Terms & Conditions – ChatCreek

These Terms of Use apply when you use the services of ChatCreek or our affiliates, including our application programming interface, software, tools, developer services, data, documentation, and websites (“Services”). The Terms include our Service Terms, Sharing & Publication Policy, Usage Policies, and other documentation, guidelines, or policies we may provide in writing. By using our Services, you agree to these Terms. Our Privacy Policy explains how we collect and use personal information.

1. Registration and Access

You must be at least 13 years old to use the Services. If you are under 18 you must have your parent or legal guardian’s permission to use the Services. If you use the Services on behalf of another person or entity, you must have the authority to accept the Terms on their behalf. You must provide accurate and complete information to register for an account. You may not make your access credentials or account available to others outside your organization, and you are responsible for all activities that occur using your credentials.

2. Usage Requirements

(a) Use of Services. You may access, and we grant you a non-exclusive right to use, the Services in accordance with these Terms. You will comply with these Terms and all applicable laws when using the Services. We and our affiliates own all rights, title, and interest in and to the Services.

(b) Feedback. We appreciate feedback, comments, ideas, proposals and suggestions for improvements. If you provide any of these things, we may use it without restriction or compensation to you.

(c) Restrictions. You may not (i) use the Services in a way that infringes, misappropriates or violates any person’s rights; (ii) reverse assemble, reverse compile, decompile, translate or otherwise attempt to discover the source code or underlying components of models, algorithms, and systems of the Services (except to the extent such restrictions are contrary to applicable law); (iii) use output from the Services to develop models that compete with ChatCreek; (iv) except as permitted through the API, use any automated or programmatic method to extract data or output from the Services, including scraping, web harvesting, or web data extraction; (v) represent that output from the Services was human-generated when it is not or otherwise violate our Usage Policies; (vi) buy, sell, or transfer API keys without our prior consent; or (vii), send us any personal information of children under 13 or the applicable age of digital consent. You will comply with any rate limits and other requirements in our documentation. You may use Services only in geographies currently supported by ChatCreek.

(d) Third Party Services. Any third party software, services, or other products you use in connection with the Services are subject to their own terms, and we are not responsible for third party products.

3. Content

(a) Your Content. You may provide input to the Services (“Input”), and receive output generated and returned by the Services based on the Input (“Output”). Input and Output are collectively “Content.” As between the parties and to the extent permitted by applicable law, you own all Input. Subject to your compliance with these Terms, ChatCreek hereby assigns to you all its right, title and interest in and to Output. This means you can use Content for any purpose, including commercial purposes such as sale or publication, if you comply with these Terms. ChatCreek may use Content to provide and maintain the Services, comply with applicable law, and enforce our policies. You are responsible for Content, including for ensuring that it does not violate any applicable law or these Terms.

(b) Similarity of Content. Due to the nature of machine learning, Output may not be unique across users and the Services may generate the same or similar output for ChatCreek or a third party. For example, you may provide input to a model such as “What color is the sky?” and receive output such as “The sky is blue.” Other users may also ask similar questions and receive the same response. Responses that are requested by and generated for other users are not considered your Content.

(c) Use of Content to Improve Services. We do not use Content that you provide to or receive from our API (“API Content”) to develop or improve our Services. We may use Content from Services other than our API (“Non-API Content”) to help develop and improve our Services. You can read more here about how Non-API Content may be used to improve model performance. If you do not want your Non-API Content used to improve Services, you can opt out by contacting us. Please note that in some cases this may limit the ability of our Services to better address your specific use case.

(d) Accuracy. Artificial intelligence and machine learning are rapidly evolving fields of study. We are constantly working to improve our Services to make them more accurate, reliable, safe and beneficial. Given the probabilistic nature of machine learning, use of our Services may in some situations result in incorrect Output that does not accurately reflect real people, places, or facts. You should evaluate the accuracy of any Output as appropriate for your use case, including by using human review of the Output.

4. Fees and Payments

(a) Fees and Billing. You will pay all fees charged to your account (“Fees”) according to the prices and terms on the applicable pricing page, or as otherwise agreed between us in writing. We have the right to correct pricing errors or mistakes even if we have already issued an invoice or received payment. You will provide complete and accurate billing information including a valid and authorized payment method. We will charge your payment method on an agreed-upon periodic basis, but may reasonably change the date on which the charge is posted. You authorize ChatCreek and its affiliates, and our third-party payment processor(s), to charge your payment method for the Fees. If your payment cannot be completed, we will provide you written notice and may suspend access to the Services until payment is received. Fees are payable in U.S. dollars and are due upon invoice issuance. Payments are nonrefundable except as provided in this Agreement.

(b) Taxes. Unless otherwise stated, Fees do not include federal, state, local, and foreign taxes, duties, and other similar assessments (“Taxes”). You are responsible for all Taxes associated with your purchase, excluding Taxes based on our net income, and we may invoice you for such Taxes. You agree to timely pay such Taxes and provide us with documentation showing the payment, or additional evidence that we may reasonably require. ChatCreek uses the name and address in your account registration as the place of supply for tax purposes, so you must keep this information accurate and up-to-date.

(c) Price Changes. We may change our prices by posting notice to your account and/or to our website. Price increases will be effective 14 days after they are posted, except for increases made for legal reasons or increases made to Beta Services (as defined in our Service Terms), which will be effective immediately. Any price changes will apply to the Fees charged to your account immediately after the effective date of the changes.

(d) Disputes and Late Payments. If you want to dispute any Fees or Taxes, please contact legal@chatcreek.com within thirty (30) days of the date of the disputed invoice. Undisputed amounts past due may be subject to a finance charge of 1.5% of the unpaid balance per month. If any amount of your Fees are past due, we may suspend your access to the Services after we provide you written notice of late payment.

(e) Free Tier. You may not create more than one account to benefit from credits provided in the free tier of the Services. If we believe you are not using the free tier in good faith, we may charge you standard fees or stop providing access to the Services.

5. Confidentiality, Security and Data Protection

(a) Confidentiality. You may be given access to Confidential Information of ChatCreek, its affiliates and other third parties. You may use Confidential Information only as needed to use the Services as permitted under these Terms. You may not disclose Confidential Information to any third party, and you will protect Confidential Information in the same manner that you protect your own confidential information of a similar nature, using at least reasonable care. Confidential Information means nonpublic information that ChatCreek or its affiliates or third parties designate as confidential or should reasonably be considered confidential under the circumstances, including software, specifications, and other nonpublic business information. Confidential Information does not include information that: (i) is or becomes generally available to the public through no fault of yours; (ii) you already possess without any confidentiality obligations when you received it under these Terms; (iii) is rightfully disclosed to you by a third party without any confidentiality obligations; or (iv) you independently developed without using Confidential Information. You may disclose Confidential Information when required by law or the valid order of a court or other governmental authority if you give reasonable prior written notice to ChatCreek and use reasonable efforts to limit the scope of disclosure, including assisting us with challenging the disclosure requirement, in each case where possible.

(b) Security. You must implement reasonable and appropriate measures designed to help secure your access to and use of the Services. If you discover any vulnerabilities or breaches related to your use of the Services, you must promptly contact ChatCreek and provide details of the vulnerability or breach.

(c) Processing of Personal Data. If you use the Services to process personal data, you must provide legally adequate privacy notices and obtain necessary consents for the processing of such data, and you represent to us that you are processing such data in accordance with applicable law. If you will be using the ChatCreek API for the processing of “personal data” as defined in the GDPR or “Personal Information” as defined in CCPA, please contact legal@chatcreek.com.

6. Term and Termination

(a) Termination; Suspension. These Terms take effect when you first use the Services and remain in effect until terminated. You may terminate these Terms at any time for any reason by discontinuing the use of the Services and Content. We may terminate these Terms for any reason by providing you at least 30 days’ advance notice. We may terminate these Terms immediately upon notice to you if you materially breach Sections 2 (Usage Requirements), 5 (Confidentiality, Security and Data Protection), 8 (Dispute Resolution) or 9 (General Terms), if there are changes in relationships with third party technology providers outside of our control, or to comply with law or government requests. We may suspend your access to the Services if you do not comply with these Terms, if your use poses a security risk to us or any third party, or if we suspect that your use is fraudulent or could subject us or any third party to liability.

(b) Effect on Termination. Upon termination, you will stop using the Services and you will promptly return or, if instructed by us, destroy any Confidential Information. The sections of these Terms which by their nature should survive termination or expiration should survive, including but not limited to Sections 3 and 5-9.

7. Indemnification; Disclaimer of Warranties; Limitations on Liability

(a) Indemnity. You will defend, indemnify, and hold harmless us, our affiliates, and our personnel, from and against any claims, losses, and expenses (including attorneys’ fees) arising from or relating to your use of the Services, including your Content, products or services you develop or offer in connection with the Services, and your breach of these Terms or violation of applicable law.

(b) Disclaimer. THE SERVICES ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES AND LICENSORS MAKE NO WARRANTIES (EXPRESS, IMPLIED, STATUTORY OR OTHERWISE) WITH RESPECT TO THE SERVICES, AND DISCLAIM ALL WARRANTIES INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR TRADE USAGE. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ACCURATE OR ERROR FREE, OR THAT ANY CONTENT WILL BE SECURE OR NOT LOST OR ALTERED.

(c) Limitations of Liability. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA OR OTHER LOSSES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY UNDER THESE TERMS SHALL NOT EXCEED THE GREATER OF THE AMOUNT YOU PAID FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE OR ONE HUNDRED DOLLARS ($100). THE LIMITATIONS IN THIS SECTION APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

8. Dispute Resolution

YOU AGREE TO THE FOLLOWING MANDATORY ARBITRATION AND CLASS ACTION WAIVER PROVISIONS:

(a) MANDATORY ARBITRATION. You and ChatCreek agree to resolve any past or present claims relating to these Terms or our Services through final and binding arbitration, except that you have the right to opt out of these arbitration terms, and future changes to these arbitration terms, by filling out this form within 30 days of agreeing to these arbitration terms or the relevant changes.

(b) Informal Dispute Resolution. We would like to understand and try to address your concerns prior to formal legal action. Before filing a claim against ChatCreek, you agree to try to resolve the dispute informally by sending us notice at legal@chatcreek.com of your name, a description of the dispute, and the relief you seek. If we are unable to resolve a dispute within 60 days, you may bring a formal proceeding. Any statute of limitations will be tolled during the 60-day resolution process. If you reside in the EU, the European Commission provides for an online dispute resolution platform, which you can access at https://ec.europa.eu/consumers/odr.

(c) Arbitration Forum. Either party may commence binding arbitration through ADR Services, an alternative dispute resolution provider. The parties will pay equal shares of the arbitration fees. If the arbitrator finds that you cannot afford to pay the arbitration fees and cannot obtain a waiver, ChatCreek will pay them for you. ChatCreek will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.

(d) Arbitration Procedures. The arbitration will be conducted by telephone, based on written submissions, video conference, or in person in Cyprus or at another mutually agreed location. The arbitration will be conducted by a sole arbitrator by ADR Services under its then-prevailing rules. All issues are for the arbitrator to decide, except a Cyprus court has the authority to determine (i) the scope, enforceability, and arbitrability of this Section 8, including the mass filing procedures below, and (ii) whether you have complied with the pre-arbitration requirements in this section. The amount of any settlement offer will not be disclosed to the arbitrator by either party until after the arbitrator determines the final award, if any.

(e). Exceptions. This arbitration section does not require arbitration of the following claims: (i) individual claims brought in small claims court; and (ii) injunctive or other equitable relief to stop unauthorized use or abuse of the Services or intellectual property infringement.

(f) NO CLASS ACTIONS. Disputes must be brought on an individual basis only, and may not be brought as a plaintiff or class member in any purported class, consolidated, or representative proceeding. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed. If for any reason a dispute proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding, or counterclaim. This does not prevent either party from participating in a class-wide settlement of claims.

(g) Mass Filings. If, at any time, 30 or more similar demands for arbitration are asserted against ChatCreek or related parties by the same or coordinated counsel or entities (“Mass Filing”), ADR Services will randomly assign sequential numbers to each of the Mass Filings. Claims numbered 1-10 will be the “Initial Test Cases” and will proceed to arbitration first. The arbitrators will render a final award for the Initial Test Cases within 120 days of the initial pre-hearing conference, unless the claims are resolved in advance or the parties agree to extend the deadline. The parties will then have 90 days (the “Mediation Period”) to resolve the remaining cases in mediation based on the awards from the Initial Test Cases. If the parties are unable to resolve the outstanding claims during this time, the parties may choose to opt out of the arbitration process and proceed in court by providing written notice to the other party within 60 days after the Mediation Period. Otherwise, the remaining cases will be arbitrated in their assigned order. Any statute of limitations will be tolled from the time the Initial Test Cases are chosen until your case is chosen as described above.

(h) Severability. If any part of this Section 8 is found to be illegal or unenforceable, the remainder will remain in effect, except that if a finding of partial illegality or unenforceability would allow Mass Filing or class or representative arbitration, this Section 8 will be unenforceable in its entirety. Nothing in this section will be deemed to waive or otherwise limit the right to seek public injunctive relief or any other non-waivable right, pending a ruling on the substance of such claim from the arbitrator.

9. General Terms

(a) Relationship of the Parties. These Terms do not create a partnership, joint venture or agency relationship between you and ChatCreek or any of ChatCreek’s affiliates. ChatCreek and you are independent contractors and neither party will have the power to bind the other or to incur obligations on the other’s behalf without the other party’s prior written consent.

(b) Use of Brands. You may not use ChatCreek’s or any of its affiliates’ names, logos, or trademarks, without our prior written consent.

(c) U.S. Federal Agency Entities. The Services were developed solely at private expense and are commercial computer software and related documentation within the meaning of the applicable U.S. Federal Acquisition Regulation and agency supplements thereto.

(d) Copyright Complaints. If you believe that your intellectual property rights have been infringed, please send notice to the address below. We may delete or disable content alleged to be infringing and may terminate accounts of repeat infringers.

ChatCreek
Attn: General Counsel / Copyright Agent

legal@chatcreek.com

Written claims concerning copyright infringement must include the following information:

A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest;
A description of the copyrighted work that you claim has been infringed upon;
A description of where the material that you claim is infringing is located on the site;
Your address, telephone number, and e-mail address;
A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

(e) Assignment and Delegation. You may not assign or delegate any rights or obligations under these Terms, including in connection with a change of control. Any purported assignment and delegation shall be null and void. We may assign these Terms in connection with a merger, acquisition or sale of all or substantially all of our assets, or to any affiliate or as part of a corporate reorganization.

(f) Modifications. We may amend these Terms from time to time by posting a revised version on the website, or if an update materially adversely affects your rights or obligations under these Terms we will provide notice to you either by emailing the email associated with your account or providing an in-product notification. Those changes will become effective no sooner than 30 days after we notify you. All other changes will be effective immediately. Your continued use of the Services after any change means you agree to such change.

(g) Notices. All notices will be in writing. We may notify you using the registration information you provided or the email address associated with your use of the Services. Service will be deemed given on the date of receipt if delivered by email or on the date sent via courier if delivered by post. ChatCreek accepts service of process at legal@chatcreek.com.

(h) Waiver and Severability. If you do not comply with these Terms, and ChatCreek does not take action right away, this does not mean ChatCreek is giving up any of our rights. Except as provided in Section 8, if any part of these Terms is determined to be invalid or unenforceable by a court of competent jurisdiction, that term will be enforced to the maximum extent permissible and it will not affect the enforceability of any other terms.

(i) Export Controls. The Services may not be used in or for the benefit of, exported, or re-exported (a) into any U.S. embargoed countries (collectively, the “Embargoed Countries”) or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals, any other restricted party lists (existing now or in the future) identified by the Office of Foreign Asset Control, or the U.S. Department of Commerce Denied Persons List or Entity List, or any other restricted party lists (collectively, “Restricted Party Lists”). You represent and warrant that you are not located in any Embargoed Countries and not on any such restricted party lists. You must comply with all applicable laws related to Embargoed Countries or Restricted Party Lists, including any requirements or obligations to know your end users directly.

(j) Equitable Remedies. You acknowledge that if you violate or breach these Terms, it may cause irreparable harm to ChatCreek and its affiliates, and ChatCreek shall have the right to seek injunctive relief against you in addition to any other legal remedies.

(k) Entire Agreement. These Terms and any policies incorporated in these Terms contain the entire agreement between you and ChatCreek regarding the use of the Services and, other than any Service specific terms of use or any applicable enterprise agreements, supersedes any prior or contemporaneous agreements, communications, or understandings between you and ChatCreek on that subject.

(l) Jurisdiction, Venue and Choice of Law. These Terms will be governed by the laws of Cyprus, excluding Cyprus’ conflicts of law rules or principles. Except as provided in the “Dispute Resolution” section, all claims arising out of or relating to these Terms will be brought exclusively in the courts of Cyprus.

ChatCreek Subscription Terms

By signing up for a ChatCreek Subscription, you and any entity that you represent (“Customer”) are unconditionally consenting to be bound by and are becoming a party to these ChatCreek Subscription Terms (“Agreement”) as of the date of Customer’s first download of the licensed materials (the “effective date”). Customer’s continued use of the software or any licensed materials provided by ChatCreek, Inc., trading as ChatCreek (“ChatCreek”) (or one of its affiliates and/or subsidiaries, as specified on an order form or quote), shall also constitute assent to the terms of this agreement. If these terms are considered an offer, acceptance is expressly limited to these terms. If you are executing this agreement on behalf of an organization, you represent that you have authority to do so.

1. License and support

1.1 Subject to the terms and conditions of this Agreement, ChatCreek hereby grants to Customer and its Affiliates (as defined below) a limited, non-exclusive, non-transferable, non-sublicensable license for Customer’s and its Affiliates’ employees and contractors to (1) internally (a) use, reproduce, modify, prepare derivative works based upon, and display the code of ChatCreek software at the tier level selected by Customer (or set forth on an Order form or a Quote (as defined below), if applicable with the specifications generally promulgated by ChatCreek from time to time (the “Software”), solely (i) for its internal use in connection with the development of Customer’s and/or its Affiliates’ own software, and (ii) at the level of usage for which Customer has paid ChatCreek; and (b) use the documentation, training materials or other materials supplied by ChatCreek (the “Other ChatCreek Materials”); and (2) modify the Software and publish patches to the Software, solely at the level of usage for which Customer has paid ChatCreek. Notwithstanding anything to the contrary, Customer agrees that ChatCreek and/or its licensors (as applicable) retain all right, title and interest in and to all Software incorporated in such modifications and/or patches, and all such Software may only be used, copied, modified, displayed, distributed, or otherwise exploited in full compliance with this Agreement, and with a valid ChatCreek software subscription for the correct level of usage. The Software and Other ChatCreek Materials are collectively referred to herein as the “Licensed Materials.” “Affiliate” means any entity(ies) controlling, controlled by, and/or under common control with a party hereto, where “control” means the ownership of more than 50% of the voting securities in such entity. “User” means each individual end-user (person or machine) of Customer and/or its Affiliates (including, without limitation, employees, agents or consultants thereof) with access to the Licensed Materials hereunder.

1.2 Subject to the terms hereof, ChatCreek will provide reasonable support to Customer for the Licensed Materials as set forth on the ‘Features’ page, for the support plan selected and paid for by Customer. Notwithstanding anything to the contrary, in the event that Customer does not reasonably comply with written specifications or instructions from ChatCreek’s service engineers regarding any support issue or request (including without limitation, failure to make backups of Customer’s Licensed Materials) (each, a “Support Issue”), ChatCreek may terminate its support obligations to Customer with respect to such Support Issue upon fifteen (15) days’ written notice if Customer does not cure such noncompliance within the notice period.

1.2.1 ChatCreek will use reasonable commercial efforts to respond to support questions by Discord, email or in-app chat. The number of support questions is not limited.

2. Restrictions and responsibilities

2.1 Except as expressly authorized in Section 1.1, Customer will not, and will not permit any third party to: use the Licensed Materials for any purpose other than as specifically authorized in Section 1, or in such a manner that would enable any unlicensed person to access the Licensed Materials; use the Licensed Materials or any other ChatCreek software for timesharing or service bureau purposes or for any purpose other than its and its Affiliates’ own internal use (including without limitation, sublicensing, distributing, selling, reselling any of the foregoing); except as expressly permitted herein; use the Licensed Materials in connection with any high risk or strict liability activity (including, without limitation, space travel, firefighting, police operations, power plant operation, military operations, rescue operations, hospital and medical operations or the like); use the Licensed Materials or software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any privacy laws, and laws and regulations concerning intellectual property, consumer and child protection, obscenity or defamation); or use the Licensed Materials in any manner that (1) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, or libelous (including without limitation, accessing any computer, computer system, network, software, or data without authorization, breaching the security of another user or system, and/or attempting to circumvent any User authentication or security process), (2) impersonates any person or entity, including without limitation any employee or representative of ChatCreek, or (3) contains a virus, trojan horse, worm, time bomb, unsolicited bulk, commercial, or “spam” message, or other harmful computer code, file, or program (including without limitation, password guessing programs, decoders, password gatherers, keystroke loggers, cracking tools, packet sniffers, and/or encryption circumvention programs).

2.2 Customer will cooperate with ChatCreek 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 ChatCreek may reasonably request. Customer will also cooperate with ChatCreek in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Licensed Materials. Customer shall maintain during the term of this Agreement and through the end of the third year after the date on which the final payment is made under this Agreement, books, records, contracts and accounts relating to the payments due ChatCreek under this Agreement (collectively, the “Customer Records”). ChatCreek may, at its sole expense, upon 30 days’ prior written notice to Customer and during Customer’s normal business hours and subject to industry-standard confidentiality obligations, hire an independent third party auditor to audit the Customer Records only to verify the amounts payable under this Agreement. If an audit reveals underpayment, then Customer shall promptly pay the deficiency to ChatCreek plus late fees pursuant to Section 5.2. ChatCreek shall bear the cost of an audit unless the audit reveals underpayment by more than 5% for the audited period, in which case Customer shall promptly pay ChatCreek for the reasonable costs of the audit.

2.3 Customer will be responsible for maintaining the security of Customer’s 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.

3. Confidentiality

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 “Proprietary Information” of the Disclosing Party). Without limiting the foregoing, the Licensed Materials are ChatCreek Proprietary Information.

3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary 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 Proprietary 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 Proprietary 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 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, ChatCreek may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Licensed Materials’ performance and Customer’s usage of the Licensed Materials; provided that ChatCreek will not identify Customer as the source of any such data without Customer’s prior written consent. For the avoidance of doubt, use of a third party to host the data collected shall not be deemed a disclosure.

3.3 Each party acknowledges and agrees that the other may suffer irreparable damage in the event of a breach of the terms of Sections 1.1, 2.1 or 3.2 of this Agreement and that such party will be entitled to seek injunctive relief (without the necessity of posting a bond) in the event of any such breach.

3.4 Both parties will have the right to disclose the existence of the relationship between the parties, but not the terms and conditions of this Agreement, unless such disclosure of the Agreement terms 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, ChatCreek alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Licensed Materials and any suggestions, ideas, enhancement requests, feedback, code, or other recommendations provided by Customer, its Affiliates or any third party relating to the Licensed Materials, which are hereby assigned to ChatCreek. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Licensed Materials, or any intellectual property rights.

4.2 Customer shall not remove, alter or obscure any of ChatCreek’s (or its licensors’) copyright notices, proprietary legends, trademark or service mark attributions, patent markings or other indicia of ChatCreek’s (or its licensors’) ownership or contribution from the Licensed Materials. Additionally, Customer agrees to reproduce and include ChatCreek’s (and its licensors’) proprietary and copyright notices on any copies of the Licensed Materials, or on any portion thereof, including reproduction of the copyright notice. Notwithstanding anything to the contrary herein, certain components of the Licensed Materials, including without limitation, any component of the Licensed Materials distributed by ChatCreek as part of the ChatCreek Community Edition, are licensed by third parties pursuant to the terms of certain third party licenses described in such source code annotations.

4.3 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 software, information, content and data provided by or on behalf of Customer or made available or otherwise distributed through use of the Licensed Materials (“Content”) and the intellectual property rights with respect to that Content. If ChatCreek receives any notice or claim that any Content, or Customer’s activities hereunder (including without limitation, with respect to any Content), infringes or violates the rights of a third party or any applicable law or regulation (a “Claim”), Customer will indemnify, defend and hold ChatCreek harmless from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred. The immediately foregoing indemnity obligations are expressly conditioned on ChatCreek providing Customer with prompt notice of, and reasonable cooperation and sole control over the defense and/or settlement of the applicable Claim. Subject to the foregoing, ChatCreek may participate in the defense and/or settlement of any applicable Claim with counsel of its choosing at its own expense.

4.4 ChatCreek will defend, indemnify and hold Customer harmless from liability and other amounts paid or payable to unaffiliated third parties resulting from (i) the infringement or violation of any intellectual property or proprietary rights by the Licensed Materials or (ii) the violation of applicable law or regulation by ChatCreek in performance of its obligations hereunder, provided ChatCreek 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 settlement thereof. Subject to the foregoing, Customer may participate in the defense and/or settlement of any claim that is indemnifiable by ChatCreek with counsel of its choosing at its own expense. The foregoing obligations do not apply with respect to portions or components of the Licensed Materials (i) not created by ChatCreek, (ii) that are modified after delivery by ChatCreek, (iii) combined with other products, processes or materials where the alleged infringement relates to such combination, (iv) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) where Customer’s use of the Licensed Materials is not strictly in accordance with this Agreement and all related documentation.

5. Payment of fees

5.1 Customer will pay ChatCreek the then applicable fees described in the Order Form or Quote for the Licensed Materials in accordance with the terms therein (the “Fees”). If Customer’s use of the Licensed Materials exceeds the Service Capacity set forth on the Order Form or Quote or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. ChatCreek reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that ChatCreek has billed Customer incorrectly, Customer must contact ChatCreek no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department ( support@chatcreek.com ).

5.2 ChatCreek may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by ChatCreek according to the payment terms specified in the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with the Licenses Materials other than taxes based on ChatCreek’s net income.

5.3 Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, GST, use or withholding taxes, assessable by any jurisdiction whatsoever in relation to your purchases under this Agreement (collectively, the “Taxes”). You are solely responsible for paying all Taxes associated with your purchases hereunder. If we have a legal obligation to pay or collect Taxes for which you are responsible for under this Clause 4.3, we shall invoice you and you shall pay that amount to us unless you provide us with a valid tax exemption certificate authorised by the appropriate taxing authority. We shall calculate applicable Taxes based on your billing address as detailed on the relevant Order Form or Quote (it is your duty to inform us if Taxes should be assessed on a different address). You shall promptly notify us of any changes to any of your addresses specified in an Order Form or Quote. Taxes shall not be deducted from or set-off against the fees in the applicable Order Form or Quote.

5.4 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form or Quote, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination with at least thirty (30) days notice.

6. Termination

6.1 This Agreement shall continue until terminated in accordance with this Section 6. Either party may terminate this Agreement upon 30 days’ written notice to the other party hereto in the event that Customer has no then-current subscription with respect to the Licensed Materials.

6.2 Customer may terminate this Agreement at any time upon written notice to ChatCreek. Either party may terminate this Agreement immediately upon 30 days’ written notice to the other party in the event of any material breach of this Agreement (including without limitation, any breach of Section 2.2 and/or failure to pay any amounts when due hereunder) by such party where such material breach is not cured during such notice period.

6.3 Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings (provided such proceedings are not dismissed within one hundred twenty (120) days of such institution), (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business without a successor.

6.4 Customer’s rights to the Licensed Materials, and any licenses granted hereunder, shall terminate upon any termination of this Agreement. In the event that Customer terminates this Agreement pursuant to the second sentence of Section 6.2 above, ChatCreek will refund to Customer a pro-rated portion of pre-paid Fees for Services not actually received by Customer as of the date of such termination. The following Sections will survive any termination of this Agreement: 2 through 6 (except for Section 4.3), and 8 through 11.

7. Warranty; Customer Software Security

ChatCreek represents and warrants that (i) it has all rights and licenses necessary for it to perform its obligations hereunder, and (ii) it will not knowingly include, in any ChatCreek 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 are intentionally designed to 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, ChatCreek fails to comply with the warranty in this Section, Customer may promptly notify ChatCreek in writing of any such noncompliance. ChatCreek 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.

8. Warranty Disclaimer

EXCEPT AS EXPRESSLY STATED HEREIN, THE LICENSED MATERIALS, SOFTWARE AND ChatCreek PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. ChatCreek AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

9. Limitation of liability

EXCEPT WITH RESPECT TO BREACH(ES) OF SECTION 1.1 AND/OR 2.1, IN NO EVENT WILL EITHER PARTY OR THEIR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE LICENSED MATERIALS OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, ANY DELAY OR INABILITY TO USE THE LICENSED MATERIALS OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. EXCEPT WITH RESPECT TO BREACH(ES) OF SECTION 1.1 AND/OR 2.1, THE TOTAL LIABILITY OF EACH PARTY AND ITS LICENSORS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (i) ONE THOUSAND DOLLARS ($1,000), OR (ii) THE FEES PAID TO ChatCreek HEREUNDER IN ONE YEAR PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

10. U.S. Government Matters

Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Licensed Materials or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Licensed Materials is representation and warranty that the User is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by ChatCreek are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

11. Miscellaneous

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by either party without the other party’s prior written consent, not to be unreasonably withheld or delayed; provided that either party may transfer and/or assign this Agreement to a successor in the event of a sale of all or substantially all of its business or assets to which this Agreement relates. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed or otherwise agreed to by each party, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. ChatCreek will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of Cyprus. without regard to its conflict of laws provisions. The federal and state courts sitting in Cyprus. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement.

12. Data privacy

Customer shall ensure that any and all information or data, including without limitation, personal data, used by Customer in connection with the Agreement (“Customer Data”) is collected, processed, transferred and used in full compliance with Applicable Data Protection Laws (as defined below) and that it has all obtained all necessary authorizations and consents from any data subjects to process Customer Data. Customer shall adopt and maintain appropriate organizational, technical and security measures prior to any such collection, processing or transfer in order to protect against unauthorized access to or use of Customer Data. Customer shall immediately inform ChatCreek upon becoming aware of any breach within the meaning of Applicable Data Protection Law relating to Customer Data (a “Security Incident”) and to cooperate with ChatCreek in any investigation thereof and in the implementation of any measures reasonably required to be taken in response thereto. If required by Applicable Data Protection Laws, the parties will enter into standard contractual clauses under GDPR (as defined below) for the transfer of any Customer Data outside of the European Union. For purposes hereof: (a) “Applicable Data Protection Laws” means any applicable laws, statutes or regulations as may be amended, extended or re-enacted from time to time which relate to personal data including without limitation (i) prior to 25 May 2018, the EU Data Protection Directive 95/46/EC as transposed into EU Member State law; (ii) from and after 25 May 2018, GDPR and any EU Member State laws implementing the GDPR; and (iii) the e-Privacy Directive 2002/58/EC, as amended and as transposed into EU Member State law and any legislation replacing the e-Privacy Directive and (b) “GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Counsel of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

ChatCreek Professional Services Terms

These terms apply if ChatCreek provices you with additional professional services as part of your contract, or if we undertake one-off pieces of work for you to support with your ChatCreek installation that are not covered by our usual support terms.

1. Services

1.1 ChatCreek will provide Customer with software-related professional services (“Services”) as set forth in, one or more, mutually agreed to and signed, Order Form or Quote, which shall contain without limitation, a description of the Services, the Services rate(s) and payment terms (each an “SOW”). The parties agree that SOWs may not be complete statements of Services required by Customer and additional Services may be required which would be difficult to determine as of the date of this Service Agreement or of the applicable SOW. At Customer’s request, the SOW may include an estimate of charges for the Services, but such estimate shall not be binding on ChatCreek or convert the SOW into a fixed price contract with respect to such Services. ChatCreek is under no obligation to perform any Services other than pursuant to an SOW. Notwithstanding the foregoing, if ChatCreek performs Services at the direction of Customer and the parties have not signed an SOW for such Services, then such Services shall be subject to all terms and conditions of this Service Agreement, and ChatCreek’s then-current rates for such Services shall apply. ChatCreek may provide Services through its third-party contractors but, in all such cases, ChatCreek will remain subject to the obligations hereunder.

1.2 Conditions On Providing Services. Customer must assign a project manager who will assume responsibility for management of the project for which the Services are provided. Customer will establish the overall project direction, including assigning and managing the Customer’s project personnel team. Customer must provide ChatCreek with such facilities, equipment and support as are reasonably necessary for ChatCreek to provide Services, including remote access to the hardware and systems software configuration on which ChatCreek supports use of the computer software programs licensed by ChatCreek to Customer. ChatCreek owns and will own all right, title and interest to the Services and any work product generated from the Services (“Work Product”), and Customer will execute and deliver to ChatCreek any documents reasonably necessary to vest in ChatCreek all right, title and interest therein. Work Product does not include Customer’s pre-existing intellectual property or data. Subject to the terms and conditions of this Service Agreement and the applicable license agreement governing Customer’s use of ChatCreek’s software, and expressly conditioned on Customer’s compliance with the terms of such agreements, ChatCreek grants Customer a perpetual, non-exclusive, non-transferable license (without the right to sublease or sublicense) to use and copy for use the Work Product for Customer’s own, internal computing operations.

1.3 Scheduling of Services. The parties will work together to determine a mutually agreed upon schedule based on the availability of ChatCreek resources and the agreed-upon project timeline. Services are non- cancellable. Accordingly, upon execution of an SOW, Customer will be liable for the entire amount quoted under the SOW.

2. Payment and Taxes

2.1 Payment. Unless otherwise stated in the applicable SOW, ChatCreek will invoice Customer for all Services and applicable charges, as ChatCreek renders the Services or charges are incurred, as applicable. Any unpaid fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees.

2.2 Taxes. Fees under this Service Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on ChatCreek’s net income) unless Customer has provided ChatCreek with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to ChatCreek on account thereof.

3. Confidentiality

3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Service Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary 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 Proprietary 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 Service Agreement will prevent the Receiving Party from disclosing 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.

3.3 Each party acknowledges and agrees that the other may suffer irreparable damage in the event of a breach of the terms of Section 3of this Service Agreement and that such party will be entitled to seek injunctive relief (without the necessity of posting a bond) in the event of any such breach.

3.4 Both parties will have the right to disclose the existence but not the terms and conditions of this Service 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. Termination

4.1 This Service Agreement shall continue until terminated in accordance with this Section 4. Either party may terminate this Service Agreement upon 15 days’ written notice to the other party hereto in the event that Customer has no outstanding SOWs in effect.

4.2 Either party may terminate this Service Agreement immediately upon 15 days’ written notice to the other party in the event of any material breach of this Service Agreement (including without limitation, failure to pay any amounts when due hereunder) by such party where such material breach is not cured during such notice period.

4.3 Either party may terminate this Service Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings (provided such proceedings are not dismissed within one hundred twenty (120) days of such institution), (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business without a successor.

4.4 The following Sections will survive any termination of this Service Agreement: 2 through 4 and 6 through 8.

5. Warranty

ChatCreek represents and warrants that (i) during the term of the applicable SOW and continuing for ninety (90) days after the completion of Services pursuant to that SOW, ChatCreek will render all Services under such SOW with reasonable care and skill. If, at any time, ChatCreek fails to comply with the warranty in this Section, Customer may promptly notify ChatCreek in writing of any such noncompliance. ChatCreek 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 Service Agreement as its sole and exclusive remedy for such noncompliance.

6. Warrant Disclaimer

THE SERVICES AND ANYTHING PROVIDED IN CONNECTION WITH THIS SERVICE AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. CHATWOOT AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

7. Limitation of Liability

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS SERVICE AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF EACH PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (i) ONE THOUSAND DOLLARS ($1,000), OR (ii) THE FEES PAID OR PAYABLE TO CHATWOOT HEREUNDER IN ONE YEAR PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

8. Miscellaneous

If any provision of this Service Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Service Agreement will otherwise remain in full force and effect and enforceable. This Service Agreement is not assignable, transferable or sublicensable by either party without the other party’s prior written consent, not to be unreasonably withheld or delayed; provided that either party may transfer and/or assign this Service Agreement to a successor in the event of a sale of all or substantially all of its business or assets to which this Service Agreement relates. Both parties agree that this Service Agreement, including each SOW which incorporates these terms, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Service Agreement, and that all waivers and modifications must be in a writing signed or otherwise agreed to by each party, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Service Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever. In any action or proceeding to enforce rights under this Service Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Service Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. ChatCreek will not be liable for any loss resulting from a cause over which it does not have direct control. This Service Agreement will be governed by the laws of Cyprus. without regard to its conflict of laws provisions. The federal and state courts sitting in Cyprus. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Service Agreement.

9. Data privacy

GDPR Data Processing Agreement

We may enter into a GDPR Data Processing Agreement with certain enterprise clients, depending on the nature of the installation, how data is being processed, and where it is stored. Please reach out to legal@chatcreek.com for more details.