”) is an agreement between the person visiting, browsing, accessing, downloading, installing or otherwise using the 121 Services Solution (the “Customer”) and 121 Services SAS. (“121 Services”), together the “Parties” and each, a “Party", and is entered the date the Customer signs up for a 121 Services account through the 121 Services website (the “Effective Date”).
BY USING ANY ELEMENT OF THE 121 Services SOLUTION (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME.
- "Monthly Messages" is the total sum of all text or multimedia messages sent or received by the 121 Services System and any Chat Participant in a month.
- "Business" means either the Customer or Customer’s Client, as the case may be.
- “Chat Participant” means a unique person that a Business transmits messages to, receives messages from, or otherwise communicates with through the 121 Services Platform.
- “Customer Application” means any software application or web site developed by Customer using or integrating with the 121 Services SDK or APIs under the license terms of this Agreement.
- "Customer’s Client" means any clients of the Customer.
- “Customer Data” means any data, information, content, records, and files that Customer (or any of its Users, Customer’s Clients or Chat Participants) loads, receives through, transmits to or enters into the 121 Services Platform, and any data, information, content, records and files that the 121 Services Platform obtains from Customer’s servers or systems or from third parties on Customer’s behalf, including any and all intellectual property rights in any of the foregoing.
- "Messaging Channels" means either (i) web, iOS, Android or other messaging channel enabled by a 121 Services SDK, (ii) SMS or email that is integrated with the 121 Services Solution, or (iii) a Third Party Messaging Platform that is integrated with the 121 Services Solution.
- “Personal Information” means any and all Customer Data that can be used to uniquely identify a natural person.
- “121 Services Platform” means the software, hardware, and systems used by 121 Services to host and make the Services available for Customer’s use, including the Website.
- "121 Services Property" is as defined in section 5.
- “121 Services SDKs” means the software development kits made available by 121 Services for the development of software applications for each of iOS, Android, the web, or future versions launched by 121 Services for other platforms, that interoperate with the 121 Services Platform.
- “121 Services Website” means any websites used by 121 Services to provide and promote the 121 Services products, including the websites located at domains 121.services and 121services.co
- “Third Party Messaging Platforms” means any third party platform that may be used by Chat Participants to transmit and receive messages with a Business, including but not limited to Facebook Messenger, Telegram, and other platforms that 121 Services may support in the future.
- "User" is as defined in section 7(a).
- "User Account" is defined in section 7(a).
2. 121 Services Platform
3. License to Software Development Kits; EULA for Customer Application; Requirements for Customer Application
- License Grant to Software Development Kit. Subject to Customer’s compliance with the terms and conditions of this Agreement, 121 Services grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license during the Term to:
- download, install and use the 121 Services SDK from the 121 Services Website and other sites linked from the 121 Services Website solely to develop functionality within Customer Applications for facilitating communications between a Business and the Chat Participants through the 121 Services Platform in accordance with the terms of this Agreement and any other policies or guidelines published by 121 Services from time to time;
- distribute or otherwise make available the redistributable components of the 121 Services SDK in object code form as embedded within the Customer Application; and
- distribute the 121 Services SDK to Customer’s Clients solely to enable Customer's Clients to develop functionality in its software for facilitating communications between such Customer’s Clients and Chat Participants through the 121 Services Platform in accordance with the terms of this Agreement and any other end-user license agreements, policies or guidelines published by 121 Services from time to time.
- End-User License Agreement for Customer Applications. Customer may permit Chat Participants to use Customer Applications to communicate with Customer through the 121 Services Platform. Customer will enter into an end-user license agreement (“EULA”) with such Chat Participants as a condition of such Chat Participant’s use of any Customer Applications. Customer will ensure that the EULA contain terms that are no less protective of 121 Services and the 121 Services Platform as the terms of this Agreement.
4. Trademark License
- During the Term, Customer hereby grants to 121 Services a worldwide, non-exclusive, non-transferable and non-sub-licensable (other than to affiliates) royalty-free licence to use Customer’s trademarks and logos made available to 121 Services by Customer as part of this Agreement, solely in connection with the marketing, advertising, and promotion of the 121 Services Solution, including listing the Customer and the Customer Application on the 121 Services Website; and only in accordance with Customer’s reasonable trademark usage guidelines, as updated by Customer from time to time. Customer may require 121 Services to cease using Customer’s trademarks and logos if, in the reasonable opinion of Customer, the continued display of Customer’s trademarks and logos would cause a materially adverse effect on Customer’s image and the goodwill associated therewith.
- During the Term, 121 Services grants to Customer a limited, non-exclusive, non-transferable and non-sub-licensable (other than to affiliates) royalty-free licence to use 121 Services’s trademarks and logos made available to Customer by 121 Services as part of this Agreement, solely in connection with the marketing, advertising, and promotion of the 121 Services Solution, and only in accordance with 121 Services’s reasonable trademark usage guidelines, as updated by 121 Services from time to time. 121 Services may require Customer to cease using the 121 Services’s trademarks and logos if, in the reasonable opinion of 121 Services, the continued display of the 121 Services’s trademarks and logos would cause a materially adverse effect on 121 Services’s image and the goodwill associated therewith.
5. Reservation of Rights
121 Services expressly reserves all rights, title, and interest in, and Customer will not acquire any right, title or interest in: (i) the 121 Services Solution (or any part thereof) and any other materials or content provided by 121 Services under this Agreement, including any and all Modifications to any of the foregoing; and (ii) all intellectual property rights in any of the foregoing (clauses (i) and (ii) are collectively, the “121 Services Property”), in each case, subject to the license rights expressly granted under section 3 and 4.
6. 121 Services’s Right to Use Customer Data
Customer acknowledges and agrees that 121 Services may store, use, reproduce, modify, and transfer to its subcontractors, Customer Data, solely in connection with delivering the Services under this Agreement. Customer further acknowledges and agrees that 121 Services may store, use, reproduce, modify, and transfer Customer Data, EXCLUDING ANY PERSONAL INFORMATION
8. Customer User Account; Use Restrictions
- Customer User Account. Upon Customer’s request, 121 Services will issue one or more administrator accounts (the “Administrator Accounts”) to Customer that provides Customer with the capability to create user accounts (each, a “Customer User Account”) for use by individuals who are an employee or contractor of Customer and that Customer wishes to have access to and use of the 121 Services Platform (each, a “User”). Customer will ensure that Users only use the 121 Services Platform through their Customer User Account. Customer will not share the Administrator Accounts with any other person and will not allow Users to share their Customer User Account with any other person. Customer will promptly notify 121 Services of any actual or suspected unauthorized use of the 121 Services Platform. 121 Services reserves the right to suspend, deactivate, or replace any Customer User Account or Administrator Accounts if it determines that the Customer User Account or Administrator Account, as applicable, may have been used for an unauthorized purpose.
- Use Restrictions. Customer acknowledges and agrees that it is responsible for the activities and communications of all Users and Chat Participants on the 121 Services Platform, and the compliance by all Users, Customer’s Clients and Chat Participants with this Agreement, and any guidelines and policies published by 121 Services from time to time. Without limiting the generality of any of the foregoing, Customer will not, and will not permit any other person (including any Users, Customer’s Clients or Chat Participants) to:
use the 121 Services Platform to send, upload, collect, transmit, store, use, disclose or process, or ask 121 Services to obtain from third parties or perform any of the above with respect to, any Customer Data:
- that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
- that Customer or the applicable User, Customer’s Client or Chat Participant does not have the lawful right to send, upload, collect, transmit, store, use, disclose, process, copy, transmit, distribute and display;
- that is false, intentionally misleading, or impersonates any other person;
- that is bullying, harassing, abusive, threatening, vulgar, obscene, or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual;
- that is harmful to minors in any way or targeted at persons under the age of 13;
- that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); or
- that encourages any conduct that may violate, any applicable laws or would give rise to civil or criminal liability;
- disable, overly burden, impair, or otherwise interfere with servers or networks connected to the 121 Services Platform (e.g., a denial of service attack);
- attempt to gain unauthorized access to the 121 Services Platform;
- use any data mining, robots, or similar data gathering or extraction methods, or copy, modify, reverse engineer, reverse assemble, disassemble, or decompile the 121 Services Solution or any part thereof or otherwise attempt to discover any source code, except as expressly provided for in this Agreement;
- use the 121 Services Solution for the purpose of building a similar or competitive product or service; or
- use the 121 Services Solution other than as permitted by this Agreement;
- use the 121 Services Platform to send, upload, collect, transmit, store, use, disclose or process, or ask 121 Services to obtain from third parties or perform any of the above with respect to, any Customer Data:
9. Email Support
Customer will generally have access to 121 Services’s technical support from 9:00am to 5:00pm GMT-5 on weekdays (other than holidays observed by 121 Services) through email at firstname.lastname@example.org
10. Fees and Payment
- Fees. Customer agrees to pay the usage fees set forth in the “Rate Schedule” (which is either 121 Services standard schedule of fees, as may be updated from time to time, and/or any other order forms for our Services ordered by Customer and accepted in writing by 121 Services). In addition, Customer agrees to pay any applicable support fees in connection with 121 Services.
- Payment Terms:.
- Unless Customer and 121 Services agree otherwise in writing, all fees due under these Terms are payable in United States dollars.
- Subject to certain credit requirements as determined by 121 Services, 121 Services may let Customer pay amounts due under these Terms in arrears. If 121 Services let Customer to do that, Customer will make all of the payments due hereunder within thirty (30) days of the date of the invoice. Payment obligations can’t be canceled and fees paid are non-refundable. Subject to Section 10 (c) (Fee Disputes), if Customer is overdue on any payment and fail to pay within ten (10) business days of a written notice of Customer overdue payment, then 121 Services may assess and Customer must pay a late fee. The late fee will be either 1.5% per month, or the maximum amount allowable by law, whichever is less. Subject to Section 10 (c) (Fee Disputes) and following the overdue notice, 121 Services may also suspend Services to Customer account until Customer pays the amount overdue plus the late fee.
- Payment obligations hereunder are not subject to any set-off or withholding rights whatsoever, any and all of which are hereby expressly waived by Customer.
- Fee Disputes. If Customer in good faith disputes any portion of a 121 Services invoice or charge, Customer may provide a dispute notice to 121 Services with written documentation identifying and substantiating the disputed amount within fifteen (15) days from receipt of the applicable invoice or charge, and if applicable, at the time it pays the undisputed portion of such invoice, withhold payment of such disputed portion. If Customer does not report or does not provide such substantiating documentation within that period, Customer shall be deemed to have waived its right to dispute any and all portions of that invoice. For greater certainty, Customer shall pay all undisputed amounts of that invoice in accordance with section 10 (b) above.
- Service Suspension. If Customer use of 121 Services Platform exceeds the amounts prepaid by Customer or of if Customer fails to pay any amounts due under Section 10 of the Agreement, 121 services may suspend Services associated with Customer account without prior notice to Customer. 121 Services will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur with connection with any suspension of 121 Services services pursuant to this section.
- Late Payment. Except for bona fide disputed amounts, any failure to make a payment of any Fees or taxes in strict conformity with the requirements of this section 10 entitle 121 Services to suspend, in whole or in part, access to Services, until such payment is received. Additionally, 121 Services shall assess and Customer shall pay a charge, compounded monthly, of the lesser of (a) 1.5% per month (19.56% per year) or (b) the highest amount allowed by law on all past due amounts (except amounts disputed pursuant to section (c) above). Furthermore, upon any such failure all outstanding amounts shall become due and payable without further delay.
- Taxes. The Fees set out in this Agreement do not include applicable taxes, duties, withholdings, tariffs, levies, customs, capital or income taxes or other governmental charges or expenses, including but not limited to value added tax, sales tax, consumption tax and similar taxes or duties as well as any current or future municipal, state, federal or provincial taxes, and Customer will pay, indemnify and hold harmless 121 Services from same, other than taxes based on the net income or profits of 121 Services.
11. Confidential Information
- Definitions. For purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient” and the Party disclosing such information will be the “Discloser” and “Confidential Information” means any and all information of Discloser disclosed by Discloser to Recipient or otherwise coming into the possession of Recipient during the Term that is marked as “confidential” or that a reasonable person would understand to be confidential; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations. Notwithstanding the foregoing the terms and conditions of this Agreement and all 121 Services Property (including any part thereof), whether marked as “confidential” or not, will be 121 Services’s Confidential Information will not be Customer’s Confidential Information.
- Confidentiality Covenant. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose such Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Recipient will be deemed to have discharged its confidentiality obligations under this Section 11 (Confidential Information) if Recipient uses the same degree of care in safeguarding the Confidential Information of Discloser as it uses in protecting its own confidential information of a similar nature from unauthorized disclosure.
- Exceptions to Confidentiality. Notwithstanding Section 11(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its employees, accountants, internal and external auditors, legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services related to 121 Services’s business; or (iii) in the case of 121 Services, to potential assignees, acquirers or successors of 121 Services if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of 121 Services.
12. Warranty; Disclaimer; Indemnity
- Customer Warranty. Customer represents and warrants to, and covenants with, 121 Services that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable 121 Services to provide the Services, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Information, including by or to 121 Services and to or from all applicable third parties (including third party providers of any Third Party Messaging Platforms).
- GENERAL DISCLAIMER. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE 121 Services SOLUTION (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY 121 Services TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, 121 Services HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. 121 Services DOES NOT WARRANT THAT THE 121 Services SOLUTION (OR ANY PART THEREOF) WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, OR THAT ALL ERRORS CAN OR WILL BE CORRECTED. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, 121 Services EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE 121 Services SOLUTION (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
- THIRD PARTY MESSAGING PLATFORMS, CUSTOMER APPLICATION AND CUSTOM-INTEGRATED BUSINESS APPLICATIONS DISCLAIMER.. CUSTOMER ACKNOWLEDGES THAT 121 Services’S PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT IS DEPENDENT ON: (I) CUSTOMER HAVING TAKEN ALL STEPS NECESSARY TO ENABLE THE AVAILABLE INTEROPERABILITY BETWEEN THE 121 Services PLATFORM AND ALL APPLICABLE THIRD PARTY MESSAGING PLATFORMS, CUSTOMER APPLICATION AND CUSTOM-INTEGRATED BUSINESS APPLICATIONS; AND (II) ACCESS TO SERVICES, SOFTWARE OR SYSTEMS OF THIRD PARTIES (INCLUDING THIRD PARTY SERVICE PROVIDERS OF ALL APPLICABLE THIRD PARTY MESSAGING PLATFORMS AND CUSTOM-INTEGRATED BUSINESS APPLICATIONS) AND DATA STORED OR MAINTAINED THEREON (COLLECTIVELY, THE “EXTERNAL DEPENDENCIES”). 121 Services IS NOT RESPONSIBLE FOR ANY EXTERNAL DEPENDENCIES AND WILL HAVE NO LIABILITY IN RESPECT OF ANY INTERFERENCE WITH CUSTOMER’S USE OR ANY USER’S USE OF OR ACCESS TO THE 121 Services SOLUTION OR SECURITY OR PRIVACY BREACHES ARISING FROM OR ATTRIBUTABLE TO ANY EXTERNAL DEPENDENCIES, AND CUSTOMER WAIVES ANY AND ALL CLAIMS AGAINST 121 Services IN CONNECTION THEREWITH.
- Indemnity. Customer will defend, indemnify and hold harmless 121 Services, its employees, officers, directors, affiliates, agents, contractors,successors, and assigns against any and all third party (including Users, Customer’s Client, and Chat Participants) liability (including damages, recoveries, deficiencies, interest, penalties and reasonable legal fees), directly or indirectly arising from or in connection with, or relating to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; (iii) use of the 121 Services Solution (or any part thereof) by Customer, any User, any Customer’s Client or any Chat Participant in combination with any Customer Applications or any third party software, application or service; (iv) misrepresentation, criminal behaviour or gross negligence on the part of Customer, any User, any Customer’s Client, or any Chat Participant; or (v) any actual or alleged infringement, violation or misappropriation of the rights of any person (including intellectual property or privacy rights) as a result of Customer’s, any User’s, any Customer’s Client or any Chat Participant’s use of the 121 Services Solution (or any part thereof) contrary to the terms of this Agreement. Customer will fully cooperate with 121 Services in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of 121 Services.
13. Limitation of Liabilities
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
- AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF 121 Services IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER IN THE PRIOR 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $500 USD, WHICHEVER IS THE LESSER. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL 121 Services’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
- TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL 121 Services BE LIABLE TO CUSTOMER OR ANY USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) ANY COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
14. Term and Termination
- Term. This Agreement will commence on the Effective Date and continue to be in effect until Customer subscription has been terminated in accordance with the terms Customer agreed to on the 121 Services website at time of signup (the “Term”). For greater certainty, if Customer has subscribed to an ongoing subscription, then such subscription will automatically renew at its expiry for the same period of time, at the then-current subscription rate described on the 121 Services Website.
- Termination For Convenience. Either Party may elect to terminate this Agreement and your subscription to 121 Services services as of the end of your then current Term by providing notice, on or prior to the date thirty (30) days preceding the end of such Term. For clarity, per section 14(a), unless this Agreement and Customer subscription is so terminated, Customer subscription will renew for a Term equivalent in length to the then expiring Term.
- Refunds and Termination Charges. No refunds or credits for Fees will be provided if Customer elects to terminate this Agreement prior to the end of your Term. If Customer terminates this Agreement prior to the end of your Term, or 121 Services effects such termination pursuant to Section 14(d), in addition to other amounts Customer may owe 121 Services, Customer must immediately pay any then unpaid Fees associated with the remainder of the Term. This amount will not be payable by Customer in the event Customer terminates as a result of a material breach of this Agreement by 121 Services, provided that Customer provides advance notice of such breach to 121 Services and afford 121 Services not less than thirty (30) days to reasonably cure such breach as provided for in section 14(d).
- Termination for Cause. A Party may terminate this Agreement for cause (a) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement is terminated by Customer in accordance with this section, 121 Services will, to the extent permitted by applicable law, refund Customer any prepaid fees covering the remainder of the Term after the effective date of termination. If this Agreement is terminated by 121 Services in accordance with this section, Customer will pay any unpaid fees covering the remainder of the Term. In no event will termination relieve Customer of the obligation to pay any fees payable to 121 Services for the period prior to the effective date of termination.
- Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 5 (Reservation of Rights) Section 6 (121 Services’s Right to Use Customer Data) Section 10 (Fees) Section 11 (Confidential Information) Section 12 (Warranty; Disclaimer; Indemnity) Section 13 (Limitation of Liabilities) Section 14(e) (Survival) Section 15 (General Provisions)
15. General Provisions
- Notices. Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or two days after being sent by first class mail postage prepaid to the official contact designated by the Parties and immediately after being received by the other Party’s server. Notices must be in writing and sent: (i) if to 121 Services, to the address set out in the introductory paragraph of this Agreement; and (ii) if to Customer, to the current postal or email address that 121 Services has on file with respect to Customer. 121 Services may change its contact information by posting the new contact information on the 121 Services Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with 121 Services through the 121 Services Platform current at all times during the Term.
- Assignment. Customer will not assign this Agreement to any third party without 121 Services’s prior written consent, which consent will not be unreasonably withheld. 121 Services may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent in connection with any merger or change of control of 121 Services or the sale of all or substantially all of 121 Services’s assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Any assignment in violation of this Section will be void. The terms of this Agreement will be binding upon permitted assignees. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
- Choice of Law. This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Republic of Colombia applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Colombia and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
- Construction. Except as otherwise provided in this Agreement, the Parties rights and remedies under this Agreement are cumulative. The term “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of 121 Services in this Agreement means the right of 121 Services to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to Customer.
- Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond 121 Services’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving 121 Services employees), Internet service provider failures or delays, or the unavailability or Modification by third parties of third party websites.
- Severable. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
- Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
- Independent Contractors. Customer’s relationship to 121 Services is that of an independent contractor, and neither Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of 121 Services.
- Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all other communications, whether written or oral.
- Amendments. Subject to the following sentence, no amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, 121 Services MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY 121 Services, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER). IF CUSTOMER HAS PREPAID ANY FEES TO 121 Services AND PROVIDES NOTICE TO 121 Services WITHIN 30 DAYS OF THE EFFECTIVE DATE OF AN AMENDMENT THAT CUSTOMER WISHES TO EXERCISE ITS TERMINATION FOR CONVENIENCE RIGHT PURSUANT TO SECTION 14(b) OF THIS AGREEMENT, THEN 121 Services WILL REFUND CUSTOMER AN AMOUNT ON A PRO-RATED BASIS CALCULATED BASED ON THE EFFECTIVE DATE OF TERMINATION UNTIL THE END OF THE PREPAID SUBSCRIPTION PERIOD.