mmhmm Business Agreement
Effective Date: April 1, 2021
mmhmm Business is the version of the mmhmm Service designed for businesses, teams, and other organizations. This Agreement provides supplemental contract terms that are incorporated within our Terms of Service, but specifically applies to the use of mmhmm Business. We require an individual (“you”) to accept this Agreement on behalf of the organization that desires to use mmhmm Business (which organization we refer to as our "Client"), and require the Client to accept, and be legally bound by, these terms as a condition to creating a mmhmm Business account. Client is one party to this Agreement and mmhmm inc. is the other party. We also refer to the individual who initiates a mmhmm Business account as the initial “Owner” of such account.
The Agreement is effective as of the date mmhmm makes the Admin Console (as defined below) available to the initial Owner acting on behalf of the Client (the "Effective Date"). By accepting this Agreement on behalf of the Client, you (as the initial Owner) confirm that you have reviewed the Agreement and you are certifying to mmhmm that you are authorized to accept and create a legally binding contract on behalf of Client. If you do not have the legal authority to bind such Client, please do not check the box signifying that you accept the terms of this Agreement.
1. Establishing the mmhmm Business Account
To create an mmhmm Business account, the Client’s initial Owner shall provide and verify an email address associated with the Business. If you have an email address with a domain that has been associated with another Business account, you may join that Business account but you may not create a new Business account with that email.
After successfully completing the account creation process and confirming acceptance of this Agreement, mmhmm will enable the initial Owner to access a dashboard (the “Admin Console”). The Admin Console enables the members of Client's mmhmm Business account (or “Client’s Account”) to perform a number of administrative functions, depending upon their respective privilege levels, as illustrated by the following table:
In order to become eligible to access and use Client’s mmhmm Business account, an individual user must register with a valid email address and create a password, and each such user shall be considered a “Member” of the Client’s Account. The initial Owner may designate one or more Members to also have Admin and/or Owner privileges. As indicated in the table, Members may invite other individuals to become a Member, and Members that are provided Admin or Owner privileges may take additional actions affecting Client’s Account.
To facilitate the process of joining their Business account, Owners may designate one or more approved domains, such that any user who registers for mmhmm with an email address in such approved domain will be automatically established as a Member under the Business account. By adding an approved domain, an Owner provides a warranty to the Company that the Client owns this domain, and that everyone with an email address at this domain is affiliated with the Client’s organization. Public email domains (@gmail.com, @hotmail.com, etc.) cannot be added to a Business as approved domains.
Client acknowledges that a Member will have authority to access, create, or share Content in Client’s Account. Client also acknowledges that while a Member’s access to Client’s Account may be managed by an Admin or Owner, that Member may copy, transfer, or otherwise export Content from Client’s Account during such time as they are a Member. The subsequent suspension or termination of a Member’s access to Client’s Account will prevent the Member from continuing to access such Content in the Client’s Account, but such suspension or termination of access will not delete or otherwise affect any Content that such Member may have previously copied from or transferred out of the Client’s Account.
If a Member has a personal mmhmm service account that is not associated with Client’s Account, Client acknowledges that it does not and will not have any access to, rights in, or control over such Member’s separate mmhmm Service account.
2. Client's Obligations
Client is responsible for (i) payment of all fees relating to Client’s Account (“Fees”); (ii) administering all Members' access to Client’s Account and its Content through the Admin Console; (iii) establishing and maintaining protocols to protect the confidentiality of the login credentials of each Member, and any particular usage requirements governing its Members’ activities in Client’s Account; (iv) maintaining accurate and current account and contact information for each Admin and Owner; (v) determining the Members with Admin and Owner privileges; (vi) removing or modifying Member, Admin and Owner privileges from individuals who no longer should be entitled to such privileges; and (vii) ensuring that any and all use of the Admin Console and the privileges of each Admin and Owner complies with this Agreement and applicable laws. CLIENT ACKNOWLEDGES THAT IF NO ACCOUNT OWNER(S) IS/ARE ABLE OR WILLING TO FULFILL SUCH FUNCTION, AND/OR CLIENT OTHERWISE FAILS TO MAINTAIN CONTROL OF THE OWNER CREDENTIALS TO ACCESS THE ADMIN CONSOLE, CLIENT MAY BE UNABLE TO ACCESS OR CONTROL ITS BUSINESS ACCOUNT; IN SUCH EVENT, CLIENT SHALL BE SOLELY RESPONSIBLE FOR ALL RESULTING LOSSES, COSTS AND EXPENSES. (See “Owner Account Recovery” below for additional information.)
Client acknowledges and agrees that prior to a Member using the mmhmm Business service, mmhmm will require each Member to accept mmhmm's Terms of Service, and such Terms of Service will govern each Member's use of the mmhmm Service, including Client’s Business Account. Client acknowledges that a violation of the Terms of Service by a Member may result in the termination of such Member's access to Client’s Account or termination of Client's Account. Client shall not make any representation, warranty, or guaranty for or on behalf of mmhmm, or otherwise obligate mmhmm in any manner, to any Member.
Client will prevent unauthorized use of its mmhmm Business account and Content and immediately terminate any unauthorized use of which it becomes aware. Client will promptly notify mmhmm of any unauthorized use of or access to the mmhmm service of which it becomes aware.
3. Admin Console Recovery
If Client desires to establish a specific authorization process for managing Client’s Account independent of the Admin Console, such as written direction from a corporate officer or other designated representative of Client, Client may contact us at firstname.lastname@example.org to request agreement on such process (an “Approved Account Recovery Process”). mmhmm reserves the right, in its sole discretion, to accept or reject such proposal. If Client and mmhmm have agreed upon an Approved Account Recovery Process, Client may at any time or from time to time, request assistance using such Approved Account Recovery Process.
If Client loses access to its Admin Console and has not established an Approved Account Recovery Process, Client should contact us at email@example.com and request assistance. If no person has credentials to access the Admin Console (a “Loss of Administration”), then mmhmm may, in its sole discretion, determine whether an individual requesting access to an Admin Console may be provided the credentials necessary to do so on behalf of Client. In such event, an individual may attempt to demonstrate to mmhmm authorization to act on behalf of Client in regaining access to the Admin Console by providing proof satisfactory to mmhmm. Client acknowledges and agrees that, in the event of a Loss of Administration, mmhmm is empowered and authorized by this Agreement to use its discretion in determining whether to provide Owner or Admin credentials to an individual offering proof of authority to act on behalf of Client, and Client hereby waives any and all claims against mmhmm as a result of, or in any way relating to, such actions. Client has been made aware of, and understands, the provisions of California Civil Code Section 1542 ("Section 1542"), which provides: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." Client expressly, knowingly, and intentionally waives any and all rights, benefits, and protections of Section 1542 and of any other state or federal statute or common law principle limiting the scope of a general release.
Client will not, and will ensure that Members or third parties associated with its Client Account do not: (i) offer for sale or lease, sell, resell, or lease access to the mmhmm Service through Client’s Account; (ii) attempt to reverse engineer the mmhmm Service or any software or other component used therein; (iii) use the mmhmm Business service in a manner or under circumstances where use or failure of the mmhmm Business service could lead to death, personal injury, or other harm to individuals, organizations or the Service; (iv) use the mmhmm Business service in a manner that would violate applicable laws protecting an individual's privacy rights, health or financial data, including the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act and its implementing regulations, the Privacy Rule and the Safeguards Rule or the Dodd-Frank Wall Street Reform and Consumer Protection Act, including the regulations issued thereunder, and as each may be amended from time to time; or (v) attempt to create a substitute or similar service through use of, or access to, the mmhmm service or mmhmm Business.
5. Third Party Requests
Client acknowledges and agrees that, as between the parties, it is responsible for responding to a request from a third party for records relating to Client's or a Member's use of, or Content contained within, Client’s Account (a "Third Party Request"). If mmhmm receives a Third Party Request (including but not limited to criminal or civil subpoenas or other legal process requesting Client or Member information), mmhmm will, to the extent allowed by the law and by the terms of the Third Party Request, direct the Third Party to Client to pursue the Third Party Request. mmhmm retains the right to respond to Third Party requests for Client information where mmhmm determines, in its sole discretion, that it is required by law to comply with such a Third Party request.
Client will be required to select its method of payment when the initial Owner sets up the mmhmm Business account. All payments under this Agreement are subject to the Terms of Service (see “Paying for Your Subscription”). You may find more information about pricing for mmhmm Business in our FAQ.
Only an Owner of a mmhmm Business account may change payment information for their mmhmm Business account in the Admin Console. Consequently, we strongly recommend that Client establish a method to maintain control over an Owner’s credentials, or have more than one Owner established, in order to ensure a continuing ability to manage the Client Account.
CLIENT ACKNOWLEDGES THAT CLIENT AND ITS MEMBERS MAY LOSE ACCESS TO ALL CLIENT ACCOUNT CONTENT IN THE SERVICE IN THE EVENT THAT CLIENT FAILS TO PROVIDE TIMELY PAYMENT. Such access will be restored upon receipt of full payment.
Client agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written statements made by mmhmm regarding future functionality or features.
Client is responsible for any taxes, including, without limitation, sales, use, excise, added value, withholding and similar taxes, as well as all customs, duties, or governmental impositions, excluding only taxes on mmhmm's net income (collectively, "Taxes"), and Client will pay mmhmm all Fees due hereunder without any reduction for Taxes. If mmhmm is obligated to collect or pay Taxes, mmhmm will invoice Client for the Taxes unless Client provides mmhmm with a valid tax exemption certificate, VAT number issued by the appropriate taxing authority and/or other documentation providing evidence that no tax should be charged. If Client is required by law to withhold any Taxes from its payments to mmhmm, Client must provide mmhmm with an official tax receipt or other appropriate documentation to support such payments.
8. Support and Maintenance
mmhmm will provide support to Client’s Admin and Members. Client will, at its own expense, be responsible for providing support to its Members regarding issues that are particular to their Members' access of Client’s Account (e.g., resetting passwords, suspending accounts, sharing Content, etc.). Client will use commercially reasonable efforts to resolve any such support issues before escalating them to mmhmm.
9. Data Security
mmhmm has implemented certain technical and organizational measures designed to prevent accidental loss of and unauthorized access to and use of Content stored in the Service. However, mmhmm does not guarantee that unauthorized third parties will be unable to obtain access to the Service or Client’s Content, and Client acknowledges that all Content stored by Client and its Members in the Service is done so at Client's and its Members' own risk. In addition, Client is responsible for ensuring that it has backed up its Content in the event of any loss of Content stored in the Service. In the event mmhmm becomes aware that a third party has accessed without authorization Client's mmhmm Business account or has obtained without authorization the credentials of an Owner or Admin for Client’s mmhmm Business account, mmhmm shall provide prompt notice to Client’s Admin and/or Owner(s) of such unauthorized access.
mmhmm may, in its sole discretion, allow Client to upload its logo or other trademarks (together, "Client Trademarks") for display in the version of mmhmm Business accessed by Members of Client's Account, either in conjunction with mmhmm's trademarks or as a Client-branded service. Accordingly, Client hereby grants mmhmm a non-exclusive license to display, perform and distribute the Client Trademarks and to modify (for technical purposes, e.g., making sure trademarks are viewable on mobile devices as well as computers) such trademarks solely in connection with making mmhmm Business available to Members of Client's Account.
13. Reservation of Rights
Except as expressly set forth herein and in the Terms of Service, this Agreement does not grant either party any rights, implied or otherwise, to the other's intellectual property. No title to or ownership of or other right in or to mmhmm Business or software used to operate mmhmm Business ("mmhmm Software") is transferred to Client under this Agreement.
mmhmm may include Client's name in a list of mmhmm's Clients online and in print and electronic marketing materials.
15. Warranty to Contract
Each party represents and warrants to the other that it has the requisite power and authority under its organizational charter and governing agreements (if any) to enter into this Agreement and perform in accordance with the terms herein. Client further represents and warrants that the initial Owner who initiates Client’s Account, and each Admin and other Owner, is authorized to act for and on behalf of Client.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EXPRESS WARRANTIES SET FORTH IN SECTION 15 AND THE TERMS OF SERVICE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. mmhmm DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT OF THE LAW. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EITHER PARTY HERETO, ITS AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES IN THIS AGREEMENT.
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, mmhmm DOES NOT WARRANT THAT THE mmhmm SOFTWARE OR mmhmm BUSINESS SERVICE WILL MEET ALL REQUIREMENTS OF CLIENT OR ANY END USER, OR THAT THE OPERATION OF THE mmhmm SOFTWARE OR mmhmm BUSINESS SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS IN THE mmhmm SOFTWARE AND mmhmm BUSINESS SERVICE WILL BE CORRECTED. FURTHER, mmhmm IS NOT RESPONSIBLE FOR ANY DEFECT OR ERROR RESULTING FROM THE MODIFICATION, MISUSE, OR DAMAGE OF ANY OF THE mmhmm SOFTWARE NOT DELIVERED BY mmhmm OR ARISING FROM ANY USE OF CONTENT IN THE mmhmm SERVICE. mmhmm DOES NOT WARRANT AND SHALL HAVE NO LIABILITY WITH RESPECT TO THIRD PARTY SOFTWARE OR OTHER NON - mmhmm PRODUCTS OR SERVICES.
17. Indemnification by Client
To the maximum extent permitted by applicable law, Client agrees to indemnify and hold mmhmm, its subsidiaries, affiliates, officers, agents, employees, licensors, contractors, and partners harmless from and against any and all liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to (i) any Loss of Administration or (ii) claims (a) made by Members; or (b) made by any third party relating to Client's use of and Client's Members' use of any of the mmhmm Software or mmhmm Business in violation of this Agreement, the Terms of Service or applicable laws. In the event of such claim, we will provide notice of the claim, suit or action to Client using the contact information we have for the account, provided that any failure to deliver such notice to Client shall not eliminate or reduce Client's indemnification obligation hereunder, except to the extent Client can establish that it was prejudiced by such failure.
18. Limitation of Liability
EXCEPT WITH RESPECT TO (A) CLIENT'S BREACH OF SECTION 2 OR 4 AND (B) THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 17, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, PUNITIVE, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHETHER ARISING IN CONTRACT OR IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR ITS TERMINATION OR NON-RENEWAL AND (II) EACH PARTY'S AGGREGATE AND CUMULATIVE LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAYABLE BY CLIENT TO mmhmm UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE INITIATION OF ANY CLAIM FOR DAMAGES.
Unless mmhmm and Client mutually agree otherwise in a separate written addendum to this Agreement, this Agreement shall be effective upon the Effective Date and shall remain in effect until the end of the subscription period specified in the Admin Console (the "Subscription Period"), unless and until terminated in accordance with the provisions of Section 20.
At the end of the initial Subscription Period, the Subscription Period will automatically renew for an additional Subscription Period, except as set forth below. Client will pay mmhmm the then-current Fees due for the Subscription Period. At any time prior to the end of the initial Subscription Period or any subsequent Subscription Period, Client may cancel its mmhmm Business subscription, which cancellation or reduction shall be effective as of the end of the then-current Subscription Period. Client shall be responsible for all charges for the Business through the end of such Subscription Period.
20. Termination and Refunds
Client may terminate this Agreement at any time by deactivating its mmhmm Business account through the Admin Console. In the event of Client’s termination, full or partial refunds may be available pursuant to our Refund Policy. In addition, we reserve the right to issue refunds or credits at our sole discretion, or as required by applicable law. If we issue a refund or credit in one instance, we are under no obligation to issue the same refund or credit in the future.
mmhmm may terminate this Agreement by providing sixty (60) days written notice to Client and will refund the prorated portion of any prepaid Fees applicable to the portion of the Subscription Period remaining after the effective date of termination.
In addition, either party may terminate this Agreement in the event the other party commits any breach or default of the material terms of this Agreement and fails to remedy such breach or default within thirty (30) days after written notice of such breach or default from the non-breaching or non-defaulting party.
Notwithstanding the foregoing, (i) either party may terminate this Agreement immediately in the event of a material breach by the other party of its obligations under Section 11 and (ii) mmhmm may terminate this Agreement immediately in the event of a material breach by Client of its obligations under Sections 2 or 4. If Client terminates this Agreement for breach by mmhmm, Client's sole and exclusive remedy and the entire liability of mmhmm for such breach will be a refund of fees paid by Client to mmhmm under this Agreement.
If Client: (i) becomes insolvent; (ii) voluntarily files or has filed against it a petition under applicable bankruptcy or insolvency laws which Client fails to have discharged or terminated within thirty (30) days after filing; (iii) proposes any dissolution, composition or financial reorganization with creditors or if a receiver, trustee, custodian or similar agent is appointed or takes possession with respect to all or substantially all assets or business of Client; or (iv) Client makes a general assignment for the benefit of creditors, mmhmm may immediately terminate this Agreement by giving a termination notice.
Termination of this Agreement shall, as of the effective date of such termination, terminate Client's and its Members' access to Client’s Account, including all Content therein, and all other rights granted to Client hereunder; provided, however, that any termination is without prejudice to the enforcement of any undischarged obligations existing at the time of termination. Upon termination by mmhmm on less than thirty (30) days' notice, and unless prohibited by law, mmhmm will provide a mechanism for Client to download or export Content in Client’s Account within a limited period of time.
The following provisions of this Agreement shall survive the termination of this Agreement: Sections 2 - 7, 9 - 13, 16 - 21.
21. General Terms
b. Notices. Any notice required or permitted to be given hereunder shall be given in writing by personal delivery, by e-mail or by world-recognized courier delivery as follows:
If to Client: At the email address(es) for the then current Owner(s) for the account.
If to mmhmm:
548 Market Street, PMB 85948
San Francisco, California 94104
With a copy to firstname.lastname@example.org
The date upon which such notice is delivered shall be deemed to be the date of such notice, irrespective of the date appearing thereon. A party, through the Admin Console (if Client) or upon written notice to Client (if mmhmm), may change the addresses, individuals and/or titles to which notices shall be sent.
c. Governing Law. This Agreement shall be governed by and construed as an instrument under seal in accordance with the laws of the State of California (U.S.A.) governing contracts executed and to be performed therein, but without regard to any choice of law provisions. This Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
If Client is a government or an agency or other unit of government located in the United States (a "US Government Client") and the law establishing or otherwise governing such Client expressly requires Client to enter into contracts under a particular law and/or prohibits any choice of law provision imposing any law other than the law under which Client is authorized to act (the "Mandatory Law"), then the preceding paragraph shall not apply with respect to the US Government Client's use of the mmhmm Business service while performing in its official government capacity.
If the Mandatory Law applicable to any US Government Client prohibits such Client from agreeing to the Arbitration Agreement in the Terms of Service, then the Arbitration Agreement shall not apply to the extent of such prohibition and with respect to use of the mmhmm Business service in its official government capacity.
d. Agreement, Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be enforceable by each of the parties and their permitted successors and assigns. Except as set forth in the immediately following sentences, neither party shall assign this Agreement or any right or interest under this Agreement, nor delegate any obligation to be performed under this Agreement, without the other party's prior written consent. This Agreement shall inure to the benefit of, and be binding upon, any legal successor to all or substantially all of the business and assets of either party, where such succession occurs in connection with a merger, sale of assets, corporate restructuring or otherwise by operation of law; and mmhmm reserves the right to assign this Agreement to any mmhmm affiliate or successor. If Client desires to request mmhmm to consent to an assignment of this Agreement, Client shall send a formal request for consent by notice to mmhmm and should send a message to mmhmm through the Admin Console setting forth details concerning the requested assignment. Any attempted assignment or delegation in contravention of this provision shall be void and ineffective. Client shall ensure that it provides the then-current passwords for the Administrator Account to any successor or assignee under this Agreement as, notwithstanding any such assignment, mmhmm shall not provide any passwords to Client's Administrator Account to any party.
e. No Relationship. No agency, partnership, joint venture, or employment is created between the parties as a result of this Agreement. Except as specifically provided herein, neither party is authorized to create any obligation, express or implied, on behalf of the other party, nor to exercise any control over the other party's methods of operation.
f. Force Majeure. If either party is prevented from performing any portion of this Agreement (except the payment of money) by causes beyond its control, including labor disputes, civil commotion, war, governmental regulations or controls, casualty, inability to obtain materials or services or acts of God or nature, such defaulting party will be excused from performance for the period of the delay and for a reasonable time thereafter.
g. Construction. The headings in this Agreement have been inserted for convenience and shall not modify, define, or limit the express provisions of this Agreement. All pronouns shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or persons referred to may require. The parties hereto confirm that (i) they each had the opportunity to review this Agreement with legal counsel of their own choosing and (ii) they understand the terms of, and voluntarily and knowingly enter into, this Agreement with the intent of being legally bound by the terms hereof.
h. Waiver and Amendment. mmhmm, in its sole discretion, may amend this Agreement at any time, and in such case, mmhmm will publish a new version of the Agreement ("Amended Agreement") on the mmhmm Business website with a description of the changes made. In addition, mmhmm will provide Client with advance notice of any material change to the Agreement. Client's continued use of mmhmm Business after the effectiveness of any update will be deemed to represent Client's consent to be bound by, and agreement with, the terms of the Amended Agreement. If the Amended Agreement includes any material adverse changes to Client's rights or obligations and Client does not wish to continue using mmhmm Business under the terms of the Amended Agreement, Client may terminate the Agreement by providing mmhmm written notice within thirty (30) days of being notified of the availability of the Amended Agreement. In the event of such termination, our [Refund Policy] will apply. Otherwise, no waiver, amendment, or modification of any provision of this Agreement, and no variance from or addition to the terms and conditions of this Agreement in any purchase order or other written notification, shall be effective unless in writing and agreed to by the parties hereto. No failure or delay by either party in exercising any right, power or remedy under this Agreement shall operate as a waiver of such right, power or remedy. No waiver of any term, condition or default of this Agreement shall be construed as a waiver of any other term, condition, or default. This Agreement will not be supplemented or modified by any course of dealing or usage of trade.
I. Governing Language. If this Agreement is translated into a language other than English and there is any conflict in meaning between the translations, the English language version shall govern.