PLEASE READ THESE SUBSCRIPTION TERMS AND CONDITIONS CAREFULLY. These Subscription Terms and Conditions (the “Agreement”), including any Order(s) incorporating the Agreement are entered into between CometChat Inc., a Delaware corporation (“CometChat”) and you (also referred to as “Subscriber”) (each a “Party” and collectively, the “Parties”), related to Subscriber’s access and use of the Software. The Agreement shall be effective on the applicable Order Effective Date.
1.1. Grant of Rights. As set forth in an Order, executed by the Parties, CometChat will grant Subscriber a limited, non-exclusive, non-transferable right for Users to access and use CometChat’s cloud-hosted real-time voice, video, and text chat software platform (the “Software”), solely for Subscriber’s business purposes during the Term. A “User” shall mean an employee or independent contractor of Subscriber. Subscriber shall be bound by any further restrictions set forth in the Order, which may include limitations on the number or type of Users or on data storage or transfer. All rights not expressly granted to Subscriber are reserved by CometChat and its licensors or other providers. There are no implied rights.
1.2. Third-Party Users. Subscriber may permit its third-party customers or end users (“Third-Party Users”) to access certain functionality of the Software, 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 those of Subscriber, and Subscriber shall be responsible therefore; and (ii) each such Third-Party User (A) is permitted to access the Software solely for Subscriber’s commercial use, and (B) has agreed in writing to be bound by the restrictions and other limitations set forth in this Agreement. Subscriber 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.
1.3. Restrictions. Subscriber shall not (and shall not allow any User or Third-Party Users): (a) use the Software for the benefit of any third party, or to develop or market any product, software or service that is functionally similar to or derivative of the Software, or for any other purpose not expressly permitted herein; (b) permit any non-User to access or use the Software; (c) sell, distribute, rent, lease, service bureau, post, link, disclose or provide access to the Software, directly or indirectly, to any third party; (d) alter, modify, create derivatives (or compilations or collective works) of, debug, reverse engineer, decompile, disassemble or otherwise attempt to derive or gain access to any underlying software (including source code) or technology associated with the Software; or (e) use any robot, spider, scraper or other automated means to access the Software, or engage in any scraping, data-mining, harvesting, screen-scraping, data aggregating or indexing of the Software. All acts and omissions of Users shall be deemed to be those of Subscriber, and Subscriber shall be responsible therefor. Subscriber shall keep all passwords, keys, certificates, access codes or other login information (collectively, “Passwords”) safe and secure, and shall be responsible for all use of the Software using Passwords issued to Subscriber and Users. Subscriber shall notify CometChat immediately of any actual or suspected unauthorized use of its Passwords for the Software. Without limiting any of its other rights or remedies, CometChat reserves the right to suspend any User’s right to access the Software if CometChat reasonably believes that such User has materially violated the restrictions and obligations in the Agreement (in which case, it shall provide Subscriber prompt written notice of such suspension), or to protect against fraudulent or suspected fraudulent activity. For purposes of this paragraph, any references to “Software” shall also include any related documentation provided or made available by CometChat to Subscriber.
1.4. Support Services. Subject to the terms and conditions herein, CometChat will perform for Subscriber during the Term the technical support services specified in an Order (the “Support Services”). For the avoidance of doubt, CometChat shall provide the Support Services only to Subscriber, and shall not be responsible for providing any support or maintenance directly to Third-Party Users or responding to requests or inquiries from Third-Party Users.
1.5. Subscriber Cooperation. Subscriber shall (and shall cause each User to): (a) reasonably cooperate with CometChat in all matters relating to the Software and Support Services; (b) respond promptly to any CometChat request to provide information, approvals, authorizations or decisions that are reasonably necessary for CometChat to provide the Software and Support Services in accordance with this Agreement; and (c) provide such materials or information as CometChat may reasonably request to provide the Software and Support Services and ensure that such materials or information are complete and accurate in all material respects.
1.6 Beta Features. CometChat may make certain new features or functions available to you and will endeavor to identify such features or functions on the Software (“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 Software; (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.
4.1. CometChat Technology. Subscriber acknowledges and agrees that as between CometChat and Subscriber, all right, title and interest in and to the Software (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 Software, other than Subscriber Data, as defined below), 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 the Agreement in no way conveys any right, title or interest in the Software or the CometChat Technology other than a limited right to use the Software in accordance with the terms and conditions herein. No right or license is granted hereunder to Subscriber under any trademarks, service marks, trade names or logos. Subscriber shall not remove any proprietary notices or legends in the Software code, any output thereof, or related documentation.
4.2. Subscriber Data. CometChat acknowledges and agrees that as between Subscriber and CometChat, Subscriber shall retain all of its right, title and interest in and to the Subscriber Data, and this Agreement in no way conveys to CometChat any right, title or interest in the Subscriber Data other than the limited right to use the Subscriber Data in accordance with the terms and conditions herein.
4.3. HIPAA. 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.
5.1. Fees. In consideration of the provision of the Software hereunder, Subscriber shall pay CometChat a subscription fee (the “Subscription Fee”), any overage fees incurred during the Term, and other reasonable fees as set forth in an Order (collectively, “Fees”). CometChat may increase the Subscription Fee for any Renewal Term (as defined in the Order) by providing Subscriber written notice thereof at least thirty (30) days before the start of such Renewal Term, unless otherwise provided in the Order. The initial Subscription Fee is due upon execution of the applicable Order. Thereafter, Fees are payable on receipt of the applicable invoice from CometChat, unless otherwise provided in the Order.
5.2. Taxes. All amounts due under any Order are non-cancellable, non-refundable, and 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) associated with the Support Services, the Software, or Subscriber’s and its Users’ access to and use of the Software. Subscriber shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on CometChat’s U.S. income), which may be invoiced by CometChat from time-to-time. Subscriber will indemnify, defend, and hold CometChat harmless from any such taxes, fines, or interest that Subscriber is responsible under any Order or applicable law (except for taxes on CometChat’s U.S. income or arising out of CometChat’s failure to remit taxes paid to it by Subscriber to the applicable taxing authority).
5.3. Payment Method. Subscriber shall make all payments using the payment method set forth in the Order, without set off, withholding, or deduction of any kind. Subscriber agrees to gross-up payments due to CometChat for any tax related withholding or deduction required by applicable laws, such that CometChat is paid the net amount contemplated under the Order.
5.4. Late Payments. Subscriber shall pay interest on all late payments at the lesser of (a) 1.5% per month or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Subscriber shall reimburse CometChat for all costs and expenses, including attorneys’ fees, incurred in collecting any unpaid amounts owed by Subscriber hereunder.
6.1. Term. The Agreement shall be binding as of the Ordre Effective Date and the term of the Subscription shall commence on the Subscription Start Date and, unless earlier terminated as set forth herein, shall continue for the period agreed in the applicable Order (the “Initial Term”); provided that the term shall thereafter automatically renew for successive periods as and if set forth in an Order (each, a “Renewal Term”), unless either Party provides the other Party at least thirty (30) days’ advance written notice of its desire not to renew prior to the end of the then-current Term. The Initial Term and any Renewal Terms may be collectively and individually referred to as the “Term” herein.
6.2. Termination for Breach. Either Party may terminate any or all Orders (and the Agreement) by written notice thereof to the other Party, if the other Party materially breaches the Agreement and does not cure such breach within thirty (30) days after written notice thereof.
6.3. CometChat Termination. CometChat may terminate any and all Orders (and the Agreement), or suspend or terminate Subscriber’s access to the Software under any or all Orders, at any time, upon notice to Subscriber.
6.4. Effects of Termination; Survival. Upon any termination or expiration of an applicable Order (a) all rights granted to Subscriber hereunder shall terminate and CometChat shall no longer provide access to the Software to Subscriber or perform Support Services for Subscriber; and (b) Subscriber shall cease and cause its Users to cease using the Software. Any obligations that have accrued prior to termination or expiration of the Order shall survive such termination or expiration. In addition, the following Sections, as well as this Section and any other provisions herein which by their nature should reasonably survive, shall survive termination or expiration of the Order: Sections 4, 8.2 and 9-12.
7.1. Data Generally. All data and information which the Subscriber or any User inputs into, submits or transmits to the Software (the “Subscriber Data”) is stored in a private and secure fashion, and will not be used by CometChat except as permitted under this Agreement or otherwise authorized by Subscriber. Subscriber hereby grants to CometChat a limited, non-exclusive, non-transferable, royalty-free right to use, reproduce, manipulate, display, transmit and distribute the Subscriber Data solely in connection with providing the Software to Subscriber, performing its obligations and exercising its rights under the Agreement, and maintaining, improving and developing the Software. In addition, CometChat may analyze Subscriber Data for purposes of improving the Services, and may create aggregated or anonymized statistics or data that do not identify Subscriber or any individual, and CometChat may during and after the Term use and disclose such aggregated and anonymised statistics or data in its discretion, subject to applicable laws and regulations. Except as specified otherwise in the Agreement, Subscriber shall be solely responsible for providing, updating, uploading and maintaining all Subscriber Data. The content of Subscriber Data shall be Subscriber’s sole responsibility. Subscriber is responsible for obtaining all necessary consents from, and providing all necessary notices to, Users in connection with their use of the Software and/or disclosure of any Subscriber Data via the Software. CometChat shall operate the Software in a manner that provides reasonable information security for Subscriber Data, using commercially reasonable data backup, security, and recovery protections.
7.2. Additional Subscriber Responsibilities. Subscriber is solely responsible for all Subscriber Data. CometChat does not guarantee the accuracy, integrity, quality, legality, reliability or appropriateness of Subscriber Data. Subscriber shall not: (a) upload or otherwise create or make available to CometChat or the Software any (i) Subscriber Data that (A) is unlawful, illegal or that violates the rights of any third parties, or (B) it does not have a right to transmit or create due to any law, rule, regulation or other obligation, or (C) constitutes protected health information subject to the Health Insurance Portability and Accountability Act or any regulation, rule or standards issued thereunder, or (ii) material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (b) use, create, upload or otherwise transmit any Subscriber Data that infringes any intellectual property or other proprietary rights of any third party; (c) interfere with or disrupt the Software or servers or networks connected to the Software; or (d) violate any applicable law, rule or regulation, including those regarding export control or privacy.
8.1. CometChat Limited Warranty. CometChat warrants that it will provide the Software in a competent and workmanlike manner. CometChat does not warrant that it will be able to correct all reported defects or that use of the Software will be uninterrupted or error free. CometChat makes no warranty regarding features or services provided by any third parties. CometChat retains the right to modify the Software, including the CometChat Technology, in its sole discretion; provided that doing so does not have a material adverse impact on the Software hereunder. Subscriber’s sole remedy for CometChat’s breach of the warranty in this paragraph shall be that CometChat shall remedy the applicable error, or if CometChat is unable to do so in a timely manner, refund to Subscriber actual damages up to a limit of the Subscription Fees paid for the Software for the period during which the breach of warranty occurred.
8.2. Disclaimer. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8.1, COMETCHAT MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE SOFTWARE OR SUPPORT SERVICES (IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE), INCLUDING ANY WARRANTY (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, (B) THAT THE SOFTWARE OR SUPPORT SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, (C) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE, OR (D) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SOFTWARE.
9.1. Damages Cap. TO THE FULLEST EXTENT PERMISSIBLE BY LAW AND EXCEPT AS OTHERWISE PROVIDED IN SECTION 9.3, A PARTY’S TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SOFTWARE, THE SUPPORT SERVICES, ANY ORDER, OR THE AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID BY SUBSCRIBER TO COMETCHAT DURING THE PRIOR TWELVE (12) MONTHS UNDER THE ORDER GIVING RISE TO THE ACTION.
9.2. Disclaimer of Indirect Damages. TO THE FULLEST EXTENT PERMISSIBLE BY LAW AND EXCEPT AS OTHERWISE PROVIDED IN SECTION 9.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (WHICH MAY INCLUDE LOSS OF DATA, PROFITS OR REVENUE) ARISING OUT OF OR RELATED TO THE SOFTWARE, THE SUPPORT SERVICES, ANY ORDER, OR THE AGREEMENT, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT IT HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
9.3. EXCEPTIONS. THE DAMAGES CAP AND DISCLAIMER IN SECTIONS 9.1 AND 9.2 SHALL NOT APPLY TO EITHER PARTY'S WILLFUL MISCONDUCT OR BREACH OF CONFIDENTIALITY OBLIGATIONS, EITHER PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, SUBSCRIBERS’ BREACH OF SECTION 1.3, OR SUBSCRIBERS INDEMNIFICATION OBLIGATIONS.
9.4. Basis of the Bargain. THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9 ARE A FUNDAMENTAL BASIS OF THE BARGAIN, THAT COMETCHAT HAS SET ITS FEES IN RELIANCE ON THE ENFORCEABILITY OF THESE PROVISIONS, AND THAT THEY SHALL APPLY NOTWITHSTANDING THAT ANY REMEDY SHALL FAIL ITS ESSENTIAL PURPOSE.
10.1. CometChat Indemnification. CometChat shall defend, indemnify and hold harmless Subscriber and its directors, officers, employees and agents (“Subscriber Indemnified Parties”) from and against any third party claims, actions, proceedings, demands, lawsuits, damages, liabilities and expenses (including reasonable attorneys’ fees and court costs) (collectively, “Claims”) to the extent based on any claim that the Software infringes, misappropriates or otherwise violates (collectively, “Infringes” or “Infringement”) any third-party intellectual property or proprietary right.
10.2. Subscriber Indemnification. Subscriber shall defend, indemnify and hold harmless CometChat and its directors, officers, employees, agents and providers (“CometChat Indemnified Parties”) from and against any Claims to the extent arising out of or relating to: (a) Subscriber’s or any User’s use of the Software in breach of the Agreement or violation of any applicable law or regulations; (b) Subscriber’s relationship or agreements with its Users; or (c) the Subscriber Data.
10.3. Indemnification Process. As conditions of the indemnification obligations in Sections 10.1-10.2 above: (a) the applicable Subscriber Indemnified Party or CometChat Indemnified Party (the “Indemnitee”) will provide the indemnifying Party (the “Indemnitor”) with prompt written notice of any Claim for which indemnification is sought (provided that failure to so notify will not remove the Indemnitor’s indemnification obligations except to the extent it is prejudiced thereby); (b) the Indemnitee will permit the Indemnitor to control the defense and settlement of such Claim (provided that, (i) the Indemnitee may participate therein using counsel of its own choice, at its own expense, and (ii) the Indemnitor shall not settle or compromise any such Claim or consent to the entry of any judgment without the prior written consent of the other Party, not unreasonably withheld); and (c) the Indemnitee will reasonably cooperate with the Indemnitor in connection with the Indemnitor’s evaluation, defense and settlement of such Claim. In defending any Claim, the Indemnitor shall use counsel reasonably satisfactory to the other Party.
10.4. Exclusions. CometChat’s obligations in Section 10.1 above shall not apply to any Claim to the extent arising out of or relating to (a) misuse of the Software (including any use not strictly in accordance with the documentation therefor, CometChat’s instructions, and the Agreement), (b) any modification, alteration or conversion of the Software not created or approved in writing by CometChat, (c) any combination of the Software with any computer, hardware, software, service, data not intended for use with or customarily used with the Software, or anything else not provided by CometChat, but only to the extent such claim would not have arisen but for such combination, (d) CometChat’s compliance with specifications or other requirements of Subscriber, or (e) any third party data or information or Subscriber Data. If the Software is or may be subject to a Claim of Infringement described in Section 10.1 above, CometChat may, at its cost and sole discretion: (i) obtain the right for Subscriber to continue using the Software as contemplated herein; or (ii) replace or modify the Software so that it becomes non-Infringing without substantially compromising its principal functions; or (iii) to the extent the foregoing are not commercially reasonable, terminate the Agreement. CometChat’s obligations in this Section 10 shall be CometChat’s sole obligations, and Subscriber’s sole remedies, in the event of any Infringement of intellectual property or proprietary rights by or related to the Software.
11.1. Definition. “Confidential Information” means information that is disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) hereunder during the Term that is clearly labeled or identified as confidential or proprietary when disclosed, or that, under the circumstances, should reasonably be treated as confidential, except that “Confidential Information” shall not include any information that: (a) is or becomes generally known to the public through no fault of, or breach of this Agreement by, the Receiving Party; (b) is rightfully in the Receiving Party’s possession at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (d) is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure. In addition, (i) the terms and conditions of this Agreement, the Software, any related documentation, and CometChat Technology shall be deemed Confidential Information of CometChat, and (ii) the Subscriber Data shall be deemed Confidential Information of Subscriber, in either of case (i) or (ii), regardless of whether or not they are labeled or identified, or would reasonably be considered confidential.
11.2. General Obligations. Each Party agrees that it will during the Term and thereafter: (a) not disclose the other Party’s Confidential Information to any third party (other than as permitted in the last sentence of this paragraph); (b) use the other Party’s Confidential Information only to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement; (c) disclose the other Party’s Confidential Information only to those of its employees and independent contractors who reasonably need to know such information for purposes of this Agreement and who are bound by confidentiality obligations offering substantially similar protection to those in this Section 11; and (d) protect all Confidential Information of the other Party from unauthorized use, access or disclosure in the same manner as it protects its own confidential information of a similar nature, and in no event with less than reasonable care. Notwithstanding the above, this paragraph shall not prohibit: (i) a Party from disclosing Confidential Information of the other Party to the extent required by applicable law, rule or regulation (including a court order or other government order) or the rules and regulations of the SEC or any national securities exchange; provided that such Party provides the other Party prior written notice of such disclosure, to the extent practicable, and reasonably cooperates with efforts of the other Party to seek confidential treatment thereof, to the extent such cooperation is requested by the other Party; (ii) a Party from disclosing the terms and conditions of this Agreement to its attorneys and financial advisors, or current or potential lenders, other sources of financing, investors or acquirors; provided that such third parties are bound by confidentiality obligations offering substantially similar protection to those in this Section 11 (provided further that such third parties are only permitted to use such information for the purpose of advising, lending or providing financing to, or investing in or acquiring, such Party, as applicable); or (iii) CometChat from disclosing Confidential Information of Subscriber to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement.
11.3. Return or Destruction. Except as otherwise expressly provided in the Agreement, the Receiving Party will return to the Disclosing Party, or destroy or erase, the Disclosing Party’s Confidential Information in tangible form, upon the termination or expiration of this Agreement; provided that (a) Receiving Party may retain a copy of Disclosing Party’s Confidential Information solely for the purposes of tracking Receiving Party’s rights and obligations hereunder with respect thereto, (b) Receiving Party may retain copies of Disclosing Party’s Confidential Information solely to the extent required by law or by applicable professional standards which require such retention, (c) Receiving Party may retain copies of Disclosing Party’s Confidential Information in accordance with its backup and records retention policies, and (d) Receiving Party may retain Disclosing Party’s Confidential Information solely to the extent reasonably necessary for Receiving Party to exercise its rights or perform its obligations under this Agreement that survive such termination or expiration.
11.4. Feedback. Notwithstanding the above or anything to the contrary herein, to the extent that Subscriber or any User at any time provides CometChat with any feedback or suggestions regarding the Software, including potential improvements or changes thereto (collectively, “Feedback”), the Feedback shall not be considered Confidential Information of Subscriber, and CometChat shall be free to use, disclose and otherwise exploit in any manner, the Feedback for any purpose and without compensation to Subscriber.
12.1. Hosting Providers. Subscriber acknowledges that the Software is hosted by third-party hosting providers (the “Hosting Providers”). CometChat may change its Hosting Providers at any time. Subscriber’s use of the Software is subject to any applicable restrictions or requirements imposed by the Hosting Providers. Notwithstanding any other provision of the Agreement, CometChat shall not be liable for any problems, failures, defects or errors with the Software to the extent caused by the Hosting Providers. Subscriber acknowledges that the Fees payable for the Software reflect the fact that CometChat is not responsible for the acts and omissions of the Hosting Providers.
12.2. Assignment. Neither Party may assign the Agreement or assign any of its rights, without the prior written consent of the other Party; provided, however, that either Party may assign its rights under the Agreement without the consent of the other Party in the event of a corporate reorganization, consolidation, merger, sale, or transfer of all or substantially all of its assets. Any purported assignment or delegation in violation of this paragraph is null and void. The Agreement will bind and inure to the benefit of each Party’s successor and permitted assigns.
12.3. Entire Agreement. The Agreement (including any Exhibits, Orders, or data protection agreement referencing this Agreement) contains the complete understanding and agreement of the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, oral or written, with respect thereto.
12.4. Notice. You agree that an email to your email address on record will constitute formal notice under this Agreement.
12.5. Force Majeure. CometChat shall not be liable or responsible to Subscriber, nor be considered to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any provision of the Agreement to the extent such failure or delay is caused by or results from any act, circumstance or other cause beyond the reasonable control of CometChat, including acts of God, flood, fire, earthquake, explosion, 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.
12.6. Publicity. CometChat may use Subscriber’s name and logo on client lists published on CometChat’s website and in marketing materials. CometChat may announce the relationship hereunder in a press release.
12.7. Governing Law and Disputes. The Agreement, the interpretation hereof and all disputes arising out of or relating to the Agreement, shall be governed by the laws of the State of Delaware, without regard to any conflicts of laws principles that would apply another law. Subscriber hereby consents to the non-exclusive jurisdiction and venue in any federal or state court located within the State of Colorado, and shall not bring any suit, claim or other cause of action except in a court located within the State of Colorado.
12.8. Injunctive Relief. Each Party acknowledges that its breach of any intellectual property or confidentiality obligations or restrictions herein (including any limitations or restrictions on use of the Software) will cause substantial harm to the other Party that could not be remedied by payment of damages alone. Accordingly, the other Party will be entitled to seek injunctive relief or other equitable relief, for any such breach, without any requirement to post bond, in any court of competent jurisdiction.
12.9. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in the 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.
12.10. Waiver. No waiver by either Party of any of the provisions of the Agreement is effective unless explicitly set forth in writing and signed by such Party.
12.11. Severability. If any provision of the Agreement are invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of the Agreement or invalidate or render unenforceable such provision in any other jurisdiction; provided that, the Parties shall negotiate in good faith potential modifications to the Agreement to most closely reflect their original intent for the invalid, illegal or unenforceable provision.
12.12. Modifications. CometChat may modify or supplement the terms and conditions in the Agreement consistent with how CometChat treats its other subscribers and will endeavor to provide you notice of such modifications. If you object to such modification, to the extent the modification is a material change and degrades your rights under the Agreement, you may terminate the Agreement upon thirty (30) days’ notice to CometChat.