MonkProtect Terms and Conditions of Use
USE OF AND ACCESS TO THE MONKPROTECT™ SERVICES, as more fully described at https://support.shipmonk.com/s/article/MonkProtect-101 (the “Services”), ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS (“T&Cs”). By accepting or agreeing to these T&Cs, you hereby represent and warrant that you have read and agree to be bound by these T&Cs.
Terms and Conditions of Use
The purpose of these T&Cs is to set forth the terms and conditions under which BedaBox LLC D/B/A ShipMonk, and its affiliated companies (collectively, “ShipMonk”), makes available to its merchants and third parties (each a “User”) the Services, in addition to the MonkProtect platform and website (collectively the “Platform”). Please read these T&Cs carefully before using the Services or the Platform.
These T&Cs and any applicable, additional, Service-specific terms are referred to herein as the “Agreement.” ShipMonk may modify these T&Cs at any time from time to time without prior notice and such modification shall be effective upon posting by ShipMonk on the Platform. If User does not agree to any such modifications, User must cease its use of the Services immediately.
These T&Cs incorporate the Data Processing Addendum (“DPA”), attached hereto, such DPA setting forth the duties of ShipMonk and User as it relates to Data Processing.
ShipMonk reserves the right to update and upgrade its Service offerings in its sole discretion, and nothing herein shall be deemed as imposing an obligation on ShipMonk to continue offering any particular Service(s).
Use of Services and Platform
In order to access the Services, User must register for a MonkProtect account (each an “Account”). When registering an Account, User agrees to provide only true, accurate, current and complete information requested by the registration form and to promptly update such information thereafter as necessary to keep it current. User represents and warrants that it is not barred from using the Services under any applicable law and that User will be responsible for all activities that occur under the Account. User may not authorize any third party (other than, if applicable, its employees, consultants or agents) to access or use the Services on User’s behalf. User is responsible for maintaining the confidentiality of its Account credentials, and is fully responsible for all activities that occur under User’s Account. User shall immediately notify ShipMonk of any unauthorized use of its account or any other breach of security. SHIPMONK HEREBY DISCLAIMS ANY AND ALL LIABILITY FOR ANY LOSS OR DAMAGE ARISING FROM ANY UNAUTHORIZED USE OF USER’S ACCOUNT. User acknowledges and agrees that it has no ownership or other property interest in its account and that all rights in and to User’s account are owned by and inure to the benefit of ShipMonk.
Provided that User is desirous of utilizing the Services, pricing therefore will be provided via email by ShipMonk. Commencing use of the Services following receipt of pricing shall indicate User’s acceptance of the pricing received. Pricing is subject to change at any time upon thirty (30) days prior written notice to User. In the event Pricing is unacceptable to User, User must stop using the Services by the effective date of such updated pricing, failing which, User shall be deemed to have accepted such pricing.
RESTRICTIONS ON USE OF THE SERVICES
Except as authorized herein, User is prohibited from copying, modifying, displaying, distributing, transmitting, transferring, redelivering, publishing, selling, marketing, renting, leasing, licensing or sublicensing, creating derivative works, or otherwise using or making available to any third parties any of the Services, the Platform, or any related content for any purpose. User agrees that it will not, directly or indirectly, reverse engineer, decompile, reproduce or otherwise attempt to derive source code, trade secrets, or other intellectual property from any information, material, or technology incorporated into the Services or the Platform. User is strictly prohibited from accessing or using the Services or any related content to develop, or have a third party develop, a product or service that is similar or competitive to the Services.
During the Term as herein defined, and for a period of two (2) years thereafter, neither Party will, whether directly or indirectly, make any disparaging, negative, or false or misleading statements with respect to the other Party. Notwithstanding the foregoing, nothing in this paragraph shall, in any way, restrict or impede the parties from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation or order.
At its sole discretion, ShipMonk may modify or discontinue the Services, or may modify, suspend, or terminate User’s access to the Services, for any reason, with or without notice to User and without any liability whatsoever. ShipMonk shall not be responsible for refunding any funds that may be owed to User if ShipMonk has terminated or suspended the Services. In addition to suspending or terminating User’s access to the Services, ShipMonk reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive relief.
User hereby consents to and grants to ShipMonk a limited, revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free, worldwide license to use User’s trademarks, trade names, service marks, trade-dress, and other marks, if any (collectively “User Marks”), for the purpose of advertising, marketing and promoting the Services.
A complete description of the Services and what is included can be found at https://support.shipmonk.com/s/article/MonkProtect-101.
DISCLAIMER OF WARRANTY
USER’S USE OF ANY OF THE SERVICES IS AT USER’S SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SHIPMONK HEREBY DISCLAIMS ANY AND ALL WARRANTIES IN CONNECTION WITH THE SERVICES WHICH IS PROVIDED ON AN “AS IS”, AND “AS AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHER, SHIPMONK DOES NOT MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES THAT THE SERVICES WILL MEET USER’S REQUIREMENTS, BE UNINTERRUPTED OR FREE FROM ERRORS, THAT ANY ERRORS WILL BE CORRECTED, OR THAT THE SERVICES WILL BE FREE FROM MALICIOUS SOFTWARE, VIRUSES OR OTHER HARMFUL COMPONENTS. FURTHER, SHIPMONK DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR RESULTS OF THE USE OF THE SERVICES OR PLATFORM, NOR THE ADEQUACY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT OR ANY OF THE INFORMATION, PRODUCTS OR SERVICES PROVIDED THROUGH THE SERVICES. NO ORAL OR WRITTEN INFORMATION GIVEN BY ANY PARTY SHALL CREATE ANY SUCH WARRANTIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
User shall retain all right, title and interest in and to (a) all graphics, images, files, data and other information transmitted by User to ShipMonk in connection with its use of the Services and Platform and (b) reports and other materials generated by our Services following such transmission (collectively, “User Data”); provided, however, that User hereby grants to ShipMonk an irrevocable, worldwide, royalty-free, non-exclusive license to use (i) User Data solely for purposes of maintaining and improving the Services and (ii) non-identifiable, anonymous, aggregated data regarding User’s use of the Services.
ShipMonk’s graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, trademarks or trade dress of ShipMonk in the U.S. and/or other countries (collectively “ShipMonk Marks”). The ShipMonk Marks are trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without ShipMonk’s prior written approval, which may be withheld in its sole discretion. ShipMonk also reserves the right to determine and control all aspects (including all functionality) of the Services and the ShipMonk Marks, as well as the right to re-design, modify and remove any or all aspects of them.
User’s use of the Services is further subject to the following additional restrictions:
User represents, warrants, and agrees that User will not contribute any content or otherwise use our Services or interact with the Services or Platform in a manner that:
Infringes or violates the intellectual property rights or any other rights of anyone else (including ShipMonk); Violates any law or regulation, including any applicable export control laws; Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable; Jeopardizes the security of User’s ShipMonk account or anyone else’s (such as allowing someone else to log in to our Services as User); Attempts, in any manner, to obtain the password, account, or other security information from any other user; Violates the security of any computer network, or cracks any passwords or security encryption codes; Runs any form of auto-responder or “spam” on our Services, or any processes that run or are activated while User is not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on our Services’ infrastructure); “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to our Services or Content (through use of manual or automated means); Copies or stores any significant portion of the Content; Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to our Services. A violation of any of the foregoing is grounds for immediate termination of User’s right to use or access the Services.
User agrees to indemnify, defend and hold ShipMonk harmless from and against any and all losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising from a Claim of: (a) User’s misuse of the Services; (b) User’s violation of this Agreement; (c) User’s violation of any rights of another party, including any Users; (d) User’s violation of any applicable laws, rules or regulations; and (e) ShipMonk’s use of the User Marks. ShipMonk reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by User, in which event User will fully cooperate with ShipMonk in asserting any available defenses. User agree that the provisions in this Section will survive any termination of this Agreement or User’s access to Services.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, SHIPMONK EXPRESSLY DISCLAIMS ANY LOSSES, DAMAGES, INJURIES, CLAIMS OR OTHER LIABILITY OF ANY KIND, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH USER ACCESSING OR USING OR INABILITY TO ACCESS OR USE ALL OR ANY PART OF ANY OF THE SERVICES, OR ANY FAILURE OF PERFORMANCE, ERROR, INTERRUPTION, DEFECT, DELAY IN TRANSMISSION, COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS OR CONTENT, OR LINE OR SYSTEM FAILURE ASSOCIATED WITH SUCH SERVICES AND/OR CONTENT, REGARDLESS OF OUR NEGLIGENCE AND KNOWLEDGE THEREOF.
UNDER NO CIRCUMSTANCES WILL SHIPMONK BE LIABLE FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO SHIPMONK BY USER DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF SHIPMONK FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A SHIPMONK PARTY’S GROSS NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A SHIPMONK PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
The Services may be accessible from countries around the world and may contain references to the Services that are not available in User’s country. These references do not imply that ShipMonk intends to announce or promote the availability of such Services in User’s country. Services are controlled and offered by ShipMonk from its facilities in the United States of America. ShipMonk makes no representations that Services are appropriate or available for use in other locations. Those who access or use Services from other countries do so at their own risk and are responsible for compliance with local law.
GOVERNING LAW AND VENUE
This Agreement and provision of the Services shall be governed by and construed in accordance with the laws of the State of Florida without giving effect to its conflict of laws principles. Any dispute arising in connection with this Agreement or the Services shall be heard solely in a court of competent jurisdiction located in Broward County, Florida, the Parties hereto consenting to the personal jurisdiction of such courts and waiving any and all defenses of inconvenient forum.
This Agreement, and User’s rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by User without ShipMonk’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
ShipMonk shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any portion of these Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
This Agreement are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.