This Service Agreement (this "Agreement”) is between SofTech International, a Texas Corporation, (“ChatIQ”) and the entity ("Customer”) that has contracted for ChatIQ services (the "Service”), located at www.chatiq.com. This Agreement governs Customer's use of the ChatIQ Administration Server and the Agent Console downloadable software. This Agreement is effective as of the date Customer is notified that any Service is first available to Customer (the "Effective Date”).
1. Licenses. Subject to the terms of this Agreement, ChatIQ grants Customer a non-exclusive, limited license to use the Service for which Customer has then contracted. Customer's right to use licenses shall commence on the Effective Date.
2. Charges and Payment of Fees.
2.1 License Fees. Customer agrees to pay the fees for the contracted licenses at the prices and on the terms set forth on the Pricing Info on the ChatIQ website located at www.chatiq.com and on the other terms of this Agreement. If the Customer signed up for a license at no charge for a specified period, then no charge applies for such license for such period, usually fourteen (14) days. Customer may purchase additional licenses at the prices then in effect (unless otherwise agreed) and on the other terms of this Agreement, including Section 2.2, subject to restrictions on additional license purchases. Customer also may reduce its licenses as set forth in Section 2.2. License fees are not refundable or creditable. Charges for services other than licenses will be billed as agreed at the time such services are contracted. All prices are quoted in and shall be payable in United States dollars.
2.2 Payment Terms.
(a) Generally. ChatIQ charges and collects in advance for Licenses. Licenses are payable either on a monthly, semi-annual or annual basis ("Annual Licenses”).
(b) Fees for Adding Licenses. If Customer adds licenses, Customer will be billed or invoiced when such licenses are added. The fees for all added Annual Licenses, when added or renewed on an anniversary of the Effective Date (each a “Renewal Date”), will be billed or invoiced for a one year term. The fees for Annual Licenses other than on a Renewal Date (“Off-Term Licenses”) will be billed or invoiced for a proportionate amount of the applicable annual fee based on the length of the period from the date such Off-Term Units are added until the next Renewal Date. Thereafter, such Off-Term Units will be billed or invoiced for the full annual fee with Customer’s other Annual Licenses.
(c) Reducing Licenses. Customer may elect to terminate any or all of its Annual Licenses on each Renewal Date if Customer provides ChatIQ at least thirty (30) days’ advance written notice of such election.
(d) Invoices. License charges will be based on the number of Licenses contracted for or used, whether or not such Licenses are actively used. Invoices will be (i) generated (A) on or prior to the Effective Date and, for Licenses added other than on a Renewal Date, as such Licenses are added, and (B) unless this Agreement has terminated, approximately one month in advance of any subsequent Renewal Date for all then effective Annual Licenses, and (ii) due within thirty (30) days of the date of such invoice. Customer must notify ChatIQ within sixty (60) days following receipt of any invoice if it disagrees with any charge in such invoice and the basis for such disagreement. To the extent Customer fails to provide such notice in such time period, then such invoice will be deemed conclusive and Customer will be deemed to have waived any right to thereafter dispute the charges in such invoice.
3. Use of the Service.
3.1 Permitted Users. Use of the Service by Customer, its employees, and each third party that Customer designates as a permitted user of a License (each such employee and third party is a "Permitted User”), is subject to the terms and conditions of this Agreement. Customer may not designate a competitor of ChatIQ as a Permitted User. Licenses are on a "named user” basis and may only be used by the individual Permitted User named in the account for such License pursuant to Section 3.3. Customer understands and agrees that it is responsible for, and agrees to indemnify and hold ChatIQ harmless from, the acts and omissions of the Permitted Users.
3.2 Ownership. ChatIQ own all right, title and interest, including intellectual property rights, in and to the Service. Customer acknowledges that no title to the intellectual property in the Service is transferred to Customer. Any suggestions, ideas, enhancement requests, feedback, recommendations or other information Customer or any Permitted User provides to ChatIQ relating to the Service are owned exclusively by ChatIQ. Customer hereby assigns such rights to ChatIQ. ChatIQ reserves all rights not expressly granted hereunder. Customer agrees that it will not attempt to, nor authorize others to, reverse engineer, reverse compile, disassemble, modify, adapt, translate, create derivative works from, sell, rent, lease, loan, time-share, distribute, transmit over a network, sublicense or provide service bureau services by using, the Service, in whole or in part. Customer also agrees that it will not "frame” or "mirror”, the Service, or any content contained therein.
3.3 User Accounts and Information. In order for a Permitted User to use a License to access the Service, he or she must have a user account and be registered with ChatIQ. User accounts cannot be "shared” or used by more than one individual. Customer agrees to submit accurate, current and complete information about each Permitted User, and to promptly update such information. ChatIQ understands and agrees that the identity of a specific Permitted User may change during the term of this Agreement if Customer desires to remove one individual's access to the Service and to provide another individual with such access.
3.4 Passwords. Each Permitted User will have a personal password for his or her user account. ChatIQ has no obligations with regard to the use of such password by third parties. Customer agrees to notify ChatIQ as soon as commercially reasonable if Customer has any reason to believe that the security of Customer's account has been compromised.
3.5 Privacy. Customer agrees to the ChatIQ "Privacy Policy” located at (http://www.chatiq.com) (the "Privacy Policy”). ChatIQ may amend the Privacy Policy from time to time, as set forth in the Privacy Policy, and Customer will be deemed to have agreed to such amendments as set forth in the Privacy Policy.
3.9 Support. ChatIQ will provide Customer with reasonable levels of support through a variety of systems, including FAQs and email.
4. Term and Termination.
4.1 Term and Renewal. Unless sooner terminated, this Agreement commences on the Effective Date and continues until the first anniversary of such date. On the expiration of the initial term and each renewal term, this Agreement will automatically renew for an additional one (1) year term, unless one party provides the other with written notice of its intent not to renew at least thirty (30) days prior to such anniversary date (Customer's termination of all its Annual Licenses pursuant to Section 2.2(c) is deemed a notice of non-renewal). Notwithstanding the foregoing, if the Licenses are provided at no charge for an introductory period, then the initial renewal of this Agreement will only occur upon the Effective Date. If so renewed, then thereafter this Agreement will automatically renew as set forth above.
4.2 Suspension or Termination. If either party materially breaches this Agreement and fails to cure such breach within thirty (30) days of notice, then the other party, in its sole discretion, may terminate this Agreement, and, if Customer is the breaching party, ChatIQ may suspend or terminate Customer's and each Permitted User's password, account, or use of the Service and remove and discard any Data within the Service.
4.3 Effect of Termination. Upon the termination or expiration of this Agreement for any reason, (a) all of Customer's Licenses immediately terminate, (b) Customer's right to access the Service immediately ceases. Sections 3.2, 4, 5, 6, 7, 8, 9, 10 and 12 will survive the expiration or termination of this Agreement.
5. No Representations or Warranties. ChatIQ is providing the Service (including Licenses), and related support on an "As-Is" basis. Neither party makes any warranties, express or implied, concerning the subject matter of this Agreement, the Service (including Licenses) and all performance hereunder, and each party hereby disclaims any and all implied warranties, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, and non-infringement of third party rights, in each case related to this Agreement, the Service and all performance hereunder. ChatIQ does not warrant that the Service or related support shall be uninterrupted or error free, and makes no warranties regarding the completeness, accuracy or availability of the Service or related support. Neither ChatIQ nor its suppliers make any representation or warranty regarding the accuracy of any materials or other information provided on the Service or related support. These disclaimers constitute an essential part of this Agreement.
6. Limitation of Liability. In no event shall either party's aggregate liability under or relating to this Agreement, the Service or related support exceed the amounts actually paid by and/or due from Customer for Licenses under this Agreement in the one (1) month period immediately preceding the event giving rise to such claim; provided that such cap on liability shall not apply to liability under Section 7. In addition, none of ChatIQ, its licensors, nor Customer, shall be liable under or relating to this Agreement, the Service or related support under any theory for any incidental, consequential, special or exemplary damages in any way relating to this Agreement, including any lost profits or lost savings, regardless of the theory on which any such damages may be based, even if such entity has been advised of the possibility of such damages, or for any claim by any third party. These limitations and disclaimers of liability constitute an essential part of this Agreement.
7. General Indemnification. Customer hereby agrees to indemnify and hold harmless SofTech International, its officers, directors, employees, partners, affiliates, and associates, ChatIQ and its suppliers and licensors against any claim, damages, loss, liability or expense, including attorneys fees, arising out of Customer's or any Permitted User's use of the Service in any way contrary to this Agreement.
8. Notices. All notices, requests or other communications required to be given under this Agreement must be in writing. Each party may give notice by means of written communication sent by pre-paid post or courier or by email to the other party at the addresses set forth below (as it may be updated from time to time) in the case of ChatIQ, or at the address then on record in Customer's account information with ChatIQ, in the case of Customer. Notices addressed, as indicated above will be effective upon the earlier of (a) actual receipt, (b) three (3) days after posting, if sent by prepaid registered mail, return receipt requested, (c) the next business day, if sent by overnight courier, or (d) if sent by confirmed email, 12 hours after dispatch.
ChatIQ
13801 N. Mo-Pac Expressway, Suite 100
Austin, TX 78727
9. Arbitration. Any dispute or claim arising out of or in connection with this Agreement will be finally settled by binding arbitration to be conducted in Austin, Texas under the commercial arbitration rules then prevailing of the American Arbitration Association by one arbitrator appointed in accordance with those rules. The arbitrator will apply the law specified in Section 13 to the merits of any dispute or claim. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator may grant permanent injunctions or other relief in such dispute or claim; provided that the arbitrator may not grant licenses to any intellectual property owned by either party nor may the arbitrator award punitive damages. Notwithstanding the foregoing, without breach of this arbitration provision either party may apply to any court of competent jurisdiction to collect amounts due, for temporary injunctive relief, or to enforce such party's intellectual property rights.
10. Force Majeure. Any failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party, including, but not limited to, acts of God, war (declared or undeclared), acts of terrorism, civil unrest, strike, fire, flood, or other act of nature, power outages, and failures of the Internet, delays in component supply, equipment failure, governmental acts, orders or restrictions, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.
11. Publicity. ChatIQ may list Customer on its website as a customer of ChatIQ. In addition, Customer agrees to reasonably consider cooperating with ChatIQ from time to time in connection with serving as a customer reference, providing testimonials for the Service; and issuing press releases relating to the relationship between Customer and ChatIQ.
12. General Provisions. This Agreement shall be governed by the laws of the State of Texas, without application of its conflict of laws principles. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby. If Customer uses the Service from outside the United States of America, Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of the United States and other applicable countries and jurisdictions. No waiver by either party of the breach of this Agreement will be valid or binding unless made in writing and signed by the party prejudiced thereby. This Agreement constitutes the entire agreement with respect to the subject matter hereof and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. The terms and conditions on any purchase order or other document either party may submit to purchase Licenses or otherwise shall not be effective, notwithstanding any contrary terms therein. Except as set forth herein, this Agreement may be amended or modified only by the mutual written agreement of authorized representatives of the parties. Customer may not assign or transfer this Agreement without ChatIQ's prior written consent.