Terms of service
This page provides the terms and conditions (these “Terms of Service”) that govern the use of, including but not limited to, services, products, software, and technologies (the “Services”) offered by Monkey Tek, its Agents and/or Affiliates (“Monkey Teke & its Agents”). By using the Services, you/your company (the “Customer”) agrees to these Terms.
1. Services. (a) Monkey Tek & its Agents will use commercially reasonable efforts during the Service Term to provide Customer the Services identified on Customer’s order form, invoice, etc. As part of the Services, Monkey Tek & its Agents grants Customer the right to use the Services on Customer’s website or other appropriate methods and mediums during the Service Term. (b) The Services will be provided to Customer through Monkey Tek & its Agents ’s methods including but not limited to Monkey Tek & its Agents’s website and dashboard, integrations utilizing API keys, webhooks, ADF feed, etc. and Customer must register and identify a username and password. The customer is responsible for obtaining and maintaining any equipment or services necessary to use the Services and for maintaining the security of such equipment, services, and Customer’s username and password. Customer is responsible for all use of its username and password. (c) Customer may only use the Services for its internal business purposes and may only disclose the Services to third parties to enable those parties to provide services to Customer. Such internal business purposes may include, but not limited to, email marketing, direct mail, SMS marketing, and social media marketing in accordance with all local and federal laws.
2. Proprietary Rights. (a) Customer shall not, directly, or indirectly reverse engineer or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Services or any software, documentation, or data related thereto or create derivative works based on, or remove any proprietary notices of labels from, any of the foregoing. Monkey Tek & its Agents shall own and retain all rights, title, and interest in and to the Services, and Software, and all improvements, enhancements, or modifications thereto, and all intellectual property rights related to any of the foregoing. (b) Monkey Tek & its Agents may collect and analyze data relating to Customer’s use of the Services and will be free to use such data for its internal business purposes and to disclose such data in de-identified form in connection with its business. Monkey Tek & its Agents shall not disclose to third parties the aggregated Services in a form which is attributable to Customer. (c) Each party shall promptly notify the other party when it has knowledge of a breach that may compromise the security, confidentiality, or integrity of any third parties’ personally identifying information that relates to the Services and shall cooperate with law enforcement with respect to such breach and shall take appropriate action to mitigate the breach at its expense. (d) Customer shall not export the Services from the United States except in compliance with applicable law and with the prior written approval by Monkey Tek & its Agents .
3. Payment of Fees. (a) Customer shall pay Monkey Tek & its Agents the fees described in the Order Form, invoice, etc. in accordance with the terms therein (the “Fees”) for services being rendered. Customer authorizes Monkey Tek & its Agents to charge the credit card and/or alternate electronic form of approved payment for services. Full payment for services is due upon receipt (Late payment terms and time frames are covered on each invoice). Unpaid amounts may be subject to a finance charge of 7.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection (including reasonable attorneys’ fees) and may result in immediate termination of Service. (b) Monkey Tek & its Agents may change the Fees or applicable charges, or may institute new Fees or charges, by giving Customer written notice 90 days in advance. If Customer believes that Monkey Tek & its Agents has billed Customer incorrectly, Customer must contact Monkey Tek & its Agents no later than 30 days after the closing date on the first billing statement in which the error or problem appeared to receive an adjustment or credit. Inquiries should be directed to Monkey Tek & its Agents’s accounting department at [email protected]. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Monkey Tek & its Agents ’s net income. (c) Customer agrees and understands that the charges on a credit card or for any check for the Services are irrevocable, undisputable and may not be charged back, contested or challenged now or in the future. Doing so is a material breach of this agreement for which Monkey Tek & its Agents would be entitled to attorney fees, costs and fees associated with addressing a chargeback in addition to the amount challenged. Should Customer not pay the amount submitted to by Monkey Tek & its Agents for the cost of the chargeback within 30 days after Monkey Tek & its Agents has submitted its amount of cost due to Customer contesting a charge, the charges will be turned over to a collection agency. Monkey Tek & its Agents shall have at its sole disposal any other legal remedy it independently chooses to pursue any collection against Customer for the cost of the chargeback. Customer further agrees that proof of purchase by Monkey Tek & its Agents is all that is necessary to establish to the credit card agency or banking institution to deny a chargeback to Customer.
4. Term and Termination. (a) Monkey Tek & its Agents will provide the Services beginning on the Service Start Date which will endure for a minimum of three-monthly billing cycles (“90-day Minimum Commitment") and then continue a month-to-month basis (the “Service Term”) until written notice of termination is given by either party. (b) Either party may terminate the Services by giving written notice of termination to the other party; such termination (“30-day Opt-out") will be effective at the end of the next full calendar month of Service.
5. Representations and Warranties. (a) Each party represents and warrants to the other party that it has complied and will comply with all applicable laws and regulations with respect to the Services, including without limitation SAN Registration https://telemarketing.donotcall.gov/profile/create.aspx, CAN-SPAM, the TCPA, and the FTC’s TSR. (b) Monkey Tek & its Agents represents and warrants to Customer that it will use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions and shall perform any installation or training services in a professional and workmanlike manner and neither the Services will contain any viruses, malware, or other disabling code installed or inserted by Monkey Tek & its Agents . (c) The express warranties set forth in these Terms of Service are the only warranties made. All other warranties, express or implied, including without limitation warranties of merchantability, title, non-infringement, and fitness for a particular purpose, are disclaimed. All Services are provided “as-is” with no warranties whatsoever.
6. Confidentiality. Customer shall not use or disclose to any third party any of Monkey Tek & its Agents ’s confidential information. Monkey Tek & its Agents ’s confidential information includes non-public information identified by Monkey Tek & its Agents as confidential or proprietary or which should reasonably be understood by Customer to be confidential or proprietary based on the nature of the information or the circumstances of its disclosure. Non-public aspects of the Services are Monkey Tek & its Agents ’s confidential information. Upon termination of the Service Term, Customer shall promptly return or certify to the destruction of all Monkey Tek & its Agents ’s confidential information. Customer may disclose Monkey Tek & its Agents ’s confidential information if required by law if Customer gives notice to Monkey Tek & its Agents prior to such disclosure and assists Monkey Tek & its Agents in limiting the disclosure.
7. Indemnification. Each party (the “Indemnifying Party”) shall defend, indemnify and hold harmless the other party and its directors, officers, contractors, employees, agents, and consultants (the “Indemnified Group”), from and against any and all actions, suits, proceedings, claims, liabilities, damages, losses, judgments, and expenses, including reasonable attorneys’ fees and costs, made or claimed by a third party arising out of or related to: (i) the Indemnifying Party’s the breach of these Terms of Service, including of any representations and warranties made herein; and (ii) the Indemnifying Party’s violation of any rights of any third party or the Indemnified Group that arises out of or relates to these Terms of Service.
8. Limitation of Liability. Neither party shall be liable for any consequential, indirect, exemplary, special, or incidental damages, or for damages for lost profits, arising out of or related to these Terms of Service, however caused and regardless of the theory of liability (including without limitation negligence), even if the party has been advised of the possibility of such damage. Each party’s liability arising out of or related to these Terms of Service shall not exceed and is limited to the total amount of Fees paid by Customer in the 12-month period immediately before the event giving rise to liability. This Section 8 shall not apply to a party’s breach of Section 2(A), 6, to the payment of Fees when due, or to a party’s indemnification obligations herein.
9. General. (a) All notices given under these Terms of Service shall be in writing and will be effective when received by the party to whom directed. All notices shall be delivered by hand or sent by certified mail, return receipt requested, addressed to the party’s address on the Order Form, or sent by email, with confirmation of receipt, addressed to the party’s email address on the Order Form. A party may update its notice address by giving notice to the other party. (b) These Terms of Service shall be governed by and construed in accordance with the laws of the State of Texas, without regard to conflict of laws principles. An action brought by either party under these Terms of Service shall be brought only to a state or federal court located in Collin County, Texas. Each party submits to the jurisdiction and venue of such courts and waives any objection to such courts. Monkey Tek & its Agents may seek injunctive relief in any court of competent jurisdiction. Each party hereby waives any right it has or may have to a jury trial in any action, suit, or proceeding arising out of or related to these Terms of Service. (c) The breach or threatened breach by the Customer of these Terms of Service would be highly prejudicial to the interest of Monkey Tek & its Agents and would materially damage Monkey Tek & its Agents.
10. Fulfillment Policy. In summary of the above sections (a) Order Processing: (i) Order Confirmation: Upon submitting your request for service, you will receive a confirmation email with a reference number. This email will outline the next steps in the vetting and onboarding process. (ii) Vetting and Approval: Monkey Tek prioritizes client suitability and fit. We will conduct a thorough vetting process to ensure our services align with your needs. You will be contacted by our team throughout this process. (iii) Insertion Order: "Once approved, you will receive an Insertion Order detailing the services, setup fees, and ongoing monthly costs. You will have the opportunity to review and accept the Insertion Order before proceeding. (iv) System Access Granting: Following acceptance of the Insertion Order and completion of the setup process, you will be granted access to the Monkey Tek system. (b) Delivery -System Access: Delivery of your Monkey Tek system is subject to the terms outlined in the Insertion Order. We aim to complete the setup process within the designated time frame designated in the Insertion Order. However, this timeframe may vary depending on the complexity of your specific needs. (c) Returns and Refunds - Digital Services: Due to the nature of our services as digital products and the setup labor involved, returns and refunds are generally not offered. However, we understand that unforeseen circumstances may arise. In such cases, please contact our billing department at [email protected] to discuss your situation on a case-by-case basis. (d) Additional Considerations (i) Customer Support: Our dedicated customer support team is here to assist you throughout the onboarding process and beyond. Feel free to reach out to us with any questions.(ii) Order Modifications: As each system setup is unique, modifications to the agreed-upon services may be subject to additional fees. Please contact your account manager to discuss any potential changes. (iii) Limited Availability: We maintain a selective client base to ensure exceptional service. This may result in limited signup availability. We appreciate your understanding.
Therefore, Monkey Tek & its Agents will be presumed entitled to injunctive relief, including specific performance, to remedy or prevent such breach of threatened breach, without the obligation to post a bond and in addition to any other remedy that may be available at law or equity. (d) No agency, partnership, joint venture, or employment is created because of these Terms of Service. These Terms of Service and the Order Form state the entire agreement between the parties with respect to the Services and supersede all previous discussions, negotiations, and agreements. The failure of any party to insist upon the performance of any provision of these Terms of Service or to exercise any right or privilege granted to such party under these Terms of Service will not be construed as waiving such provision or any other provision hereof. Neither party may assign these Terms of Service without the written consent of the other party; provided, that either party may assign these Terms of Service without the other party’s consent(i) to the acquirer in connection with the sale, transfer, or other disposition by such party of all or substantially all of its assets or to the surviving or resulting entity in a merger or reorganization. If any provision of these Terms of Service is held to be invalid or unenforceable, the parties intend that the provision be enforceable to the maximum extent permitted under law and therefore request that the court reform the invalid or unenforceable provision to render it enforceable to the maximum extent permitted; if theFooter court refuses to modify or reform the provision, then the provision shall be severed from these Terms of Service with no effect upon the remaining provisions.
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