Last reviewed - November 2019
1. These Terms of Service (“Terms”), together with any other documents or terms expressly incorporated by reference herein or incorporating these Terms, are a legal agreement between the client (“You”) and (“Mensch”), a Delaware corporation, that govern all access to and use of any of Mensch’s services (collectively the “Service”).
2. This agreement may be accepted by:
2.1. You clicking a box indicating acceptance when it is presented to You;
2.2. You and Mensch fully executing a separate document that incorporates these Terms; or
2.3. You accessing or using any part of the Service.
3. If You are registering for the Service and accepting these Terms on behalf of another person or entity, then You represent and warrant that:
3.1. You have full authority to legally bind that person or entity;
3.2. You have read and understood this agreement, and;
3.3. You agree on behalf of that person or entity to this agreement and, other than these representations, “You” refers to that person or entity (“Your” has a corresponding meaning).
4. The Service may evolve over time based on product development and\or user feedback. Further, Mensch reserves the right to change these terms at any time, effective upon the posting of the modified terms on https://www.mensch.io/ (the “Website”).
5. Mensch reserves the right to change these Terms at any time, and substantial changes shall be effective only following 30 days from notice. Mensch will provide notice of substantial changes of these by sending you an email regarding such changes.
6. The Website and Service are not intended for children under the age of thirteen (13) or if You are not eligible by law to form a binding contract with Mensch for any reason whatsoever.
“Account” means the Subscriber’s account to the Service registered through the Website.
“Service(s) Fee(s)” means the monthly fee (excluding any taxes and duties) payable by Subscriber to Mensch in accordance with the fee schedule set out on the Website (which Mensch may change from time to time on notice to Subscriber).
“Confidential Information” means all information exchanged between the parties to this agreement, including financial, business and technical or other data and all other information relating to the Service(s) whether in writing, electronically, magnetically or orally, including the Services, but does not include information which is, or becomes, publicly available other than through unauthorized disclosure by the other party.
“Data” means any data inputted by You or with Your authority into the Service.
“Intellectual Property Right(s)” means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
“Service(s)” means the online, cloud based Mensch Service(s) made available via the Website and which may be modified or updated from time to time by Mensch.
“Website” means the internet site at the domain www.mensch.io or any other site or application operated by Mensch.
“User” means any person or entity that registers for, and uses the Service.
“Subscriber” means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
“You” means the Subscriber, and where the context permits, the User. “Your” has a corresponding meaning. In relation to an Account for which Service Fees are to be paid to Mensch, the Subscriber is the responsible party for such fees.
2.1.1. Mensch grants You the right to access and use the Service via the Website in accordance with these Terms. This right is non-exclusive, non-transferable, and limited by and subject to this agreement.
2.1.2. In this regard, You agree that:
18.104.22.168. The Subscriber controls each User’s level of access to the Service(s) at all times, including who may be granted full editing rights and who may be granted view only rights (as further described below) and can revoke or change User’s access, or level of access, at any time and for any reason, in its sole discretion, in which case that person will cease to be an User or shall have a different level of access, as the case may be; and
22.214.171.124. If there is any dispute between a Subscriber and a User regarding access to the Service(s), the Subscriber shall decide what access or level of access to the relevant Data or Service(s) that a User shall have, if any.
2.2.1. Under each Account, and subject to the restrictions of the chosen Service plan, Subscriber may designate User(s) to have the ability to both view and edit the Data inputted by You into the Service, or limit such Users to a view only capability (i.e. no editing option is available). Under such Account, Subscriber may designate an unlimited number of Users with view only capability.
3.1.1. In consideration for the Service, Subscriber will pay, and authorizes Mensch to charge, using a Mensch directed payment method, for all applicable Service fees. Fees are non-refundable except as required by law.
3.1.2. Subscriber is responsible for providing complete and accurate billing and contact information to Mensch.
3.1.3. Subscriber is responsible for all taxes whether direct or indirect, and Mensch will charge tax when required to do so. If Subscriber is required by law to withhold any taxes, Subscriber must provide Mensch with an official tax receipt or other appropriate documentation.
3.2.Lawful Usage: You must only use the Service(s) and Website for Your own lawful purposes and, if you are a business entity, your own lawful internal business purposes, in accordance with these Terms and any notice sent by Mensch or condition posted on the Website.
3.3.1. You must ensure that all usernames (i.e. email addresses) and passwords required to access the Service(s) are kept secure and confidential. You must immediately notify Mensch of any unauthorized use of Your passwords or any other breach of security and Mensch will reset Your password as soon as reasonably possible and You must take all other actions that Mensch reasonably deems necessary to maintain or enhance the security of Mensch’s computing systems and networks and Your access to the Service(s).
3.3.2. As an additional condition to these Terms, when accessing and using the Services, You must:
126.96.36.199. Not attempt to undermine the security or integrity of Mensch’s computing systems or networks or, where the Services are hosted by a third party, that third party’s computing systems and networks;
188.8.131.52. Not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;
184.108.40.206. Not attempt to gain unauthorized access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
220.127.116.11. Not transmit, or input into the Website, any: files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
18.104.22.168. Not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation.
3.4.Usage Limitations: Use of the Service may be subject to limitations, which will be specified within the Service description.
3.5.1. As a condition of these Terms, if You use any communication tools available through the Website (such as any forum, chat room or message center), You agree only to use such communication tools for lawful and legitimate purposes.
3.5.2. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Services, including (but not limited to): offers of goods or services for sale, unsolicited commercial email, files that may damage any other person’s computing devices or software, content that may be offensive to any other Users or the Website, or material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use).
3.5.3. When You make any communication on the Website, You represent that You are permitted to make such communication. Mensch is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Services.
3.5.4. As with any other web-based forum, You must exercise caution when using the communication tools available on the Website. However, Mensch does reserve the right to remove any communication at any time in its sole discretion.
4.1.1. Unless the relevant party has the prior written consent of the other or unless required to do so by law:
22.214.171.124. Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
126.96.36.199. Each party’s obligations under section 4 will survive termination of these Terms.
188.8.131.52. The provisions of Sections 184.108.40.206 and 220.127.116.11 shall not apply to any information which:
18.104.22.168.1. Is or becomes public knowledge other than by a breach of this clause;
22.214.171.124.2. Is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
126.96.36.199.3. Is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
188.8.131.52.4. Is independently developed without access to or usage of the other party’s Confidential Information as shown by the written records of the party relying on this provision.
4.2.Data Security: Notwithstanding anything to the contrary herein, Mensch shall comply with all laws and regulations applicable to it with respect to any data or information provided or made available by You, including without limitation Personal Information. “Personal Information” means information that alone or with other information may identify an individual, or any other meaning for such term or equivalent term in applicable data protection laws or regulations. Without derogating from the above, Mensch will maintain reasonable administrative and technical safeguards for protection of the security, confidentiality and integrity of Your Data that are consistent with industry standards for similar services. In this regard, Mensch employs encryption technologies and manages its Service(s) on dedicated servers (not shared). These and other safeguards are designed to protect the integrity of Your Data and guard it against the unauthorized or unlawful access to, use, and process of Data.
5.1.General:Title to any and all Intellectual Property Rights in the Service, the Website and any documentation relating to the Service remains vested in Mensch (or its licensors).
5.2.Ownership of Data:
5.2.1. Title to any and all Intellectual Property Rights in the Data remains vested in You. However, Your access to the Data is contingent on full payment of the Mensch Service Fee when due.
5.2.2. You grant Mensch a license to use, copy, transmit and store, Your information and Data, for the purposes of enabling You to access and use the Service.
5.2.3. Mensch will not sell or otherwise transfer Your Data to third parties for marketing or other purposes unrelated to the provision of Services to You hereunder. Mensch may engage third parties to analyze Your Data in an anonymous, aggregated manner for various purposes, such as improving the Services provided to You.
5.3.Backup of Data: It is Your obligation to maintain copies of all Data inputted into the Service, and Mensch provides you through the Website with the capability to create backups of your Data. Mensch adheres to its best practice policies and procedures to prevent Data loss, but does not make any guarantees whatsoever that there will be no loss of Data or that the original version of any Data that has been modified by You is capable of being recovered. Therefore, Mensch expressly excludes liability for any loss of Data no matter how caused.
6.1. Mensch Limited Warranty: Mensch will deliver the Service in material conformity with its obligations under this agreement. As Your exclusive remedy, and Mensch’ entire liability, for any service interruption or nonconformity of the Service with Mensch documentation, Mensch will make reasonable good faith efforts to correct any such nonconformity within a commercially reasonable timeframe.
6.2. Your Representations:
6.2.1. You represent that:
184.108.40.206. You are authorized to use the Service and the Website and to access the information and Data that You input into the Website, including any information or Data input into the Website by any person you have authorized to use the Service. You are also authorized to access the processed information and Data that is made available to You through Your use of the Website and the Service.
220.127.116.11. Mensch has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the Service or access the Website on behalf of or for the benefit of anyone other than Yourself (whether a body corporate or otherwise), You agree that:
18.104.22.168.1. You are responsible for ensuring that You have the right to do so; and
22.214.171.124.2. You are responsible for authorizing any person who is given access to information or Data, and you agree that Mensch has no obligation to provide any person access to such information or Data without Your authorization and may refer any requests for information to You to address.
126.96.36.199.3. The provision of, access to, and use of the Service is on an “as is” basis and at Your own risk.
188.8.131.52.4. Mensch does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Service. Mensch is not in any way responsible for any such interference or prevention of Your access or use of the Service.
184.108.40.206.5. Mensch is not Your professional service provider and use of the Service does not constitute the receipt of professional advice.
220.127.116.11.6. It is Your sole responsibility to determine that the Service meets Your needs and\or the needs of Your business and is suitable for the purposes for which it is used.
18.104.22.168.7. You remain solely responsible for complying with all laws applicable by nature to You (as opposed to Mensch) with respect to your use of the Service. It is Your responsibility to check that the access to your Data you provide personnel permitted by you to use your account via the Service and the Website will comply with laws applicable to you.
6.3.Disclaimer of Warranties:
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED HEREIN, MENSCH DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES PROVIDED BY MENSCH, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW, REPRESENTATION STATEMENTS, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. YOU ACKNOWLEDGE AND AGREE THAT NEITHER MENSCH NOR ANY SERVICES PROVIDED BY MENSCH WILL BE CONSTRUED AS MENSCH PROVIDING ACCOUNTING, TAXATION, FINANCIAL, INVESTMENT, LEGAL OR OTHER ADVICE TO YOU OR ANY THIRD PARTY. EACH PARTY WILL BE SOLELY AND INDIVIDUALLY RESPONSIBLE TO COMPLY WITH ALL LAWS AND REGULATIONS RELATING TO ITS RESPECTIVE BUSINESS OPERATIONS OR FINANCES AND\OR TAX OBLIGATIONS AND\OR OTHER OBLIGATIONS.
6.4.No Consumer guarantees: You warrant and represent that You are acquiring the right to access and use the Service for your individual purposes and\or the internal purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Service, the Website or these Terms.
7.1.1. You will defend, indemnify, and hold harmless Mensch, its officers, directors, employees and agents, from and against any Mensch Indemnifiable Claims, and the liabilities, damages, losses, and expenses, including, without limitation, legal and accounting fees, arising out of Mensch Indemnifiable Claims. “Mensch Indemnifiable Claims” are third party claims that Data submitted to the Services by You infringe or misappropriate the intellectual property rights or moral rights of a third party or violate privacy laws applicable to You with respect to the Services.
7.1.2. Mensch will defend, indemnify, and hold You, Your officers, directors, employees and agents harmless from and against any Customer Indemnifiable Claims, and the liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with third party claims that the Services infringes or misappropriates or violates the intellectual property rights of a third party, or violate privacy laws applicable to Mensch with respect to the Services. However, it is hereby clarified that, subject to Section 4.4, in any case of conflict between these Terms and the DPA, the terms of the DPA shall prevail.
7.1.3. The indemnified party shall:
22.214.171.124. Promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, and
126.96.36.199. Allow the indemnifying party solely to control the defense of any claim, suit or proceeding, or the settlement thereof. The indemnifying party shall not enter into any settlement that imposes indemnified liability or obligations on the indemnified party without obtaining the indemnified party’s prior written consent. Mensch’s indemnification obligation will not apply, however, to the extent a claim is based upon the use of the Service(s) in combination with other products, services, processes, or other items not provided by Mensch. If the Services become, or in Mensch’s opinion are likely to become the subject of an infringement claim Mensch may at its sole discretion obtain for Subscriber the right to continue using the Service(s), or modify the Service(s) in order to avoid the claim.
7.2.Limitation of Liability:
EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THE SECTION OF THIS AGREEMENT TITLED “INDEMNIFICATION”, WILLFUL MISCONDUCT, OR CONFIDENTIALITY BREACH, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT IN CONNECTION WITH AN INTENTIONAL MISAPPROPRIATION OF INTELLECTUAL PROPERTY, EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THE SECTION OF THIS AGREEMENT TITLED “INDEMNIFICATION”, WILLFUL MISCONDUCT, OR CONFIDENTIALITY BREACH, THE AGGREGATE LIABILITY OF ONE PARTY TO THE OTHER FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION (AND WHETHER IN CONTRACT OR IN TORT) WILL BE LIMITED TO THE GREATER OF I) THE TOTAL AMOUNT PAID TO MENSCH UNDER THIS AGREEMENT OVER THE 12 MONTH PERIOD PRIOR TO THE DATE THE CLAIM ARISES, OR II) $250.
8.1.1. When a Subscriber first signs up for access to the Service(s), such Subscriber will be offered a free of charge one (1) month initial trial period to evaluate the Service under defined trial usage conditions, with no obligation to continue to use the Service thereafter. A “month” for purposes of this Section 8 means the date of registration for the Service through the day before the next month’s anniversary date of the registration date (for example, September 15, 2017 through October 14, 2017), and each month thereafter.
8.1.2. If Subscriber does not act to cancel its Account prior to completion of the trial period, the Account will be automatically suspended pursuant to the completion of the trial period and until the Service Fee for the subsequent year will be paid by filling in credit card details.
8.2.1. The Services are provided on a yearly subscription basis. Subject to the termination for breach and convenience provisions hereof, this agreement will continue for as long as Subscriber elects to maintain the Service(s) in accordance with these Terms, and the annual term will renew each year following the end of each prior year. Each of the parties can terminate this agreement in a prior written notice at least 30 days prior to its renewal date.
8.2.2. Subscriber may cancel its Account and terminate the Service and this agreement at any time during this agreement by way of the cancellation process located on the Website; however, Mensch will not provide a refund for any remaining prepaid yearly period during which Services will not have been provided.
8.3.1. If Subscriber:
188.8.131.52. Breaches any of these Terms (including, without limitation, by non-payment of any Service Fees) and does not remedy the breach within seven (7) days after receiving notice of the breach if the breach is capable of being remedied;
184.108.40.206. Breaches any of these Terms and the breach is not capable of being remedied, which includes (without limitation) any breach of a payment obligation that is more than thirty (30) days overdue; or
220.127.116.11. Subscriber or its business become insolvent or its business goes into liquidation or has a receiver or manager appointed of any of its assets or if Subscriber makes any arrangement with its creditors, or becomes subject to any similar insolvency event in any jurisdiction, Mensch may take any or all of the following actions, at its sole discretion:
18.104.22.168.1. Terminate this Agreement and use of the Service and the Website;
22.214.171.124.2. Suspend for any definite or indefinite period of time, Your use of the Service and the Website; and
126.96.36.199.4. Take any of the actions in sub-clauses 188.8.131.52.1,184.108.40.206.2 and 220.127.116.11.3 of this clause in respect of any or all other persons whom You have authorized to have access to Your information or Data.
8.4.Termination for Convenience: Mensch wishes to provide stable and useful Service(s) throughout the term of this agreement (but not in any way commits to). However, Mensch retains the right to terminate the Service(s) and this agreement upon thirty (30) days’ advance notice to You for any reason including, Mensch’s decision to cease operating the Service(s).
8.5.Effect of Termination:
8.5.1. Termination of the agreement is without prejudice to any rights and obligations the parties accrued up to, and including the date of termination. On termination of this agreement, You will:
18.104.22.168. Remain liable for any accrued and unpaid charges and amounts which became due for payment prior to termination; and
22.214.171.124. Immediately cease to use the Service(s) and the Website.
8.6.Survival of Clauses: Clauses 3.1 (but only to the extent that payment remains due to Mensch post-termination for fees earned by Mensch during the Term), 4, 5, 6,7.2, 8.3 and 8.4 and 9 survive the expiry or termination of the agreement
8.7. Following expiration or termination for any reason, Mensch shall make all data and information imputed by You through the Services available to You for a 30 day period following such termination, in form reasonably acceptable to You.
9.1. Entire agreement:
9.1.1. This agreement, supersedes and extinguish all prior agreements, representations (whether oral or written) and understandings and constitutes the entire agreement between You and Mensch relating to the Service and the other matters dealt with in these Terms.
9.2.Waiver:If either party waives any breach of these Terms, such waiver will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
9.3.Delays:Neither party will be liable for any delay or failure in performance of its obligations under this agreement if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
9.4.No Assignment:This agreement may not be assigned by You by operation of law or otherwise, without the prior written consent of Mensch. Such consent is not required in connection with the assignment of this agreement pursuant to a merger, acquisition or sale of all or substantially all of the assigning party’s assets.
9.5.Governing law and jurisdiction: The validity, construction and interpretation of the agreement will be governed by the internal laws of the State of California, excluding its conflict of laws provisions. Any controversy, claim or action arising out of or relating to this agreement, shall be subject to the exclusive jurisdiction and venue of the federal and state courts located in Santa Clara County, California, and the parties consent to the personal jurisdiction of such courts over them.
9.6.Severability:If any part or provision of this agreement is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this agreement will be binding on the parties.
9.7.Notices:Any notice given under this agreement by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Mensch must be sent to email@example.com. Notices to You will be sent inside the Account or to the email address that You provided when registering for access to the Service.
9.8.Rights of Third Parties: A person who is not a party to the agreement has no right to benefit under or to enforce any of the terms of the agreement.