Last revised August, 2018
Welcome to ContactMonkey!
These ContactMonkey Service Terms (these “Terms”) explain the relationship between ContactMonkey Inc. (“ContactMonkey”, “we” or “us”) and you when you (i) access and use ContactMonkey.com and its related domains (together, the “Site”) and/or (ii) download, install, use and in some cases purchase ContactMonkey’s proprietary email software applications (including all related documentation, updates and upgrades) and any other services offered through the Site (the “ContactMonkey Services”).
These Terms govern visitors’ access to and use of the public areas of the Site, as well as access to and use of the ContactMonkey Services. Unless otherwise indicated, “ContactMonkey Services” as used throughout these Terms includes the public areas and the ContactMonkey Services. For the purposes of these Terms, “you” or “your” refers to you as a visitor to or registered user of the ContactMonkey Services.
1. License Grant. The ContactMonkey Services are owned by ContactMonkey and are licensed, not sold, to you. ContactMonkey grants to you a personal, nonexclusive, nontransferable, limited license (without the right to sublicense) to access and use the Site and to access, download, install and use the ContactMonkey Services subject to the limitations set forth in these Terms, any relevant purchase order or ordering document related to the ContactMonkey Services (“Order Form”) and any and all other terms and policies set forth in the ContactMonkey Services. You acknowledge that the source code for the ContactMonkey Services and other trade secrets embodied in the ContactMonkey Services have not been and will not be licensed or otherwise disclosed to you. All rights not expressly granted herein are reserved by ContactMonkey.
2. Use of ContactMonkey Services.
2.1 Registration: Unless you are visiting only the public areas of the Site, you are required to register and create an account to use the ContactMonkey Services (“Account”). You agree that you will maintain and update your registration and account information to ensure it is current, complete and accurate and that we have the right to terminate your Account and use of the ContactMonkey Service if you provide untrue, incomplete or inaccurate information.
2.2 Your Responsibilities: You are responsible for providing the equipment and services that you need to access, download, install and use the ContactMonkey Services. ContactMonkey does not guarantee that the ContactMonkey Services are accessible on any particular equipment or device or with any particular software or service plan.
You are responsible for all activities that occur through your Account, whether or not authorized by you. Please do not share your Account with any other person.
You will use the ContactMonkey Services only for your internal business purposes and in accordance with applicable laws, rules and regulations. You are responsible for all of your activities that occur within, through or as a result of your use of the ContactMonkey Services. You agree that you will not use the ContactMonkey Services for unlawful purposes or to engage in any illegal, offensive, indecent or objectionable conduct, including violation of any third party privacy or other rights. You agree that you will not use the ContactMonkey Services if you are under the age of majority in your place of residence or otherwise not fully able and competent to agree to these Terms.
If you use the ContactMonkey Services on your mobile device, you are solely responsible for all message and data fees charged by your wireless service provider. Please contact your mobile service provider for pricing plans and details. ContactMonkey is not liable for any delays, interruptions or other transmission errors related to your device, service or wireless service provider.
Except as specifically permitted in these Terms or expressly authorized in writing by ContactMonkey, you agree that you will not directly or indirectly: (a) distribute, sell, assign, encumber, transfer, rent, lease, sublicense, modify or time-share the ContactMonkey Services; (b) use any of the ContactMonkey Services in any service bureau arrangement; (c) reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify any of the ContactMonkey Services; or (d) permit any third party to engage in any of the acts described in clauses (a) through (c).
You are not permitted to: (w) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in any of the ContactMonkey Services; (x) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any of the ContactMonkey Services; (y) use any means to discover the source code of the ContactMonkey Services or to discover the trade secrets in the ContactMonkey Services; or (z) otherwise circumvent any functionality that controls access to or otherwise protects the ContactMonkey Services.
You are responsible for complying with all laws, rules and regulations (including those relating to internet, data and email privacy) that apply to your use of the ContactMonkey Services.
2.3 Our Responsibilities: ContactMonkey is responsible for providing the ContactMonkey Services in accordance with these Terms and all applicable laws, rules and regulations.
We will maintain commercially reasonable administrative, physical and technical safeguards intended to protect the security, confidentiality and integrity of information that you provide to or through the ContactMonkey Services.
ContactMonkey reserves the right but is not obligated to improve, enhance or modify the ContactMonkey Services. We will notify you in advance of changes to the ContactMonkey Services that may significantly adversely affect the manner in which you use the ContactMonkey Services or the manner in which the ContactMonkey Services perform.
ContactMonkey is not responsible for the content of Other Services or for losses, liabilities, actual or pending claims, actions, damages, expenses, costs of defense and reasonable attorneys’ fees (“Claims”) arising from your use of content, information, web sites, Software, services and other materials of third parties with which you may interact when you use the ContactMonkey Services (collectively, “Other Services”). YOU ACCESS OTHER SERVICES ENTIRELY AT YOUR OWN RISK AND YOU ARE RESPONSIBLE FOR COMPLYING WITH TERMS AND CONDITIONS APPLICABLE TO YOUR ACCESS AND USE OF OTHER SERVICES.
2.4 Availability: We use commercially reasonable efforts to make the ContactMonkey Services available to you 24 hours per day, seven (7) days per week, excluding scheduled maintenance time, unavailability caused by you or any software, hardware or service not provided by us, unscheduled downtime and/or any cause beyond our reasonable control (including without limitation nature disasters, wars, terrorist act, civil disturbances, acts of any government or agency thereof, strikes or other labor problems, Internet service or other third party service providers’ failures or delays and systemic electrical, telecommunications or other utility outages or failures).
2.5 Limitations: ContactMonkey Services are subject to reasonable and fair usage limitations, such as limits on the number of emails tracked, as specified within the ContactMonkey Services.
3. Your Content. The ContactMonkey Services allow you to upload, transmit and use information and other content to and through the ContactMonkey Services (collectively, “Your Content”). You are solely responsible for the accuracy, quality, legality and means by which you acquired Your Content. You understand that ContactMonkey will use Your Content to provide the ContactMonkey Services to you. You have or will obtain all rights necessary to provide Your Content to ContactMonkey and you hereby grant ContactMonkey a worldwide license to use, reproduce, transmit, display and adapt your Content as necessary for ContactMonkey to provide the ContactMonkey Services to you in accordance with these Terms.
We encourage you to carefully consider disclosure of any information that might be accessible to others. You are fully responsible for taking precautions and providing security measures best suited for your situation and intended use of the ContactMonkey Services.
4. Paid ContactMonkey Service, Refunds, Upgrading and Downgrading. ContactMonkey offers enhanced ContactMonkey Services for a fee (“Paid ContactMonkey Service). The Paid ContactMonkey Service provides you with the features as described at www.ContactMonkey.com/pricing for a monthly or annual fee at the then-current rates. ContactMonkey reserves the right to change the Fee Schedule upon thirty (30) days advanced notice to paying customers. A valid credit card is required for the Paid ContactMonkey Service.
An upgrade from the free plan to any paying plan will end your free trial. You will be billed for your first term immediately upon upgrading. The service is billed in advance on a monthly or annual basis and is non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with a paid account. For Team and Salesforce plan users, subscriptions can be reassigned. For purchases of additional subscriptions, your credit card will be immediately charged a pro-rated amount for the current subscription term.
ContactMonkey does not store, process or transmit any of your credit card data but relies entirely on Stripe, Inc. to handle these functions. Payments due for the Paid ContactMonkey Services are subject to the terms of the online order process at https://stripe.com/terms/US. If you do not agree to Stripe’s terms, then please do not sign up for the Paid ContactMonkey Service.
Your Paid ContactMonkey Service will not be activated until your first payment is received. Payments are due in accordance with the Fee Schedule every thirty (30) days in advance. Monthly fees are automatically charged to the credit card that you provided when you registered for the Paid ContactMonkey Service.
If payment in full of any amount owed to ContactMonkey under these Terms is not received by ContactMonkey within thirty (30) days after such payment has become due, such amounts will thereafter bear interest at the rate 0.05% per day or the maximum rate permitted by applicable law, whichever is less. If any payment due ContactMonkey is collected at law or through an attorney at law or under advice therefrom or through a collection agency, you agree to pay all costs of collection, including, without limitation, all court costs and reasonable attorneys’ fees.
5. Warranties. We warrant that we have validly entered into these Terms and have the legal power to do so. You warrant that (i) you have validly entered into these Terms and have the legal power to do so and (ii) you have all necessary rights, licenses, consents and permissions to use ContactMonkey Services.
EXCEPT AS EXPRESSLY PROVIDED ABOVE, YOU ACKNOWLEDGE THAT THE CONTACTMONKEY SERVICES ARE SUPPLIED TO YOU ON AN “AS IS” BASIS AND THAT USE OF THE CONTACTMONKEY SERVICES IS AT YOUR SOLE RISK. CONTACTMONKEY HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING THE CONTACTMONKEY SERVICES AND THE USE, PERFORMANCE, OPERATION AND SUPPORT THEREOF, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT, ACCURACY, COMPLETENESS, INTEGRATION, FREEDOM FROM DEFECTS OR DISABLING DEVICES, UNINTERRUPTED USE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. CONTACTMONKEY DOES NOT WARRANT THAT (A) THE CONTACTMONKEY SERVICES WILL MEET YOUR REQUIREMENTS, (B) OPERATION OF THE CONTACTMONKEY SERVICES WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, (C) THAT THE CONTACTMONKEY SERVICES WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATIONS OR ANY PARTICULAR SYSTEMS OR DEVICES, (D) DEFECTS IN THE CONTACTMONKEY SERVICES WILL BE CORRECTED OR (E) THAT THE CONTACTMONKEY SERVICES WILL BE AVAILABLE FOR REINSTALLS ON THE SAME OR MULTIPLE DEVICES. ANY ORAL OR WRITTEN ADVICE PROVIDED BY CONTACTMONKEY OR ITS AUTHORIZED AGENTS WILL NOT BE DEEMED TO CREATE ANY WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
6. Limitation of Liability. CONTACTMONKEY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THE DELIVERY, USE OR PERFORMANCE OF THE CONTACTMONKEY SERVICES OR THESE TERMS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) WILL NOT EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT; PROVIDED THAT IN NO EVENT SHALL CONTACTMONKEY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING LIMITATION WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS.
IN NO EVENT WILL CONTACTMONKEY BE LIABLE TO YOU OR ANY THIRD PARTY FOR INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL AND PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS OR BUSINESS INTERRUPTION), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE CONTACTMONKEY SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF CONTACTMONKEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING DISCLAIMER OF LIABILITY WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. YOU AGREE NOT TO SEEK TO RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES FROM ANY DISTRIBUTOR.
You agree that the above limitations of liability, together with the other provisions in these Terms that limit liability, are essential terms of these Terms and that ContactMonkey would not be willing to grant you the rights set forth in these Terms but for your agreement to these limitations of liability.
7. Ownership. The ContactMonkey Services, including the “look and feel” (e.g., text, graphics, images, logos), content and other material, are protected under copyright, trademark and other laws. You acknowledge and agree that ContactMonkey owns all right, title and interest in and to the ContactMonkey Services (including without limitation any and all patent, copyright, trade secret, trademark, show-how, know-how and any and all other intellectual property rights therein or related thereto) and you agree not to take any action(s) inconsistent with such ownership interests. You do not acquire any rights or licenses under any of ContactMonkey’s copyrights, patents, patent applications, copyrights, trade secrets, trademarks or other intellectual property rights on account of these Terms. Any and all (a) suggestions for correction, change and modification to the ContactMonkey Services, evaluation data, evaluations and other feedback (including but not limited to quotations of written or oral feedback, information and reports provided to ContactMonkey by you (collectively, “Feedback”)), and all (b) improvements, updates, modifications or enhancements, whether made, created or developed by ContactMonkey or otherwise relating to the ContactMonkey Services (collectively, “Revisions”), are and will remain the property of ContactMonkey. You acknowledge and expressly agree that any contribution of Feedback or Revisions does not and will not give or grant you any right, title or interest in the ContactMonkey Services or in any such Feedback or Revisions. All Feedback and Revisions become the sole and exclusive property of ContactMonkey and ContactMonkey may use and disclose Feedback and Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to ContactMonkey any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights, and any and all other intellectual property rights) that you may have in and to any and all Feedback and Revisions. Upon request by ContactMonkey, you will execute any document, registration or filing required to give effect to the foregoing assignment.
8. Indemnification. You agree to indemnify and defend ContactMonkey and its affiliates, directors, officers, employees and agents from and against all Claims brought against ContactMonkey by any third party arising from your use of the ContactMonkey Services or any violation of these Terms, the rights of a third party or applicable law. Your indemnification obligations set forth in this Section 8 apply to any applicable actions taken under your Account. ContactMonkey reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification hereunder. In any event, no settlement that affects the rights or obligations of ContactMonkey may be made without ContactMonkey’s prior written approval.
9. Modifications to Terms. We may modify these Terms at any time. Modifications become effective immediately upon your first access to or use of the ContactMonkey Services after the “Last Revised” date at the top of this page. Your continued access or use of the ContactMonkey Services after the modifications become effective is deemed your conclusive acceptance of the modified Terms.
10. Cancellation and Termination. You are solely responsible for properly cancelling your subscription. You can request to cancel your subscription at any time by emailing email@example.com. The ContactMonkey Services are billed in advance on a monthly or annual basis and automatically renews at the end of your subscription term. If you request to cancel the Paid ContactMonkey Services before the end of your subscription, your cancellation will take effect immediately and you will not be charged again. Your service will remain active until the end of the subscription.
ContactMonkey, in its sole discretion, has the right to suspend or terminate your ContactMonkey Services and refuse any and all current or future use of the ContactMonkey Services, for any reason at any time. Such termination of the ContactMonkey Services will result in the deactivation or deletion of your account or your access to your account. ContactMonkey reserves the right to refuse service to anyone for any reason at any time.
A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) 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 you, ContactMonkey will refund you any prepaid fees covering the remainder of the term after the effective date of termination. If this Agreement is terminated by ContactMonkey you will pay any unpaid fees covering the remainder of the term. In no event will termination relieve you of your obligation to pay any fees payable to ContactMonkey for the period prior to the effective date of termination.
These Terms will automatically terminate when you fail to comply with any term or condition of these Terms. Upon termination, you will cease all use of the ContactMonkey Services and will destroy any copy (full or partial) of any and all parts of the ContactMonkey Services in your possession or control. Termination will not limit any of ContactMonkey’s other rights or remedies at law or in equity. This Section 11 along with Sections 5, 6, and 7 will survive any termination or expiration of these Terms.
11. Export Laws. You agree that you will not export or re-export, directly or indirectly, the ContactMonkey Services and/or other information or materials provided by ContactMonkey hereunder, to any country for which Canada or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. You are responsible for and hereby agree to comply at your sole expense, with all applicable Canadian export laws and regulations.
12. Taxes. You are solely responsible for any and all duties, taxes, levies or fees (including any sales, use or withholding taxes) imposed on or in connection with these Terms or the ContactMonkey Services by any authority.
13. Remedies. You agree that a breach or a threatened breach of these Terms will cause injury to ContactMonkey for which money damages will not provide an adequate remedy and ContactMonkey will be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
14. Usage of Logo. You grant ContactMonkey the right to use your company logo. ContactMonkey may not modify or change the logo in any way and the logo may only be used for purposes of identifying the company as a ContactMonkey customer. The logo shall not be used in any manner, which may be considered, in your sole discretion, disparaging or negative. You have the right to revoke the license to use company logo at any time in your sole discretion.
15. Miscellaneous. These Terms may not be modified except by a writing executed by the duly authorized representatives of ContactMonkey. No other act, document, usage or custom will be deemed to modify or amend these Terms. These Terms will inure to the benefit of and will be binding upon each party’s successors and assigns. These Terms and the licenses granted hereunder may be assigned by ContactMonkey but you may not assign them without the prior express written consent of ContactMonkey. If any provision hereof is or becomes, at any time or for any reason, unenforceable or invalid, no other provision hereof will be affected thereby and the remaining provisions will continue with the same effect as if such unenforceable or invalid provisions will not have been inserted herein; provided that the ability of either party to obtain substantially the bargained-for performance of the other will not have thereby been impaired. If either party fails to perform any term hereof and the other party does not enforce such term, the failure to enforce on any occasion will not constitute a waiver of any term and will not prevent enforcement on any other occasion. Nothing contained in these Terms will be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under these Terms due to any cause beyond the reasonable control of the party invoking this provision, the affected party’s performance will be extended for the period of delay or inability to perform due to such occurrence. The headings and captions contained herein are for convenience only.
These Terms are governed by and construed and enforced in accordance with the laws of the Province of Ontario, and is binding upon the parties hereto in Canada, the United States and worldwide. You and ContactMonkey agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the interpretation or construction of these Terms. Any litigation by one party against the other arising under these Terms or concerning any rights under these Terms will be commenced and maintained in any provincial or federal court located in the Province of Ontario and both parties hereby submit to the jurisdiction and venue of any such court. Any claim arising out of these Terms, the ContactMonkey Services must be brought within one (1) year of the date on which the claim arose.
Please direct questions regarding these Terms to firstname.lastname@example.org with “Terms of Service” in the subject line.
120 Adelaide West
Toronto, ON M5H 1T1