All Systems Operational
SOC 2
Certified
GDPR
Compliant
Resources
© Botpress 2024
These Terms of Service constitute a contract between the person or entity using services or content provided by Botpress (“Customer”) and the Botpress entity with which the Customer is contracting per the Terms of Service (“Botpress”). Before using any service or content provided by Botpress, you must agree to the Terms of Service. If you are not prepared to contractually agree to be bound by the Terms of Service, you may not use any service or content available through the Botpress Website or otherwise made available by Botpress.
a) If the Customer is located in Canada, the Agreement is contracted between Customer and Technologies Botpress Inc., a Canadian Corporation.
b) If the Customer is located anywhere else in the world, the Agreement is contracted between the Customer and Botpress, Inc. a Delaware company.
c) The Customer represents and warrants to Botpress that it is operating a business and that it is not accessing the Software Services or Botpress Content for personal or household purposes.
The Terms of Service may reference external documents, such as a Data Protection Agreement or Service Level Agreement. All such documents and the details of the Customer’s subscription to the Software Services or access to Botpress Content (which may be indicated on the Botpress Website or in a separate proposal) are incorporated into the agreement between Botpress and the Customer.
Some specific Botpress services or content may require that the Customer agrees to additional terms.
Botpress offers three types of subscription plans, some sections of the agreement are only applicable to certain service plans.
a) Community (Free) Plan: means the free version of the Software Services.
b) Self-Serve Plan: means the Customer subscribed to the paid version Software Services through the Botpress Website;
c) Enterprise Plan: means the Customer subscribed to the paid version Software Services through a Botpress sales representative;
“Acceptable Use Policies” means policies adopted from time to time by Botpress and its service providers to govern responsible and ethical use of the Software and its capabilities.
“Affiliate” means any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.
“Agreement” means these Terms of Service, including the applicable Proposal(s) (for Enterprise Plans) and all schedules attached hereto and all documents incorporated therein, such as Botpress’ DPA or SLA (if applicable).
“Analytics Data” means usage data, metadata and other data generated by the Software about the Use of the Software by Authorized Users and data not originating from Customer used in the performance of Software Services, excluding Customer Data.
“Authentication ID” means a security mechanism by which an Authorized User identifies herself or himself to the Software 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 User” means an individual authorized by Customer and Botpress to access and Use the Software Services.
“Botpress Content” means any documentation, materials, code, data, files and other information or materials made available to the Customer or Authorized Users by Botpress.
“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.
“Business Day” means any calendar day except for Saturday or Sunday or any statutory holiday observed in Canada.
“Business Hour” except if specified otherwise in the Proposal, means the hours between 9:00 AM and 5:00 PM Eastern Time on Business Days.
“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 and content generated by the Customer Bot in a production environment.
“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 the Software or the Software Services in accordance with this Agreement by Customer, by Persons engaged by Customer or by Botpress for the benefit of the Customer.
“Customer Data” means collectively any data, files, documentation or other information: (i) that Customer or any of its Authorized Users may upload to the Botpress Infrastructure when using the Software Services, (ii) any data derived or obtained from the transformation such data or information submitted by the Customer through the Software Services.
“Documentation” means the human-readable documents, user manuals and guides with respect to the operation, Use and functions of the Software, which may be amended or updated by Botpress from time to time.
“Usage Fees” means the fees payable by Customer for the Software Services.
“Incident” means an unscheduled event or occurrence originating from Botpress, the Software or a third-party hosting provider that negatively and substantially affects the Customer’s Use of Software 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.
“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.
“Party” means either Botpress or Customer; and “Parties” means both of them.
“Payment Method” means credit card information inputted by the Customer on the Software interface for the purpose of paying Usage Fees.
“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 or any information protected under applicable laws and regulations
“Professional Services” means services provided by Botpress other than access to the processing capacities of the Software and technical support. Professional Services include, for illustrative purposes: training, new feature development and configuration.
“Proposal” means the written document outlining the details of Customer’s subscription to an Enterprise Plan and accepted by Customer and Botpress.
“Software Services” means Customer’s access and Use of the Software and support services included per the Agreement between Customer and Botpress, but excluding Professional Services.
“Software” means the Botpress platform, including third-party software included thereto, which is accessible via a web application connected to the Botpress Infrastructure.
“Specifications” means, with respect to the Software, the technical specifications for the performance, operation and Use of the Software, as set out in the Proposal.
“Use” means to activate the processing capabilities of the Software, load, execute, access, employ the Software, or display information resulting from such capabilities.
Subject to the Customer’s and Authorized Users’ compliance with this Agreement, Botpress agrees to allow the Authorized Users to access and Use the Software Services through the Botpress Infrastructure.
The Software Services may be offered to the Customer in the form of a subscription plan comprising usage limitations. Where applicable, the Software Services are limited:
a) To the features included in the subscription selected by the Customer, if applicable.
a) By the usage limits imposed by the subscription selected by the Customer, if any, including
(i) limits based on the number of messages processed monthly through the Software Services (ii) limits based on the maximum amount of Usage Fees authorized by the Customer.
Customer may attribute roles and permissions to Authorized Users through the Software interface. Customer is solely responsible for properly configuring the roles and permissions and to perform any required verifications. Botpress shall not be responsible for the accidental disclosure of certain information to Authorized Users due to an incorrect configuration of access permissions by the Customer.
The Software may be updated from time to time and new features may be added to the Software. 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 Software. 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 Software.
To access the Software 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 Software Service or the Software 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 Software under a Customer Authentication ID shall be deemed to be Use by the Customer.
Only Authorized Users are authorized to Use the Software Services. Use of the Software Services is limited to the features included in the Documentation or as set out in the Proposal if applicable. Customer is not authorized to Use the Software for unintended purposes without the prior written consent of Botpress, which consent may be withheld at Botpress’ absolute discretion.
The Customer acknowledges that the Software Services rely on services provided by OpenAI, L.L.C. and its affiliates (“OpenAI”) and agree to abide by the Usage Policies of OpenAI, as amended and supplemented from time to time, which are incorporated herein by reference. The Usage Policies are available at https://openai.com/policies/usage-policies.
Customer shall not:
a) use the Software for unlawful purposes;
b) include, or knowingly allow others to include, any Objectionable Content or introduce Malicious Code to the Botpress Infrastructure on into the Software;
c) 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;
d) access or attempt to access other Botpress customers’ data;
e) take any action that a reasonable person would believe is susceptible to impose an unreasonable or disproportionately large load on the Botpress Infrastructure;
f) use the Software Services or the Software to develop software having features or functionality similar to the Software;
g) reverse engineer the Software or the Software Services, except reverse engineering expressly permitted by applicable law which may not be excluded contractually;
h) remove any copyright or other proprietary rights notice on the Software, the Documentation or Botpress Content or any copies thereof.
Customer shall be responsible for any breach of the prohibitions listed above by its employees, officers, agents or contractors and Authorized Users.
Botpress may monitor and audit Customer’s and its Authorized Users’ Use of the Software for analytics purposes (as detailed in Section 9.3 - Analytics Data) and for the purpose of ensuring compliance with the terms of this Agreement. Any such monitoring or audit may be carried out by Botpress or a third party authorized by Botpress, at its own expense.
If Botpress’ monitoring or audit reveals that Customer’s or any Authorized User’s Use of the Software is in breach of this Agreement, including any Use in breach of any applicable laws, Botpress may immediately suspend and discontinue the Software 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 Software 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 11.
Customer agrees that the Software may be hosted by a third-party service provider, that the Botpress Infrastructure may be provided in whole or in part by a third-party service providers and that the Customer Data may be hosted and processed by a third-party service providers as set forth in the Proposal. Customer acknowledges ant agrees that :
a) Customer Data is hosted in a shared environment, but logically segregated from other data hosted in the same infrastructure;
b) Unless otherwise agreed in writing by Botpress, the Botpress Infrastructure hosting Customer Data and the Software may be physically located anywhere in the world, at Botpress’ discretion;
c) Unless otherwise agreed in writing by Botpress, Customer Data, including Conversation Data, may be processed at a different location and on different infrastructure than their hosting location.
Botpress will provide information about third-party hosting providers in its Sub-Processor List.
Subject to the terms and conditions of the Agreement, Botpress grants the Customer a limited, revocable, non-transferable, non-exclusive, right (without the right to sublicense) to access and use the Botpress Content and to reproduce Botpress Content only to the extent reasonably necessary to Use the Software Services.
Some Botpress Content may be available under other terms and conditions such as open-source licenses (for example AGPL3). Any use, modification and dissemination of Botpress Content conveyed under an open-source license is subject to the terms and conditions of the applicable license. For the avoidance of doubt, the Customer is not authorized to bundle Botpress Content available pursuant to these Terms of Service with content available under an open-source license for further distribution.
In consideration of the Software Services, the Customer agrees to pay Botpress the Usage Fees provided for in the Plan selected when subscribing to the Software Services or the fees set forth in the Proposal, as the case may be.
Botpress may modify the Usage Fees by providing at least 30 days advance notice to the Customer, including by posting modified fees to the Botpress Website.
Certain Usage Fees based on usage of the Software Services are billed in arrears, at the end of Customer’s billing period, while other Usage Fees are billed in advance at the beginning of the Customer’s billing period depending on the subscription plan and options selected by the Customer. A Proposal (if applicable) may establish a different billing arrangement.
Customer may limit its monthly spend for Usage Fees billed in arrears by using the features of the Software. Some features of the Software Services will not be available once the spend limit is reached.
The Usage Fees do not include applicable taxes, including sales, value-added, goods and services, special and harmonized taxes.
The Customer is responsible for all applicable taxes arising from or resulting from its subscription to the Software Services or the provision of the Software Services except taxes levied on the income of Botpress and its Affiliates. To the extent that Botpress determines that taxes shall be collected from Customer, they are calculated using the applicable tax rates based on the billing address provided by the Customer. If the Customer is exempt from paying taxes, the Customer must provide proof of such exemption which meets the applicable legal requirements attesting to the exemption status. Any tax exemption will only apply from the date on which Botpress is satisfied with the satisfactory proof of exemption. If Botpress does not collect taxes from Customer, Customer is responsible for determining whether taxes are due, and if so, for remitting any applicable taxes to the appropriate tax authorities in its jurisdiction.
By submitting a Payment Method, the Customer authorizes Botpress to charge its Payment Method for all Usage Fees payable under the Agreement up to the Customer spend limit set in the Software. Customer further authorizes Botpress to use a third party to process payments, and consent to the disclosure of its payment information to such third party.
Customer is solely responsible for maintaining a valid Payment Method in its account and to have sufficient funds available to cover all Usage Fees generated by Customer’s Use of the Software Services.
If the Usage Fees are not paid when due for any reason or if the Customer’s Payment Method is declined or unavailable when Usage Fees are due, Botpress will send a written notice to the Customer and may suspend the Software Services 3 days after the notice. Some portion of the Software Services may be automatically suspended if a Payment Method is not available or sufficiently funded to pay Usage Fees.
Any amount payable to Botpress and not paid 30 days after the due date bears interest at an annual rate of 18%, compounded monthly.
Customers under the Community (Free) Plan or Self-Serve Plan do not benefit from a service level commitment and any technical support will be provided at Botpress’ discretion.
If a Customer subscribed to an Enterprise Plan, Botpress shall provide the Software Service in accordance with Botpress Standard SLA.
From time to time, it will be necessary for Botpress to perform maintenance on the Botpress Infrastructure and/or the Software. Such maintenance includes routine maintenance to ensure the continued provision of the Software Services through the continued operation of the Botpress Infrastructure or upgrading, updating or enhancing the Software 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 Software 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 the designated Customer of the scheduled maintenance time and the anticipated duration of such maintenance.
Botpress may provide Authorized Users using the Software under the Community (Free) Plan and Self-Serve Plan with technical support during Business Hours at Botpress’ discretion.
Botpress may provide Professional Services to the Customer in Botpress’ entire discretion. Except as otherwise provided in a Proposal, Botpress shall have no obligation to provide Professional Services to the Customer. Unless a written agreement is entered into by Botpress and the Customer regarding Professional Services, this Section 7 shall govern all Professional Services provided by Botpress.
Fees payable in consideration of Professional Services shall be as agreed between the Customer and Botpress. Absent an agreement on fees, Botpress shall be entitled to charge for Professional Services authorized by the Customer based on Botpress’ current rates for similar services.
Customer acknowledges and agrees that the deliverables generated as part of Professional Services are developed solely to be used with the Software Services and will otherwise be inoperative in standalone form or if used with third-party products and services. Botpress shall therefore own all right, title, and interest in and to deliverables, except to the extent the deliverable is a Customer Bot and (b) Customer hereby assigns all right, title, and interest in and to the deliverable to Botpress. If To the extent Botpress uses the any deliverable for any purpose outside of the scope of this Agreement, such deliverable will not contain any Confidential Information of the Customer. Upon receipt of all payment due in consideration of Professional Services, Botpress grants Customer a non-exclusive, non-transferable, non-sublicensable right and license to use deliverables (other than Customer bots) solely in connection with the Software Services.
Botpress will provide the Professional Services in a professional and workmanlike manner. Customer’s sole and exclusive remedy for Botpress’ breach of this undertaking will be for Botpress to re-perform the non-conforming portions of the Professional Services. If Botpress is unable to re-perform the non-conforming portions of the Professional Services, Customer will be entitled to recover the fees paid to Botpress attributable to the non-conforming portions of the Professional Services.
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 Software; (iii) the “look and feel” and the user interface of the Software; (iv) Documentation; and (v) any modifications, enhancements, upgrades, updates or customization to the Software or 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 Software granted herein, subject to all restrictions set forth herein.
If Customer, including any employee, officer, agent or contractor of Customer, contacts Botpress about improvements to the Software, the Botpress Infrastructure or the Software Services (“Feedback”) Customer authorizes Botpress to use the Feedback without restriction. Customer warrants that the Feedback contains no information that is confidential or proprietary to third parties and agrees that (i) Botpress has no expressed or implied obligation of confidentiality with respect to the Feedback; (ii) Botpress is authorized to use or disclose (or choose not to use or disclose) the Feedback for any purpose whatsoever, in any way whatsoever, on any medium whatsoever, anywhere in the world; (iii) Botpress may already have considered or be in the process of
developing elements identical or similar to those mentioned in the Feedback; and (iv) Customer will not be compensated in any way with regards to Botpress’ use of the Feedback.
The parties acknowledge that their intent is that the Software remain the property of Botpress and the result of Customer’s work with the Software be the property of the Customer. As between Customer and Botpress, Customer shall exclusively own the Intellectual Property Rights in and to Customer Bots. If 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.
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 Platform. 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.
Botpress acknowledges and agrees that as between Customer and Botpress, 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 the license granted herein.
The Customer represents and warrants to Botpress that it has all the necessary rights to upload the Customer Data to the Botpress Infrastructure and that any operations that the Customer, the Authorized Users or Botpress (to the extent authorized under the Agreement) may perform on the Customer Data will not infringe on the rights of third parties or be otherwise unlawful. Customer hereby grants Botpress the right to use, copy, store, transfer and display the Customer Data solely for the purpose of enabling Botpress to perform the Software Services under this Agreement. Botpress may provide Customer Data to third-party providers involved in providing elements of the Botpress Infrastructure or providing the Software Services.
Botpress may generate Analytics Data from Customer’s or Authorized Users’ Use of the Software, from Customer Data. Botpress will not generate Analytics Data from Conversation Data, except for the exclusive benefit of the Customer.
Any portion of Analytics Data identifying the Customer, Authorized Users, end-users or otherwise containing Personal Data shall be deemed confidential and shall not be disclosed. 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:
a) Improving the Software features;
b) Providing technical support and improving technical support;
c) Training and developing algorithms or models (Conversation Data or Analytics Data derived from Conversation Data is never used for this purpose);
d) Auditing of the security of the Software and the integrity of the Customer Data;
e) Identifying of trends and creating comparative analyses (without reference to a specific Customer);
Botpress shall implement commercially reasonable technical and organizational security measures to ensure that Customer Data under its control is not subject to unauthorized disclosure, modification, or destruction. Customer acknowledges that security measures and the information security standards used by Botpress may change based on, among other reasons, requirements or changes in the practices of third-party service providers, industry standards or changes in Botpress’ practices. A description of Botpress’ current security measures is available here.
Customer is solely responsible for adequate Customer Data back-up. Botpress will use reasonable efforts to ensure the availability and integrity of Customer Data uploaded to the Botpress Infrastructure. Botpress may create backup copies and use other methods to this end, but the Software Services do not include backup services for Customer Data and accordingly, the Customer shall ensure that Customer Data is available outside of the Botpress Platform.
Botpress will process Personal Data in accordance with the Botpress Data Processing Agreement, which is incorporated hereto by reference.
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 10.1 shall not apply to information:
a) 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;
b) 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;
c) 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;
d) 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
e) that is further disclosed with the prior written consent of the disclosing Party, but only to the extent of such consent.
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.
The Agreement shall remain in force as long as the Customer is Using or accessing the Software Services or Botpress Content.
Unless provided otherwise in a Proposal, Enterprise Plans will automatically renew for an additional term of 12 months at the end of the then current term unless either party provides a non-renewal notice to the other party at least 30 days prior to the renewal date.
Either party shall have the option to terminate this Agreement immediately, upon giving written notice to the other Party if:
a) 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;
b) 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;
c) 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;
Unless otherwise stated in a Proposal or otherwise agreed as part of an Enterprise Plan, the Customer may terminate this Agreement and the rights granted hereunder at any time for any reason or for no reason, without prejudice to enforcement of any other legal right or remedy, by deleting its account through the Software interface. Despite any notice of termination, if a Customer using a Self-Serve Plan continues to Use the Software Services, the Agreement will remain in force and the Usage Fees will continue to be charged.
If the Customer has subscribed to the Software Services for a fixed duration as part of an Enterprise Plan, the Customer cannot terminate its subscription earlier than the committed duration. The Customer forgoes any right to terminate its subscription early afforded by applicable law (if any) and agrees that Botpress will be entitled to recover all fees payable per the Customer’s subscription as damages in the event of an early termination other than pursuant to a default from 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:
a) 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;
b) Customer, an Authorized User or a Customer employee, officer, agent or contactor infringes the Intellectual Property Rights of Botpress, including by the breach of Customer’s obligations under Section 9 or acts in any manner reasonably jeopardizing Botpress’ Intellectual Property Rights;
c) Customer or an Authorized User engages in any prohibited Use of the Software;
d) Customer breaches its obligations under Section 10;
Upon termination of this Agreement, Botpress shall certify to Customer in writing that it does not retain any copy of the Customer Data.
Botpress may permanently delete Customer Data thirty (30) days after the termination of this Agreement.
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.
Botpress shall provide the Software Services with reasonable skill and care and warrants that the Software Services will materially perform in accordance with to the applicable Documentation.
If the Software Services or Software do not conform with the foregoing undertaking, Botpress may, at its option and expense (i) use commercially reasonable efforts to correct any such non-conformance promptly, (ii) provide the Customer with an alternative means of accomplishing the desired performance or (iii) refund the Usage Fees paid for the time period during which the affected Software Services do not comply with the foregoing. Without prejudice to Customer’s termination rights, such correction, substitution or refund constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in this Section.
Notwithstanding the foregoing, Botpress:
a) does not warrant that the Software Services will be uninterrupted or error-free; or that the Software Services and/or the information obtained by the Customer through the Software Services will meet the Customer’s requirements (to the extent that the same exceed requirements expressly set forth in this Agreement); and
b) 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 Software Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
c) is not responsible for any delay in the performance of Software Services caused by Customer’s lack of cooperation or by delays in Customer provision of materials to Botpress.
OTHER THAN AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT OR IN THE PROPOSAL (IF APPLICABLE), THE SOFTWARE AND THE SOFTWARE 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 SOFTWARE AND THE SOFTWARE 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 SOFTWARE OR SOFTWARE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER 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.
The parties acknowledge that Botpress’ obligations hereunder are limited to the provision of a software tool to facilitate the development and management of bots and does not include any obligation to provide advice or any commitment regarding the results obtained by using the Software or the Software Services. The Customer is responsible for ensuring that the Software Services are adequate for its needs.
Subject to the restrictions of public order provided by law, neither Party shall not liable for indirect, consequential, special or punitive damages arising out of this Agreement or from Customer’s inability to Use the Software Services, including 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 a Party has been advised of the possibility of damages.
Subject to the restrictions of public order provided by applicable law which cannot be excluded contractually, and without affecting Botpress’ indemnification obligation set forth at Section 15.2, Botpress’ liability and/or responsibility toward Customer under this Agreement and related to the Software, the Software Services or the Botpress Content shall be strictly limited to the Usage Fees paid by Customer to Botpress during the 12-month period preceding the first occurrence giving rise to liability.
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.
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:
a) the use of the Software or the Software Services by the Customer or an Authorized User in violation of this Agreement (including Acceptable Use Policies) or any other agreement between Botpress and the Customer;
b) the authorized use of the Customer Data by Botpress;
c) the failure of the Customer to comply with its obligations with respect to the protection of Personal Data;
d) the violation by the Customer, Authorized Users or Customer’s personnel of any applicable law or regulation;
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:
a) an alleged infringement of a third-party intellectual property right existing in a territory in which Customer is authorized to Use the Software by the Software or the Software Services, except if such infringement results from Use of the Software with a product not provided or approved by Botpress, any unauthorized Use of the Software or Use contrary
to Botpress' instructions, a trial or "beta" functionality, any modification of the Software by a person not authorized by Botpress; or
b) Botpress’ failure to comply with its obligations regarding the protection of Personal Data or Confidential Information.
If Botpress determines or reasonably suspects that the Software may infringe the intellectual property rights of a third party, Botpress may, at its option: (a) procure the right to continue to provide the Software 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 Software and reimburse the Customer for the Usage Fees paid in advance associated with such element.
In order to benefit from the provisions of this Section 15, 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.
The Software and the Software Services may be subject to export control laws. Customer shall not, directly or indirectly, export, re-export or release the Software to, or make the Software 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 Software available across national borders.
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.
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.
Notwithstanding anything else in this Agreement to the contrary, each Party acknowledges that a breach by a Party of this Agreement may cause the non-breaching Party 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, the non-breaching Party 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 the Parties 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.
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 facsimile (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. Such communications must be sent to the respective parties at the addresses set forth on the Proposal.
This Agreement, together with the Proposal (which is subject to Botpress’ acceptance), and any schedules and exhibits hereto, and any documents incorporated by reference herein, including any addendum, 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.
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.