Terms of Service
These Terms of Service (this “Agreement”) set out the terms on which CometChat Inc., a Delaware corporation (“CometChat”, “we” or “us”) will provide access to and use of certain services available on or through its website (collectively, the “Service”) to you, a user of the Service (“you” or “User”). You should read this Agreement carefully. By indicating acceptance of this Agreement or by otherwise using the Service, you are entering into a legally binding agreement with us (and 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 Service on behalf of an organization, you represent that you have the right to bind such organization to this Agreement, and the terms “User” and “you” 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 Sections 1.c, 4-9, 11-13, 16 and 17 of this Agreement shall apply to your use of the Service (and references to “you” and “User” in those Sections shall also apply to you, the Third Party User). If you do not agree to these terms and conditions, you must not use the Service.
Each of CometChat’s customers may be subject to one or more separate subscription or other written agreements with CometChat (each, a “Subscription Agreement”). This Agreement applies only to use of CometChat’s websites and the Service and in no way affects the terms and conditions of any Subscription Agreement.
THIS AGREEMENT CREATES A BINDING LEGAL AGREEMENT BETWEEN YOU AND COMETCHAT, AND INCLUDES AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY. PLEASE READ THIS AGREEMENT CAREFULLY.
1. Nature of the Service
- General: The Service allows Users to access certain information or other content (which may include data, text, photos or other materials or content) related to real-time voice, video and text chat, and certain data or other information associated therewith, or related topics.
- Third Party Systems: In order to utilize certain functionality provided by the Service, User may need to authorize the Service to access information in User’s accounts on relevant third party systems. This is often accomplished using APIs made available by those third party systems or other mechanisms. User represents and warrants to CometChat that it shall only authorize such access for accounts it controls, and only to the extent permitted by the relevant system providers. User acknowledges that the Service, including certain analyses or other information provided thereby, may depend on access to such third party systems and relevant information therein in order to continue to function as intended, and that any discrepancies or changes in the above-referenced APIs, authorizations or permitted access can negatively impact the Service and its output. CometChat makes no representation, warranty or endorsement regarding any third party system with which the Service may interact, and shall not be liable or responsible therefor in any way.
- Children: The Service is not directed to users under the age of 18. The Service does not knowingly collect personal information from children under the age of 18. If you are under the age of 18, you are not permitted to register as a User or to send personal information to CometChat.
- Third Party Users: You may permit your third-party customers or end users (“Third Party Users”) to access certain functionality of the Service, 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 Service solely for his or her own personal use, and (B) has agreed in writing to be bound by the restrictions and other limitations set forth in Sections 1.c, 4-9, 11-13, 16 and 17 of 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.
In order to use certain parts of the Service, 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 Service 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. You represent and warrant to us that you will provide us with accurate, current and complete registration information. You are responsible for your registration, and for all use of the Service using any User credentials or passwords issued to you or chosen by you. You will keep all such credentials and passwords confidential.
3. Fees and Orders
- General Payment Terms: The Service, or certain features of the Service, may be available only if certain subscription fees or other fees (collectively, “Fees”) are paid by you, or for your benefit (e.g., we may permit a third party to pay certain Fees for your benefit). If you purchase any subscription plan for the Service or certain features of the Service, you must pay any applicable Fees. 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 credit card or other payment information in the event any information provided becomes invalid or incomplete. If any charge is rejected by our bank or payment providers, you are still liable to pay the 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 reasonable costs of collection, including attorneys’ fees, if we deem it necessary to take any legal or administrative action to collect unpaid Fees. We reserve the right to accept, refuse or cancel any orders placed through the Service, without liability or justification. We will refund you in case your order was cancelled by us after your credit card or other payment method has been charged.
- Subscription Plans: We offer paid subscription plans that allow you to access additional or exclusive features or content made available through the Service. If you purchase a subscription plan, your subscription will continue in effect and renew on a recurring basis, monthly or annually, unless and until you cancel your subscription. If you provide a credit card or other payment method accepted by CometChat and sign up for a monthly or annual paid subscription through the Service, you are expressly agreeing that CometChat (or our designated third-party payment provider) is authorized to charge your payment method for the applicable subscription fee (plus any applicable taxes) on a recurring monthly or annual basis, as applicable. CometChat reserves the right to change the terms of your subscription, including price, from time to time, effective as of the beginning of your next billing period following the date of the change. If CometChat changes the subscription fee or other charges for your subscription, we will give you advance notice of these changes. If you purchase a subscription from us with promotional pricing, it will renew at non-promotional pricing unless you cancel your subscription prior to renewal (as may also be explained in more detail at the time of your purchase at the promotion pricing).
- Cancellation of Auto-Renew Subscription Plans: You must cancel your subscription at least three (3) days before your next renewal date in order to avoid the next billing (subscription) period. You may cancel your subscription by logging into your account on the Service and cancelling it there (if such functionality is provided therein), or you may send us written notice of cancellation to [email protected] specifying that you would like to cancel your subscription for the Service. If you cancel your subscription, the cancellation will be effective upon your receipt of confirmation from CometChat of the cancellation.
- Free Trial: If we offer you a free trial, once your free trial period ends, we will begin billing your payment method for your periodic subscription fees (plus any applicable taxes), unless you cancel at least three (3) days prior to the end of your free trial.
4. Your Content
You retain your rights in all information or other content (which may include data, text or other materials or content) which you input or upload to the Service or authorize the Service to access in your accounts on relevant third party systems as described in Section 1.b above (collectively, “Your Content”), subject to the rights granted below and our rights in Our Property (as defined below). You hereby grant and agree to grant us a worldwide, non-exclusive, royalty-free, fully-paid, transferable license, with the right to sublicense through multiple tiers, to use, reproduce, manipulate, display, transmit and distribute Your Content solely in connection with the Service, and improving and developing the Service. In addition, you agree that CometChat may analyze Your Content, and similar information or other content of other CometChat customers, to create aggregated or anonymized statistics or data that do not identify User or any individual, and CometChat may during and after the term of this Agreement use and disclose such statistics or data in any manner in its discretion. Except as specified otherwise in this Agreement, you shall be solely responsible for providing, updating, uploading and maintaining Your Content. CometChat shall operate the Service in a manner that provides reasonable information security, consistent with generally accepted industry standards, for Your Content, using appropriate administrative, physical and technical safeguards.
You represent and warrant that you own all proprietary rights in Your Content or, with respect to any of Your Content you do not own, that you have the full authority and right to input, upload and/or authorize the Service to access Your Content, and to grant the licenses and rights you have granted in this Agreement, and that your inputting, uploading and/or authorization to access Your Content, and the exercise by us of the licenses and rights granted by you herein, shall not infringe any third party intellectual property or proprietary 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.
On termination of your account, or this Agreement, we have no obligation to return any of Your Content to you, so you should retain copies of all of Your Content.
5. Our Ownership Rights
The Service, including all aspects of the CometChat websites and software applications and mobile applications (including Our Property), is the property of, and owned by, CometChat or its licensors. All the software, algorithms, functionality, inventions, concepts, text, images, sound, music, videos, marks, logos, compilations, content and technology used to deliver the Service or otherwise embodied in, displayed through, or provided directly or indirectly (e.g., emails or other communications from us to you) via, the Service are “Our Property.” For clarity, any formats, templates, methodologies, rules, algorithms and software used to create Your Content are Our Property. Except as otherwise expressly permitted by this Agreement, any use, copying, making derivative works, transmitting, posting, linking, deep linking, framing, redistribution, sale, decompilation, modification, reverse engineering, translation or disassembly of Our Property is prohibited. You acknowledge that Our Property has been created, compiled, developed and maintained by us at great expense of time and money such that misappropriation or unauthorized disclosure or use of Our Property by others for commercial gain would unfairly and irreparably harm us in a manner for which damages would not be an adequate remedy, and you consent to our obtaining injunctive relief to restrain any breach or threatened breach of this Agreement, without any requirement to post bond. You may be subject to criminal or civil penalties for violation of this paragraph.
The marks COMETCHAT, INSCRIPTS, and any associated logos, are registered or unregistered trademarks or service marks of CometChat or its licensors. You may not use them, or any of our other marks or logos, in any manner, including any use that is likely to cause confusion or that disparages or discredits us, without our consent; provided that, during your subscription term you may publicly reference that you are a customer of CometChat and the Service. The Service may also feature the trademarks, service marks, and logos of third parties, and each owner retains all rights in such marks. Any use of such marks, or any others displayed on the Service, will inure solely to the benefit of their respective owners.
Subject to the terms and conditions herein, we grant you the non-exclusive, limited, revocable right to access and use Our Property solely to the extent necessary for you to use the Service for your own internal business purposes (or in the case of a User that is a Third Party User or other individual, for your own personal purposes) (“Permitted Purpose”), as permitted by this Agreement. We reserve all other rights. For clarity and without limiting other obligations herein, Users shall not distribute or otherwise commercialize Our Property.
6. Use of the Service
Subject to the terms and conditions herein, you are permitted to use the Service solely for your own Permitted Purpose (as defined above).
You must not (a) create, upload or transmit Your Content if you do not have the right to do so; (b) create, upload or transmit Your Content or use the Service in any way that would violate any law or the rights of any person; (c) impersonate any person or entity, or forge or manipulate headers to disguise the origin of any of Your Content; (d) except as otherwise expressly permitted by this Agreement, harvest or otherwise collect information about others from the Service; (e) take any action that imposes or may impose an unreasonable or disproportionately large load on the Service or its infrastructure, or bypass any measures we may use to prevent or restrict access to any portion of the Service (or other accounts, networks or services connected thereto); (f) use manual or automated software, devices, or other processes to “crawl,” “scrape” or “spider” any of the Service or otherwise to copy, obtain, propagate, distribute or misappropriate any information or other content from the Service, including any of Our Property; (g) distribute or otherwise make available any information or other content obtained through the Service to any third party, except as expressly permitted herein; (h) otherwise interfere in any manner with the use or operation of the Service; or (i) use the Service in the development, directly or indirectly, of any product, software or service that offers any functionality substantially similar to, or competitive with, the Service.
Your Content must not: (i) be libelous, threatening, abusive, unlawful, illegal or encourage a criminal offense; (ii) contain material from other copyrighted works without the written consent of the owner of such copyrighted material; (iii) infringe any copyright or violate any property rights, rights of privacy or publicity, or any other rights of any third party; or (iv) contain 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.
If you provide to us (directly or indirectly, and by any means) any comments, feedback, suggestions, ideas, or other submissions related to the Service (collectively “Feedback”), the Feedback will be the sole property of CometChat. 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.
8. Warranty; Disclaimers; Limitations of Liability
- WARRANTY AND WARRANTY DISCLAIMERS: FOR FEE-PAYING USERS, COMETCHAT WARRANTS THAT THE SERVICE WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH ITS DOCUMENTATION DURING THE APPLICABLE SUBSCRIPTION TERM; PROVIDED THAT, USER’S SOLE REMEDY AND COMETCHAT’S SOLE LIABILITY OR OBLIGATION FOR A BREACH OF SUCH WARRANTY SHALL BE THAT COMETCHAT SHALL USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY SUCH FAILURE IN ACCORDANCE WITH ITS THEN-STANDARD SUPPORT PRACTICES. FOR FREE-TRIAL OR OTHER NON-FEE-PAYING USERS, THE SERVICE IS PROVIDED “AS IS”, WITH ALL FAULTS. EXCEPT AS EXPRESSLY PROVIDED ABOVE IN THIS SECTION 8, 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 SERVICE OR OUR PROPERTY 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 SERVICE OR OUR PROPERTY. We may pause or interrupt the Service at any time, and you should expect periodic downtime for updates to the Service. No advice or information, whether oral or written, obtained by you from us or through the Service will create any other warranty.
- DISCLAIMER OF INDIRECT DAMAGES: UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM US 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 SERVICE OR OUR PROPERTY, EVEN IF WE HAVE BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
- OVERALL LIABILITY CAP: TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUR MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR OUR PROPERTY, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNTS PAID BY YOU TO US FOR THE SERVICE IN THE PRIOR YEAR (OR, IF YOU ARE A FREE-TRIAL OR OTHER NON-FEE-PAYING USER, TO THE AMOUNT OF $10).
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
9. Cloud Services and Third Party Services
You acknowledge that the Service is hosted by third party cloud providers, which may change from time to time (the “Cloud Providers”), and that your use of the Service is subject to any applicable restrictions or requirements imposed by the Cloud Providers. In addition, if you are a free-trial or other non-fee-paying User, without limitation of the disclaimers and limitations of liability set forth in Section 8, you acknowledge and agree that (a) the price at which we could afford to offer the Service would vary if we provided the Service other than using such cloud services; and (b) we shall not be responsible or liable to you for any act, omission or failure of any Cloud Provider.
You will indemnify and hold us, and our licensors, providers and agents, harmless against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs and expenses (including attorneys’ fees) (collectively, “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 Service (but excluding any Liabilities to the extent caused by our gross negligence or willful misconduct). 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.
Without limitation of the foregoing, if we receive a subpoena or similar requirement to disclose Your Content issued by any court or governmental authority, and we are not a party to the proceeding in question, you will reimburse us for our reasonable costs and expenses of complying with such subpoena, including time spent by our personnel and our attorneys at time and materials rates.
11. Suspension and Termination
You may terminate this Agreement at any time by closing your account and ceasing to use the Service. We reserve the right to suspend your account and/or access to the Service at any time if we believe you are in breach of this Agreement. We reserve the right to terminate this Agreement or to cease to offer the Service at any time on written notice to you (including by email to registered Users or posting on our website), for any reason or no reason; provided that, if we terminate this Agreement for convenience (and not, without limitation, for your breach) and you are a fee-paying User, we will refund to you a pro rata portion of your previously paid subscription fee associated with the then-remaining term of your terminated subscription.
If your account is terminated for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the Service, (c) that the license and rights provided by us under this Agreement shall end, (d) that we reserve the right (but have no obligation) to delete all of Your Content, and (e) that we shall not be liable to you, or any third party, for compensation, reimbursement, or damages for termination of access to your account.
Sections 1.d, 5 and 7-17, any accrued obligations and remedies hereunder, and any other provisions that by their nature should reasonably survive, shall survive the termination or expiration of this Agreement.
12. Modification of Service and Agreement
We reserve the right to modify the Service at any time, without notice to you. We may also from time to time amend this Agreement prospectively. If we do so, we will notify you by email (for registered Users) and posting on our website. You agree that your continued use of the Service constitutes your agreement to the amended Agreement. If you do not agree to any amended Agreement that we publish, you must terminate your account and cease using the Service. Except as set forth above, this Agreement may be amended or modified only by an express writing signed by CometChat.
13. 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 conflict of law principles that would apply another law. The application of the United Nations Convention of Contracts for the International Sale of Goods is hereby excluded.
- Default Approach for Disputes: Except to the extent a User dispute is covered by Section 13.c below, User hereby consents to jurisdiction and venue in any federal or state court located within the State of Colorado, USA, and User shall not bring any suit, claim or other cause of action except in a court located within the State of Colorado, USA.
- Approach for Disputes with Certain Customers: (I) This Section 13.c applies to User disputes to the extent that either (a) User’s principal place of business, or jurisdiction of incorporation/formation, is outside the United States in a country that is a signatory or ‘Contracting State’ to The New York Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Awards (see http://www.newyorkconvention.org/countries), or (b) CometChat opts, in its sole discretion, for the dispute to be covered by this Section 13.c. (II) CometChat (and its affiliates) and User hereby consent to resolve any applicable dispute arising out of or related to this Agreement by submission of such dispute to binding and final arbitration in accordance with the Rules of Arbitration (the “Rules”) of the International Chamber of Commerce, by an arbitral tribunal composed of one or more arbitrators appointed in accordance with the Rules. Arbitration proceedings may be commenced by either party by providing written notice to the other party. All arbitration proceedings will be held in Denver, Colorado, USA (provided that proceedings may be conducted at another location or by telephone conference call with the consent of the parties and the arbitrator(s)). All arbitration proceedings will be conducted in the English language. The arbitrator(s) may render early or summary disposition of some or all issues, after the parties have had a reasonable opportunity to make submissions on these issues. The parties agree that the arbitrator(s) will be empowered to grant injunctive or other equitable relief, but will have no authority to award punitive damages. The above obligation to arbitrate shall extend to any claim by or against any affiliate, agent, officer, employee, director, manager, member or shareholder of a party. (III) Notwithstanding clause II above, (a) either party may initiate litigation in any court of competent jurisdiction seeking any preliminary or temporary remedy in equity, including the issuance of a preliminary or temporary injunction; and (b) judgment on the arbitration award granted in any arbitration hereunder may be entered in, and the parties shall have the right to seek enforcement thereof by, any court of competent jurisdiction (and any additional expenses incurred in enforcing the arbitration award will be charged against the party that resists its enforcement); and (c) the parties hereby consent to the non-exclusive jurisdiction of any federal or state court located in State of Colorado, USA, and waive any objections of improper venue or inconvenient forum, in connection with clauses (III)(a) or (III)(b) above.
14. Force Majeure
In no event will we be liable for any failure to comply with this Agreement to the extent that such failure arises from factors outside our reasonable control.
15. 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. In addition:
- You represent and warrant that you are not engaged in development of defense articles, the provision of defense services, or any activities prohibited by U.S. export control regulation, including the development of nuclear facilities not licensed by the U.S. Government; chemical, biological, or nuclear weapons; rocket, missile or unmanned aircraft systems, or terrorist activities, and further that you will not permit or facilitate the use of the Service by any person or entity engaged in such activities;
- You represent and warrant that you are not a resident of or an entity organized under the laws of Cuba, Crimea, Iran, North Korea or Syria, and that you will not facilitate or permit the use of the Service in Cuba, Crimea, Iran, North Korea, or Syria, or any other location prohibited by U.S. law; and
- You represent and warrant that you are not, and are not owned or controlled by, a person or entity that is the subject of any sanctions administered or enforced by any relevant sanctions authority, including the Office of Foreign Assets Control of the U.S. Department of Treasury, nor will you permit or facilitate the use of the Service by any such person or entity.
We are based in the United States. Access to the Service may not be legal by certain persons or in certain countries. If you access the Service from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
17. Miscellaneous Provisions
No delay or omission by us in exercising any of our rights occurring upon any noncompliance or default by you with respect to any of the terms and conditions of this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by us of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein. No waiver will be binding on us unless made in an express writing signed by us. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law. Except as otherwise expressly provided herein, this Agreement sets forth the entire agreement between us and you regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter. Your registration, this Agreement and your rights and obligations hereunder are not assignable, or otherwise transferable or delegable, by you to any third party without our prior written consent in our sole discretion. Any purported assignment, transfer or delegation without such consent will be null and void. We may assign or otherwise transfer or delegate this Agreement (including any rights or obligations hereunder), including to any purchaser of our business, from time-to-time in our sole discretion. This Agreement will be binding upon and inure to the benefit of the parties’ successors and permitted assigns. 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. As used herein and unless the intent is expressly otherwise in a specific instance, the terms “include,” “includes” or “including” shall not be limiting and “or” shall not be exclusive. Any section headings herein are for convenience only and do not form a part of, and will not be used in the interpretation of, the substantive provisions of this Agreement. You agree that email to your email address on record will constitute formal notice under this Agreement. There shall be no third party beneficiaries to this Agreement.
Version: July 01, 2019