CHAT2 SOFTWARE AS A SERVICE AGREEMENT V.1.01 0420416


IMPORTANT: READ THIS CHAT2 SOFTWARE AS A SERVICE AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE CONTINUING REGISTRATION.

BY LOGGING INTO CHAT2 OR OTHERWISE ACCEPTING THIS AGREEMENT YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY, IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST NOT USE THE SERVICES.


A. Agreement Definitions

“You” and “your” refers to the individual or entity that has elected to use the chat software as a service from Chat2 (a division of “Shop Ferret PTY LTD”) (“Chat2”).

Software as a service consists of Chat2 services and related code and plugins, system administration, system management, and system monitoring activities that Chat2 performs and includes the right to use the Chat2 software, support services for such Chat2 software, as well as any other services provided by Chat2. The term “software documentation” refers to the software user manual and training materials as well as any other materials provided by Chat2 as part of the services. The term “Chat2 software” refers to the software products owned or distributed by Chat2 to which Chat2 grants you access as part of the services, including software documentation, and any software updates provided as part of the services. The term “users” shall mean those individuals authorized by you or on your behalf to use the services. The term “your data” refers to the data provided by you or your customers that is secured in the Chat2 software system.


B. Applicability of Agreement

This software as a service agreement is valid for the use of the Chat2 chat software.


C. Rights Granted

Upon Chat2’s acceptance of your use of the services, you have the nonexclusive, non-assignable, royalty free, limited right to use the services solely for your business operations and subject to the terms of this agreement. You may allow your users to use the service and you are responsible for your users’ compliance with this agreement. 


You acknowledge that Chat2 has no delivery obligation and will not ship copies of the Chat2 software to you as part of the services. You agree that you do not acquire under this agreement any license to use the Chat2 software in excess of the scope and/or duration of the services. Upon the end of this agreement or the services thereunder, your right to access or use the Chat2 software and services shall terminate.


D. Ownership and Restrictions

You retain all ownership and intellectual property rights in and to your data. Chat2 or its licensors retain all ownership and intellectual property rights to the services and Chat2 software. Chat2 retains all ownership and intellectual property rights to anything developed and delivered under this agreement.


You may not:

• without prior permission in writing remove or modify any software markings or any notice of Chat2’s or its licensors’ proprietary rights;

make derivative works of, disassemble, reverse compile, or reverse engineer any part of the services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Chat2;

• disclose results of any services or software benchmark tests without Chat2’s prior written consent; and

license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise commercially exploit or make the services, Chat2 software or materials available, to any third party other than, as expressly permitted under the terms of this agreement.



The rights granted to you under this agreement are also conditioned on the following:


except as expressly provided herein, no part of the services may be copied, reproduced, distributed, republished, downloaded, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and

• you agree to use your best endeavors to prevent unauthorized third parties from accessing the services.



E. Warranties, Disclaimers and Exclusive Remedies

If the services provided to you for any given month during the services term were not performed as warranted, you must provide written notice to Chat2 no later than five business days after the last day of that particular month.


CHAT2 DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT CHAT2 WILL CORRECT ALL SERVICES ERRORS. YOU ACKNOWLEDGE THAT CHAT2 DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. CHAT2 IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.


FOR ANY BREACH OF THE ABOVE WARRANTIES, CHAT2 WILL REMIT A SERVICES FEE CREDIT TO YOU CALCULATED AT TEN PERCENT (10%) OF NET MONTHLY FEES FOR THE APPLICABLE SERVICES FOR THE MONTH IN WHICH THE BREACH OCCURRED. THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY OUTSTANDING BALANCE FOR SERVICES OWED TO Chat2, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT YOUR EXCLUSIVE REMEDY, AND CHAT2’S SOLE LIABILITY, FOR ALL BREACHES OF ANY WARRANTY SPECIFIED IN THIS AGREEMENT.


TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.



F. Trial Use of the Services

You may use certain services for trial, non-production purposes subject to the terms and conditions of this agreement. Services acquired for trial purposes are provided “as is” and Chat2 does not offer any warranties for such services.


G. Indemnification

If a third party makes a claim against either you or your use of the Chat2 service which is caused by, or incidental to, your use of the Services or your failure to comply with this Agreement, you agree at your sole cost and expense to use all reasonable endeavours to defend Chat2 against the claim and indemnify it from any damages, liabilities, costs and expenses awarded by any court or any arbitration system to the third party, except to the extent that Chat2 or Chat2's data host has caused or contributed by its actions, omissions, negligence or wilful act. Chat2 agrees that you are not liable in any other circumstance to Chat2 for any damage, loss, claim or demand of any nature which has been caused by, or is incidental to, the acts or omissions of Chat2 or any data host, except to the extent that you have caused or contributed by your own negligence or wilful act.


H. Services

Services provided under this agreement are on a reasonable effort basis.


I. End of Agreement

Services provided under this software as a service agreement shall be provided unless earlier terminated in accordance with this agreement. The term of the services and any renewal periods are collectively defined as the “services term.” At the end of the services term, all rights to access or use the services, including the Chat2 software shall end.


If either of us breaches a material term of this agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the agreement under which the breach occurred. If Chat2 ends the service, you must pay within 30 days all amounts which have accrued prior to such end, as well as all sums remaining unpaid for any services provided under this agreement plus related taxes and expenses. If Chat2 ends the services under the Indemnification section, you must pay within 30 days all amounts remaining unpaid for services plus related taxes and expenses. The non-breaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under this agreement, you may not use the services ordered. You further agree that if you have used a financing contract to pay for the fees due for the Chat2 service and you are in default under that contract, you may not use the services that are subject to such contract.


In addition, Chat2 may immediately suspend your password, account, and access to or use of the services (i) if you fail to pay Chat2 as required under this agreement and do not cure within the first ten days of the 30 day cure period, or (ii) if you violate any provision within this agreement. Chat2 may terminate the services hereunder if any of the foregoing is not cured within 30 days after Chat2’s initial notice thereof. Any suspension by Chat2 of the services under this paragraph shall not excuse you from your obligation to make payment(s) under this agreement.


At your request, and for a period of up to 60 days after the termination of the service, Chat2 may permit you to access the services solely to the extent necessary for you to retrieve a file of your data then in the services environment.

You agree and acknowledge that Chat2 has no obligation to retain your data and that your data may be irretrievably deleted after the termination of this agreement.


Provisions that survive termination or expiration of this agreement are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.


J. Fees and Taxes

You agree to pay for all services provided. All fees due are non-cancelable and the sums paid nonrefundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that Chat2 must pay based on the services you ordered, except for taxes based on Chat2’s income. You will reimburse Chat2 for reasonable expenses related to providing any on-site services. Fees for services are exclusive of taxes and expenses unless otherwise specified. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice.


You agree that you have not relied on the future availability of any services, programs or updates in entering into the payment obligations; however, the preceding does not relieve Chat2 of its obligation to deliver services that you have ordered per the terms of this agreement.


K. Nondisclosure

By virtue of this agreement, the parties may have access to information that is confidential to one another (“confidential information”). We each agree to disclose only information that is required for the performance of obligations under this agreement. Confidential information shall be limited to the terms and pricing under this agreement, your data residing in the services environment, and all information clearly identified as confidential at the time of disclosure.


A party’s confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.


We each agree to hold each other’s confidential information in confidence from the date of disclosure. Also, we each agree to disclose confidential information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under this agreement. Chat2 will protect the confidentiality of your data residing in the services environment in accordance with Chat2 security practices. Nothing shall prevent either party from disclosing the terms or pricing under this agreement in any legal proceeding arising from or in connection with this agreement or from disclosing the confidential information to a governmental entity as required by law.


L. Entire Agreement

You agree that this agreement (including the information which is incorporated into this agreement by written reference (including reference to information contained in a URL or referenced policy), is the complete agreement, and that this agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such services. If any term of this agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of this agreement. It is expressly agreed that the terms of this agreement, shall supersede the terms in any purchase order or other non-Chat2 document and no terms included in any such purchase order or other non-Chat2 document shall apply to the services ordered. This agreement may not be modified and the rights and restrictions may not be altered or waived except in writing signed or accepted online through the Chat2 website by authorized representatives of you and of Chat2.


M. Limitation of Liability

NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), DATA, OR DATA USE. CHAT2’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS SOFTWARE AS A SERVICE AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO Chat2 FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST CHAT2 SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY

YOU UNDER THIS AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.


N. Export

Export laws and regulations of Australia, the United States and any other relevant local export laws and regulations apply to the services. You agree that such export control laws govern your use of the services (including technical data) and any services deliverables provided under this agreement, and you agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.


O. Other

1. Chat2 is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us.

We each will be responsible for paying our own employees, including employment related taxes and insurance.


2. You shall obtain at your sole expense any rights and consents from third parties necessary for Chat2 and its subcontractors to perform the services under this agreement.


3. You and Chat2 agree to submit to the exclusive use of arbitration with an independent arbitrator appointed by Chat2 in any dispute arising out of or relating to this agreement.


4. If you have a dispute with Chat2 or if you wish to provide a notice under the Indemnification section of this software as a service agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: Chat2 Attention: General Counsel, Legal Department. Chat2 may give notice applicable to Chat2’s software as a service customer base by means of a general notice on the Chat2 website, and notices specific to you by electronic mail to your e-mail address on record in Chat2’s account information or by written communication sent by first class mail or pre-paid post to your address on record in Chat2’s account information.


5. You may not assign this agreement or give or transfer the services or an interest in them to another individual or entity. If you grant a security interest in any portion of the services, the secured party has no right to use or transfer the services or any deliverables.


6. Except for actions for nonpayment or breach of Chat2’s proprietary rights, no action, regardless of form, arising out of or relating to this agreement may be brought by either party more than two years after the cause of action has accrued.


7. The Uniform Computer Information Transactions Act does not apply to this software as a service agreement or orders placed under it. You understand that Chat2’s business partners, including any third party firms retained by you to provide computer consulting services, are independent of Chat2 and are not Chat2’s agents. Chat2 is not liable for nor bound by any acts of any such business partner, unless the business partner is providing services as an Chat2 subcontractor on an engagement ordered under this software as a service agreement.


P. Force Majeure

Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, computer, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the services.


Q. Your Data

In performing the services, Chat2 will comply with the Chat2 Privacy Policy, which is available at www.Chat2.com/privacy and incorporated herein by reference, and with the Privacy Act 1988 (Cth) in force in Australia. For the avoidance of doubt Chat2 will protect your data in accordance with Australian Privacy Principles set out in the Privacy Act 1988 (Cth) whether the data is held within or outside Australia. The Chat2 Privacy Policy is subject to change at Chat2’s discretion; however, Chat2 policy changes will not result in a material reduction in the level of protection provided for your data during the period for which fees for the services have been paid and will continue to protect your data within and outside Australia in accordance with the Privacy Act 1988 (Cth) or any other privacy or data protection laws in force in Australia. Chat2 reserves the right to provide the services from locations, and/or through use of subcontractors, worldwide. You agree to provide any notices and obtain any consents related to your use of the services and Chat2’s provision of the services, including those related to the collection, use, processing, transfer and disclosure of personal information. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of your data. Notwithstanding any provision in this Agreement, Chat2 will indemnify you in respect of any loss suffered by you as a result of a breach of this clause by Chat2, including against any claims made against you by a third party which arises from Chat2's disclosure of that third party's information without consent howsoever caused. No provisions in this Agreement which have the effect of limiting Chat2's liability under this Agreement will apply to this clause.



R. Restrictions on Use of the Services

You agree not to use or permit use of the services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to Chat2 under this agreement, Chat2 reserves the right to remove or disable access to any material that violates the foregoing restrictions. Chat2 shall have no liability to you in the event that Chat2 takes such action. You agree to use use all reasonable endeavours to defend and indemnify Chat2 against any claim arising out of a violation of your obligations under this section.


S. Services Tools

Chat2 may use tools, scripts, software, and utilities (collectively, the “tools”) to monitor and administer the services and to help resolve your Chat2 service requests. The tools will not collect, report or store any of your data residing in the service production environment, except as necessary to troubleshoot service requests or other problems in the service. Data collected by the tools (excluding production data) may also be used to assist in managing Chat2’s product and service portfolio and for license management. You agree that (a) except as set forth in the following paragraph, you may not access or use the tools, and (b) you will not use or restore the tools from any backup at any time following termination of this agreement.


If Chat2 provides you with access to or use of any tools in connection with the services, your right to use such tools is governed by the license terms that Chat2 specifies for such tools; however, if Chat2 does not specify license terms for such tools, you shall have a non-transferable, non-exclusive, limited right to use such tools solely to facilitate your administration and monitoring of your services environment, subject to the terms of this agreement. Any such tools are provided by Chat2 on an “as is” basis and Chat2 does not provide technical support or offer any warranties for such tools.


T. Statistical Information

Chat2 may compile statistical information related to the performance of the services, and may make such information publicly available, provided that such information does not incorporate your data and/or identify your confidential information or include your company’s name. Chat2 retains all intellectual property rights in such information.


U. Third Party Web Sites, Content, Products and Services

The services may enable you to add links to Web sites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. Chat2 is not responsible for any third party Web sites or third party

content provided on or through the services and you bear all risks associated with the access and use of such Web sites and third party content, products and services.



V. Customer Reference

Subject to Chat2 first obtaining your written consent, you agree (i) that Chat2 may use your logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by Chat2 on Chat2.com for promotional purposes.