Terms of Service
Last Updated: October 12, 2022
IMPORTANT – PLEASE CAREFULLY READ THE FOLLOWING TERMS OF SERVICE WHICH ARE LEGALLY BINDING. DO NOT USE THE BOTPRESS CLOUD SERVICE OR THE BOTPRESS CONTENT UNLESS:
- YOU WILL USE THE BOTPRESS CLOUD SERVICE AND/OR THE BOTPRESS CONTENT FOR YOUR OWN BENEFIT AND PERSONALLY ACCEPT, AGREE TO AND INTEND TO BE BOUND BY THESE TERMS; OR
- YOU ARE AUTHORIZED TO, AND INTEND TO BE BOUND BY, THESE TERMS ON BEHALF OF THE COMPANY OR ORGANIZATION THAT YOU REPRESENT.
YOU REPRESENT AND WARRANT THAT:
- YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT;
- IF THE CUSTOMER IS NOT AN INDIVIDUAL, YOU, AS AN INDIVIDUAL, HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE CUSTOMER; AND
- IF THE CUSTOMER IS LOCATED WITHIN THE EUROPEAN ECONOMIC AREA, THE CUSTOMER IS A BUSINESS OR ENTERPRISE AND NOT A CONSUMER FOR THE PURPOSE OF TAXATION LAW;
These Botpress Cloud Terms of Service constitute a legal agreement between the Customer and the contracting entity identified below (hereinafter designated as “Botpress”).
Use of Botpress Studio by Customer or Authorized Users is governed by applicable license agreements, which do not form part of the Agreement.
1. CONTRACTING ENTITES
1.1 Botpress Contracting Entity
f the Customer is located in Canada, the Agreement is contracted between Customer and Technologies Botpress Inc., a Canadian Corporation.
If the Customer is located anywhere else in the world, the Agreement is contracted between the Customer and Botpress, Inc. a Delaware company.
The Customer represents and warrants to Botpress that it is operating a business and that it is not accessing the Cloud Services or Botpress Content for personal or household purposes.
2.1 Construction of the Agreement
The agreement between Customer and Botpress regarding Customer’s Use of the Cloud Services and the Botpress Infrastructure includes the following documents:
- Botpress Data Processing Agreement
- Botpress Terms of Service
- Botpress Studio End-User License Agreement
- Description of the subscription package on Botpress Website
In case of an inconsistency between provisions of this Agreement, the documents shall take precedence in order, the first document having precedence.
All documents considered together are referred to as the “Agreement”
In this Agreement:
“Analytics Data” means usage data, metadata and other data generated by the Cloud Services about Customer’s Use of the Cloud Services including data derived from Conversation Data.
“Authentication ID” means a security mechanism by which an Authorized User identifies herself or himself to the Cloud Services and gains access thereto, which security mechanism may include user identification, passwords, digital certificates or any other similar process mechanism for authentication and recognition as determined by Botpress from time to time.
“Authorized Territory” means the jurisdictions or territories in which the Customer is authorized to Use the Cloud Services.
“Authorized User” means an individual authorized by Customer and Botpress to access and Use the Cloud Services.
“Botpress Content” means materials provided by Botpress to the Customer, including templates, samples, software, data.
“Botpress Infrastructure” means the servers and such devices and peripherals, including all computer hardware, software, network components, and electrical and telecommunications infrastructure operated or controlled by Botpress, either itself or through a service provider.
“Botpress Studio” means the executable software running locally on hardware controlled by the Customer allowing the Customer to design and modify Customer Bots.
“Business Day” means any calendar day except for Saturday or Sunday or any statutory holiday observed in Canada.
“Business Hour” means the hours between 9:00 AM and 5:00 PM Eastern Time on Business Days.
“Cloud Services” means the bot hosting services and software services provided by Botpress to the Customer.
“Confidential Information” means all information which is proprietary or confidential to either Party and that is not generally known to third parties, that is disclosed or otherwise brought to the attention or knowledge of the other Party whether in oral, written, electronic or any other form, which is designated as being confidential or proprietary or which, by reason of its nature or the circumstances of its disclosure, should be reasonably considered and treated as confidential including, without limitation, the terms and conditions of the Agreement, Customer Data, Analytics Data, Personal Data, details of technological infrastructure, customer lists, product development information and security measures.
“Conversation Data” means content inputted by an end-user into a Customer Bot in a production environment and data generated by the Customer Bot in a conversation with an end-user.
“Customer Bot” means a program designed to automate interactions with end-users of a service or website, including any configuration data or other associated data that is developed using Botpress software compatible with the Cloud Services by Customer, by Persons engaged by Customer or by Botpress for the benefit of the Customer.
“Customer Data” means collectively (a) any data, files, documentation or other information that Customer or any of its Authorized Users may upload to the Botpress Infrastructure when using the Cloud Services and (b) Conversation Data.
“Customer Infrastructure” means the servers and such devices and peripherals, including all computer hardware, software, network components, and electrical and telecommunications infrastructure operated or controlled by Customer, either itself or through a service provider.
“Fees” means the Fees payable by Customer for the Cloud Services.
“Incident” means an unscheduled event or occurrence originating from Botpress, the Cloud Services or a third-party hosting provider that negatively and substantially affects the Customer’s Use of Cloud Services, subject to exceptions provided by this Agreement.
“Intellectual Property Rights” means: (a) any and all proprietary rights anywhere in the world provided under: (i) patent law; (ii) copyright law, including moral rights; (iii) trademark law; (iv) design patent or industrial design law; (v) semiconductor chip or mask work law; (vi) trade secret law; or (vii) any other statutory provision or common law principle applicable to this Agreement which may provide a right in either: (A) Intellectual Property; or (B) the expression or use of Intellectual Property; and (b) any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing.
“Intellectual Property” means any property, tangible or intangible, that may be subject to Intellectual Property Rights, including without limitation, ideas, formulae, algorithms, concepts, techniques, processes, procedures, approaches, methodologies, plans, systems, research, information, documentation, data, data compilations, specifications, requirements, designs, diagrams, programs, inventions, technologies, software (including its source code), tools, product knowledge, know-how, including without limitation, trade secrets, and other materials or things.
“Malicious Code” means a piece of code usually (but not necessarily) disguised as something else that causes some unexpected and, for the victim, usually undesirable, event and which is designed so that it may automatically spread to other computer users, including, without limitations, viruses, worms, cancelbots, trojan horses, harmful contaminants (whether self-replicating or not) and nuisance-causing or otherwise harmful applets.
“Non-Software Content” means Botpress Content other than computer programs.
“Objectionable Content” means content that infringes any applicable laws or third-party rights, and content which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous, misleading, deceptive or in breach of any person’s Intellectual Property Rights.
“Open-Source Software” means computer software made available by Botpress under the AGPL3 open-source license.
“Party” means either Botpress or Customer; and “Parties” means both of them.
“Person” means any individual, estate, sole proprietorship, firm, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, limited liability company, corporation, body corporate, trustee, trust, governmental authority or other entity or organization and includes any successor to any of the foregoing.
“Personal Data” means information about an identifiable individual.
“Professional Services” means services provided by Botpress other than access to the processing capacities of the Cloud Services and technical support. Professional Services include, for illustrative purposes: training, feature development and configuration.
“Use” means to activate the processing capabilities of the Cloud Services, load, execute, access, employ the Cloud Services, or display information resulting from such capabilities.
“User Documentation” means the human-readable documents, user manuals and guides with respect to the operation, Use and functions of the Cloud Services, which may be amended or updated by Botpress from time to time.
3. BOTPRESS CONTENT
3.1 License and Scope
Customer shall access (or attempt to access) the Botpress Content only as expressly permitted by these Terms.
Customer may use the Botpress Content only if Customer can form a binding contract with Botpress, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Botpress reserves all rights not expressly granted in these Terms.
3.2 Grant of License
Botpress grants the Customer a limited, non-sublicensable, non-exclusive, non-transferable right to use, copy and modify Botpress Content in connection with Customer’s use of the Cloud Services. Customer is not authorized to use, copy or modify Botpress Content for any other purposes.
The following conditions are applicable to Restricted Software:
- Customer may not loan, sell, or otherwise distribute all or any part of the Botpress Content except as permitted by the Cloud Services;
- Customer may not decompile, disassemble or undertake any form of reengineering process on the Botpress Content or provide your assistance to any effort of a third party to do so; and
If software source code (other than Open-Source Software) is communicated to Customer under any circumstances, Customer undertake to hold it in confidence and not to disclose it.
3.3 Open-Source License
Open-Source Software may be available on Botpress’ website and is licensed to Customer under the GNU Affero General Public License version 3 (“AGPL3 License”) and these Terms of Service are not applicable to Customer’s use of Open-Source Software.
Customer may license Open-Source Software to other persons as permitted by the AGPL3 License. The AGPL3 License is not applicable to any Botpress Content other than Open-Source Software. Other Botpress Content is licensed to Customer under a proprietary license as described herein. Customer may not bundle other Botpress Content with Open-Source Software for the purpose of downstream licensing Open-Source Software.
4. CLOUD SERVICES
We process the personal data collected through the Website and the Service for the purposes described below.
4.1 Access to Cloud Services
Subject to the Customer’s and Authorized Users’ compliance with this Agreement, including the payment of applicable fees, Botpress agrees to allow the Authorized Users to access and Use the Cloud Services through the Botpress Infrastructure for the duration of the Term. Customer’s rights to access and Use the Cloud Services are purchased by Customer as a subscription. The subscription provides rights to access and Use of the Cloud Services for all Authorized Users, subject to restrictions applicable to the Customer’s subscription package.
The Cloud Services may be updated from time to time and new features may be added to the Cloud Service. Botpress will make such updates and new features available to the Customer at its sole discretion and makes no commitment regarding the development of future versions of the Cloud Services. The Customer acknowledges that its subscription is not based on any promise of development of a future feature nor on any communication from Botpress regarding a future feature of the Cloud Services.
4.3 Authorized Use
Only Authorized Users are authorized to Use the Cloud Services within the Authorized Territory.
4.4 Authentication IDs
To access the Cloud Services, Customer is required to register Authorized Users and establish Authentication IDs. Customer shall control and maintain the security of all Authentication IDs. Customer shall be solely responsible for all instructions, commitments and other actions or communications taken under any of its Authentication IDs. Customer shall promptly report to Botpress any errors or irregularities in the Cloud Services or any unauthorized Use of any part thereof and inform Botpress immediately if any Authentication ID becomes known to any third person who is not authorized to possess such password.
For the purpose of this Agreement any Use of the Cloud Services under a Customer Authentication ID shall be deemed to be Use by Customer.
4.5 Permitted Use
Use of the Cloud Services is limited to the features included in the User Documentation. Customer is not authorized to Use the Cloud Services for any other purpose without the prior written consent of Botpress, which consent may be withheld at Botpress’ absolute discretion.
4.6 Usage limitations
The Cloud Services may be offered to the Customer in the form of a subscription plan comprising usage limitations. Where applicable, the Cloud Services are limited:
- To the features included in the subscription selected by the Customer, if applicable.
- By the usage limits imposed by the subscription selected by the Customer, if any, including limits based on the number of messages processed monthly through the Cloud Services.
4.7 Prohibited Use
Customer shall not:
- use the Cloud Services for unlawful purposes;
- include, or knowingly allow others to include, any Objectionable Content or introduce Malicious Code to the Botpress Infrastructure on into the Cloud Services;
- intercept or attempt to intercept any messages transmitted to and from the Botpress Infrastructure that are not intended for Customer or any of its Authorized Users;
- access or attempt to access other Botpress customers’ data;
- take any action that imposes an unreasonable or disproportionately large load on the Botpress Infrastructure;
- use the Cloud Services or the Cloud Services to develop any derivative works or any functionally compatible or competitive software;
- reverse engineer the Cloud Services or the Cloud Services, except reverse engineering expressly permitted by applicable law which may not be excluded contractually;
- copy the Cloud Services or any other software used by Botpress to provide the Cloud Services; or
- remove any copyright or other proprietary rights notice on the Cloud Services, the User Documentation or other materials provided by Botpress or any copies thereof.
Customer shall be responsible for any breach of the prohibitions listed above by its employees, officers, agents or contractors.
4.8 Monitoring by Botpress
Botpress may monitor and audit Customer’s and its Authorized Users’ Use of the Cloud Services for the purpose of ensuring compliance with the terms of this Agreement and for other business purposes. Any such audit may be carried out by Botpress or a third party authorized by Botpress, at its own expense.
If Botpress’ monitoring activities or audit reveals that Customer’s or any Authorized User’s Use of the Cloud Services is in breach of this Agreement, including any Use in breach of any applicable laws, Botpress may immediately suspend and discontinue the Cloud Services to Customer or to one or several Authorized User(s), at Botpress sole discretion and without advance notice to Customer. Botpress shall notify Customer of such suspension as soon as reasonably possible, which notice shall set out the circumstances of the suspension. If Customer rectifies the situation to Botpress’ satisfaction, then Botpress will reinstate the Cloud Services. If Customer does not rectify the situation within a reasonable period of time, then it shall be deemed a material breach of this Agreement and Botpress shall be entitled to terminate this Agreement in accordance with Section 13.
4.9 Technical requirements
Customer shall procure and maintain computer systems and an internet connection meeting the technical requirements set out in the User Documentation, where applicable.
4.10 Professional Services
Botpress shall have no obligation to provide any Professional Services under these Terms of Service. Professional Services shall be governed by a separate agreement between Botpress and Customer.
5. HOSTING ENVIRONMENT
5.1 Third-Party Hosting
Customer agrees that the Botpress Infrastructure may be provided in whole or in part by third-party service providers and that the Customer Data and Conversation Data may be hosted and processed by third-party service providers. Botpress may determine its third-party provider in its sole discretion.
5.2 Managed Cloud Hosting
- Customer Data and Customer Bots will be hosted in a shared environment, but logically segregated from other data hosted in the same infrastructure;
- The Botpress Infrastructure hosting Customer Data and Customer Bots may be physically located anywhere in the world, at Botpress’ discretion;
- Customer Data, including Conversation Data, may be processed at a different location and on different infrastructure than their hosting location.
- The Cloud Services will be updated automatically upon release of a new version.
6. PERFORMANCE STANDARDS
Botpress shall use all commercially reasonable efforts to ensure that the Cloud Services availability and uptime are consistent with industry standards. Botpress shall provide the Cloud Services with reasonable skill and care and undertakes that on delivery the Cloud Services will conform in all material respects to applicable industry standards.
If the Cloud Services do not conform with the foregoing undertaking, S3D may, at its expense, use commercially reasonable efforts to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Without prejudice to Customer’s termination rights, such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in this Section.
Notwithstanding the foregoing, Botpress:
- does not warrant that the Customer’s Use of the Cloud Services will be uninterrupted or error-free; or that the Cloud Services and/or the information obtained by the Customer through the Services will meet the Customer’s requirements (to the extent that the same exceed requirements expressly set forth in this Agreement); and
- is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities other than those of Botpress, including the internet, and the Customer acknowledges that the Cloud Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- is not responsible for any delay in the performance of Cloud Services caused by Customer’s lack of cooperation or by delays in Customer provision of materials or information to Botpress.
- The Cloud Services shall be deemed available during the following periods:
- Scheduled maintenance periods during which the Cloud Services are unavailable.
- Time during which the Customer or Authorized Users are not able to access and Use the Cloud Services for reasons that are arising from the Customer, the Customer Infrastructure or from an Authorized User (such as Internet connection issues, unsupported browser, operating system issues, or hardware issues).
- Time during which the Cloud Services is disrupted or unavailable as a result of Customer’s or Authorized Users’ use of the Cloud Services in breach of this Agreement.
Customer agrees to pay the Fees in accordance with its subscription to the Cloud Services. Fees will be charged automatically to the payment method provided by the Customer at the beginning of the applicable invoicing period (monthly or yearly).
7.2 Payment Card Authorization
Customer authorizes Botpress to charge any payment method provided by Customer for applicable Fees.
7.3 Variable Fees
Where Fees are variable per the subscription selected by Customer, Customer waives any right to receive an advance notice of the amount to be charge to Customer’s payment method.
Customer shall pay all taxes, however designated or incurred, which are paid or payable as a result of or otherwise in connection with the transactions contemplated in this Agreement including, without limitation, federal, provincial and local, excise, sales, use, goods and services, harmonized, value added and any taxes or other amounts in lieu thereof, except for any taxes based on Botpress’ income.
Where Customer fails to pay any amount in accordance with the Agreement, Botpress shall have the right, in addition to any other rights or remedies available to it, to charge, and Customer shall pay, interest on such overdue amounts at the rate of 1.5% per month (18% per annum) both before and after any court judgement in respect of the same from the date such payment was due.
8. MAINTENANCE AND SUPPORT
From time to time, it will be necessary for Botpress to perform maintenance on the Botpress Infrastructure and/or the Cloud Services. Such maintenance includes routine maintenance to ensure the continued provision of the Cloud Services through the continued operation of the Botpress Infrastructure or upgrading, updating or enhancing the Cloud Services or Botpress Infrastructure. Botpress shall use its commercially reasonable efforts to perform such maintenance at such times to minimize the impact of any downtime of the Cloud Services to Customer. To the extent Botpress is able, Botpress shall notify Customer in advance of any scheduled maintenance by posting a message on the website or by sending an e-mail to affected Customers of the scheduled maintenance time and the anticipated duration of such maintenance.
8.2 Technical Support
Botpress will use commercially reasonable efforts to provide technical support to Authorized Users during Business Hours using the communication channels made available from time to time to Customer by Botpress. Botpress will minimally accept support requests by email.
Botpress does not make any commitment to keep all communication channels open or to respond to technical support requests within a specified time frame.
8.3 Incident Response
If an Incident is uncovered by Botpress or by an Authorized User, Botpress will use commercially reasonable efforts to correct the Incident.
- Occurrences caused by Customer’s hardware and software, including Customer Infrastructure;
- Occurrences caused by Customer’s Internet connection;
- Occurrences caused by force majeure.
9. PROPRIETARY RIGHTS
Customer acknowledges and agrees that, as between Customer and Botpress, Botpress owns all worldwide right, title and interest, including all Intellectual Property Rights, in and to: (i) the Botpress Infrastructure; (ii) the Cloud Services; (iii) the “look and feel” and the user interface of the Cloud Services; (iv) User Documentation; (v) the Botpress Studio Software and (vi) any modifications, enhancements, upgrades, updates or customization to the Cloud Services Botpress Studio Software or User Documentation (“Improvements”), including those Improvements made at the request or at the expense of Customer and Improvements involving Customer’s participation. Customer does not acquire any right, title or ownership interest of any kind, express or implied, in any of the foregoing other than the authorization to Use the Cloud Services granted herein, subject to all restrictions set forth herein.
9.2 Feedback from Customer
Botpress will use commercially reasonable efforts to provide technical support to Authorized Users during Business Hours using the communication channels made available from time to time to Customer by Botpress. Botpress will minimally accept support requests by email.
Botpress does not make any commitment to keep all communication channels open or to respond to technical support requests within a specified time frame.
9.3 Customer Bots
As between Customer and Botpress, Customer shall exclusively own all Intellectual Property Rights in and to Customer Bots. To the extent that Intellectual Property Rights in or to Customer Bots are initially owned by Botpress or by Botpress employees or subcontractors by operation of law or otherwise, Botpress agrees to assign to Customer any such Intellectual Property Rights as they are created.
10.1 Customer Data
Botpress acknowledges and agrees that as between Customer and Botpress, subject to rights afforded to Botpress per the Agreement, all worldwide right, title and interest, including all Intellectual Property Rights in and to the Customer Data, shall be the exclusive property of Customer. Botpress does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any of the Customer Data, other than as specifically set forth in the Agreement.
10.2 License on Customer Data
Customer hereby grants Botpress the right to use, copy, store, transfer and display the Customer Data for the purpose of enabling Botpress to perform the Cloud Services under this Agreement and for other business purposes as set forth in the Agreement.
Botpress shall be authorized to retain a copy of Conversation Data, which shall not be associated with the Customer, for the purpose of generating Analytics Data.
10.3 Analytics Data
Botpress may generate Analytics Data from Customer’s or Authorized Users’ Use of the Cloud Services, from Customer Data and from Conversation Data. Botpress shall retain ownership of the Analytics Data and shall have no obligation to share Analytics Data with Customer.
Analytics Data may be used for the following purposes:
11. PUBLICITY RIGHTS
The Customer authorizes Botpress to display its name, trademark and logo on a website and on any other material promoting the Platform for the sole purpose of identifying the Customer as a user of the Cloud Services. This authorization is subject to the Customer's reasonable requirements regarding the use of its trademarks and logos and may be withdrawn by written notice at any time.
Botpress will be given a reasonable time to respond to the withdrawal of authorization and will have no obligation with respect to printed material already in circulation and materials no longer under its control.
Each Party acknowledges that all Confidential Information is confidential and proprietary information of the disclosing Party.
Each Party shall, and shall cause its employees, officers, agents and contractors to hold Confidential Information of the other Party in confidence, and shall use the same degree of care by instruction, agreement or otherwise, to maintain the confidentiality of the other Party’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but with at least a reasonable degree of care. Each Party agrees not to make use of Confidential Information other than for the exercise of rights or the performance of obligations under this Agreement, and not to release, disclose, communicate it or make it available to any third party other than employees, officers, agents and contractors of the Party who reasonably need to know it in connection with the exercise of rights or the performance of obligations under this Agreement and which agreed in writing to keep Confidential Information confidential.
The receiving Party’s obligations set forth in paragraph 12.2 shall not apply to information:
- that, at the time of disclosure by the disclosing Party, is available publicly through no act or failure on the part of the receiving Party, whether through a breach of this Agreement or otherwise;
- that, prior to disclosure by the disclosing Party, was already in the possession of the receiving party, as evidenced by written records kept by the receiving party in the ordinary course of its business, or as evidenced by proof of actual prior use by the receiving party;
- independently developed by the receiving Party, by Persons having no direct or indirect access to the disclosing Party’s Confidential Information provided that the receiving Party provides clear and convincing evidence of such independent development;
- which, subsequent to disclosure, is obtained from a third Person: (A) who is lawfully in possession of the such information; (B) who is not in violation of any contractual, legal, or fiduciary obligation to either Party, as applicable, with respect to such information; and (C) who does not prohibit either Party from disclosing such information to others; or
- that is further disclosed with the prior written consent of the disclosing Party, but only to the extent of such consent.
12.4 Forced Disclosure
In the event that a Party (including an employee, officer, agent or contractors of said Party) is ordered to disclose all or any part of the Confidential Information under the terms of a valid and effective order issued by a court of competent jurisdiction or by a governmental authority, such Party agrees to: (i) immediately notify the other Party of the existence, terms and circumstances surrounding such a request; (ii) consult with the other Party on the advisability of taking legally available steps to resist or narrow such request; and (iii) if disclosure of such Confidential Information is required, exercise commercially reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the disclosed Confidential Information which the other Party so designates.
13. DURATION AND TERMINATION
The Agreement shall remain in force for as long as the Customer or Authorized Users use the Cloud Services.
The duration of the Customer's subscription to the Cloud Services is determined by the subscription package selected by the Customer.
13.2 Automatic Termination
Either party shall have the option to terminate this Agreement immediately, upon giving written notice to the other Party if:
- The other party becomes or is adjudicated insolvent or bankrupt, admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors;
- The other party applies for or consents to the appointment of any receiver, trustee or similar officer for it or for all or any substantial part of its property or such receiver, trustee or similar officer is appointed without the consent of said party;
- The other party institutes any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment or debt, dissolution, liquidation or similar proceeding relating to it under the laws of any jurisdiction, or any such proceeding is instituted against a party and is not dismissed within sixty (60) days;
13.3 Termination by Customer
Customer may terminate this Agreement:
- if Botpress breaches any material provision of this Agreement and such breach continues for a period of 30 days after delivery of a written notice by Customer requiring Botpress to correct such breach;
- by notifying Botpress of the termination in writing (or by using the subscription cancellation features available on Botpress’ website, if any) at least 10 days before the start of the next invoicing period.
(Only applicable if the contracting entity is Technologies Botpress Inc.) To the extent applicable, the Parties exclude Sections 2125 to 2129 of the Civil Code and agree that this Agreement may not be terminated for convenience by Customer and may only be terminated by Customer pursuant to this Section 13.3.
Customer will not receive a refund for any unused portion of their subscription unless the termination is based on a breach by Botpress.
13.4 Termination by Botpress
Botpress may terminate this Agreement and the rights granted hereunder without prejudice to enforcement of any other legal right or remedy, immediately upon giving written notice of such termination if:
- Customer fails to pay in full any sum owing by it under this Agreement by the due date thereof and such failure continues for a period of ten (10) Business Days after delivery of a written notice by Botpress requiring Customer to correct such failure;
- Customer, an Authorized User or a Customer employee, officer, agent or contactor infringes on the Intellectual Property Rights of Botpress, including by the breach of Customer’s obligations under Section 10 or acts in any manner reasonably jeopardizing Botpress’ Intellectual Property Rights;
- Customer breaches its obligations under Section 11;
- Customer materially breaches any other provision of this Agreement and such breach continues for a period of 30 days after delivery of a written notice by Botpress requiring Customer to correct such failure;
13.5 Obligation Upon Termination
Upon termination of this Agreement, Botpress shall certify to Customer in writing that it does not retain any copy of the Customer Data, except for copies kept for backup purpose in the normal course of business, as long as such copies are not readily available and are deleted at the end of the retention period.
Botpress may permanently delete Customer Data thirty (30) days after the termination of this Agreement.
Notwithstanding the foregoing, Botpress may retain an anonymized copy of Conversation Data for the sole purpose of generating Analytics Data.
Notwithstanding the termination or expiration of this Agreement for any reason, accrued rights, indemnities and all rights and obligation that by their nature shall survive the termination of the Agreement shall survive any such termination or expiration.
14.1 Limitation of Warranty
OTHER THAN AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, THE CLOUD SERVICES ARE PROVIDED TO CUSTOMER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BOTPRESS, ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE CLOUD SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADE SECRETS OR OTHER INTELLECTUAL PROPERTY, AS WELL AS WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, BOTPRESS PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, THAT THE CLOUD SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
15. LIMITATION OF LIABILITY
15.1 Nature of the contract
The parties acknowledge that Botpress’ obligations hereunder are limited to the provision of a hosting environment to host and operate bots and does not include any obligation to provide advice to the Customer or any commitment regarding the results obtained by the Customer by using the Cloud Services. The Customer is responsible for ensuring that the Cloud Services are adequate for its needs.
15.2 Exclusion of Consequential Damages
Subject to the restrictions of public order provided by law, Botpress shall not be liable for indirect, consequential, special or punitive damages arising out of Customer or Authorized Users’ Use of the Cloud Services or the provision of Cloud Services by Botpress or from the inability to Use the Cloud Services. Such excluded damages include, without limitation, loss of business opportunities, loss of profits, loss of anticipated savings, damages for loss or corruption of data and the cost of substitute goods or services, whether such damages are based on contract, fault, tort, negligence, strict liability or any other legal theory, even if Botpress has been advised of the possibility of damages.
15.3 Monetary Limitation of Liability
Subject to the restrictions of public order provided by applicable law which cannot be excluded contractually, and except with respect to Botpress’ indemnification obligations set forth at Section 17.2, Botpress’ liability and/or responsibility toward Customer under this Agreement and related to the Cloud Services or the Botpress Infrastructure shall be strictly limited to the Fees paid by Customer to Botpress during the Term.
16. FORCE MAJEURE
Except for the obligation to pay an amount of money, any delay or failure of either Party to perform its obligations under this Agreement shall be excused if, and to the extent, that the delay or failure is caused by an event or occurrence beyond the reasonable control of the Party and without its fault or negligence, such as, by way of example and not by way of limitation, acts of God, action by any governmental authority (whether valid or invalid), fires, flood, wind storms, explosions, riots, natural disasters, wars, terrorist acts, sabotage, labor problems (including lock-outs, strikes and slow downs, except for any labor problems of the Party claiming a force majeure event), or court order or injunction; provided that written notice of delay (including anticipated duration of the delay) shall be given by the affected Party to the other Party within five (5) days of the affected Party first becoming aware of such event. The Party not affected by a force majeure event may terminate this Agreement if the delay or failure causes said Party substantial harm.
17.1 By the Customer
The Customer agrees to indemnify, defend and hold harmless Botpress and its directors, officers, employees, shareholders, consultants and affiliates (collectively the "Botpress Indemnitees") from and against any and all third party claims brought against any of the Botpress Indemnitees (including, without limitation, any direct or indirect costs, losses, liabilities, fines, judgments, costs, interest, penalties or expenses, including reasonable disbursements and fees of their legal counsel, which they may incur as a result of any such claims) arising from:
- the authorized use of Customer Data by Botpress;
- the failure of the Customer to comply with its obligations with respect to the protection of Personal Data;
- the violation by the Customer, Authorized Users or Customer’s personnel of any applicable law or regulation;
- gross negligence or intentional acts of a member of the Customer’s personnel.
17.2 By Botpress
Botpress agrees to indemnify, defend and hold harmless the Customer and its directors, officers, employees and shareholders (collectively the "Customer Indemnitees") from and against any third party claims brought against any of the Customer Indemnitees (including, without limitation, any direct or indirect costs, losses, liabilities, fines, judgments, costs, interest, penalties or expenses, including reasonable disbursements and fees of their legal counsel, which they may incur) arising from:
- an alleged infringement of a third-party Intellectual Property Right existing in a territory in which Customer is authorized to Use the Cloud Services by the Cloud Services or the Botpress Content, except if such infringement results from Use of the Cloud Services in conjunction with a product not provided or approved by Botpress, any unauthorized Use of the Cloud Services or Use contrary to Botpress' instructions, a trial or "beta" functionality, any modification of the Cloud Services by a person not authorized by Botpress; or
- Botpress’ failure to comply with its obligations regarding the protection of Personal Data or Confidential Information.
17.3 Preventive measures
If Botpress determines or reasonably suspects that the Cloud Services or Botpress Content may infringe the intellectual property rights of a third party, Botpress may, at its option: (a) procure the right to continue to provide the Cloud Services to the Customer, (b) replace any potentially infringing element with another non-infringing functionally equivalent element, or (c) immediately suspend the Customer's access to any potentially infringing element of the Cloud Services and reimburse the Customer for the Fees paid in advance associated with such element.
In order to benefit from the provisions of this Section 17, the party seeking indemnification must promptly notify the indemnifying party in writing no later than ten (10) days after the indemnified party becomes aware of a claim or reasonably should become aware of a claim. The indemnifying party shall then be at liberty to conduct the defense of such claim and to retain counsel reasonably acceptable to all parties, but shall not settle or make any admission of liability without the consent of the indemnified party, which shall not be unreasonably withheld.
18. EXPORT REGULATIONS
The Cloud Services and Botpress Content may be subject to export control laws. Customer shall not, directly or indirectly, export, re-export or release the Cloud Services or Botpress Content to, or make the Cloud Services or Botpress Content accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. Customer shall comply with all applicable laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Cloud Services or Botpress Content available across national borders.
19. GENERAL PROVISIONS
19.1 Governing Law
If the Botpress contracting party is Technologies Botpress Inc., this Agreement is governed by and construed in accordance with the internal laws of the Province of Quebec without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the Province of Quebec or Canada. The parties agree to submit any dispute in connection with this Agreement to the exclusive jurisdiction of the competent courts of the Province of Quebec, sitting in the judicial district of Montreal.
If the Botpress contracting party is Botpress, Inc., this Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Exclusive jurisdiction for any legal suit, action or proceeding arising out of this Agreement lies within courts located in the State of Delaware, USA.
19.2 JURY TRIAL WAIVER
EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
19.3 Injunctive Relief
Notwithstanding anything else in this Agreement to the contrary, Customer acknowledges that a breach by Customer of this Agreement may cause Botpress immediate and irreparable harm, for which an award of damages may not be adequate compensation and agrees that, in the event of such breach or threatened breach, Botpress will be entitled to seek equitable relief, including in the form of orders for preliminary or permanent injunction, specific performance, interim or conservatory relief, and any other relief that may be available for any court, and Customer hereby waive any requirement for the securing or posting of any bond in connection with such relief. Such remedies will not be deemed to be exclusive but will be in addition to all other remedies available under this Agreement, at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
19.4 Independent Contractors
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Neither Party will have authority to contract for or bind the other Party in any manner whatsoever, except as expressly set forth in this Agreement.
All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); or (c) on the date sent by electronic mail (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient.
19.6 Entire Agreement
This Agreement, including any documents incorporated by reference herein, constitutes the sole and entire agreement between Customer and Botpress with respect to the subject matter hereof, and supersedes all prior and contemporaneous understandings, agreements, and representations, whether written or oral, with respect to such subject matter.
Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, without Botpress’ prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Botpress’ prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section is void.
Botpress may assign or otherwise transfer all or any of its rights hereunder, or delegate or otherwise transfer all or any of its obligations or performance under this Agreement without Customer’s consent.
19.8 Third-Party Beneficiaries
This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. Notwithstanding the foregoing, Affiliates of Botpress shall be third-party beneficiaries to this Agreement.
No waiver of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
If for any reason a court of competent jurisdiction finds any provision of the Agreement to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties, and the remainder of the Agreement shall continue in full force and effect.