Welcome to Chatdesk.com. We create software and solutions that help companies deliver better customer service with messaging and analytics. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the "Services"). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at firstname.lastname@example.org.
By participating in Chatdesk's services, you and the organization you represent ("customer," "you" or "your") are unconditionally consenting to be bound by and are becoming a party to this agreement consisting of this paragraph, any registration, enrollment or order page or form presented by Chatdesk, Inc. ("Chatdesk," "we," and "us") referencing these terms and conditions ("order"), and the following terms and conditions (the "agreement") with respect to the services provided by Chatdesk, Inc. If you do not unconditionally agree to all of the terms of this agreement, do not provide your signature on the licensing terms and pricing above. If these terms are considered an offer, acceptance is expressly limited to these terms; all other terms are disclaimed. if you are executing this agreement on behalf of an organization, you represent that you have authority to do so.
1. SERVICES AND SUPPORT
1.1 Subject to the terms and conditions of this Agreement, Chatdesk will use commercially reasonable efforts to provide the Services. The Services are subject to modification from time to time at Chatdesk's sole discretion, for any purpose deemed appropriate by Chatdesk. Chatdesk will use reasonable efforts to give Customer prior written notice of any such modification. If such modification materially reduces the functionality of the Services as used by Customer, Customer shall have the right to terminate the Services and receive a pro-rata refund of any pre-paid fees.
1.2 Chatdesk will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week, subject to downtime from scheduled maintenance and events outside the direct control of Chatdesk. Notwithstanding the foregoing, Chatdesk reserves the right to suspend Customer's access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due, in the sole discretion of Chatdesk.
1.3 Subject to the terms hereof, Chatdesk will provide reasonable support to Customer for the Services from Monday through Friday during Chatdesk's normal business hours (8am - 8pm EST).
1.4 If Customer has registered for the demo version of the Services, this Agreement will continue to apply, along with the payment and other terms of the applicable ' entered into by Customer at the time of payment.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Access to the Services may require the Customer to install certain software applications. Customer agrees to be bound by any End-User Software Agreements that govern the installation and use of such client software applications.
2.2 Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services ("Software") (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own use for the benefit of End Users; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any United States/European privacy laws, intellectual property, the Telephone Consumer Protection Act, consumer and child protection, obscenity or defamation). Specifically, but without limitation, Chatdesk and Customer will each comply with applicable laws, rules and regulations regarding notice, "opt out", antiÂspam or similar provisions.
2.3 Customer will cooperate with Chatdesk in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as we may reasonably request. Customer will also cooperate with Chatdesk in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
2.4 Customer will designate an administrator who will be responsible for all matters relating to this Agreement ("Primary Contact"). Customer may change the individual designated as Primary Contact at any time by providing written notice to Chatdesk in the manner requested by us.
2.5 Customer hereby agrees to indemnify and hold harmless Chatdesk against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorney fees) in connection with any claim or action that arises from an alleged violation of Section 2.2. Although Chatdesk has no obligation to monitor the content provided by Customer or Customer's use of the Services, we may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.6 Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer's knowledge or consent.
2.8 Customer acknowledges and agrees that the Service operates on or with or using services operated or provided by third parties, such as Facebook and SMS service providers ("Third Party Services"). Chatdesk is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Chatdesk does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between the Customer and a third party provider is solely between the Customer and such third party provider and is governed by such third party's terms and conditions.
3.1 Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's technology or business (hereinafter referred to as "Confidential Information" of the Disclosing Party).
3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Confidential Information, (ii) to give access to such Confidential information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Chatdesk may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services' performance; provided that such reporting does not directly or indirectly identify Customer.
3.3 Customer acknowledges that Chatdesk does not wish to receive any Confidential Information from Customer that is not necessary for us to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Chatdesk may reasonably presume that any information received from Customer is Confidential Information.
3.4 Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Except as expressly set forth herein, Chatdesk alone (and its licensors, where applicable) will retain all rights relating to the Service or the Software or any intellectual property rights, technology, suggestions, ideas, enhancement requests, feedback, recommendations or other information provided or created by Customer or any third party relating to the Service and/or the Software, which are hereby assigned to Chatdesk. Customer acknowledges that it does not have any ownership or license or (except for the limited non-exclusive right to use the Service as expressly stated in this Agreement) other rights relating to the Service or the Software or any precursors thereof or components thereof or any intellectual property relating to or embodied in any of the foregoing. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. Customer is hereby granted a non-exclusive, nontransferable, revocable right to use the Resulting Data for its internal analysis purposes only.
4.2 This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or Software, or any intellectual property rights. Chatdesk will obtain and process messaging/chat content & data provided by or on behalf of Customer ("Content") only to perform its obligations under this Agreement. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Content distributed through the Services and the intellectual property rights with respect to that Content.
4.4 If Chatdesk receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a "Claim"), we may (but are not required to) suspend activity hereunder with respect to that Content and Customer will indemnify Chatdesk from all liability, damages, settlements, reasonable attorney fees and other costs and expenses in connection with any such Claim; provided Customer is promptly notified of any and all Claims and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Customer will not be responsible for any settlement it does not approve.
4.5 Chatdesk shall defend, indemnify and hold Customer harmless from liability to third parties resulting from (i) any breach of this Agreement by Chatdesk, or (ii) infringement by the Service of any patent, copyright, or other proprietary right of such third party, or misappropriation of any trade secret, provided Chatdesk is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlementÍ¾ Chatdesk will not be responsible for any settlement it does not approve. Chatdesk shall not settle any claim with Customer's prior written consent which shall not be unreasonably withheld, delayed or conditioned.
4.6 The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Chatdesk, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are modified after delivery by Chatdesk, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer's use of is not strictly in accordance with this Agreement and all related documentation.
4.7 Customer will indemnify Chatdesk from all damages, costs, settlements, attorneys' fees and expenses related to any claim of infringement or misappropriation excluded from Chatdesk's indemnity obligation by the preceding sentence.
5. PAYMENT OF FEES
5.1 Chatdesk requires payment of fees for certain or all Services. You shall pay all applicable fees, as described on the Customer's contract service agreement or Website, in connection with such Services selected by you. Chatdesk reserves the right to change its price list and to institute new charges at any time, upon notice to you. Reasons for price changes may include, but is not limited to, vendor increases (e.g. AWS, SMS charges) and/or product/software enhancements.
Change notices may be sent by email or posted on the Website. Except as set forth above, the Customer's use of the Services following such notification constitutes your acceptance of any new or increased charges. Except as provided herein, any fees paid hereunder are nonrefundable.
5.2 Unless otherwise indicated in any additional Terms and subject to Section 5.3, all charges associated with Your access to and use of the Service ("Subscription Charges") are due in full upon commencement of Your Subscription Term, or at the time such an associated Service is purchased, subscribed to or otherwise deployed. At Chatdesk's election, Subscription Charges for certain products and/or solutions may be charged in arrears or by requiring You to prepay for expected usage. If You fail to pay Your Subscription Charges or charges for other services indicated on any Form referencing these Terms within twenty-one (21) business days of Chatdesk's notice to You that payment is due or delinquent, or if You do not update payment information upon Chatdesk's request, in addition to other remedies, We may suspend or terminate access to and use of such Service by You and other individuals authorized to use the Service through Your account (e.g. agents).
5.3 If you choose to upgrade Your service ("Subscription Upgrade"), any incremental Subscription Upgrade will be prorated over the remaining period of Your then current subscription term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.
5.4 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade Your Service Plan. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and Chatdesk does not accept any liability for such loss.
5.5 Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, valueÂadded, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on Chatdesk's net income) unless Customer has provided Chatdesk with a valid exemption certificate.
6.1 Subject to earlier termination as provided below, this Service Agreement is for the Service Term as specified in the Order.
6.2 In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement prior to the end of the Service Term by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, (iii) upon the other party's dissolution or ceasing to do business, or (iv) in the case of Chatdesk, upon the nonpayment of Fees at the applicable due date.
6.3 All sections of this Service Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
7. CLIENT SOFTWARE SECURITY
Chatdesk represents and warrants that it will not knowingly include, in any Chatdesk software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, Chatdesk fails to comply with the warranty in this Section, Customer may promptly notify us in writing of any such noncompliance. Chatdesk will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
9. CHATDESK REGISTRATION
When you create an account with us, you guarantee that you are above the age of 18, and that the information you provide us is accurate, complete, and current at all times. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your account on the Service. Chatdesk requires You to submit a company email ("Chatdesk User ID") and select a password to sign up for an account. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Chatdesk User ID an email that you don't have the right to use, or another person or company's name with the intent to impersonate that person or company. You will only use the Services for benefit of the party who has signed the Purchase Terms. You must protect the security of your account and your password. You're responsible for any activity associated with your account. We reserve the right to refuse service, terminate accounts, remove or edit content in our sole discretion.
10. CHATDESK RIGHTS
You understand that Chatdesk owns the Services. You won't modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain material, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, and so forth (all of the foregoing, the "Content"); please remember that just because this functionality exists, doesn't mean that all the restrictions of these Terms don't apply
11. CHATDESK LICENSES
12. LINKS TO OTHER WEB SITES/THIRD PARTIES
Our Service may contain links to third party web sites or services that are not owned or controlled by Chatdesk. We have no control over, and assumes no responsibility for the content, privacy policies, or practices of any third party web sites or services. We do not warrant the offerings of any of these entities/individuals or their websites. You acknowledge and agree that Chatdesk shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third party web sites or services. We strongly advise you to read the terms and conditions and privacy policies of any third party web sites or services that you visit.
13. RESPONSIBILITY OF SERVICES/LIMITATION OF LIABILITY
Any information or content transmitted through the Services is the sole responsibility of the person from whom such content originated, and you access all such information and content at your own risk, and we aren't liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it. We can't guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services. You are responsible for all Content you contribute, in any manner, to the Services, or that you transmit to anyone. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Services. If there is a dispute between participants on this site, or between you and any message recipients, you agree that Chatdesk is under no obligation to become involved. In the event that you have a dispute with one or more other users or message recipients, you release Chatdesk, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor." This waiver also applies to other states with similar statutes.
14. CANCELLATION OF CHATDESK SERVICES
15. CHANGES TO TERMS
We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on www.chatdesk.com, sending you an email, and/or by some other means. If you don't agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes. Except for changes by us as described here or the Purchase Terms agreed to by you, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
16. GOVERNING LAW
These Terms shall be governed and construed in accordance with the laws of New York, United States, without regard to its conflict of law provisions. Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Service, and supersede and replace any prior agreements we might have had between us regarding the Service.
17. INTELLECTUAL PROPERTY
All contents of the Service are copyrighted 2017 Chatdesk, Inc. All rights reserved. Other product and company names may be trademarks or service marks of their respective owners. Chatdesk shall own all right, title, and interest in and to Service, including all modifications, improvements, upgrades, and derivative works thereto. No intellectual property rights are assigned or transferred by Chatdesk hereunder. Chatdesk, and Chatdesk's other product and service names and logos used or displayed on the Service are registered or unregistered trademarks of Chatdesk (collectively, "Marks"), and you may only use such Marks to identify itself as a customer and user of the Service; provided you do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Chatdesk, its services or products.