Chatkit Inc. ("Chatkit", "we", "us", or "our") provides Marketing Solutions and other Software as a Service (SaaS) subscription services as further described in these terms of service (the "Terms") and on the Website (as defined below). These Terms apply to anyone signing up to create an account ("Client", "Clients", "you", or "your") either directly through the Website or through an Order Form (as defined below) or through an authorized representative ("Organization") in order to access and use the Services provided under these Terms.
THESE TERMS CONTAIN IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICES SO YOU SHOULD READ IT CAREFULLY BEFORE USING THE SERVICES. EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, YOU AGREE TO THE TERMS HEREOF. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO AGREE TO THESE TERMS AND PERFORM ITS OBLIGATIONS HEREUNDER. IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE WEBSITE, ANY OF ITS CONTENT OR ANY OF THE SERVICES.
"Aggregated Client Data" means Client Data retained by Chatkit that can no longer be linked to Client or does not identify or permit identification of Client or any End User;
"Agreement" means these Terms and the applicable Order Form as submitted by Client and accepted by Chatkit pursuant to Section 2.1;
"Chatkit Technology" or "Chatkit Platform" means the Chatkit proprietary technology that allows Chatkit to provide the Services, including the Chatkit Website, Control Center (Dashboard), Bot (Chatbot), Web Beacon (Pixel), Software Development Kit (SDK), or other mutually agreed upon means;
"Client Data" has the meaning given to it in Section 5.2;
"Documentation" means "how to" user guides and reference materials on the Website for the Services;
"End User" means a customer or end user of Client, or an individual who interacts with Client;
"Fees" means the applicable subscription fees payable by Client to Chatkit for the right to receive access to the Services and Support Services, all as further described on the Website and in the Documentation;
"MCP" or "Messaging Channel Provider" or "Messaging Channel Partner" means any social network platform, messaging platform (including by way of example, but without limitation, Facebook Messenger), or telecommunication company (providing SMS, MMS, or RCS messaging) on which the Services are to be used by Client and as listed in the applicable Order Form as submitted by Client and accepted by Chatkit in accordance with Section 2.1;
"MCP Data" means any data in respect of an End User provided by or through an MCP;
"Order Form" means a form used by Client to subscribe for some or all of the services offered by Chatkit as described in that form and subject to these Terms, either through an automated process on the Website or by of an electronic form;
"Services" means use of Chatkit Platform by businesses to engage with individual consumers through Messaging Channel Providers, or any service(s) ordered by Client either through submission of an Order Form to Chatkit or through the order process as may be clearly set out on the Website from time to time and which Chatkit have confirmed in writing that Chatkit agree to provide to Client, subject to these Terms;
"Support Services" means any services and features provided by Chatkit in support of or supplemental to the Services as further described in Section 3 and in more detail in the Support section of the Website;
"Subscription Term" means the term for the Services set forth in the applicable Order Form.
"Term" has the meaning given in Section 7.1;
"Website" means chatkit.com or landingchat.com or such other URL as indicated by Chatkit from time to time where information regarding and access to the Service is available.
2. LICENSE TERMS
2.1 Agreement. This Agreement shall be deemed to have come into force on (i) Client having submitted an Order Form to Chatkit; and (ii) Chatkit having sent Client written confirmation (by email, through the Website or otherwise) confirming acceptance of such Order Form.
2.4 Measurements and Performance Report. Client acknowledges and agrees that Chatkit's measurements are final and shall prevail over any other measurements. Chatkit grants Client access to an online interface to access statistics on a daily basis and control its account through the Website. Statistics are updated with a maximum delay of 72 hours. Any modifications made and approved (either by Client or upon Client's instruction), including, but not limited to, budget adjustments or pausing the Services, are solely Client's responsibility and Client shall be liable for any costs incurred as a result of modifications. Client grants Chatkit permission for Chatkit to make modifications on its behalf in accordance with any specific instructions communicated in writing. Furthermore, Client is responsible for the use and storage of its personal and confidential password and ID and shall immediately notify Chatkit in writing of any loss or involuntary disclosure thereof.
2.5 Commercial License. Subject to payment of the applicable Fees, Chatkit hereby grants to Client a non-exclusive, non-transferable internal license to use and access the Website and user interface for the purpose of using the Services during the Term. On creation of Client's account, Client will be able to create Client's own login details enabling direct access to its Services for multiple levels of access by Client's permitted users (i.e. the End Users). Client will have the ability to trial, subscribe, suspend and unsubscribe from modules (both paid and free modules depending on Client's subscriptions) of the Services.
2.6 License Restrictions. All software provided is licensed; not sold. Client shall use the Services solely as contemplated in this Agreement and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the Services available to any third party. Client shall not (i) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Services; (ii) circumvent any user limits or other use restrictions that are built into the Services; or (iii) access the Services in order to build a competitive product or Services or copy any ideas, features, functions or graphics of the Services.
2.7 Restrictions on Use of the Services. Client shall not (a) use, or permit the use of, the Services for an illegal purpose, criminal offence, infringement of any intellectual property rights, harassment (including annoying or offensive transmissions), or in a manner that would cause interference with network operations; (b) resell, remarket, transfer or share the Services or receive any charge or other benefit for the use of the Services; attempt to bypass Chatkit's network, or re-arrange, disconnect, remove, repair or otherwise interfere with any Services or facilities; or (c) remove any proprietary notices, labels, or marks from the Chatkit Technology or modify, alter, or deface any of the trademarks, servicemarks, or other intellectual property made available through the Services nor use any of the foregoing except for the specific purpose for which such intellectual property is made available to Client. Client further shall not use the Services in a manner that:
(a) infringes or violates the intellectual property rights or any other rights of anyone else (including Chatkit);
(b) violates any law or regulation, including any applicable export control laws;
(c) is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
(d) jeopardizes the security of Client's Chatkit account or anyone else's (such as allowing someone else to log in to the Services as Client);
(e) attempts, in any manner, to obtain the password, account, or other security information from any other user;
(f) violates the security of any computer network, or cracks any passwords or security encryption codes;
(g) runs any form of auto-responder or "spam" on the Services, or any processes that run or are activated while Client are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services' infrastructure); or
(h) "crawls," "scrapes," or "spiders" any page, data, or portion of or relating to the Services or any content therein (through use of manual or automated means).
(i) knowingly collect personally identifiable information from children under thirteen (13). You represent, warrant, and covenant that you when using the Chatkit Platform, you comply with federal, state, provincial, territorial, and / or local laws in your region realted to privacy of people under the age of majority (such as, but not limited to, the Children's Online Privacy Protection Act), and that in the event that you become aware that you have collected Personal Information from a child under age thirteen (13) without verification of parental consent, you take steps to remove that information promptly.
2.8 Lawful purposes. Client will at all times meet Client's obligations hereunder, and comply with any and all laws, regulations and policies that may apply to Client's use of the Services, including rules governing export or import of software and laws relating to collection and use of personal information. Client agrees to use the Services solely for lawful purposes only. Client will not, without limitation: (i) use the Services to manage any illegal operations; (ii) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the technology underlying the Services (including our proprietary software which may be available for download on the Website); (iii) send any unsolicited commercial communication not permitted by applicable law; or (iv) endanger any part of any system or internet connection of Chatkit or any third party through Client's use of the Services.
2.9 Third Party Software. The technology underlying the Services may incorporate and embed software and other technology owned and controlled by third parties. Any such third party software or technology that is incorporated in the Chatkit Technology falls under the scope of this Agreement. Such third party software is licensed; not sold and will be provided to Client on the license terms of this Agreement unless additional or separate license terms apply as indicated at the time of account access.
3. SERVICE TERMS
3.1 Provision of Services. Conditioned on the terms and conditions of this Agreement and payment of the Fees, Chatkit shall make the Services and the Support Services available to Client during the term of Client's subscription.
3.2 Services Responsibilities. The Services have built-in help features to assist Client in troubleshooting and resolving problems encountered while using the Services. For matters that cannot be resolved Chatkit may be contacted on the contact information set out on the Website under 'Support'.
3.3 Incremental Services. From time to time, additional Chatkit or third-party functionality (such functionality being deemed not to be part of the Services) may be made available by Chatkit to Client (in the case of third-party functionality, such functionality being made available on a pass-through basis pursuant to terms specified by the third-party provider of such functionality), and which additional functionality may be purchased by Client for additional fees in accordance with any additional terms and conditions specified by Chatkit.
3.4 Services Limitations. The Services are not a back-up service and, accordingly, Chatkit will not be responsible for any lost data due to server crashes or other events outside of Chatkit's reasonable control. However, Chatkit maintains a 7-day continuous backup of all data on its servers to minimize the impact of any server crashes.
4. MESSAGING CHANNEL PROVIDER
4.1 Appointment as Agent. Client hereby appoints Chatkit as its agent for the purpose of providing the Services through each MCP. Client undertakes to take all such actions (if any) as may be required by each MCP in order to have Chatkit appointed as Client's agent and to validate Chatkit's actions as Client's agent in respect of the provision of the Services under the terms of this Agreement.
4.2 Compliance with MCP Terms: Client expressly acknowledges that the provision of the Services through any MCP shall be subject to the MCP Terms of such MCP. Accordingly, Client covenants and undertakes to comply with the terms of such MCP Terms, and not to use the Services in such a manner as shall breach such MCP Terms. Client further acknowledges that in the event any MCP Terms prohibit or restrict the provision of any part of the Services through such MCP then, notwithstanding the terms of this Agreement, Chatkit shall not provide such part of the Services through such MCP. You represent, warrant, and covenant that when using the Chatkit Platform to send SMS, MMS, or RCS messages, you will (i) comply with all applicable federal, state, provincial, territorial, and / or local laws, regulations, and rules governing such messages, including, but not limited to, the Telephone Consumer Protection Act (TCPA) and its implementing rules and regulations, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission's Telemarketing Sales Rule, the Children's Online Privacy Protection Act (COPPA), the CAN-SPAM Act of 2013, an Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act(CASL) and the regulations thereunder, the Personal Information Protection and Electronic Documents Act (PIPEDA) and the regulations thereunder, and state, provincial, territorial, and / or local equivalents; (ii) comply with all applicable guidance and industry best practices in relation to the matters in item (i); (iii) send, or have Chatkit send on your behalf, messages only to end users from whom your organization has obtained the legally required consent to do so; and (iii) promptly notify Chatkit of all requests made by end users to stop receiving messages from Chatkit or your organization, and of all instances in which your organization no longer has legal consent or is no longer permitted to send messages to End User. As used in this Section, an organization is any company, entity or organization on whose behalf you access and use Chatkit to send messages to end users.
4.3 MCP Data: Each of Client and Chatkit shall receive MCP Data in the course of the provision of the Services. Each of Client and Chatkit covenant and undertake to each other to comply with the applicable MCP Terms that may apply to any MCP Data received by them. Subject to the foregoing, Client acknowledges that Chatkit shall access and store MCP Data in order to: (i) provide the Services, including storing, hosting and management of such content; and (ii) otherwise use anonymized MCP Data (including without limitation the content of End User interactions with Client through the Services) for the purpose of improving the Services. To the extent that it is in Client's power to do so, Client hereby grants and agrees to grant Chatkit a worldwide, royalty-free, and non-exclusive license during the term of Client's subscription to access and store MCP Data as contemplated in this Section 4.3.
5. PROPRIETARY RIGHTS, DATA TERMS AND CONFIDENTIALITY
5.1 Exclusive Ownership. Except for the rights and licenses granted in this Agreement, Client acknowledges and agrees that any and all rights, including intellectual property rights, in and in respect of the software and technology used to provide the Website and Services are and shall remain the exclusive property of Chatkit and its licensors. Nothing in this Agreement is intended to transfer any such rights to, or to vest any such intellectual property rights in, Client. Client is only entitled to the limited use of the intellectual property rights granted to Client in this Agreement. Client will not take any action to jeopardize, limit or interfere with Chatkit's intellectual property rights. Any unauthorized use of Chatkit's intellectual property is a violation of this Agreement as well as a violation of intellectual property laws and treaties including, without limitation, copyright laws and trademark laws.
5.2 Client Data. As between Client and Chatkit, Client owns and retains ownership of personal information and data provided by or in connection with End Users as a result of the use of or otherwise in connection with the Services; and Client graphics, text, data, links and/or other creative elements supplied by Client to Chatkit ("Client Data"). For the avoidance of doubt, Client Data will not include any MCP Data. Client hereby grants and agrees to grant Chatkit a worldwide, royalty-free, and non-exclusive license during the term of Client's subscription to access Client Data in order to provide the Services, including storing, hosting and management of such Client Data. Client understands that Chatkit, in performing the required technical steps to provide the Services, may (a) transmit or distribute Client Data over various public or private networks and in various media; and (b) make such changes to Client Data as are necessary to conform and adapt that Client Data to the technical requirements of connecting networks, devices, Services or media. Chatkit's rights under this Section 5.2 are and will be in all cases subject to Chatkit's compliance with any applicable MCP Terms as described in Section 4.3. Client confirms, warrants and represents to Chatkit that Client has all the rights, power and authority necessary to grant rights contemplated in this Section 5.2 and that the use of Client Data in the manner contemplated will not infringe upon the rights of any third party.
5.3 Aggregated Client Data. Client acknowledges and agrees that Chatkit may use and retain Aggregated Client Data during and beyond the term of Client's subscription for the purpose of developing and improving Chatkit's services offerings, provided that Aggregated Client Data will not include MCP Data.
5.4 Chat History. Upon reasonable request by Client and at Client's expense, subject to technical feasibility, Chatkit agrees to provide to Client any Client Data in a format mutually agreed upon by Chatkit and Client.
5.5 Content Responsibilities. Client is responsible for any and all Client Data and for compliance with this Agreement including obtaining all necessary licenses, permissions and consents to enable all material comprising Client Data to be made available to Chatkit for Chatkit to transmit, host and store. For greater certainty, Client shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and notify Chatkit promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Services.
5.6 Suggestions. Chatkit shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into its products, services and business any suggestions, enhancement requests, recommendations or other feedback provided by Client relating to the operation of the Services.
6. CONFIDENTIALITY AND NON-DISCLOSURE
6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party (the "Disclosing Party") disclosed to the other party (the "Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, Client Data, the Software, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Obligations. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
6.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
6.4 Remedies. The Receiving Party agrees to notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Confidential Information of the Disclosing Party. In the event of such unauthorized disclosure or if the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections contained in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
7. TERM AND TERMINATION
7.1 Services Period and Renewals. Your initial Subscription Term will be set forth in the Order Form. At the expiration of the initial period, the Subscription Term will automatically renew for additional periods of the same duration unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term.
7.2 Termination for Breach. Without prejudice to any other rights and remedies, either party may terminate the Agreement with immediate effect upon written notice to the other party if: (a) the other party commits a material breach of any of its obligations under the Agreement and in the case of a remediable breach, fails to remedy it within seven (7) days of the date of receipt of notice of breach from the non-breaching party; (b) a force majeure event (as described in Section 14.1) continues for a minimum period of two months; or (c) either party becomes insolvent, goes into liquidation, appoints an administrative receiver or analogous proceedings under relevant local law. Expiration or termination (for any reason) of the Agreement shall not affect any accrued rights or liabilities which either Party may then have nor shall it affect any clause which is expressly or by implication intended to continue in force after expiration or termination.
7.4 Effect of Termination. Upon termination of this Agreement, the Services shall terminate and Chatkit will terminate Client's account thirty (30) days after a failure to renew Client's subscription, if Client has closed Client's account or if this Agreement is terminated for any other reason. Chatkit will not be liable in respect of any damage caused by the termination of this Agreement or closure of Client's account.
8. COMMERCIAL TERMS
8.1 Fees and Payment. You agree to pay all applicable fees for the Services as set forth on the invoice unless you provide written notice of a dispute regarding such fees no later than 30 days after the invoice date. Any and all payments you make to us for the Services are final and non-refundable.
8.2 Subscription Fees and Payment. If you are paying via a credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a PCI-compliant third party to process payments, and consent to the disclosure of your payment information to such third party. If you are paying by invoice, we will invoice you within thirty (30) days before or after the beginning of the Subscription Term and all other times during the Subscription Term when fees are payable.
8.3 Usage Fees and Payment. In addition to the Subscription Fees, the Client may be required to pay Usage Fees as defined in the Order Form. The Client will be invoiced at the beginning of each month for the Usage Fees incurred in the previous month.
8.4 Invoices. If we agree to accept your payment via invoice rather than by credit card, full payment must be received within thirty (30) days from the invoice date. We will provide you with notice of non-payment of any undisputed amount due. Unless the full amount not in dispute has been paid, we may suspend your access to the Services thirty (30) days after such notice. We will not suspend the access to the Services while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If your Services are suspended for non-payment, we may charge a re-activation fee to reinstate your access to the Services.
8.5 Late Payment. Chatkit shall be entitled to charge interest at the lesser of 1.5% per month or the greatest amount permitted by law, together with all recovery cost, on all overdue amounts.
9. CHANGES TO SOFTWARE, SERVICES AND AGREEMENT
9.1 Updates to Agreement. Chatkit reserves the right to modify this Agreement at any time by publishing the revised Agreement on the Website and/or providing a copy of this Agreement to Client's account by email. The revised Agreement shall become effective within ten (10) business days of such publication or provision to Client, unless Client expressly accepts the revised Agreement earlier by clicking on the accept button. Client's express acceptance or Client's continued use of the Services after expiry of the notice period of ten (10) business days (being weekdays excluding any statutory holidays in Ontario), shall constitute Client's acceptance to be bound by the terms and conditions of the revised Agreement.
9.2 Changes to Chatkit Technology. Chatkit may alter, update or upgrade the Chatkit Technology from time to time. Updates and upgrades to core framework and plug-ins will be processed automatically.
9.3 Changes to Fees and Services. Chatkit may change the Services, any Services fees, amounts, charges (including one-time charges), and/or other aspect of any of the Services at any time upon reasonable notice to Client by posting the change on the Website, sending notice via an email to the email address Client provided on registration, a message on Client's invoice, in writing, or any other notice method likely to come to Client's attention. If Client does not accept the change, Client's sole recourse is to terminate the Services. Client's continued access to and use of the Services after the change has come into effect constitutes Client's acceptance of the change and Client acknowledges and agrees that (i) Client will be deemed to have accepted the change, with no additional written agreement or express acknowledgement required; and (ii) Client will continue to be responsible to pay for the Services unless Client terminates in accordance with Section 7.2.
10. PROFESSIONAL SERVICES
10.1 Professional Services. One-off consulting and professional Services may be requested from and agreed on by Chatkit, including customized features and assistance with custom-website builds. All Services should be requested via the Website or by contacting us by email found on the contact page on the Website. If any work product or deliverables are generated through the provision of professional services under this Agreement ("Deliverables"), the parties will determine ownership of such Deliverables in the purchase order executed for the applicable professional services. Without limiting the generality of the foregoing, any enhancements, modifications or other customizations to the Chatkit Technology will be owned by and vest in Chatkit exclusively including all title and interest in and to all Deliverables including the benefit of all copyrights, trademarks, patents, trade secrets or other intellectual property rights pertaining thereto.
12. LIABILITY PROVISIONS
12.1 NO WARRANTIES. CHATKIT CANNOT AND DOES NOT GUARANTEE THAT THE SERVICES WILL ALWAYS BE AVAILABLE, THAT THEY WILL OPERATE WITHOUT FLAW OR THAT THEY WILL NOT CAUSE ANY DATA LOSS. THE SOFTWARE AND ALL CHATKIT TECHNOLOGY ARE PROVIDED "AS IS" WITH NO WARRANTIES WHATSOEVER; CHATKIT DOES NOT MAKE ANY EXPRESSED, IMPLIED OR STATUTORY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, INTEGRITY OF DATA, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. CHATKIT FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR CHATKIT TECHNOLOGY WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES CHATKIT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET.
12.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER CHATKIT NOR ANY OF ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS SHALL HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES (WHETHER ARISING FROM THIS AGREEMENT, RELATED TO THE SOFTWARE, OR TO ANY SERVICES PROVIDED TO YOU BY CHATKIT (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS)) FOR ANY INDIRECT, RELIANCE, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOSS OF OR DAMAGE TO DATA, BUSINESS INTERRUPTION, LOSS OF DATA, REPLACEMENT OR RECOVERY COSTS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER ARISING FROM CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF CHATKIT (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. IN NO EVENT SHALL CHATKIT ‘S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT THE AMOUNT PAID BY YOU HEREUNDER FOR THE SERVICES IN THE 12 MONTHS PRECEDING THE INCIDENT.
12.3 THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR FUNDAMENTAL BREACH. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF CHATKIT (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES ARISING FROM THIS AGREEMENT, RELATED TO ANY SERVICES PROVIDED TO YOU BY CHATKIT (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) IN RELATION TO THE SERVICES, EXCEED THE FEES PAID BY YOU TO CHATKIT FOR THE SERVICES COMPONENT GIVING RISE TO THE CLAIM.
12.4 THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT BUT FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, NEITHER CHATKIT NOR ANY OF ITS LICENSORS OR SUPPLIERS WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICES IS TO IMMEDIATELY CEASE USE OF SUCH SERVICES.
13.1 Client Indemnity. Client agrees, upon demand, to indemnify, defend and hold Chatkit, its affiliates and Chatkit staff harmless from and against any and all liability and costs, including reasonable attorneys' fees incurred by such parties, in connection with or arising out of Client's (a) violation of any rights of any third party, or (b) willful or grossly negligent misuse of the Services, or (c) Client's breach of any representations and warranties made elsewhere in these Terms.
13.2 Chatkit Indemnity. Chatkit shall defend Client against any claim, demand, suit, or proceeding made or brought against Client by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Client for any damages finally awarded against, and for reasonable attorney's fees incurred by, Client in connection with any such claim; provided, that Client must (a) give Chatkit prompt written notice of the claim; (b) give Chatkit sole control of the defense and settlement of the claim; and (c) provide to Chatkit all reasonable assistance in respect of the foregoing, at Chatkit's expense.
14. GENERAL TERMS
14.1 Force Majeure. Except for each party's obligations to pay money, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes or shortages of materials.
14.2 Client Services. For assistance with questions regarding this Agreement or the Services, if Client has other enquiries, or if Client requires further assistance regarding use of the Services provided by us, please contact us by email at firstname.lastname@example.org
14.3 Logos. Chatkit may refer to Client in Chatkit's client list and may use Client's corporate name and logo for this purpose. For the avoidance of doubt, Chatkit will not use Client's name, logo, any other trademark or trade-name of Client's for any other purposes without Client's prior consent.
14.4 Third Party Relationships. Chatkit or its business partners may present Services offerings, advertisements or promotional materials via the Services. Client's dealings with, or participation in promotions of any third-party business partners via the Services are solely between Client and such third party and Client's participation is subject to the terms and conditions associated with that offering, advertisement or promotion. Client agrees that Chatkit is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties via the Services.
14.5 Third-party Services. The Services may present links to third-party Web sites or third-party Services not owned or operated by us. We are not responsible for the availability of these third-party sites or Services or their contents. Client agrees that Chatkit is not responsible or liable, directly or indirectly, for any damage or loss caused by or in connection with Client's use of or reliance on any content of any such third-party site or Services or goods or Services available through any such third-party site or Services.
14.6 Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between Client and Chatkit with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
14.7 Severability & Waiver. Should any term or provision hereof be deemed invalid, void or un-enforceable either in its entirety or in a particular application, such term or portion will be severed from this Agreement and the remainder of this Agreement shall nonetheless remain in full force and effect. Any failure or delay by Chatkit to commence an action in respect of any breach(es) of this Agreement will not be deemed a waiver of its rights to do so at a later time.
14.8 Assignment. Client is not allowed to assign this Agreement or any rights hereunder without the prior written consent of Chatkit, such consent not to be unreasonably withheld. Chatkit is allowed at its sole discretion to assign this Agreement or any rights hereunder to any third party, without giving prior notice.
14.9 Applicable Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of Ontario, Canada without giving effect to any conflict of laws or provisions whether contained in Canadian law or the laws of Client's current state or country of residence. Any legal proceedings arising out of or relating to this Agreement will be subject to the jurisdiction of the courts of the province of Ontario, Canada. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
Last Updated: Feb 5, 2019