These Online Terms of Service (“Agreement”) sets out the terms on which CometChat Inc., a Delaware corporation (“CometChat”, “we”, “our”, or “us”) will provide you (also referred to as “your”, “user”, or “Subscriber”) access to and use of certain services available on or through our website (www.cometchat.com), or the other domains, websites, products, mobile applications, services provided by us (collectively, “Services”). You and CometChat are referred to herein individually as a “Party” and jointly as the “Parties.”
By indicating your acceptance to this Agreement, or otherwise accessing or using the Services, you are entering into a legally binding agreement with us. You hereby represent that you are of legal age, and are otherwise fully able and competent, to enter into a binding agreement. If you are using the Services on behalf of an organization, you represent that you have the right to bind such organization to this Agreement, and the terms “you” and “user” will include both you, the individual user, and such organization. If you are a Third Party User (as defined herein), you agree that the restrictions and other limitations in this Agreement shall apply to your use of the Services. We may revise and update this Agreement from time to time without prior notice to you and will post the updated Agreement to the Services. ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Your continued use of the Services after the updated Agreement is posted to the Services constitutes your acceptance to be bound by any changes.
1. Nature of the Service
The Services allow you to access certain information or content (which may include data, text, photos, videos, user or visual interfaces, logos, designs, or other materials or content). On the condition that you comply with all obligations under this Agreement, CometChat hereby grants you a limited, non-exclusive, revocable, non-assignable, non-transferable right to view and use the Services for your personal or commercial use. Nothing in this Agreement is intended to, or may be construed as, conferring by implication, estoppel or otherwise, any license or other grant of right to use any patent, copyright, trademark, service mark, or other intellectual property of CometChat or any third party, except as expressly provided in this Agreement. You agree not to remove, obscure, or modify any trademark legend or copyright notice, author attribution, or other notice placed on or contained within the Services. All rights not otherwise expressly granted by this Agreement are reserved to CometChat. We reserve the right to modify the Services, in our sole discretion, at any time.
Third Party Users
You may permit your third-party customers or end users (“Third-Party Users”) to access certain functionality of the Services, subject to applicable restrictions or limitations set forth herein, provided that: (i) all acts and omissions of Third-Party Users shall be deemed to be your acts and omissions, and you shall be responsible for such acts and omissions; and (ii) each such Third-Party User (A) is permitted to access the Services solely for your commercial use, and (B) has agreed in writing to be bound by the restrictions and other limitations set forth in this Agreement. You shall maintain written records relating to such access (including written agreements with Third-Party Users) and make such records available to CometChat upon written request.
CometChat may make certain new features or functions available to you and will endeavor to identify such features or functions on the Services (“Beta Features”). Although CometChat will strive to provide support services for the Beta Features, you acknowledge and understand that Beta Features are in a development and testing stage and that (i) Beta Features and any functionality arising from such Beta Features may change or be discontinued, at any time, without prior notice to you; (ii) Beta Features may not function properly and/or without interruption and CometChat has no obligation to correct any defects related to the Beta Features; (iii) CometChat’s service level commitments do not apply to your use of the Beta Features; (iv) CometChat is not responsible for any issues or disruptions related to your use of the Beta Features, including such issues that disrupt your access and use of the Services; (v) your sole remedy for any issues or disruptions arising from the Beta Features is to stop using the Beta Features; and (vi) CometChat makes no representations or warranties, whether oral or written, regarding the Beta Features.
The Services include a proprietary real-time voice, video and text chat software platform developed by CometChat (the “Software”) and in order to use the Software, you may be required to provide us with your first name, last name, title, name of organization, and other contact information, create a password and register with us. To the extent you are using the Software on behalf of an organization, you may need to also provide us with information in order to confirm, or permit us to confirm, any relationship between you and such organization. We may also request additional information from you from time to time. You represent and warrant to us that you will provide us with accurate, current and complete registration information. You are responsible for keeping your registration information up-to-date. You will keep your credentials and passwords confidential, and are strictly responsible for all use of the Software using your credentials or passwords.
Certain features of the Software are limited to paying users. You, or a third party for your
benefit, must purchase a subscription and pay the applicable subscription fees (“Subscription Fee”) to access the full breadth of the Software. The Subscription Fees, overage fees, or other applicable fees (collectively, “Fees”) are identified on our website for your review. Unless we separately agree with you to receive payment by another means, you will provide us (or our designated third-party payment provider) with accurate and valid credit card or other payment information and update your payment
information in the event any information provided becomes invalid or incomplete. If you elect a subscription payment plan offered by us requiring annual or other payments in advance, you acknowledge and agree that such amounts are non-cancellable and non-refundable, except as expressly provided otherwise in this Agreement, including Section 11.2. Any amounts due to us are exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind (whether foreign, federal, state, local or other). You shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on CometChat’s U.S. income), which may be included on the invoice we send you related to the owed fees. You agree to gross-up any payments due to us for any tax related withholding or deduction required by applicable laws, such that you pay us the net amount owed. You will indemnify, defend, and hold CometChat harmless from any such taxes, fines, or interest for which you are responsible under this Agreement or applicable law.
If we offer you a free trial, unless you cancel at least three (3) days prior to the end of the free trial, we will automatically convert your free trial into a subscription and begin billing the payment method you provide to us, as described above in Section 3.1.
If any charge is rejected by our bank or payment providers, you are still liable to pay the applicable Fees. We retain the right to charge interest on any overdue balance at the rate of 1.5% per month, or the maximum amount permitted by law (if lower). You will also be responsible for our costs of collection, including reasonable attorneys’ fees. We reserve the right to refuse or cancel any subscriptions created through the Services, without liability or justification. We will refund you in case your subscription was cancelled by us after your credit card or other payment method has been charged.
Cancellation of Auto-Renew Subscription Plans
If you maintain a subscription, you must cancel your subscription at least three (3) days before your next renewal date in order to avoid the next billing period. You may cancel your subscription by logging into your account on the Services and cancelling it there (if such functionality is provided therein), or you may send us written notice of cancellation to firstname.lastname@example.org specifying that you would like to cancel your subscription for the Software. If you cancel your subscription, (i) no refund will be applicable, and (ii) the cancellation will be effective upon your receipt of confirmation from CometChat of the cancellation, unless you elected an annual or other pre-paid subscription payment plan in which case your cancellation will be effective only when the pre-paid subscription plan term has expired. For example, if you subscribe to an annual pre-paid plan, you acknowledge and agree that the pricing for such subscription plan was based on your commitment to pay for the full annual period, and CometChat may retain such amounts paid to it even if you cancel before the term expires.
4. Your Data
All data and information which you or any Third-Party User inputs into, submits or transmits to the Software (“Your Data”) is stored in a private and secure fashion, and will not be used by CometChat except as permitted. You hereby grant to CometChat a limited, non-exclusive, non-transferable, royalty-free right to use, reproduce, manipulate, display, transmit and distribute Your Data solely in connection with providing the Services to you, performing its obligations and exercising its rights under this Agreement, and maintaining, improving and developing the Services. In addition, CometChat may analyze Your Data, and data or other content or information of other customers, to create aggregated or anonymized statistics or data that do not identify you or any individual, and CometChat may during and after the Term use and disclose such statistics or data in its discretion, subject to applicable laws and regulations. Except as specified otherwise in this Agreement, you shall be solely responsible for providing, updating, uploading and maintaining all of Your Data. The content of Your Data shall be your sole responsibility. CometChat shall operate the Services in a manner that provides reasonable information security for Your Data, using commercially reasonable data backup, security, and recovery protections.
Right to Your Data
CometChat acknowledges and agrees that as between you and CometChat, you shall retain all right, title and interest in and to Your Data, and this Agreement in no way conveys to CometChat any right, title or interest in Your Data other than the limited right to use Your Data in accordance with the terms and conditions herein.
You represent and warrant that you own all rights in and to Your Data or, with respect to any of Your Data you do not own, you have the authority to input and upload Your Data to the Services, and grant the rights provided under this Agreement. You agree that Your Data and its use hereunder shall not infringe any third-party intellectual property rights, nor violate any rights of privacy or publicity, nor be defamatory, libelous, vulgar, profane or obscene, nor violate any law or other right, privilege or interest of any third party.
You shall not (a) transmit or upload Your Data if you do not have the right to do so; (b) transmit or upload Your Data that is libelous, threatening, abusive, unlawful, illegal or encourages a criminal offense; (c) transmit or upload any software viruses, malware, spyware or any other code, file or program that is designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment; (d) otherwise interfere in any manner with the use or operation of the Services; or (e) use the Services in the development, directly or indirectly, of any product, software or service that offers any functionality substantially similar to, or competitive with, the Software.
The Health Insurance Portability and Accountability Act of 1996 and related regulations (“HIPAA”) imposes rules to protect certain personal health information or “PHI” as that term is defined under HIPAA. If Subscriber is subject to HIPAA and providing or processing any PHI in connection with the Services that CometChat has designed to be, and identified as, a HIPAA compliant Service in the Documentation or Exhibit A, then prior to accessing or using such Services, Customer must notify CometChat in writing thereof and enter into a Business Associate Agreement (“BAA”). Customer is solely responsible for determining whether it or any of its affiliates are subject to HIPAA. Unless expressly noted otherwise, Services not listed on Exhibit A, are not designed to be HIPAA compliant and will not be subject to any HIPAA or BAA related obligations.
5. CometChat Technology
You acknowledge and agree that as between you and CometChat, all right, title and interest in and to the Services (including the data, information, text, images, designs, sound, music, videos, marks, logos, compilations (meaning the collection, arrangement and assembly of information) and other content on or made available through the Services, other than Your Data), any related documentation, the CometChat Technology and all improvements and derivatives of the foregoing (including all trade secrets and other intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain owned by CometChat or its licensors or other providers, and this Agreement in no way conveys any right, title or interest to you in the Services or the CometChat Technology other than a limited right to use the Services in accordance with the terms and conditions herein. No right or license is granted hereunder to you under any trademarks, service marks, trade names or logos. You shall not remove any proprietary notices or legends in the CometChat Technology, any output thereof, or related documentation. As used herein, “CometChat Technology” means all of CometChat’s proprietary technology (including the Software, Beta Features, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Subscriber by CometChat in providing the Services.
The Services and CometChat Technology are copyrighted as a collective work under United States copyright laws, and are protected by other laws. Trademarks, logos, and service marks displayed on the Services are registered and/or unregistered trademarks of CometChat, its licensors or content providers, or other third parties. You acknowledges that CometChat is the exclusive owner of the Services and CometChat Technology. Any unauthorized use of our intellectual property, including our marks, our copyrighted material, and our trade dress, is strictly prohibited and may be prosecuted to the fullest extent of the law.
License to CometChat Technology
Subject to the terms and conditions herein, and the payment of all incurred Fees (if applicable) we grant you a non-exclusive, limited, revocable right to access and use the CometChat Technology as necessary for your use of the Services or in the case of a Third-Party User, for their business purposes. We reserve all other rights. For clarity, Third-Party Users shall not distribute or otherwise commercialize the CometChat Technology.
Any comments, feedback, suggestions, ideas, or other submissions related to the Services (collectively “Feedback”) that you provide to us, you grant CometChat an irrevocable, worldwide, full-paid-up, assignable right and license to the Feedback. We will be entitled to use, reproduce, disclose, publish, distribute, and otherwise exploit in any manner, all Feedback, without restriction and without compensating you in any way. We have no obligation to maintain any Feedback in confidence, or to respond to any Feedback.
7. Third-Party Services
Cloud Providers and Third-Party Services
Third Party Systems
In order to utilize certain functionality provided by the Services, you may need to authorize the Services to access information in your accounts on relevant third-party systems. This is often accomplished using APIs made available by those third-party systems or other mechanisms. You represent and warrant to CometChat that it shall only authorize such access for accounts it controls, and only to the extent permitted by the relevant system providers. CometChat makes no representation, warranty or endorsement regarding any third-party system with which the Services may interact, and shall not be liable or responsible therefor in any way.
8. Disclaimer of Warranties
TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMETCHAT MAKES NO PROMISES ABOUT THE SERVICES. THE SERVICES ARE PROVIDED “AS IS”, WITH ALL FAULTS. WE DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: (i) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; (ii) THAT THE SERVICES OR COMETCHAT TECHNOLOGY WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; AND (iii) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICES OR COMETCHAT TECHNOLOGY. WE MAY PAUSE OR INTERRUPT THE SERVICES AT ANY TIME, AND YOU SHOULD EXPECT PERIODIC DOWNTIME FOR UPDATES TO THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICE WILL CREATE ANY OTHER WARRANTY.
9. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL WE BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICES OR COMETCHAT TECHNOLOGY, EVEN IF WE HAVE BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. OUR MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICES OR COMETCHAT TECHNOLOGY, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU TO US DURING THE PRIOR TWELVE (12) MONTHS (OR, IF YOU HAVE NOT SUBSCRIBED, TO THE AMOUNT OF $10).
YOU WILL INDEMNIFY AND HOLD US, AND OUR LICENSORS, PROVIDERS AND AGENTS, HARMLESS AGAINST ANY AND ALL LIABILITIES ARISING OUT OF OR RELATED TO YOUR (OR ANY THIRD PARTY USER’S) BREACH OF THIS AGREEMENT OR YOUR (OR ANY THIRD PARTY USER’S) USE OF THE SERVICES. WE RESERVE THE RIGHT TO ASSUME THE SOLE CONTROL OF THE DEFENSE AND SETTLEMENT OF ANY THIRD-PARTY CLAIM, ACTION, SUIT OR PROCEEDING FOR WHICH YOU ARE OBLIGED TO INDEMNIFY US. YOU WILL COOPERATE WITH US WITH RESPECT TO SUCH DEFENSE AND SETTLEMENT.
We reserve the right to suspend your access to the Services at any time if we reasonably believe (i) you are in breach of this Agreement, or (ii) your (or a Third-Party User’s) access or use of the Services violates any law or regulation or is disrupting other subscribers’ access to or use of the Services.
We may terminate this Agreement or stop offering the Services at any time upon written notice to you (including by email or posting on our website), provided that, if we terminate this Agreement for convenience (and not, without limitation, for your breach) and you have a pre-existing subscription to the Services, we will refund to you a pro rata portion of your pre-paid Subscription Fee associated with the remaining term of your terminated subscription. Upon Termination, you agree: (a) we have no obligation to return any of Your Data to you; (b) we have the right (but have no obligation) to delete all of Your Data; (c) to immediately stop using the Services; (d) that the rights provided under this Agreement to you are revoked in entirety; (e) that we shall not be liable to you, or any third party, for compensation, reimbursement, or damages for termination of access to the Services, and (f) you will remain liable for any previous use of Services, unless prohibited by applicable law.
12. Governing Law and Disputes
Choice of Law
This Agreement and any dispute arising out of or related to this Agreement shall be governed by and interpreted and construed in accordance with the laws of the State of Delaware, USA, without regard to any conflicts of law.
Default Approach for Disputes
You hereby consent to jurisdiction and venue in any federal or state court located within the State of Colorado, USA, and you shall not bring any suit, claim or other cause of action except in a court located within the State of Colorado, USA.
13. Force Majeure
We shall not be liable or responsible for any failure or delay in fulfilling or performing any provision of this Agreement to the extent such failure or delay is caused by or results from any act, circumstance or other cause beyond our reasonable control, including acts of God, flood, fire, earthquake, explosion, global pandemic, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable technology or components, telecommunication breakdown or power outage.
14. Compliance with Laws
You will comply with all laws and regulations applicable to your activities under or in connection with this Agreement, including without limitation United States export control laws, regulations and executive orders.
15. Miscellaneous Provisions
No waiver by either Party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by such Party.
Except as otherwise expressly provided in writing, this Agreement sets forth the entire agreement between you and us regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter.
You shall not assign or transfer any rights or obligations under this Agreement without the prior written consent from CometChat. A change in control constitutes an assignment under this Agreement.
Relationship of the Parties
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise or employment relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction; provided that, the Parties shall negotiate in good faith potential modifications to this Agreement to most closely reflect their original intent for the invalid, illegal or unenforceable provision.
This Agreement may be executed electronically, and your electronic assent or use of the Service shall constitute execution of this Agreement. You agree that the electronic text of this Agreement constitutes a writing and your assent to the terms and conditions hereof constitutes a “signing” for all purposes.
You agree that an email to your email address on record will constitute formal notice under this Agreement.
There are no third-party beneficiaries to this Agreement.
Third-Party Beneficiaries: There are no third-party beneficiaries to this Agreement.
HIPAA Compliant Services
The following CometChat Pro features are HIPAA compliant:
Text & Media Chat Messaging
Voice Calling & Conference
Video Calling & Conference
Features that connect to third-party software are not HIPAA compliant, including, but not limited to, extensions, webhooks and bots.
Last revised on: July 20, 2023