Last updated on: Feb 28, 2023 

 

Welcome to Payemoji, a brand owned by Message My Customer Ltd (“MMC”).

 

This Terms and Conditions Agreement (the “Agreement”) governs the purchase, access, and use of products and governs your use of the services provided by MMC directly or through one or our Partners. As used in this Agreement, “we”, “us”, “our”, “Payemoji” and “MMC” means the applicable MMC Contracting Party, and “you” means the Payemoji Authorized User or the business employing the Payemoji Authorized User and any of its affiliates.

                                             

The services offered by Payemoji under this Agreement include various products and services that enable you to build your own conversational commerce solution and help you to sell goods and services to your customers using their preferred messaging applications. The conversational commerce solution may consist of interfaces with different messaging applications, an eCommerce store, payments solutions, and other digital services and collectively make up the Service.  Any such service or services offered by Payemoji are referred to in this Agreement as the “Service(s)”. Any new features or capabilities which are added to the current Services will also be subject to the Agreement.

If you are receiving access to the Service for a proof of concept, demo, trial or other similar evaluation purposes then you may only use the Service for up to thirty (30) days from the date of first access to the Service. You understand that Payemoji may terminate access to the Service automatically at the end of the evaluation period, without notice to you.

You must read, agree with, and accept all the terms and conditions contained or expressly referenced in this Agreement, including Payemoji’s Acceptable Usage Policy (“AUP”), Privacy Policy and Data Processing Addendum (“DPA”) before you may sign up for a Payemoji Account or use any Service.

This Agreement may be periodically updated, and you can review the current version of the Agreement at any time at Terms of Service. Your continued use of the Service after a revised Agreement has been posted constitutes your acceptance of its terms.

 

1. DEFINITIONS

1.1 “Affiliate” means any entity controlled, directly or indirectly, and specifically includes subsidiaries, partnerships, joint ventures, and which the Party has operational or management control.  For the purposes of this definition, control means the power to direct the management and policies of such entity whether by contract, law, or ownership of most of the voting shares.

1.2 “Authorized User” means an employee, agent, contractor, or other third party authorized by Customer and/or its Affiliates to access and use the Service.

1.3 “Customer” means a business account that has purchased the Service and is party to the Agreement.

1.4 “Customer Data” means all data or information submitted by or on behalf of the Customer to the Service.

1.5 “Documentation” means the documentation and usage guidelines for the Service and updated from time to time by Payemoji.

1.6 “End-Customer” means the retail user who transacts with the Business of the Customer through Payemoji Services.

1.7 “Fees” means any fees paid for the Service.

1.8 “Force Majeure Event” means any circumstances which are unforeseeable, and beyond the reasonable control of the party affected, including but not limited to acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, failures with Internet service providers or hosting services outages, or acts undertaken by third parties, including without limitation denial of service attacks.

1.9 “Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of Ireland or any other state, country or jurisdiction.

1.10 “Partner” means the Payemoji approved partner authorized to resell or otherwise provide Services to Customers.

1.11 “Software” means any Payemoji software, tool or other computer code provided directly or indirectly to Customer. The term “Software” also includes any updates, upgrades or enhancements to the Software made available directly or indirectly to Customer.

1.12 “Subscription Term” means the Initial Subscription Term and all Renewal Subscription Terms.

1.13 “Subscription Plan” means a set of features for each plan as described in the Documentation for a Subscription Term and Fees as per the Agreement.

1.14 “Upgrades” means all additions, new versions and releases, modifications, enhancements, and corrections to the Service made by Payemoji, including corrections of software bugs.

 

2. ACCOUNT TERMS  

2.1   Customer and/or Affiliates may purchase Services from Payemoji, a Partner or other methods as allowed by Payemoji from time to time. All purchases, irrespective of the method, shall be governed by the terms and conditions in this Agreement and the Documentation regarding the Customers and its Affiliates access and use of the Service.  

2.2   For Authorized User(s) to access and use the Services, you must register for a Payemoji Account (“Account”). To complete your Account registration, you must provide us with your full legal business name, business address, phone number, a valid email address, and any other information indicated as required such as your Meta (Facebook) business manager identifier. Payemoji may reject your application for an Account, or cancel an existing Account, for any reason, at our sole discretion.

2.3   You confirm that any Services you receive from Payemoji are for the purposes of carrying on a valid business activity.

2.4   You acknowledge that Payemoji will use the email address you provide on opening an Account or as updated by you from time to time as the primary method for communication with you (“Primary Email Address”). The Primary Email Address must be capable of both sending and receiving email communications. Your email communications with Payemoji can only be authenticated if they come from your Primary Email Address.

2.5   You are responsible for keeping your Payemoji Account password secure. Payemoji will not be liable for any loss or damage from your failure to maintain the security of your Payemoji Account and password.

2.6   Support for the Services is only provided to Authorized Users. Questions about the Agreement should be sent to Payemoji support at support@payemoji.com.

2.7   You agree not to reproduce, duplicate, copy, sell, resell, or exploit any portion of the Service.

2.8   You agree not to work around, bypass, or circumvent any of the technical limitations and restrictions of the Services.

2.9   You understand that your Materials may be transferred unencrypted over various networks. “Materials” means your Trademarks, copyright content, any products, or services you sell through the Services (including description and price), and any photos, images, graphics, audio and video files, descriptions, or other data provided or made available by you or your Affiliates to Payemoji or its Partner(s).

 

3. ACCOUNT ACTIVATION.  

3.1   The contracting party (“Account Owner”) signing up the Service will be the contracting party for the purposes of this Agreement and will be the person who is authorized to use any corresponding Account we may provide to the Account Owner in connection with the Service.

3.2   You are responsible for ensuring that the details of your business (including the legal name of the company that owns the Account) is correct.

3.3   You are responsible for providing a valid Meta (Facebook) business manager identification for your business during account activation. You are also responsible for approving requests from Facebook, from Payemoji and from our providers to enable the Service.

3.4   Your Service can only be associated with one Account Owner. An Account Owner may have multiple Accounts.

3.5   Based on your Service plan, you can create one or more staff accounts (“Staff Accounts”) allowing other Authorized Users to access the Account. Each Staff Account must include a full name and a valid email address.

3.6   The Account Owner is responsible for ensuring Authorized Users of Staff Accounts comply with this Agreement. The Account Owner acknowledges and agrees that Account Owner will be responsible for the performance of all its obligations under the Agreement, regardless of whether it sublicenses or subcontracts any such obligations to any third party, including but not limited to any Affiliates of the Customer.

 

4. STRIPE PAYMENT ACCOUNTS

4.1   With Services you have the option of allowing your customers to make digital payments through banking or credit cards.

4.2   To enable digital payments, you will have the following options: (i) You may connect an existing STRIPE account to your Payemoji Account. (ii) You may choose to create a new STRIPE account to connect with your Payemoji Account or (iii) You may choose not to enable payments.

4.3   In case you wish to connect your existing STRIPE account to the Service, we will ask you to share your STRIPE Client ID and STRIPE publish key. The STRIPE client ID and publish key will be validated and then stored in the Service in an encrypted format.

4.4   In case you choose to create a new STRIPE account, Payemoji will share your personal data available with us, with STRIPE for the purposes of setting up your STRIPE account.

4.5   By using STRIPE on your Payemoji ecommerce store, you agree to be bound by the STRIPE Terms of Service (for respective geographies), or as they may be amended by STRIPE from time to time.

 

5.     PAYMENT OF FEES AND TAXES

5.1   Unless otherwise agreed to in writing by the parties, “Subscription Fees” and payment terms shall be as per this Agreement between Customer and/or its Affiliate(s) and the Payemoji and/or its Partner(s).

5.2   You will also agree to pay the transaction charges related to various messenger conversations as updated in the pricing section of our Payemoji web portal (“Usage Fees”).

5.3   Together, the Subscription Fees and Usage Fees are referred to as the “Fees”.

5.4   Any transaction fees charged by STRIPE shall be Your responsibility to pay.

5.5   You must keep a valid payment method on file with us to pay for all Fees. Payemoji will charge applicable Fees to any valid payment method that you authorize (“Authorized Payment Method”). Payemoji will continue to charge the Authorized Payment Method for applicable Fees until the Services are terminated, and all outstanding Fees have been paid in full. Unless otherwise indicated, all Fees and other charges are in EUROs or the currency of your business jurisdiction.

5.6   Subscription Fees are paid in advance and will be billed in thirty (30) day intervals (each such date, a “Billing Date”). Usage fees will be billed in arrears in thirty (30) day intervals. You will be charged on each Billing Date for all outstanding Fees that have not previously been charged. Fees will appear on an invoice, which will be sent to the Account Owner via the Primary Email Address provided. As well, an invoice will appear on the Account page of your Account’s administrative console.

5.7   If we are unable to process payment of outstanding Fees using an Authorized Payment Method, we will make a second attempt to process payment using any Authorized Payment Method, typically within seven (7) days. If the second attempt is not successful, we will make a final attempt, typically within seven (7) days following the second attempt. If our final attempt is not successful, we may suspend and revoke access to your Account and the Services. Your Account will be reactivated upon your payment of any outstanding Fees, plus the Fees applicable to your next billing cycle. You may not be able to access your Account or your storefront during any period of suspension. If the outstanding Fees remain unpaid for thirty (30) days following the date of suspension, Payemoji reserves the right to terminate your Account in accordance with Section 11.

5.8   All Fees are exclusive of applicable national, federal, provincial, state, local or other governmental sales, goods, and services, harmonized or other taxes, fees or charges now in force or enacted in the future (“Taxes”).

5.9   You are responsible for payment of all applicable Taxes that arise from your subscription to Services. To the extent that Payemoji charges these Taxes, they are calculated using the tax rates that apply based on the billing address you provide to us. Such amounts are in addition to the Fees for such products and services and will be billed to your Authorized Payment Method. If you are exempt from payment of such Taxes, you must provide us with evidence of your exemption, which in some jurisdictions includes an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive evidence satisfactory to Payemoji of your exemption. If you are not charged Taxes by Payemoji, you are responsible for determining if Taxes are payable, and if so, self-remitting Taxes to the appropriate tax authorities in your jurisdiction.

5.10          You must maintain an accurate business address for your Payemoji Account. If you change your business address, you must promptly update your address for your Payemoji Account.

5.11       Payemoji does not provide refunds.

 

6.     PAYEMOJI RIGHTS

6.1   Not all Services or features will be always available to all Customers, and we are under no obligation to make any Services or features available in all jurisdictions. Except where prohibited in this Agreement or by applicable law. We reserve the right to modify the Services or any part thereof for any reason, without notice and at any time.

6.2   Payemoji does not pre-screen Materials and it is in our sole discretion to refuse or remove any Materials from any part of the Services, including if we determine in our sole discretion that the goods or services that you offer through the Services, or the Materials uploaded or posted to the Services, violate our Acceptable Usage Policy (“AUP”) or this Agreement.

6.3   Verbal or written abuse of any kind (including threats of abuse) of any Payemoji employee, member, or officer will result in immediate Account termination.

6.4   We reserve the right to provide our Services to your competitors and make no promise of exclusivity.

6.5   In the event of a dispute regarding Account ownership, we reserve the right to request documentation to determine or confirm Account ownership.

6.6   If we are unable to reasonably determine the rightful Account Owner, without prejudice to our other rights and remedies, Payemoji reserves the right to temporarily suspend or disable an Account until resolution has been determined between the disputing parties. Payemoji reserves the right to terminate your Account in accordance with Section 11 in case of Account ownership cannot be determined to Payemoji’s satisfaction.

 

7. SUBSCRIPTION RIGHTS

7.1   Subscription Rights.  Subject to the terms and conditions in this Agreement, Payemoji grants Customer and its Affiliates a limited, non-transferable, non-assignable (except as set forth in this Agreement), non-exclusive right to access and use the Service during the Subscription Term.

7.2   You acknowledge and agree to provide public-facing contact information, a refund policy and order fulfilment timelines on your Payemoji Account if using an eCommerce store.

7.3   You acknowledge and agree that the Services are not a marketplace, and any sale made through the Services is directly between you and your End-Customer. You are the seller of record for all items you sell through the Services.

7.4   You are responsible for the creation and operation of your Service, your Materials, the goods, and services that you may sell through the Services, and all aspects of the transactions between you and your End-Customer(s). This includes, but is not limited to, authorizing the charge to your End-Customers in respect of your End-Customer’s purchase, refunds, returns, fraudulent transactions, required legal disclosures, regulatory compliance, alleged or actual violation of applicable laws (including but not limited to consumer protection laws in any jurisdiction where you offer services), or your breach of this Agreement.

7.5   You represent and warrant that your Materials and the goods and services you sell through the Services will be true, accurate, and complete, and will not violate any applicable laws, regulations, or rights of third parties. For the avoidance of doubt, Payemoji will not be the seller or merchant or record, AUP and will have no responsibility for goods or services sold to your customers through the Services.

7.6   You are solely responsible for the goods or services that you may sell through the Services (including description, price, fees, tax that you calculate, defects, required legal disclosures, regulatory compliance, offers or promotional content), including compliance with any applicable laws or regulations.

7.7   You may not use the Services for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws), the laws applicable to you in your customer’s jurisdiction, or the laws of your or your business’s jurisdiction. You will comply with all applicable laws, rules, and regulations (including but not limited to obtaining and complying with the requirements of any license or permit that may be necessary to operate your store or that may be held by you) in your use of the Service and your performance of obligations under the terms of the Agreement and AUP.

7.8   You acknowledge that your End-Customer is automatically a party to the terms and conditions presented here by transacting with you through the Services. Payemoji will present the terms and conditions and an opt-in to your End-Customer. If your End-Customer does not opt-in to these terms and conditions, they will not be able to transact business with you on the Service.

 

8. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS

8.1   Payemoji.  All rights and title in and to the Service, Materials, and Documentation, including all Intellectual Property Rights herein, belong exclusively to Payemoji.  No rights are granted to Customer other than as expressly set forth in this Agreement.

8.2   Customer.  All rights and title in and to the Customer Data, including all Intellectual Property Rights herein, belong exclusively to Customer.  No rights are granted to Payemoji other than as expressly set forth in this Agreement.

8.3   We do not claim ownership of the Materials you provide to Payemoji; however, we do require a license to those Materials to operate the Service. You grant Payemoji a non-exclusive, transferable, sub-licensable, royalty-free, worldwide right and license to host, use, distribute, expose, modify, run, copy, store, publicly perform, communicate to the public (including by telecommunication), broadcast, reproduce, make available, display, and translate, and create derivative works of any Materials provided by you in connection with the Services. We may use our rights under this license to operate, provide, and promote the Services and to perform our obligations and exercise our rights under the Agreement. You represent, warrant, and agree that you have all necessary rights in the Materials to grant this license. You irrevocably waive all moral rights you may have in the Materials in favour of Payemoji and agree that this waiver may be invoked by anyone who obtains rights in the materials through Payemoji, including anyone to whom Payemoji may transfer or grant (including by way of license or sublicense) any rights in the Materials.

8.4   If you owned the Materials before providing them to Payemoji then, despite uploading them to your Payemoji eCommerce store they remain yours, subject to any rights or licenses granted in the Agreement or elsewhere. You can remove your Payemoji eCommerce store at any time by deleting your Account. Removing your Payemoji eCommerce store does not terminate any rights or licenses granted to the Materials that Payemoji requires to exercise any rights or perform any obligations that arose during the Term.

8.5   You agree that Payemoji can, at any time, review and delete any or all the Materials submitted to the Services, although Payemoji is not obligated to do so.

8.6   You grant Payemoji a non-exclusive, transferable, sub-licensable, royalty-free, worldwide right and license to use the names, trademarks, service marks and logos associated with your Payemoji eCommerce store (“Your Trademarks”) to operate, provide, and promote the Services and to perform our obligations and exercise our rights under the Agreement. This license will survive any termination of the Agreement solely to the extent that Payemoji requires the license to exercise any rights or perform any obligations that arose during the Term.

8.7   You agree that you may not use any trademarks, logos, or service marks of Payemoji, whether registered or unregistered, including but not limited to the word mark PAYEMOJI, the “P” or “O” depicted as chat icons in the logo of Payemoji (“Payemoji Trademarks”) unless you are authorized to do so by Payemoji in writing. You agree not to use or adopt any marks that may be considered confusing with the Payemoji Trademarks. You agree that any variations or misspellings of the Payemoji Trademarks would be considered confusing with the Payemoji Trademarks.

8.8   You acknowledge and agree that the Agreement does not give you any right to implement Payemoji patents.

 

9. WARRANTIES

9.1   Mutual Warranty.  Each party represents and warrants that it has the legal power and authority to enter into this Agreement.

9.2   Software Warranty.  Payemoji warrants that the Software substantially conforms to the Documentation.  If Customer believes the warranty stated in this Section has been breached, Customer must notify Payemoji of the breach no later than thirty (30) days following the date the warranty was allegedly breached, and Payemoji will promptly correct the non-conformity at its own expense if a breach of this warranty occurred.

9.3   Support Services Warranty.  Payemoji shall provide the Support Services and warrants that the Support Services will be performed in a professional manner.  If Payemoji determines that there is a defect in the Service, Payemoji will provide a remedy in the form of a workaround, or another version of the Service that includes a bug fix for the defect.  Customer agrees to provide reasonable support information necessary to understand and resolve the issue, which may include configuration files and/or error messages.

9.4   Warranty Remedies.  The remedies stated in Sections 9.1 through 9.3 above are the sole remedies, with respect to Products that fail to comply with the foregoing warranties.

9.5   Disclaimer of Warranties.  EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER.  PAYEMOJI EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT, OR THAT THE SERVICES WILL BE ERROR-FREE.

 

10   CONFIDENTIAL INFORMATION

10.1 “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms hereunder), the Customer Data, the Services, Materials, technical information, and marketing plans.  The obligations in this Section shall not apply to any information that:  (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality; (iii) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party; or (iv) is lawfully received from a third party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality.

10.2 Confidentiality.  The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.  Either party may disclose Confidential Information on a need-to-know basis to its personnel, auditors and Affiliates who are subject to the same confidentiality obligations, and its attorneys and accountants who are either subject to professional obligations of confidentiality or have agreed to be bound by confidentiality obligations at least as protective as those set out herein.

10.3 Protection.  Receiving Party will use at least the same level of care to prevent unauthorized use of the Confidential Information as it uses for its own confidential and proprietary information of like kind, but in no event less than a reasonable standard of care.

10.4 Compelled Disclosure.  If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure, to the extent legally permitted, and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

10.5 Remedies.  If the Receiving Party discloses or uses (or threatens to disclose or use) or the Disclosing Party reasonably believes that the Receiving Party may disclose or use any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, or if the Receiving Party is compelled to disclose (or is likely to become compelled to disclose) any Confidential Information of the Disclosing Party pursuant to Section 10.4, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts or seek a protective order regarding such acts.

 

11   TERM AND TERMINATION

11.1       The term of these Terms of Service will begin on the date of your completed registration for use of the Service and continue until terminated by us or by you, as provided below (the “Term”).

11.2       You may cancel your Account and terminate the Agreement at any time by contacting Payemoji Support (support@payemoji.com) and then following the specific instructions indicated to you by Payemoji Support.

11.3       Without limiting any other remedies, we may suspend or terminate your Account or the Agreement for any reason, without notice and at any time (unless otherwise required by law), including if we suspect that you have engaged in fraudulent activity in connection with the use of the Services. Termination of the Agreement will be without prejudice to any rights or obligations which arose prior to the date of termination.

11.4       Upon termination of the Services by either party for any reason:

11.4.1  Payemoji will cease providing you with the Services and you will no longer be able to access your Account.

11.4.2  Unless otherwise provided in the Agreement, you will not be entitled to any refunds of any Fees, pro rata or otherwise.

11.4.3  Any outstanding balance owed to Payemoji for your use of the Services through the effective date of such termination will immediately become due and payable in full; and

11.4.4  Your Payemoji eCommerce store will be taken offline.

11.5       If there are any outstanding Fees owed by you at the date of termination of the Service, you will receive one final invoice via email. Once that invoice has been paid in full, you will not be charged again.

 

12. INDEMNITY

12.1   Payemoji Indemnity.  Payemoji will, subject to Section 13 (Limitation of Liability), indemnify Customer from and against any claim against Customer by reason of Customer’s use of the Services as permitted hereunder, brought by a third party alleging that the Services or Materials infringe or misappropriate that third party’s valid Australia, Canada, United States, European Union, or United Kingdom patent, copyright, trademark, or trade secret.  Payemoji shall, at its expense, defend such claim and pay damages finally awarded against Customer in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Payemoji for such defence.  If the Services in Payemoji’s opinion may become, the subject of an infringement claim, Payemoji may, at its option: (a) procure for the Customer the right to continue using the Services as set forth herein; (b) replace or modify the Services to make it non-infringing, provided that such replacement or modification does not compromise Payemoji’s obligations under this Agreement; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Payemoji, terminate this Agreement and the applicable Order and refund Customer, on a pro-rated basis, any pre-paid Fees for the corresponding unused portion of the Subscription Term. Payemoji will have no liability or obligation under this Section with respect to any claim if such claim is caused in whole or in part by: (i) Customer’s use of a Service not in accordance with the Documentation; (ii) modification of Service by anyone other than Payemoji. THIS SECTION 12.1 STATES PAYEMOJI’S ENTIRE LIABILITY AND CUSTOMER’S SOLE REMEDY WITH RESPECT TO ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES OR PAYEMOJI MATERIALS.

12.2   Customer Indemnity.  Customer will defend and indemnify Payemoji from and against any claim brought by a third party against Payemoji arising from or related to Customer’s violation of this Agreement.

12.3   Indemnity Procedure.  The indemnification obligations in this Section shall be subject to the indemnified party:  (i) promptly notifying the indemnifying party in writing upon receiving notice of any threat or claim of such action; (ii) giving the indemnifying party exclusive control and authority over the defines and/or settlement of such claim (provided any such settlement unconditionally releases the indemnified party of all liability); and (iii) providing reasonable assistance requested by the indemnifying party, at the indemnifying party’s expense.

 

13. LIMITATION OF LIABILITY

13.1   Waiver of Consequential Damages.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY DAMAGES OF ANY KIND, OR ANY LOST PROFITS OR LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

13.2   Limitation of Monetary Damages.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT AND ANY ORDER SHALL BE LIMITED TO THE TOTAL FEES PAID OR PAYABLE TO PAYEMOJI DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF THE EVENT(S) GIVING RISE TO SUCH LIABILITY FOR THE APPLICABLE PRODUCT GIVING RISE TO THE LIABILITY. 

 

14. DATA PROTECTION AND PRIVACY

14.1   Scope.  This Section 14 applies to all personal data (as defined under applicable laws) processed by the Services on behalf of Customer or otherwise provided by Customer to Payemoji in connection with this Agreement (“Personal Data”).  For purposes of this Agreement, Payemoji is a “processor” that processes certain Personal Data on behalf of Customer, who is the “controller.”   Under European Union (EU) privacy legislation, the term “controller” is defined as the natural or legal person, public authority, agency, or any other body which alone or jointly with others determines the purposes and means of the processing of personal data, and the term “processor” is defined as a natural or legal person, public authority, agency, or any other body which processes personal data on behalf of the controller.

14.2   Data Protection and Privacy.  In jurisdictions where Payemoji operates, Payemoji shall comply with all data protection and privacy laws applicable to its processing of Personal Data, including (without limitation) the General Data Protection Regulation (the “GDPR”). This Agreement also forms a Data Protection Agreement between the Customer the controller, and Payemoji the processor as required by Article 28 of the GDPR. The use of personal data being processed is described in section 14.5 and as specified in the service(s) privacy notice.

14.3   Customer Responsibilities.  Customer’s instructions to Payemoji for the processing of Personal Data shall comply with all applicable data protection laws.  Customer will have sole responsibility for the accuracy, quality, and legality of Personal Data and how Customer acquired Personal Data.  Customer shall ensure that it is entitled to transfer the Personal Data to Payemoji so that Payemoji may lawfully use, process, and transfer the Personal Data in accordance with this Agreement on Customer’s behalf.

14.4   Payemoji Responsibilities. Payemoji will ensure that appropriate measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of personal data. Payemoji ensures that any person(s) or any sub-processor(s) processing personal data is subject to a duty of confidentiality. However, Payemoji cannot guarantee that your personal data is secure when it is sent or transferred by unsecured means. Payemoji is required to make use of data (which may include personal data) sent from End-Customers to perform the service(s) under this Agreement.

14.5   Data Retention. On the completion of a Customer contract or on the data controller’s instruction, Payemoji will delete or return the personal data received from the controller, in line with the Payemoji’s Data Retention Policy. Payemoji will make available to the Controller all information necessary to demonstrate compliance with Article 28 of the GDPR. Please see our privacy policy for more information on our Data Retention polices.

14.6   Use of Personal Data. Payemoji may collect and process Personal Data in relation to the Service, for example

14.6.1    Each Account will require a business name, business address and in case of WhatsApp will require Meta (Facebook) business manager identification to setup the Service.

14.6.2    Customer admin portal requires an email address to receive alerts and updates from the service.

14.6.3    End-Customer’s that use the service, will have their phone number, time, date and conversations with the service recorded.

14.6.4    Payemoji may sometimes disclose the above data to agents (being any person authorized by Payemoji to act on its behalf), resellers and/or services providers appointed by Payemoji. Payemoji may disclose such data, which may include personal data to a court or law enforcement.

14.6.5    Unless otherwise agreed, in no event shall Payemoji be liable for costs in a breach of personal data.

14.6.6    For a full list of the Personal Data captured by Payemoji, please refer to our Privacy Notice.

 

15      SERVICE UPDATES

15.1       Payemoji reserve the right to make Updates, changes, to remove a feature or discontinue the Service. By agreeing to use the Service you accept the Updates and changes to the Service including any changes to or removal of features. Payemoji reserves the right to determine the timing and content of Software Updates, without your notice.

 

16      DMCA NOTICE TAKEDOWN PROCEDURE

16.1   Payemoji supports the protection of intellectual property and asks Payemoji Customers to do the same. It’s our policy to respond to all notices of alleged copyright infringement. If someone believes that one of our Customers is infringing their intellectual property rights, they can send a DMCA Notice to legal@payemoji.com. Upon receiving a DMCA Notice, we may remove or disable access to the Materials claimed to be a copyright infringement. Once provided with a notice of takedown, the Customer can reply with a counter notification using our form if they object to the complaint. The original complainant has 14 business days after we receive a counter notification to seek a court order restraining the merchant from engaging in the infringing activity, otherwise we restore the material. Learn more at Reporting Intellectual Property Infringement.

 

16. FEEDBACK AND REVIEWS

16.1 Payemoji welcomes any ideas and/or suggestions regarding improvements or additions to the Services. Under no circumstances will any disclosure of any idea, suggestion or related material or any review of the Services, Third-Party Services, or any Third-Party Provider (collectively, “Feedback") to Payemoji be subject to any obligation of confidentiality or expectation of compensation. By submitting Feedback to Payemoji (whether submitted directly to Payemoji or posted on any Payemoji hosted forum or page), you waive all rights in the Feedback and that Payemoji is free to implement and use the Feedback if desired, as provided by you or as modified by Payemoji, without obtaining permission or license from you or from any third party. Any reviews of a Third-Party Service or Third-Party Provider that you submit to Payemoji must be accurate to the best of your knowledge, and must not be illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable. Payemoji reserves the right (but not the obligation) to remove or edit Feedback of Third-Party Services or Third-Party Providers but does not regularly inspect posted Feedback.

 

17. PAYEMOJI CONTRACTING PARTY

17.1   “Payemoji Contracting Party” means Message My Customer Limited., a private company limited by shares, incorporated in Ireland under registration number 709744, with its registered offices located at Upper Cranford Centre, Montrose, Dublin, Dublin 4, Ireland, VAT number ÌE3901106SH and its website is at https://payemoji.com and https://www.messagemycustomer.com.

17.2   You irrevocably and unconditionally agree to submit to the jurisdiction of Irish courts, which have jurisdiction to settle any disputes which may arise out of or in connection with the validity, effect, interpretation or performance of these Agreement and you similarly irrevocably and unconditionally waive any objection to any claim that any suit, action, or proceeding has been brought by Payemoji in any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms of Service and is hereby expressly excluded.

 

18      MODIFICATIONS

18.1   We reserve the right, in our sole and absolute discretion, to update or change any portion of the Agreement at any time. We will provide you with reasonable advance notice of changes to the Agreement that materially adversely affect your use of the Services or your rights under the Agreement by sending an email to the Primary Email Address. However, Payemoji may make changes that materially adversely affect your use of the Services or your rights under the Agreement at any time and with immediate effect (i) for legal, regulatory, fraud and abuse prevention, or security reasons; or (ii) to restrict products or activities that we deem unsafe, inappropriate, or offensive. Unless we indicate otherwise in our notice (if applicable), any changes to the Agreement will be effective immediately upon posting of such updated terms at this location. Your continued access to or use of the Services after we provide such notice, if applicable, or after we post such updated terms, constitutes your acceptance of the changes and consent to be bound by the Agreement as amended. If you do not agree to the amended Agreement, you must stop accessing and using the Services.

18.2   Payemoji may change the Fees for the Services from time-to-time. We will provide you with 30 days advanced notice prior to any changes in Fees by sending an email to the Primary Email Account. Payemoji will not be liable to you or to any third party for any modification, price change, suspension, or discontinuance of the Services (or any part thereof).

 

19. GENERAL PROVISIONS

19.1 Relationship of the Parties.  The parties are independent contractors.  This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

19.2 Notices.  All notices required to be sent hereunder shall be in writing, addressed to the Customer’s Primary Email Address or to Payemoji legal department at legal@payemoji.com.

19.3 Waiver and Cumulative Remedies.  No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.  Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

19.4 Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.

19.5 Assignment.  Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld), except that either party may assign this Agreement in its entirety, without the consent of the other party, to (i) an Affiliate; or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.  Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

19.6 Governing Law.  This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the Republic of Ireland, without giving effect to its conflicts of laws rules, the United Nations Convention on the International Sale of Goods, or the Uniform Computer Information Transactions Act.

19.7 Force Majeure.  Neither party shall be liable for delay or non-performance of its obligations hereunder (or part thereof) if the cause of delay or non-performance is due to a Force Majeure Event.  The party affected shall be relieved from its obligations (or part thereof) for the time that the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof).  The party affected shall promptly notify the other party and make reasonable efforts to mitigate the effects of the Force Majeure Event.

19.8 Entire Agreement.  This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter.  The parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this Agreement, express or implied, except for the representations and warranties set forth in this Agreement.