Subject to change by Mon Tonton ("MTT"), as per below.
Last updated: 2020-12-14
These terms and conditions (“Terms of Service” or “Agreement”) govern your access to and use of MTT's Platform, which means any website, application, or service we offer, including successor domain names or sites (the “Site”), and any and all information, text, graphics, photos, or other materials uploaded, downloaded, or appearing on the Platform. These Terms of Service are a legally binding contract between MTT (“MTT”, “we”, “us”), and “Authorized User” (or “you”). MTT provides the Services to you subject to and conditioned upon your acceptance of these Terms of Service.
MTT may update and change any or all of these Terms of Service from time to time, in its sole discretion. If MTT does so, the updated notice will be provided in writing to all Authorized Users and will become effective and binding on the Authorized User the seventh business day after they are communicated.
1.1. “Admin Authorized User” means a subscriber to Services who purchases an account that provides access and use of the Services hereunder. Admin Authorized Users include individuals who are authorized by Partner and MTT to use the Services with varying levels of control and access as specifiable as between Partner and MTT and who have been supplied user identifications and password. Admin Authorized Users may include the employees, consultants, contractors, agents, customers, members, or other designees of Partner and its Affiliates, but shall not include any employee or agent of any MTT competitor.
1.2. “Authorized Users” means individuals who are authorized to use the MTT Platform with varying levels of control and access as specifiable by MTT and Partner Organization and who have been supplied user identifications and password by MTT. Authorized Users shall not include any employee or agent of any MTT competitor.
1.3. “Authorized User Account” means a single subscription associated with a single log-in to the MTT Platform, assigned to one Authorized User that cannot be shared or transferred.
1.4. “Authorized User Content” means all information and data (including text, images, videos, audio, and documents) or any other content in any media and format provided or made available to MTT by or on behalf of Authorized User in relation to the use of the MTT Platform and/or the provision of the Purchased Services.
1.5. “Authorized User Data”means any and all files, information, data or other content in whatever form that Authorized User or Organization (on Authorized User’s behalf) uploads to the Platform and/or provides to MTT in connection with Authorized User signing up for and/or using the Services, and information MTT collects from Authorized User’s use of the Services.
1.6. "Confidential Information"means all non-public information and/or data (including but not limited to either MTT’s business, technical, or financial information, trade secrets, or Authorized Users personally identifiable information) but excludes any information that the other Party (the “recipient”) of the disclosing party (the “Discloser”) in any verbal, recorded, written or other form, provided that “Confidential Information” shall not include information which the receiving party (the “Recipient”) can establish: (i) was lawfully in the recipient's possession before receiving it from the discloser; (ii) is provided in good faith to the recipient by a third party without breaching any rights of the discloser or any other party; (iii) is or becomes generally available to, or accessible by, the public through no fault of the recipient; or (iv) was or is independently developed by the recipient without reference to the discloser’s Confidential Information. In the event that the recipient or any representative of the recipient becomes legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any of the Confidential Information, the recipient will (if permitted to do so) provide the discloser with notice of such circumstances and will limit such disclosure to the required disclosure.
1.7. “Fair Use Policy” means the limits placed on usage as described in Section 2.4.
1.8. “MTT Platform” means MTT’s proprietary software, any website, application or service MTT offers via https://montonton.com that provides for a single log-in, providing a centralized community that enables Authorized Users to connect, and publish content to other Authorized Users and Organizations in partnership with MTT, including any derivatives, modifications or Updates thereto, if any and including any supplemental software code, documentation, or other material provided to Authorized User as part of the Services, whether in written or digital format.
1.9. “Partner Organization” shall mean an entity agreeing to MTT Partner Agreement with the purpose of MTT providing Services to entities members, users, admin, employees on the MTT Platform.
1.10.“Purchased Services” means any additional products and services that are ordered by Organization or Authorized User and made available by MTT, but expressly excludes any Third-Party Services (as defined herein). Fees for the Purchased Services may be billed on a regular and recurring basis subject to disabling auto-renewal or cancellation of an Authorized User Account.
1.11.“Third Party Content” means the information, including links, posts, and excerpts, that has been made publicly available and obtained by MTT, Organization, or Authorized Users from the Internet, and data derived therefrom, including any content, articles, images, and data.
2. MTT Services
2.1. Services. During the Term (as defined herein), subject to the terms and conditions of this Agreement, and solely for Authorized User’s individual use, MTT shall (i) make the MTT Platform available to Organization and Authorized Users; and (ii) provide Authorized User with the Purchased Services. The MTT Platform and Purchased Services shall collectively be referred to as the “Services”.
2.2. Hosting Services. MTT shall use commercially reasonable efforts to host, serve, distribute, and enable the availability of the Platforms and shall ensure that the Platforms are available to Authorized User and/or Organization.
2.3. Updates and Functionalities. Authorized User acknowledges that from time to time MTT may apply updates to the Services and that such updates may result in changes in the appearance and/or functionality of the Services (including the addition, modification, or removal of functionality, features, or content). Excluding the addition of wholly new products, MTT shall provide, implement, configure, install, support, and maintain at its own cost any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications to the Services (collectively, the “Updates”). Authorized User acknowledges that the Services interoperate with several third party services, and that the Services provided are highly dependent on the availability of such third party services. If at any time any third party services cease to make their programs available to MTT on reasonable terms, MTT may cease to provide such features to Authorized User without entitling Authorized User to refund, credit, or other compensation (an “API Change”). Subject to an API Change, MTT does not guarantee for the same functionality to continue.
2.4. Fair Use Policy. MTT may suspend Authorized User’s access to the Services for abusive practices that degrade the performance of the Services for Authorized Users and/or other Authorized Users of MTT.
2.5. Non-Exclusivity. Authorized User acknowledges that the rights granted to it under this Agreement are non-exclusive and that nothing in this Agreement will be interpreted or construed to prohibit or in any way restrict MTT’s right to license, sell, or otherwise make available the Services to any third party or perform any services for any third party.
3. Authorized User Account
3.1. Eligibility.Authorized Users must be at least 18 years of age. Your registration and information must be accurate, complete and kept up-to-date.
3.2. Fees. The Authorized User will pay all fees as and when described per the terms on the Authorized User Account subscription page and/or per the terms of the Purchased Services (the “Fees”).
3.3. Security. MTT takes Authorized User Account privacy very seriously and has strict rules regarding who can access or create a MTT account. Please know MTT reserves the right to suspend or remove any account, or limit access to certain features of the MTT Platform, for any reason, at our sole discretion.
3.3.1. Access.If an Authorized User passes away, MTT cannot provide access to their account, even to family members or people acting on the behalf of the estate. MTT will work with the Organization they belong to, or families to honor their wishes if they choose to close Authorized User accounts.
4. Authorized User Data and Content.
4.1. Content. The Services allows Authorized Users the ability to post, link, store, share and otherwise make available certain information, text, graphics, videos, or other material (“Content”). Content does not include personal, private or confidential information belonging to others or otherwise violate the rights of any individual or entity.
4.1.1. Scope of Content. Subject to this Agreement, Authorized Users may share opinions or other Content as permitted by applicable law. Authorized User agrees that they are solely responsible and have all the permissions, rights, and licenses they need (including under copyrights, trademarks, contract rights, privacy rights, or publicity rights) for any content they post on the Service(s). MTT is not responsible for Content that Organizations or Authorized Users post or the communications sent through the MTT Platform. MTT generally will not review Content before it’s posted. If an Authorized User notices Content that violates these Terms of Services, Authorized User may report the inappropriate Content to either their affiliated Partner Organization or MTT.
4.2. Content and Data License. MTT does not claim ownership of any Authorized Users Data or Content. However, to enable MTT to operate, improve, promote, and protect MTT and our Services, and to ensure we do not violate any rights you may have in your Data or Content, Authorized Users hereby grants MTT a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, transferable right and license (including a waiver of any moral rights) to use, host, store, reproduce, modify, publish, publicly display, publicly perform, distribute, and create derivative works of, Authorized Users Data and Content and to commercialize and exploit the copyright, trademark, publicity, and database rights you have in any Authorized User Data and/or Content. This license would permit your Content to remain on the Platform, even after you cease to be an Authorized User.
4.3. Aggregate Data.Under this Agreement, MTT may also use Authorized User Content and Data for the purpose of supporting and developing the Services, provided that when doing so, MTT shall only use Authorized User Content and Data in an anonymized and aggregated way. MTT may also generate aggregated statistical and analytical data derived from Authorized Users use of the Services, but such Aggregate Data will not include any personally identifiable data.
5. Use of MTT Platform
5.1. Acceptable Use. Authorized User shall (i) be responsible for Authorized Users’ compliance with this Agreement, including the Fair Use Policy; (ii) be solely responsible for the accuracy, quality, integrity, and legality of Authorized User Data and Content and of the means by which it acquired or generated Authorized User Data and/or Content; (iii) use reasonable efforts to prevent unauthorized access to or use of the Services, including keeping its login credentials password and user name confidential and not permitting any third party to access or use its user name, email, password, or account for the Services; (iv) be solely responsible and liable for all activity conducted through its account in connection with the Services; (v) promptly notify MTT if Authorized User becomes aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of Authorized User’s (or any Authorized User’s) user name, email, password, personal information, or account; (vi) use the Services only in accordance with applicable laws and government regulations or otherwise access in connection with Authorized User’s use of the Services; (vii) comply in all respects with all applicable terms of the Third Party Content that it subscribes to.
5.2. Prohibited Use. Authorized User must not (i) allow more than one individual Authorized User to use an Authorized User Account; (ii) sell, trade, or otherwise transfer its Authorized User Account to another party; (iii) use the Services to store or transmit any content, including Authorized User Data or Authorized User Content, that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate copyright, trademarks, intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law; (iv) upload to, or transmit from, the Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component; (v) attempt to reverse engineer, de-compile, hack, disable, interfere with, disassemble, copy, or disrupt the integrity or the performance of the Services, any third-party use of the Services, or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law); (vi) access the Services in order to build a competitive product or service or copy any ideas, features, functions, or graphics of the Services; (vii) access the Services to solicit Partner Organizations or other Authorized users to purchase competitor services; (viii) attempt to gain unauthorized access to the Services or its related systems or networks; or (ix) authorize, permit, or encourage any third party to do any of the above.
6. Authorized User Hosted Events
6.1. Hosted Events. The Services allows Authorized Users and/or Partner Organizations to post, invite and host other Authorized Users to both virtual and in person events (“Hosts”). Hosts may at times charge or ask for attendees to cover their costs for such events. Hosts are responsible for obtaining any necessary consents, applicable fees, permits or other authorizations associated with such events as required by applicable law.
6.1.1. Questions. If Authorized User has an issue or question regarding any Event, Authorized User should contact the Host. Hosts have full control over their events, and it is their responsibility to inform Authorized Users of any relevant terms or policies that apply to Authorized Users use of the Services outside of these Terms, as well as to respond to and resolve any disputes that Authorized User may have regarding a Hosts event.
6.2. MTT’s Role in Hosted Events.Events listed through the Services are organized by Authorized Users and/or Partner Organizations that act as hosts, or by member organizations, not MTT. MTT is a third party service providing the technology for managing events, and is not responsible or liable: for event cancelations by the host; for any content or activities related to the event; for the accuracy of the event information provided by the host, including the time and connection details.
6.3. Release. Authorized User acknowledges that some events may carry inherent dangers, such as the risk of illness, bodily injury, disability, or death. By participating in these events, Authorized User understands and agrees that they have freely chosen to assume these risks and therefore agrees to release MTT and its officers, directors, shareholders, agents, employees, consultants and affiliates from claims, demands, and damages (direct and consequential), arising out of or in any way connected with any transaction with any third party, Authorized Users interactions with other Authorized Users or Partner Organization, or in connection with a Host event.
7. Third Party Content, Products, and Services.
7.1. Third Party Content. Authorized User understands that by using the Services it may be exposed to third party content, information (collectively “Third Party Content”), and some Third Party Content that might be unlawful, offensive, harmful, inaccurate or otherwise inappropriate. Unless Authorized User creates the content of the Third Party Content, such Third Pary Content shall not be considered “Authorized User Content” under any circumstances. MTT has no obligation to preview, verify, flag, modify, filter, or remove any Third Party Content, even if requested to do so, although MTT may do so in its sole discretion. Authorized User’s use of Third Party Content is at Authorized User’s sole risk, and MTT shall not be liable to Authorized User or any third party in relation to third party content, terms and policies, and/or Authorized Users use of Third Party Content. Authorized User and/or Organization does not have a license to use the intellectual property of third parties merely by way of their access to publishing such content through the Services.
7.2. Third Party Produces and Services.Authorized User acknowledges that the Services may enable or assist it to access, interact with, and/or purchase services from other third parties via third party websites or applications (collectively, the “Third Party Services”). When Authorized User accesses the Third Party Services, it will do so at its own risk. Any use of Third Party Services is governed solely by the terms and conditions of such Third Party Services (and Authorized User shall comply with all such terms and conditions), and any contract entered into, or any transaction completed via any Third Party Services, is between Authorized User and the relevant third party, and not MTT. MTT makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third Party Services or any transactions completed, and any contract entered into by Authorized User with any such third party.
8. Admin Authorized User.
8.1. Account Conditions. An Admin Authorized User operates on behalf of an Partner Organization (representing Authorized Users), all terms and conditions of this Agreement shall apply to Admin Authorized User. Admin Authorized User will also contractually bind Authorized Users, in accordance with the Partner Organization terms, to the terms of this Agreement and Admin Authorized User will be liable for any breach of this Agreement by its Authorized Users. In addition, Admin Authorized User represents and warrants that (i) it has obtained all necessary authorizations, consents, and licenses from each Authorized User to bind Authorized Users to this Agreement, and act as Authorized Users agent and, more particularly, has obtained all necessary approvals for the use and subscription to the Services by, and on behalf of, Authorized User(s); and (ii) all of Admin Authorized User’s actions related to this Agreement will be within the scope of Admin Authorized User’s Organization terms and services. Admin Authorized User will defend, indemnify, and hold harmless MTT from all damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from Agency Authorized User’s breach of this Section.
9. Intellectual Property
9.1. MTT Services. As between Authorized User and MTT, MTT retains all right, title, and interest in and to the Services. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect the Services or any of MTT’s rights or interests therein or any other MTT intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to the Services not expressly granted in this Agreement are reserved by MTT. Authorized User may from time to time provide suggestions, comments, or other feedback to MTT with respect to the Services (“Feedback”). Feedback, even if designated as confidential by Authorized User, shall not create any confidentiality obligation for MTT. Authorized User shall, and hereby does, grant to MTT a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.
10. Confidential Information and Security Requirements
10.1. Obligations. Each Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and will not disclose or use any Confidential Information of the other Party for any purpose outside the scope of this Agreement. Admin Authorized Users shall limit access to Confidential Information to those of its employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with MTT containing protections no less stringent than those herein.
10.2. Data Security. MTT will use appropriate technical, organizational and security measures designed to protect Authorized User Data in its possession against unauthorized access, alteration, disclosure or destruction. However, MTT cannot guarantee that unauthorized third parties will never be able to defeat those measures and expressly denies any responsibility for damages, monetary or otherwise, resulting from unauthorized third-party access to Authorized User’s Account, use, alteration, or disclosure of Authorized User’s Data.
10.3. Legal Disclosures and Third Party Requests. Authorized User is generally responsible for responding to third party requests regarding Authorized Users Data, such as from regulators, Admin Authorized Users, or a law enforcement agency (“Third Party Requests”), but Authorized User understands that, in response to a Third Party Request, MTT may disclose Authorized User Data and/or Content to comply with its legal requirements. In such circumstances, MTT will, to the extent allowed by law and by the terms of the Third Party Request, use reasonable efforts to (i) notify Authorized User of MTT’s receipt of a Third Party Request and ask the third party to contact Authorized User directly and (b) comply with Authorized User’s reasonable requests regarding their efforts to oppose a Third Party Request at Authorized User’s expense. Authorized User should first seek to obtain the information required to respond to the Third Party Request on their own, and can contact MTT only if Authorized User cannot reasonably obtain such information.
11. Term and Termination
11.1. Term of Agreement. This Agreement shall commence on the date Authorized User creates their Authorized User Account on the MTT Platform and accepts the terms of services outlined herein, (“Effective Date”) and shall continue in effect for the term described in such agreement (“Term”).
11.2. Termination for Convenience. MTT, Partner Organization, or Authorized User may terminate this Agreement at any time for any reason, upon thirty (30) days' written notice to the other Party.
11.3. Termination of Authorized User Account. MTT may terminate or suspend access to the Services immediately, without prior notice or liability, for any reason whatsoever, including without limitation if Authorized User’s breach of the Terms. All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
11.4. Effects of Termination. Upon termination of this Agreement for any reason, (i) Authorized User will immediately cease all use of the Services; and (ii) Authorized User will have no further access to its accounts provided by MTT.
11.5. Survival. Any provision of this Agreement which, either by its terms or to give effect to its meaning, must survive, and such other provisions which expressly, or by their nature, are intended to survive termination shall survive the expiration or termination of this Agreement.
12. Warranty Disclaimer
12.1. SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO AUTHORIZED USER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, MTT EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MTT SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NONINFRINGEMENT, THAT ITS SERVICES WILL MEET AUTHORIZED USER’S REQUIREMENTS, OR THAT ITS SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, MTT DOES NOT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MTT OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. MTT DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING THE AUTHORIZED USER CONTENT AND MENTIONS, OR ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. MTT DOES NOT CONTROL OR VET AUTHORIZED USER CONTENT, ADMIN AUTHORIZED USER CONTENT, OR THIRD PARTY CONTENT AND IS NOT RESPONSIBLE FOR WHAT USERS POST, TRANSMIT, OR SHARE ON OR THROUGH THE SERVICES. MTT IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD PARTY SERVICES ASSOCIATED WITH OR UTILIZED IN CONNECTION WITH THE SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD PARTY SERVICES. MTT EXPRESSLY DENIES ANY RESPONSIBILITY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
13.1. Indemnification by Authorized User. To the full extent permitted by applicable law, Authorized User shall defend, indemnify, and hold harmless MTT, its Partner Organizations, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature which are in connection with or arising out of a claim (i) alleging that the Authorized User Content or Authorized User’s use of the Services infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates applicable law; (ii) relating to, or arising from, Authorized User Content, or Authorized User’s breach of Sections 3, 4.1.1, and 5; or (iii) relating to, or arising from, Third Party Services (including, without limitation, Authorized User’s breach of any terms or conditions applicable to any Third Party Services).
13.2. Indemnification Procedure. Authorized User shall (i) promptly give written notice of the Claim to MTT; (ii) Authorized User shall cooperate with MTT in defending such claims and pay all fees, costs and expenses associated with defending such claims( including, but not limited to, attorneys’ fees; and (iii) Authorized User shall give MTT the option to take the sole control of the defense and settlement of the Claim, should MTT decline to accept such option, Authorized User shall take the sole control of the defense and settlement of the Claim (provided that the Authorized User may not settle or defend any Claim without MTT’s prior written consent unless it unconditionally releases MTT of all liability).
14. Limitation of Liability
14.1. EXCEPT AS EXPRESSLY PROVIDED HEREIN, IN NO EVENT SHALL MTT'S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED EITHER THE AMOUNT OF FEES PAID BY AUTHORIZED USER FOR THE SERVICES HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE, OR, IF NO FEES ARE PAID DURING SUCH PERIOD, ONE HUNDRED DOLLARS ($100).
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MTT, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY DITECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL MTT BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR AUTHORIZED USER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF MTT WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF MTT FOR GROSS NEGLIGENCE, FRAUD, OR INTENTIONAL, MALICIOUS, OR RECKLESS MISCONDUCT OF EITHER PARTY; OR ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
15.1. Assignment. Authorized User may not assign or otherwise transfer any of its rights or obligations hereunder, without the prior written consent of MTT, and any attempted assignment without such consent will be void. Notwithstanding the foregoing, MTT may assign this Agreement in its entirety, without consent of Authorized User, to its Partner Organizations or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
15.2. Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement between Authorized User and MTT, and neither Party has any authority of any kind to bind the other in any respect.
15.3. Force Majeure. Except for payment obligations, neither Party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such Party’s reasonable control, including the elements; fire; flood; severe weather; earthquake; vandalism; accidents; epidemic; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
15.4. Amendment. MTT reserves the right, at our sole discretion, to modify, supplement, or replace these Terms of Service, effective upon posting on the MTT website or notifying Authorized User otherwise. Authorized User’s continued use of the Services after the effectiveness of that update will be deemed to represent its agreement with, and consent to be bound by, the new Terms of Service. Except for changes made by MTT as described here, no other amendment or modification of these Terms of Service shall be effective unless set forth in a written agreement bearing a written signature by MTT and Authorized User.
15.5. Severability. Each provision of this Agreement is severable. If any provision of this Agreement is or becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity, or unenforceability of that provision will not affect the legality, validity, or enforceability of the remaining provisions of this Agreement or of that provision in any other jurisdiction
15.6. Notices. For purposes of service messages and notices about the Services, MTT may place a banner notice across its Platform or website to alert Authorized User of certain changes such as modifications to this Agreement. Alternatively, notice may consist of an email from MTT to an email address associated with Authorized User’s Account, even if MTT has other contact information. MTT may also communicate with Admin Authorized User or its Authorized Users through its MTT account or through other means including email, mobile number, telephone, or delivery services including the postal service about Authorized User’s MTT account or services associated with MTT. Authorized User acknowledges and agrees that MTT shall have no liability associated with or arising from Admin Authorized User’s failure to maintain accurate contact or other information, including, but not limited to, Authorized User’s failure to receive critical information about the Services. Notices to MTT must be delivered by email to email@example.com. This email address provided may be updated as part of any update to this Agreement.
15.7. Waivers. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all Parties to this Agreement, except that any provision which does not give rights or benefits to particular Parties may be waived in writing, signed only by those Parties who have rights under, or hold the benefit of, the provision being waived if those Parties promptly send a copy of the executed waiver to all other Parties. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
15.8. Arbitration. Authorized User agrees to submit any claim to JAMS, Inc. or its successor (“JAMS”) for final and binding arbitration. In arbitration, certain rights that Authorized User, Admin Authorized User, or MTT would have in court may not be available, such as discovery or appeal. Authorized User and MTT are each expressly waiving any right to trial by judge or jury in a court of law. This agreement to arbitrate shall apply regardless of whether the claim arises during or after any termination of this Agreement or Authorized User’s and/or Admin Authorized User’s relationship with Partner Organization.
15.8.1. Dispute Resolution Terms Applicable to Authorized Users Outside of the United States of America. If Authorized User or Admin Authorized User is a based outside the United States of America, the mandatory provisions of the law of the country in which they are resident will apply. Nothing in this Agreement will affect Authorized User’s and/or Admin Authorized User’s rights as a consumer to rely on the mandatory provisions of the local law that applies.
15.8.2. Arbitration Time for Filing. Any claim subject to arbitration must be filed within one year after the date the Authorized User and/or Admin Authorized User first knows or should know of the act, omission or default giving rise to the claim, or the shortest time period permitted by applicable law.
15.8.3. Arbitration Procedures. Arbitration may commence by filing a written demand for arbitration with JAMS. The arbitration will be conducted in accordance with JAMS Streamlined Arbitration Rules and Procedures and any other applicable rules that JAMS requires (“JAMS Rules”) that are in effect as of the demand for arbitration. Authorized User and/or Admin Authorized User agrees that the U.S. Federal Arbitration Act and federal arbitration law govern the interpretation and enforcement of these arbitration provisions. Any arbitration hearings will take place in San Francisco, California or elsewhere as required by JAMS Rules. Authorized User and/or Admin Authorized User’s responsibility to pay any filing, administrative and arbitrator fees will be solely as set forth in the JAMS Rules. The parties will cooperate with JAMS and each other in scheduling the arbitration proceedings, and in selecting one arbitrator from the appropriate JAMS list with substantial experience in resolving intellectual property and contract disputes. The arbitrator shall follow this Agreement and, to the extent permitted by JAMS Rules, can award costs, fees, and expenses, including attorneys’ fees, to the prevailing party, except that the arbitrator shall not award declaratory or injunctive relief benefiting anyone but the parties to the arbitration. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
15.9. Class Action Waiver. Authorized User agrees to resolve disputes with MTT on an individual basis. Authorized User agrees not to bring a claim as a plaintiff or a class member in a class, consolidate, or representative action. Authorized User is expressly waiving any right to participate in class actions, class arbitrations, private attorney general actions, and consolidation with other arbitrations.
15.10. Governing Law. This Agreement and relationship between you and MTT are governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in California. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.