42Chat Client Terms of Service
Valid from July 28, 2022
PLEASE READ THESE CLIENT TERMS OF SERVICE CAREFULLY.
This is a contract between you (the Client) and Sciensio, LLC DBA 42Chat. It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. It is a legal document, but we have tried to make it as readable as possible. These terms are important, and we cannot provide our products and services to you unless you agree to them. By using our Services, you are agreeing to these terms.
We periodically update these terms. If you have an active 42Chat Service Agreement, we will notify you of such an update via email.
"Agreement" means these Client Terms of Service and all materials referred or linked to in this document.
"42Chat Materials" means the Chatbot Service, Consulting Services, Enrichment Data, 42Chat Reports, the 42Chat Sites, and all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we develop and incorporate into the Services.
"42Chat Reports" means the information that we supply to you on a periodic basis via the 42Chat Site or through other means resulting from the Services provided by 42Chat under this Agreement.
"42Chat Site" means the software, content, web pages, reports, tracking and management tools and other text, data or programs available for your use, viewing or downloading and which are accessible only by UserID and password at a unique URL on the 42Chat client website (https://admin.42Chat.com), or such other web page as we may designate from time to time.
"Chatbot Channels" shall refer to the various communication channels (i.e., SMS, Facebook Messenger, WhatsApp, Telegram, Viber, etc.) through which the Chatbot Service will be made available.
"Chatbot Customer Limit" means the total number of Client Customers that may interact with the Chatbot Service during the Chatbot Subscription Term.
"Chatbot Message" means any message that is sent to or from the Chatbot Service. For example, a Chatbot customer texting "Where Do I Park?" could receive a text response from the Chatbot Service in two separate message bubbles, in which case the total number of Chatbot Messages for that interaction would be three messages. An individual Chatbot Message is limited to 160 characters, but more text bubbles may be used to provide a better user experience.
“Chatbot Messaging Limit” means the total number or dollar amount of Chatbot Messages that are sent or received during the Chatbot Subscription Term.
"Chatbot Service” means all of our Chatbot applications, tools and platforms that you have subscribed to by an Order or that we otherwise make available to you, and are developed, operated, and maintained by us, and any ancillary products and services that we provide to you.
“Chatbot Subscription Fee” means the fee charged to create, deploy and maintain the Chatbot Service and provide access to the 42Chat Materials, 42Chat Reports and 42Chat Site.
"Chatbot Subscription Term" means the calendar time-period during which the Chatbot Service is being developed and / or the time-period in which the Chatbot Service is available to be accessed by Client Customers.
“Chatbot Users” means any unique sender of a Chatbot Message to the Chatbot Service. Unique senders are identified by the Chatbot Service based upon the unique phone number, text messaging application identifier, or website IP address. Note that the same individual may send a Chatbot Message through both text and web messenger and would be identified by the Chatbot Service as two Chatbot Users.
“Chatbot User Limit” means the total number of Chabot Users that may interact with the Chatbot Service during the Chatbot Subscription Term.
“Chatbot User Subscription Fee” means the fee charged for one user to interact with the Chatbot Service through one channel. The number of Chatbot User Subscription Fees, if applicable, authorized to use the Chatbot Service is specified in the Order.
"Client Customer Data" means the name, email address, phone number(s), online user name(s), telephone number, and any other Client Customer information you provide to us or the Client Customer provides to us through interacting with the Chatbot Service.
"Client Customers" means the individual(s) intended by Client to interact with the Chatbot Service.
"Client Data" means all Client Customer Data, Client User Data, Conversation Outline, text, and other materials that you or someone else on your behalf provide or post, upload, input or submit to us for display, design, or support of the Services. Client Data does not include Enrichment Data.
"Client Users" means your employees, representatives, consultants, contractors or agents who are authorized to access the Chatbot Service for your benefit and have unique user identifications for the Chatbot Service.
"Client Users Data" means the name, email address, phone number(s), online user name(s), telephone number, UserIDs, passwords and any other information you provide to us or the Client User provides to us by accessing the Chatbot Service.
"Consulting Services" means the professional services provided to you by us, which may include training services, custom development, installation, integration or other consulting services.
"Consulting Service Period" means the calendar time period during which the Consulting Services will be provided.
"Conversation Outline” shall refer to the general structure, flow, and communication abilities of the ChatBot Service provided to Client Customers.
“DPA” means the 42Chat Data Processing Agreement which can be found here
"Enrichment Data" means the data we make available to you as part of the Order. Enrichment Data also includes information about Client Customers, such as social media handles, avatars, and alternate email addresses, that we obtain from public or third party sources.
“Free Services” means the Chatbot Service or other products or features made available by us to you on an unpaid trial or free basis.
"Order" means the 42Chat-approved form or online process by which you agree to subscribe to the Services.
"Parties" means collectively Client and 42Chat.
"Party" means each individual Client and 42Chat.
“Product Specific Terms” means any additional terms that apply to your use of each of our product offerings, our consulting and other services and third-party services and can be found at https://www.42chat.com/product-specific-terms.
"Sensitive Information" means (a) credit or debit card numbers; personal financial account information; Social Security Numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under EU data protection laws as ‘Sensitive Personal Data’.
"Services" means the services that Client has requested as specified in an Order and may include the Chatbot Services, Consulting Services, and/or the 42Chat Reports.
"Third-Party Products" means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Services. These products and services include integrations and links to non-42Chat provided applications, content and services.
"Third-Party Sites" means third-party websites linked to from within the Chatbot Service, including communications services.
"42Chat", "we", "us" or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section.
"You", "your" or “Client” means the person or entity subscribing to the Services and identified in the applicable account record, billing statement, online subscription process, or Order as the Client.
1. GENERAL COMMERCIAL TERMS
1.1 Access. During the Chatbot Subscription Term, we will provide you access to use the Chatbot Service as described in this Agreement and the applicable Order. You understand and agree that we may provide some or all elements of the Chatbot Service through third party service providers.
1.2 Additional Features. You may subscribe to additional features of the Chatbot Service by placing an additional Order or activating the additional features from within your 42Chat portal (if this option is made available by us). This Agreement will apply to all additional Order(s) and all additional features that you activate from within your 42Chat portal.
1.3 Availability. During the Chatbot Subscription Term, we strive to make the Chatbot Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance, however we make no guarantee as to the availability of the Chatbot Services at any time.
1.4 Consulting Services. You may purchase Consulting Services by placing an Order with us. Consulting Services will be delivered in English. Fees for these Consulting Services are in addition to any other fees. If you purchase Consulting Services that recur, they will be considered part of your Services and will renew in accordance with your Services’ terms.
All Consulting Services are performed remotely, unless you and we otherwise agree in a mutually executed agreement.
For Consulting Services performed on-site, you shall reimburse us for our reasonable costs and expenses incurred in connection with the Consulting Services. Any invoices or other requests for reimbursements will be due and payable within thirty (30) days of the date of the invoice.
If there are a specific number of hours included in the Consulting Services purchased, those hours will expire as indicated in the applicable Order and the expiration period will commence upon purchase (the "Expiration Period"). If there are deliverables included in the Consulting Services purchased, it is estimated that those deliverables will be completed within the time period indicated as the delivery period in the applicable Order, the delivery period will commence upon purchase (the "Delivery Period"). If there is no Expiration Period or Delivery Period indicated, then it will be one hundred and eighty (180) days from purchase. If the Consulting Services provided are not complete at the end of the Delivery Period due to your failure to make the necessary resources available to us or to perform your obligations, such Consulting Services will be deemed to be complete at the end of the Delivery Period. If the Consulting Services provided are not complete at the end of the Delivery Period due to our failure to make the necessary resources available to you or to perform our obligations, the Delivery Period will be extended to allow us to complete such Consulting Services.
You understand and agree that we may provide some or all elements of the Consulting Services through third party service providers. Consulting Services are non-cancellable and all fees for Consulting Services are non-refundable.
1.5 Performance Warranty. Notwithstanding anything contained in the ‘Disclaimer of Warranties’ section, we warrant that: (i) the Chatbot Service and Consulting Services will be provided in a manner consistent with generally accepted industry standards, and (ii) we will not knowingly introduce any viruses or other forms of malicious code into the Chatbot Service.
1.6 Fees and Payments.
1.6.1 Chatbot Subscription Fees. Unless otherwise set out in the Product Specific Terms, the Chatbot Subscription Fee will remain fixed during the Chatbot Subscription Term unless you: (i) exceed your Chatbot User Limit, (ii) exceed your Chatbot Messaging Limit, (iii) subscribe to additional features or products, including increasing the Client Customers Limit or Client Users Limit, or (iv) as otherwise agreed to in the Order. You can find all the information about how your fees may be otherwise adjusted in Product Specific Terms.
1.6.2 Fee Adjustments at Renewal. Unless otherwise set out in the Product Specific Terms, upon renewal, we may increase your fees up to our then-current list price set out in our Product and Services Catalog. If this increase applies to you, we will notify you at least thirty (30) days in advance of your renewal and the increased fees will apply at the start of the renewal term. If you do not agree to this increase, either party can choose to terminate your subscription at the end or your then-current term. Unless otherwise specified in your contract, to prevent renewal of your subscription, you must notify us in writing or via email at email@example.com.
1.6.3 Payment by credit card or bank account. If you are paying all or a portion of the subscription fees by credit card or bank account, you authorize us to charge your credit card or bank account for all fees payable under this Agreement and to charge a convenience fee for the use of a credit card. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
1.6.4 Payment against invoice. If you are paying by invoice, all amounts invoiced are due upon receipt, unless otherwise specified in the Order. Payments not received prior to the start of the project may result in additional fees for expedited services and/or launch delays.
1.6.5 Payment Information. You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made by contacting firstname.lastname@example.org. All payment obligations are non-cancelable, and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees under this Agreement are due and payable in advance.
1.6.6 Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
1.6.7 Right to Change Pricing or Services. You acknowledge and agree that 42Chat shall have the right to change any and all prices, features and functionality at any time, excepting that, prices will remain fixed during the Chatbot Subscription Term as specified in an Order. If 42Chat discontinues a key feature or service, Client shall have the right to terminate an Order and receive a full refund of any prepaid, but undelivered Services. 42Chat does not represent that it will continue to offer any particular item or type of service indefinitely or even for any specific period.
1.7 42Chat Site Access.
You shall identify and provide us a list of Client Users who will receive UserIDs and passwords, and are authorized to access and use the Chatbot Service and 42Chat Site for the purposes permitted by this Agreement. You shall provide periodic updates to the list as necessary. You will take such actions as necessary for you to maintain the confidentiality of, and prevent the unauthorized use of, each UserID and password, including entering into appropriate agreements with your Client Users. You warrant that we may rely upon any information and/or instructions set forth in any data transmission using the assigned UserID and password, without making further investigation or inquiry, and regardless of the actual identity of the individual transmitting the same. Use of the assigned UserID and password, whether or not authorized by you, shall be solely your risk and responsibility.
You shall immediately notify us of any unauthorized use of your UserIDs and passwords or your account by notifying us via email at email@example.com.
1.8 Use and Limitations of Use.
1.8.1 Free Trial. If you register for a free trial, we will make the applicable Chatbot Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not terminated earlier) or (b) the start date of your paid subscription. Unless you purchase a subscription to the applicable Chatbot Service before the end of the free trial, all of your data in the Chatbot Service may be permanently deleted at the end of the trial, and we will not recover it. If we include additional terms and conditions on the trial registration web page, those will apply as well.
1.8.2 Prohibited and Unauthorized Use. You shall not (i) use or launch any automated system, including, "robots," "spiders," or "offline readers" that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using an SMS messaging system or conventional browser; (ii) use the Chatbot Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party's use of the Chatbot Service; (iii) attempt to gain unauthorized access to the Chatbot Service; (iv) access the Chatbot Service other than through our interface and designed Chatbot Channels; or (v) use the Chatbot Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.
You may not use the Services if you are legally prohibited from receiving or using the Services under the laws of the country in which you are resident or from which you access or use the Services. Unless specifically agreed to in an Order or in the Product Specific Terms, the Chatbot Services are not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so you may not use the Services where your communications would be subject to such laws. You agree not to use data from the Chatbot Service in legal proceedings or otherwise as evidence.
1.8.3 NO SENSITIVE INFORMATION. EXCEPT AS OTHERWISE AGREED TO IN AN ORDER OR THE PRODUCT SPECIFIC TERMS, YOU AGREE NOT TO USE THE SERVICES TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SERVICES TO COLLECT OR MANAGE SENSITIVE INFORMATION. YOU FURTHER AGREE NOT TO PROVIDE SENSITIVE INFORMATION TO US AND WE ARE NOT RESPONSIBLE FOR SUCH INFORMATION OR ANY ACTION THAT MAY ARISE FROM YOUR PROVIDING SENSITIVE INFORMATION.
1.8.5 Third-Party Sites and Products. Third-Party Sites and Products are not under our control. Third-Party Sites and Products are provided to you only as a convenience, and the availability of any Third-Party Site or Product does not mean we endorse, support or warrant the Third-Party Site or Product.
1.9 Term, Termination, Suspension.
1.9.1 Term. The Term of this Agreement shall be as specified in the Order.
1.9.2 No Early Termination; No Refunds. Except as provided herein, early termination of the Services is prohibited. We do not provide refunds if you decide to stop using the Services during the Term.
1.9.3 Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Services: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our clients. This Agreement may not otherwise be terminated prior to the end of the Term.
1.9.4 Effect of Termination. Upon termination or expiration of this Agreement, your access to the Services will be terminated and you will not be entitled to the delivery of future 42Chat Reports. You will immediately stop use of the Services, and if we request, you will provide us with written confirmation that you have discontinued all use of Enrichment Data (unless, you have a source other than the Chatbot Service for such Enrichment Data). If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Services after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Term. Fees are otherwise non-refundable.
1.9.5 Suspension for Prohibited Acts. We may suspend any User’s or Client Customers’ access to any or all Services without notice for: (i) use of the Services in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) use of the Services notifications that results in excessive hard bounces, SPAM complaints via feedback loops, direct spam complaints (to our abuse desk), or requests for removal from a send list by recipients, or (iii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity. We may, without notice, review, edit and delete any Client Data that we determine in good faith violate these terms, however, we have no duty to prescreen, control, monitor or edit your Client Data.
1.9.6 Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due and you will be responsible for payment of such amount including all collection fees, including without limitation attorneys’ fees and interest at the maximum rate permitted by law. Unless the full amount has been paid or is otherwise set out in an Order or Product Specific Terms , we may suspend your access to any or all of the Services ten (10) days after the date of such notice. We will not suspend the Services while you are disputing the applicable charges reasonably and in good faith and are diligently cooperating with us to resolve the dispute.
1.9.7 Suspension for Present Harm. If your website or use of, the Services: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Chatbot Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Services. We will try to limit the suspension to the affected portion of the Services and promptly resolve the issues causing the suspension of the Services. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our clients.
2.1 42Chat License to Client. Subject to the terms of this Agreement and your compliance with your payment obligations, we hereby grant to you a nonexclusive, limited, personal license (the “License”) to allow Client and Client Customers to use the 42Chat Materials for all purposes consistent with this Agreement. We reserve all rights and licenses in and to the 42Chat Materials not expressly granted to you under this Agreement.
2.2 42Chat Reports. Subject to the terms of this Agreement and your compliance with your payment obligations, you may print, copy or download information contained in your 42Chat Report(s); and all right, title and interest in and to the downloaded or printed copies of the 42Chat Report(s) created specifically for you shall be transferred entirely to and be owned by you, subject to Client’s continued treatment of the 42Chat Reports as Confidential Information.
2.3 42Chat License Restrictions. Unless otherwise provided for in this Agreement, you may not, nor permit any third party to: (a) copy the 42Chat Materials; (b) modify, translate or otherwise create derivative works of the 42Chat Materials; (c) disassemble, decompile or reverse engineer the object code or source code of the 42Chat Materials; or (d) publish, or otherwise make available to any third party any 42Chat Materials.
2.4 Client Data. You hereby grant us a non-exclusive, royalty-free, perpetual license to use Client Data as necessary to provide the Services. We may copy and backup such Client Data as necessary to perform the duties under this Agreement.
3. GENERAL LEGAL TERMS
3.1 Client Data.
3.1.2 Aggregate Data. We may monitor use of the Chatbot services by all of our Clients’ Customers, including you, and use the data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Client Data and/or identify you.
3.1.3 Safeguards. The terms of the DPA are hereby incorporated by reference and will apply to the extent any Client Data includes Personal Data (as defined in the DPA). The DPA sets out how we will process Personal Data on your behalf in connection with the Services provided to you under this Agreement. We will maintain commercially reasonable administrative, physical, and technical safeguards to protect Client Data and Personal Data. You consent to the processing of Client Data and Personal Data in the United States
3.2 42Chat’s Proprietary Rights. This is an Agreement for access to and use of the Services, and you are not granted a license to any software by this Agreement. The 42Chat Materials are protected by intellectual property laws, all rights, titles, and interests belong to us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the 42Chat Materials in whole or in part, by any means, except as expressly authorized in writing by us. You may not use any of our trademarks without our prior written permission.
If we make Enrichment Data available to you, then you may only use that Enrichment Data in connection with your use of the Chatbot Service (unless, you have a source other than the Chatbot Service for such Enrichment Data). Enrichment Data may be made available to you based on Client Data, but we will not use your Client Data to enrich data for other parties. The Enrichment Data we provide may be provided from or through third party service providers or public sources.
3.3 Client’s Proprietary Rights. As between the parties, you own and retain all rights to Client Data. This Agreement does not grant us any ownership rights to Client Data. You hereby grant us a non-exclusive, royalty-free, perpetual license to use Client Data as necessary to provide the Services to you and as permitted by this Agreement. If you are using the Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
3.4 Confidentiality. Each party ("Receiver") may be exposed to Confidential Information of the other party ("Discloser"). "Confidential Information" means any information disclosed by either party to the other party in any form consisting of past, present and future business, financial, technical and commercial information, business concepts, prices and pricing methods, marketing and customer information, financial forecasts and projections, technical data, schematics, analyses, ideas, methods, trade secrets, processes, computer programs, prototypes, designs, specifications, techniques, and drawings. Confidential Information shall also include Client Data and 42Chat Materials.
The Receiver will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses to protect its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose other than as permitted by this Agreement, (iii) not disclose Confidential Information to any third party (except our third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents who have a need for such information and who are bound under a written agreement or legal obligation to keep such information confidential. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
The Receiver agrees to notify the Discloser of any unauthorized use or disclosure of Confidential Information. The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that, upon any actual or threatened breach of this Section by a party, the other party shall be entitled, without waiving any other rights or remedies, to seek such injunctive or other equitable relief as may be deemed proper by a court of competent jurisdiction without the need to post any bond or other security.
Receiver will not be required to protect or hold in confidence any information which: (a) becomes publicly known through no wrongful act or omission of Receiver; (b) becomes known to Receiver without confidential restriction from a third party unless Receiver had or should have had knowledge of its confidentiality; (c) is approved by Discloser for disclosure without restriction in a written document which is signed by a duly authorized officer of the Discloser; or (d) is independently developed by Recipient without use of Discloser’s Confidential Information.
All Confidential Information disclosed pursuant to this Agreement shall be deemed the property of the Discloser. Upon the termination or expiration of this Agreement, the Receiver shall, at the Discloser’s sole option, either return all Confidential Information in the form of documents and other tangible property provided pursuant to this Agreement, and all copies thereof, or provide the Disclosure with assurance that all such information has been destroyed. The confidentiality obligations of Receiver shall survive termination the expiration of this Agreement.
Notwithstanding the foregoing or anything to the contrary herein, the Receiver will not be required to destroy electronic or digital Confidential Information stored in back-up/archival storage in accordance with its policies, provided that any such systems are maintained in a secure and private manner and any such retained Confidential Information will continue to be subject to this Section until it is destroyed and the Receiver may retain Confidential Information to the extent required to comply with applicable legal and regulatory requirements, provided such Confidential Information shall remain subject to this Section. We may further retain Confidential Information to the extent that such information has been incorporated into or integrated with the 42Chat Materials. Any and all know-how gained by us from the use of the Client Data shall not be confidential.
3.5 Publicity. You grant us the right to use your name and company logo in our client list and website, and may refer to you as a user of the Services in our general advertising and marketing materials. To object to this use, please indicate so by sending an email to firstname.lastname@example.org.
3.6.1 Client Indemnification. You shall indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Services by you, (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of the Services by any other person using your Client User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by this indemnification or places restrictions on us without our prior written consent.
3.6.2 42Chat Indemnification. We shall indemnify, defend and hold you harmless, at our expense, against any third-party claim, suit, action or proceeding (each, an "Action") brought against you by a third party not affiliated with you to the extent that such Action is based upon or arises out of a (1) claim that the 42Chat Materials, as provided by us to you under this Agreement and used by you within the scope of this Agreement, infringes any U.S. patent or copyright issued as of the Effective Date, or incorporates any misappropriated trade secrets (each an "Infringement Action"), or (2) our breach of our confidentiality obligations or our use of Client Data in violation of this Agreement. Our obligations to you under this Section shall only be valid provided that you: (a) promptly notify us in writing of the claim; (b) grant us sole control of the defense and settlement of the claim, provided that we will not settle a pending matter without first notifying you; and (c) provide us with all assistance, information and authority required for the defense and settlement of the claim. If the 42Chat Materials become or in our sole opinion is likely to become the subject of an Infringement Action, we may, in our sole discretion either: (a) procure for you the right to continue using such 42Chat Materials; (b) replace or modify the 42Chat Materials so that it is non-infringing and substantially equivalent in function to the enjoined 42Chat Materials; or (c) terminate your rights and our obligations hereunder with respect to such 42Chat Materials with no further liability.
3.6.3 Exclusion. We shall have no indemnification obligation for any Infringement Action to the extent that it results in whole or part from: (a) settlements and their related costs and expenses where Client settles an Infringement Action without our prior written consent; (b) your use of the 42Chat Materials in a manner not authorized by us, as set forth in the applicable Order; (c) modification to the 42Chat Material made by a party other than us; (d) your failure to use updated or modified 42Chat Materials provided by us; (e) the use of the 42Chat Materials in combination with other systems, products, processes or materials not furnished by us, except as requested by us or performed by us; or (f) compliance by us with designs, plans or specifications furnished by or on behalf of you.
3.7 Warranties; Limitations of Liability.
3.7.1 Client Warranty. In addition to any warranties you have provided herein, you represent and warrant that you have the right to provide 42Chat the Client Data, and to authorize us to communicate with the Client Customers through the use of the Chatbot, SMS messaging, and email as required to provide the Service.
3.7.2 42Chat Warranty. We will perform our obligations hereunder in a good and workmanlike manner and in accordance with current industry standards and best practices. The sole and exclusive remedy for breach of this warranty shall be re-performance of 42Chat’s obligations.
3.7.3 DISCLAIMER OF WARRANTIES. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE 42CHAT MATERIALS FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE 42CHAT MATERIALS ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE 42CHAT MATERIALS, INCLUDING BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WE FURTHER MAKE NO WARRANTY THAT THE SERVICES WILL WORK ON ALL PHONES, COMMUNICATION DEVICES, OR INTERNET WEB BROWSERS. 42CHAT WILL NOT BE LIABLE, AND WILL HAVE NO OBLIGATION TO INDEMNIFY YOU FOR SENSITIVE DATA SENT TO 42CHAT.
3.7.4 NO INDIRECT DAMAGES. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT THAT PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
3.7.5 LIMITATION OF LIABILITY. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE INDEMNIFICATION SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, EACH PARTY’S AGGREGATE LIABILITY SHALL BE LIMITED TO THE LESSER OF FIVE THOUSAND U.S. DOLLARS OR THE SUM OF THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SERVICES IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION WILL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.
3.7.6 THIRD PARTY PRODUCTS. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
3.7.7 AGREEMENT TO LIABILITY LIMIT. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICE TO YOU.
3.8.1 Amendment; No Waiver. We may update and change any part or all of these Client Terms of Service, including the fees and charges associated with the use of the Services. If we update or change these Client Terms of Service, the updated Client Terms of Service will be posted and we will notify you via email. The updated Client Terms of Service will become effective and binding on the next business day after it is posted. When we change these Client Terms of Service, the "Last Modified" date above will be updated to reflect the date of the most recent version. We encourage you to review these Client Terms of Service periodically.
If you do not agree with a modification to the Client Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Client Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Client Terms of Service published by us on our website will automatically apply.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
3.8.2 Force Majeure. Except as otherwise agreed to in an Order or the Product Specific terms, should events beyond the reasonable control of 42Chat and Client, including (1) acts of God, (2) war, including armed conflict, (3) strikes or labor disputes or other civil disturbances affecting the Client’s business or event, (4) public health emergency due to the outbreak of communicable disease, (5) government regulation or advisory, or (6) acts of terrorism (collectively “Events of Force Majeure”), cause the cancellation of an event or events listed on an Order(s), neither 42Chat nor Client shall be considered in breach of this Agreement to the extent that performance of their respective obligations (excluding payment obligations) is prevented by an Event of Force Majeure that arises after the Order effective date.
The party prevented from performing its obligations hereunder shall promptly give written notice to the other party of the Event of Force Majeure.
If and to the extent that either party triggers this clause, Client agrees to satisfy all outstanding invoices issued by 42Chat and to make payment for all work performed by 42Chat including all applicable fees and other work compensable at hourly rates as set forth in the Order(s) as of the date Event of Force Majeure notice. If there is a credit balance after the Client has paid all outstanding invoices, then 42Chat may, at its sole discretion, apply the credit to a future Order(s).
3.8.3 Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
3.8.4 Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
3.8.5 Compliance with Laws. We will comply with all U.S. state and federal laws (where applicable) in our provision of the Services and our processing of Client Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Services, including any applicable export laws. You must comply with all applicable laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Chatbot Service or Consulting Services to prohibited countries or individuals or permit use of the Chatbot Service or Consulting Services by prohibited countries or individuals.
3.8.6 Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
3.8.7 Notices. Notice will be sent to the contact addresses of each party as set forth herein, and will be deemed delivered as of the date of actual receipt.
To 42Chat, 1192 East Draper Parkway #418, Draper UT 84020, U.S.A.
To you: The address you provide in your 42Chat account. We may give electronic notices by general notice via the Chatbot Service and may give electronic notices specific to you by email to your e-mail address(es) on record in your account or through the notifications center of the Chatbot Service. We may give notice to you by telephone at the telephone number(s) on record in your account. You must keep all of your account information current.
3.8.9 Assignment. You may not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
3.8.10 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third-party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
3.8.11 Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
3.8.12 Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
3.8.13 Survival. The following sections shall survive the expiration or termination of this Agreement: 'Definitions’, ‘Fees and Payments’, 'Prohibited and Unauthorized Use', ‘No Early Termination; No Refunds’, ‘Termination for Cause’, ‘Suspension for Prohibited Acts’, ‘Suspension for Non-Payment’, ‘Suspension for Present Harm’, ‘Effect of Termination or Expiration’, ‘Retrieval of Client Data’, ‘42Chat’s Proprietary Rights’, ‘Client’s Proprietary Rights’, 'Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Miscellaneous’ and ‘Contracting Entity and Applicable Law’.
3.8.14 Precedence. In the event of a conflict between the terms of this Agreement and an Order, the terms of the Order shall control, but only as to that Order.
4. JURISDICTION SPECIFIC TERMS
4.1 Contracting Entity and Applicable Law. You are contracting with Sciensio, LLC (DBA 42Chat) and this Agreement is governed by the laws of the State of Utah, U.S.A. without reference to conflicts of law principles. For contracts with Sciensio, LLC, both parties consent to the exclusive jurisdiction and venue of the courts in Salt Lake City, Utah, U.S.A. for all disputes arising out of or relating to the use of the Services.
4.2 Data Processing.
4.2.1 GDPR. To the extent that 42Chat processes any Client Data that is subject to the General Data Protection Regulation (the “GDPR”), on Client’s behalf, in the provision of the services hereunder, the terms of the DPA, which are hereby incorporated by reference, shall apply. For Clients that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission, attached to the Data Processing Agreement with Sciensio, LLC, which provide adequate safeguards with respect to the personal data processed by us under this Agreement and pursuant to the provisions of our Data Processing Agreement apply. You acknowledge in all cases that 42Chat acts as the data processor of Client Data and you are the data controller if you are subject to the applicable data protection regulations in the European Union and European Economic Area. Client will obtain and maintain any required consents necessary to permit the processing of Client Data under this Agreement. If you are subject to the GDPR you understand that if you give an integration provider access to your 42Chat account, you serve as the data controller of such information and the integration provider serves as the data processor for the purposes of those data laws and regulations that apply to you. In no case are such integration providers our sub-processors.
4.2.2 CALIFORNIA PRIVACY RIGHTS. This section applies only to Client Users that reside in California with rights defined by the California Consumer Privacy Act (“CCPA”). It describes how we collect, use, and share California user’s Personal Information in our role as a service provider on behalf of our Clients. You acknowledge in all cases that 42Chat acts as a service provider in the processing of Client Data. If you are subject to the applicable data protection regulations set forth by the California Consumer Privacy Act, then you will obtain and maintain any required consents necessary to permit the processing of Client Data under this Agreement and to provide the rights afforded consumers by the CCPA. If you are subject to the CCPA, you understand that if you give an integration provider access to your 42Chat account, you still serve as the responsible party of such information.