Terms of Service
PLEASE READ THESE TERMS OF SERVICE (THE “SERVICE TERMS“) CAREFULLY BEFORE USING THE SERVICES (AS DEFINED BELOW) OFFERED BY CHATMETER, INC. (“CHATMETER“). BY ACCESSING OR USING THE SERVICES AND/OR EXECUTING THE ORDER FORM (AS DEFINED BELOW), YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE AGREEMENT (AS DEFINED BELOW). PROVISION OF THE SERVICES IS CONDITIONED ON, AND CUSTOMER’S (AS DEFINED BELOW) USE OF THE SERVICES SHALL CONSTITUTE, CUSTOMER’S ASSENT TO THE SERVICE TERMS TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. Chatmeter and Customer are individually referred to herein as a “Party” and collectively as the “Parties“. Subject to the terms and conditions of this Service Terms, the Parties hereby agree as follows:
- Services. “Customer” means the entity identified in the Order Form. Chatmeter is a provider of online marketing and reputation management services (the “Services“). The Services shall be detailed and implemented through one or more separately executed order form(s) (each an “Order Form“, and collectively the “Order Forms“). All Order Forms must reference and incorporate these Service Terms, and collectively shall form the entire agreement (“Agreement“) between the Parties for this subject matter.
- Customer License. During the Term, Chatmeter hereby grants to Customer, subject to timely payment of all Fees (as defined below) and the terms and restrictions of these Service Terms, a worldwide, non-exclusive, non-transferable and non-sublicensable right and license to use the Services solely for Customer’s sales and marketing purposes, unless otherwise stated in an applicable Order Form (“Permitted Use“).
- Service Availability. Chatmeter will use commercially reasonable efforts to make the Services available to Customer and their end users 24/7, with the exception of scheduled downtime and any other factors beyond Chatmeter’s reasonable control. Chatmeter will provide Customer at least seventy-two (72) hours advance notice of any scheduled downtime via email message to an address designated by Customer along with a method of procedure and any impact proposed during the maintenance window.
- Intellectual Property. As between the Parties, Chatmeter owns and retains all right, title and interest, including all related intellectual property rights, in and to: (a) the Services, (b) any comments, feedback, information and/or suggestions from Customer in relation to the Services (collectively, “Feedback”) and (c) the Chatmeter name, logo, trademarks and product names associated with the Services (collectively, the “Chatmeter Property“). Except as expressly set forth herein, Customer acquires no rights in the Chatmeter Property. Customer hereby assigns to Chatmeter all right, title and interest in and to any Feedback (including without limitation, all intellectual property rights). During the Term, Customer hereby grants to Chatmeter a non-exclusive, worldwide, royalty-free right and license to use, copy, access, process, reproduce, perform, display, modify, distribute and transmit Customer Data to provide the Services as described hereunder. Notwithstanding the foregoing, Customer hereby agrees that Chatmeter may aggregate Customer Data and use such aggregated data to evaluate and improve the Services and otherwise for its business purposes. Except for any rights specifically granted to Chatmeter in this Agreement, Customer does not transfer any other right, title, or interest in and to Customer’s intellectual property. “Customer Data” means all data, information and other materials submitted by Customer to Chatmeter and/or the Services.
- Restrictions on Use. Customer shall use the Services exclusively for the Permitted Use and shall not: (i) use the Services in violation of or beyond the license granted herein, (ii) use the Services in any manner that violates any applicable laws, rules, code of conduct in any agreements to which Customer is a party or regulations; (iii) reproduce or modify the Services or any portion thereof, (iv) reverse assemble, reverse compile or reverse engineer the Services, or otherwise attempt to discover any Services source code or underlying Confidential Information, or (v) permit any third party to directly or indirectly access the Services or otherwise sell, rent, lease, license, provide, distribute or transfer the Services unless in a manner explicitly described in an Order Form, except to a third party contractor engaged to use or process the Services for Customer’s Permitted Use.
- Fees & Payments. Customer shall pay Chatmeter the fees listed on each Order Form executed between the Parties (the “Fees”). The amount charged will be based on the expected Services for the upcoming billing period in addition to any prorated charges that may have occurred during the previous billing period, as applicable. Customer’s obligation to pay Fees is non-cancellable and all Fees are non-refundable. Delinquent payments shall bear interest at a rate of one-and-one half percent (1.5%) per month (or the highest legal rate, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Chatmeter in collecting any delinquent amounts.
- Suspension of Services. In the event Customer fails to pay Fees or uses the Services beyond the Permitted Use and fails to remedy such issue within five (5) days written notice from Chatmeter, without limiting Chatmeter’s other rights and remedies, Chatmeter may immediately suspend Customer’s access to and use of the Services.
- Taxes. Services are provided exclusive of any sales, use or VAT taxes (collectively, “Taxes“) and Customer shall pay all Taxes. If Chatmeter is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides Chatmeter with a timely and valid exemption certificate authorized by the applicable taxing authority.
- Publicity. Chatmeter may issue a press release upon written approval of Customer in its sole and absolute discretion. In addition, Chatmeter may use the Customer’s logo, trademarks, service marks and name on the Chatmeter website located at https://www.chatmeter.com/ and in other promotional and marketing materials upon Customer’s written consent, not to be unreasonably withheld. Chatmeter will follow Customer’s trademark, branding and/or marketing guidelines if supplied to Chatmeter prior to the use of such materials.
- Representations and Warranties. Each Party represents and warrants that: (a) it has the unencumbered right to enter into this Agreement and it holds the rights necessary to perform its obligations and duties hereunder; (b) it holds the rights, title and interest necessary to grant the licenses granted by it in this Agreement; and (c) it will operate in accordance with all laws, rules and regulations applicable to its provision or use of the Services, including without limitation, privacy policies and applicable privacy and data security laws and regulations related to the use, collection and dissemination of data. Customer represents and warrants to Chatmeter that Customer owns all rights, title and interest in and to Customer Data, or that Customer has otherwise secured all necessary rights in such data as may be necessary to permit the access, use and distribution thereof as contemplated by the Agreement.
- Confidentiality.. During and after the Term, neither Party shall use, copy, disclose or permit any person access to any Confidential Information of the other Party, except as required in connection with its performance hereunder and as required by law, the receiving Party will hold the other Party’s Confidential Information in confidence and take reasonable precautions to protect it (including without limitation, all precaution the receiving Party employs with respect to its own confidential materials). Confidential Information shall not include information that: (i) is or has become readily publicly available without restriction through no fault of the receiving Party (including without limitation, its employees, agents and third party contractors); (ii) is received without restriction from a third party lawfully in possession of such information; (iii) was rightfully in the possession of the receiving Party without restriction prior to its disclosure by the other Party; or (iv) was independently developed by employees or consultants of the receiving Party without use of or reference to such Confidential Information. “Confidential Information” means all business, technical and financial data or information of either Party that is of value to such Party or relates to the Services and is not generally known to third parties, including the contents of the Order Forms, Service Terms, intellectual property rights, trade secrets, exhibits, schedules and other attachments. All Confidential Information shall be protected and safeguarded, whether or not marked, designed or otherwise identified as “confidential,” “proprietary,” or otherwise that should be understood by a reasonable person to be confidential in nature. Notwithstanding the foregoing, each Party may disclose the other Party’s Confidential Information if and to the extent that such disclosure is required by law, provided that the receiving Party uses reasonable efforts to limit the disclosure to solely the extent required and provides the disclosing Party a reasonable opportunity to review and to object to such disclosure.
- Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITH NO WARRANTIES OF ANY KIND AND CHATMETER DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CHATMETER MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, OR COMPLETENESS OF THE SERVICES AND DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, MEET CUSTOMER’S REQUIREMENTS OR RESULT IN ANY OUTCOME.
- Indemnification. Customer agrees to defend, indemnify and hold harmless Chatmeter, its subsidiaries, affiliates, successors and assigns, and each of their officers, directors, agents, contractors, subcontractors and employees, against and from any and all third-party claims, liabilities, damages, fines, penalties or costs of whatsoever nature (including without limitation, reasonable attorneys’ fees and expenses to the extent arising out of any third party claims) (collectively, “Claims”) in connection with Chatmeter’s use of any Customer Data as permitted hereunder. Chatmeter agrees to defend, indemnify and hold harmless Customer, its subsidiaries, affiliates, successors and assigns, and each of their officers, directors, agents, contractors, subcontractors and employees, against and from any and all Claims in connection with any allegation that the Services, or any intellectual property underlying the Services, infringes, violates, or misappropriates the intellectual property or other proprietary rights of any third party. In connection with the indemnification obligations in this Agreement: (i) the indemnified Party shall provide the indemnifying Party with prompt written notice of any Claim, (ii) the indemnified Party shall cooperate in all reasonable respects with the indemnifying Party in connection with any Claim, (iii) the indemnifying Party shall be given sole control over defense and settlement of any Claim, provided that the indemnified Party may engage its own outside counsel (at its own expense) to participate in (but not interfere with) the defense of the Claim, and (iv) the indemnifying Party shall not settle any Claim in a manner that requires an admission of fault by or on behalf of the indemnified Party without its prior written approval.
- Limitation of Liability. EXCEPT FOR ANY BREACH OF SECTION 11 (CONFIDENTIALITY), INDEMNIFICATIONS PURSUANT TO SECTION 13 OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCOUNDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORY FOR: (I) ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR (II) ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. THE TOTAL AGGREGATE LIABILITY TO EACH PARTY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT IS LIMITED TO THE NET AMOUNT PAYABLE BY CUSTOMER TO CHATMETER IN THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM.
- Term and Termination.
- Term. These Service Terms shall remain in effect so long as a Customer Order Form is in effect. Unless otherwise specified in the Order Form, each Order Form shall begin on its Start Date and continue for three (3) years unless terminated earlier in accordance with the Service Terms (“Initial Term“). Each Order Form shall automatically renew for successive one (1) year terms (each a “Renewal Term“, and together with the Initial Term, the “Term“).
- Termination. Unless otherwise specified in an Order Form for a given Service, either Party may terminate an Order Form, by providing advance written notice no later than sixty (60) days prior to the end of the then-current Term. In no event will termination relieve Customer of obligations to pay any Fees payable to Chatmeter for the period prior to the effective date of termination.
- Termination for Material Breach. Either Party may terminate this Agreement for an uncured material breach by the other Party. The non-breaching Party must provide written notice to the breaching Party of such breach and if the breaching Party fails to cure the breach within the thirty (30) day period after notice, the non-breaching Party may immediately terminate the Agreement. In the event this Agreement is terminated by either Party for uncured material breach, Chatmeter will refund a prorated portion of any prepaid fees or refund amounts paid for Chatmeter Services not received based on the date of such termination.
- Effect of Termination. Upon any termination of the Agreement: (a) all licenses and other rights granted to either Party hereunder shall terminate immediately except for Customer’s assignment of Feedback to Chatmeter, the rights granted to Chatmeter with respect to aggregate Customer Data and post-termination licenses expressly set forth in these Service Terms or an applicable Order Form and (b) Customer shall pay to Chatmeter, within thirty (30) days of such termination, all Fees owed.
- Survival. Upon termination of the Agreement, both Parties shall retain the right to any and all data provided to or accessed from the Services during the Term. Sections 4, 6, 8 and 10 – 16 shall survive any termination or expiration of the Agreement.
- Entire Agreement. This Agreement supersedes all prior discussions and agreements between the Parties and constitutes the entire Agreement between the Parties as to the subject matter.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to its conflict of laws principles. Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement, may be brought only in a court of competent jurisdiction in the County of San Diego, California or the United States District Court for the Southern District of California.
- No Waiver. The waiver of any right or election of any remedy in one instance shall not affect any rights or remedies in another instance. A waiver shall be effective only if made in writing and signed by an authorized representative of the Party making such waiver.
- Notices. All notices hereunder shall be sent by certified or registered mail, overnight delivery, or personal delivery, and emailed to the address set forth in the applicable Order Form (including with a copy to the Chatmeter legal department at firstname.lastname@example.org). Such notices shall be deemed given on the date notice is received by recipient when delivered by mail or personal delivery, and the date sent when delivered by email.
- No Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, except in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of each Party, their respective successors and permitted assigns.
- Modification. This Agreement may be modified only by a written instrument signed by both Parties.
- Independent Contractors. The Parties are independent contractors and no joint venture, partnership, employment, or agency relationship exists between Customer and Chatmeter as a result of this Agreement or use of the Services.
- Force Majeure. Either Party’s inability to perform any term or condition of the Agreement as a result of conditions beyond its control, including but not limited to, acts of God, war, strikes, fires, floods, governmental restrictions, power failures, epidemics, pandemics or damage or destruction of any network facilities or servers, shall not be deemed a breach of this Agreement.
- No Third-Party Beneficiaries. This Agreement is solely by and for the benefit of the Parties that are signatories to it, and may be enforced only by Customer, Chatmeter and their permitted successors and assigns. This Agreement will not be deemed to create any rights in third parties or to create any obligations of a Party to any third parties.
- Severability. If any term or provision of this Agreement shall be held invalid or unenforceable, then such term or provision shall be deemed to be modified to the extent and in the manner necessary to render it valid and enforceable, or if the term or provision cannot be so modified, it shall be deemed stricken from this Agreement and the remainder of this Agreement shall not be affected thereby and each term and provision hereof shall be valid and enforced to the fullest extent permitted by law.
Chatmeter, Inc. CONFIDENTIAL. All rights reserved.