Terms of Service #

Last updated: September 1, 2021 #

These Terms of Service are effective immediately if you create your account on or after October 1, 2021. If you have an existing account or previously agreed to a version of our Terms of Service before October 1, 2021, these Terms of Service will be effective on November 1, 2021 and completely replace any prior version of the Terms of Service to which you agreed. Please be aware that your continued use our services after October 1, 2021 constitutes your acceptance of these Terms of Service. The most recent prior version of our Terms of Service is available here.

If you have a separate written agreement with YakChat, these Terms of Service will not apply to you.

No further action is required on your part. As part of these updates, we have not changed your ability to use our services. You may continue to access your account and use our services as you always have.

Legal Terms #
Plain English Explanation (blue) #

PLEASE REVIEW THESE TERMS CAREFULLY. ONCE ACCEPTED, THESE TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND YAKCHAT. ONLY THE TERMS IN THIS LEFT COLUMN ARE LEGALLY BINDING. THE EXPLANATIONS IN THE RIGHT COLUMN ARE FOR INFORMATIONAL PURPOSES ONLY. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT ACCEPT THESE TERMS, CREATE AN ACCOUNT, OR USE THE SERVICES (AS DEFINED BELOW).

Unless you work for an organization that has a separate written agreement with us to use our services, these are the terms that apply to your use of our services. You should read them. Only the terms in the left column will be legally binding. If you don’t agree to these terms, you shouldn’t use our services.

THE SERVICES ARE INTENDED FOR BUSINESS USE OR USE IN CONNECTION WITH AN INDIVIDUAL’S TRADE, CRAFT, OR PROFESSION ONLY.

Our services are generally intended for business or professional use only.

IMPORTANT NOTES:

  • THESE TERMS LIMIT OUR LIABILITY TO YOU. For more details, go to Section 10.

And, heads up, you should really check out Section 10 because it limits our liability to you if something goes wrong.

  • IN ADDITION, DISPUTES RELATED TO THESE TERMS OR THE SERVICES GENERALLY MUST BE RESOLVED BY A DISPUTE RESOLUTION PROCESS WHICH MAY LEAD TO BINDING ARBITRATION. For more details, go to Section 13.8.

If you have any questions, you can reach Customer Support here.

In these Terms of Service (referred to as these ‘Terms’ or this ‘Agreement’), the terms ‘you’, ‘your’, or ‘Customer’ refer to you. If you are creating an account in order to use the Services on behalf of an organization, then you are agreeing to these Terms for that organization and promising to us that you have the authority to bind that organization to these Terms (and, in which case, the term ‘you’ ‘your’ or ‘customer’ refer to that organization). The exception to this is if that organization has a separate written agreement with us covering the use of the Services, in which case that agreement will govern such use. The terms ‘we’, ‘us,’ ‘our’ or ‘YakChat’ refer to YakChat Ltd., a UK company, located at Belfield House, Chepstow, NP16 7NU.  YakChat or Customer may also be referred to individually as ‘party’ and together as ‘parties’ in these Terms. To be eligible to create an account in order to use the Services, you must review and accept these Terms.

Also, if we get into a dispute, we’ll have to figure it out in binding arbitration. Check out Section 13.8 for more details.

When we refer to the ‘Services’ in these Terms, we mean all products and services provided by us or our Affiliates, as applicable, that are (a) used by you, including, without limitation, products and services that are on a trial basis or otherwise free of charge or (b) ordered by you under an Order Form (as defined below). The Services may include products and services that provide both (x) platform services, including access to any application programming interface (‘YakChat API’) and (y) where applicable, communications services used in connection with the YakChat APIs.

When we refer to an ‘Affiliate’ in these Terms, we mean any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified. For purposes of this definition, ‘control’ means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.

Our services consist of any of our products and services provided by us or our affiliates that are used by you, including products or services provided to you on a trial basis or free of charge, or ordered by you under an order form.

1. Changes to These Terms #

We may update these Terms from time to time. We will provide you with prior written notice of any material updates at least thirty (30) days in advance of the effective date; provided, however, we may not be able to provide at least thirty (30) days prior written notice of material updates to these Terms that result from changes in laws, regulations, or requirements from telecommunications providers. The updated version of these Terms will be available at https://www.yakchat.com/terms-of-service/

Notices for material updates to these Terms will be given in accordance with Section 13.5 (Notices). Except as otherwise specified by us, updates will be effective and binding upon the date indicated at the top of these Terms. The updated version of these Terms will supersede all prior versions.

These terms might change. But we’ll let you know before we make any significant changes that impact you or your use of our services. We’ll let you know 30 days in advance unless we can’t because of changes in laws, regulations, or carrier requirements. The updated version of these terms will be posted on this page.

Following such notice, your continued use of the Services on or after the date the updated version of these Terms is effective and binding constitutes your acceptance of such updated Terms. If you do not agree to the updated version of these Terms, you must stop using the Services immediately.

If you keep using our services after these terms have changed and gone into effect, that means you have accepted those changes and they’re binding on you. If you don’t agree with the changed terms, you must stop using our services immediately.

2. Account Creation and Information #

2.1 Description of Service. YakChat provides of services for online text messaging from an array of business applications and devices (“Service” or “Services”). You may use the Services for your personal and business use or for internal business purpose in the organization that you represent. You may connect to the Services using any Internet browser supported by the Services. You are responsible for obtaining access to the Internet and the equipment necessary to use the Services. You can create and edit content with your user account and if you choose to do so, you can publish and share such content.

2.2 To use the Services, you will be asked to create  an account. As part of the account creation process, you’ll be asked to provide all required information in order to access or use the Services. If you represent an organization and wish to use the Services for corporate internal use, we recommend that you, and all other users from your organization, sign up for user accounts by providing your corporate contact information. In particular, we recommend that you use your corporate email address.

When creating an account, you must provide true, accurate, current, and complete information about yourself as requested during the account creation process. You must keep that information true, accurate, current, and complete after you create each account. If you provide any information that is untrue, inaccurate, outdated, or incomplete, or if YakChat has reasonable grounds to suspect that such information is untrue, inaccurate, outdated, or incomplete, YakChat may terminate your user account and refuse current or future use of any or all of the Services.  

If you want to use our services, you need to create an account. To create an account, you need to give us some information about yourself. The information you provide must be true and kept up to date. 

If you breach these Terms, including, without limitation, your payment obligations in Section 6 (Fees and Payment Terms), you are strictly prohibited from creating new accounts until you remedy such breach in full.

2.3 Organization Accounts and Administrators.  When you sign up for an account for your organization you may specify one or more administrators. The administrators will have the right to configure the Services based on your requirements and manage end users in your organization account. If your organization account is created and configured on your behalf by a third party, it is likely that such third party has assumed administrator role for your organization. Make sure that you enter into a suitable agreement with such third party specifying such party’s roles and restrictions as an administrator of your organization account.

You are responsible for:

i) ensuring confidentiality of your organization account password,

ii) appointing competent individuals as administrators for managing your organization account, and

iii) ensuring that all activities that occur in connection with your organization account comply with this Agreement. You understand that YakChat is not responsible for account administration and internal management of the Services for you.

You are responsible for taking necessary steps for ensuring that your organization does not lose control of the administrator accounts. You may specify a process to be followed for recovering control in the event of such loss of control of the administrator accounts by sending an email to info@yakchat.com, provided that the process is acceptable to YakChat. In the absence of any specified administrator account recovery process, YakChat may provide control of an administrator account to an individual providing proof satisfactory to YakChat demonstrating authorization to act on behalf of the organization. You agree not to hold YakChat liable for the consequences of any action taken by YakChat in good faith in this regard.

2.3. Communications from YakChat.  The Service may include certain communications from YakChat, such as service announcements, administrative messages and newsletters. You understand that these communications shall be considered part of using the Service. As part of our policy to provide you total privacy, we also provide you the option of opting out from receiving newsletters from us. However, you will not be able to opt-out from receiving service announcements and administrative messages.

2.4 Complaints.  If we receive a complaint from any person against you with respect to your activities as part of use of the Services, we will forward the complaint to the primary email address of your user account. You must respond to the complainant directly within 10 days of receiving the complaint forwarded by us and copy YakChat in the communication. If you do not respond to the complainant within 10 days from the date of our email to you, we may disclose your name and contact information to the complainant for enabling the complainant to take legal action against you. You understand that your failure to respond to the forwarded complaint within the 10 days’ time limit will be construed as your consent to disclosure of your name and contact information by YakChat to the complainant.

If you violate these terms, you are not allowed to create new accounts until you fix the violation.

3. Provision of the Services #

3.1 Our Responsibilities.  We will

(a) make the Services available to you in accordance with these Terms, our  including any usage guides and policies for the Services contained in such documentation (‘Documentation’), and any applicable ordering document between the parties that specifies mutually agreed upon rates for certain Services and other commercial terms, including any applicable minimum spend commitments (‘Order Form’);

(b) comply with our Service Level Agreement for the Services (‘SLA’) and our Security Overview for the Services, each of which may be updated from time to time;

(c) provide the Services in accordance with laws applicable to our provision of the Services to our customers generally (i.e. without regard for your particular use of the Services), subject to your use of the Services in accordance with these Terms, the applicable Documentation, and any applicable Order Form(s);

(d) make commercially reasonable efforts to use industry standard measures designed to scan, detect, and delete code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses;

(e) if applicable, use trained, qualified personnel to provide the Services; and

(f) use commercially reasonable efforts to provide you with applicable support for the Services as described in our Support Terms.

We want to make our services available for you to use 24/7, but things happen that occasionally make our services unavailable. We offer service credits if our services don’t meet our service level agreement (SLA). We will also make our services available to you in accordance with our published documentation.

 

3.2 Beta Offerings.  From time to time, we may make Services that are identified as alpha, beta, not generally available, limited release, developer preview, or any similar Services offered by us (collectively, ‘Beta Offerings’) available to you. You may choose to use a Beta Offering in your sole discretion. You agree that we have the sole authority and discretion to determine the period of time for testing and evaluation of Beta Services. We will be the sole judge of the success of such testing and the decision, if any, to offer the Beta Services as commercial services. You will be under no obligation to acquire a subscription to use any paid Service as a result of your subscription to any Beta Service.  We reserve the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the Beta Services with or without notice to you at our sole discretion, or decide not to make a Beta Offering generally available. We may discontinue a Beta Offering at any time. You agree that YakChat will not be liable to you or to any third party for any harm related to, arising out of, or caused by the modification, suspension or discontinuance of any of the Beta Services for any reason.

You have the choice to use our beta offerings (e.g., services that are in alpha, beta, limited release, etc.), but you don’t have to. These are not generally available, and they may have bugs or defects.

3.3 Suspension of Services.  We may suspend the Services or temporarily disable access to whole or part of any Service immediately upon notice to you for cause if, we in good faith, determine:

(a) that you or an End User (as defined below) materially breaches (or we, in good faith, believe that you or an End User has materially breached) any provision of these Terms or our Acceptable Use Policy, including our Service and Country Specific Requirements therein;

(b) there is an unusual and material spike or increase in your use of the Services and that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the Services;

(c) that our provision of the Services is prohibited by applicable law or regulation;

(d) there is any use of the Services by you or an End User that in our judgment threatens the security, integrity, or availability of the Services; or

(e) that information in your account is untrue, inaccurate, or incomplete. You remain responsible for the Fees (as defined below),

(f) any suspected illegal activity,

(g) that there are extended periods of inactivity, or

(h) where there are requests by law enforcement or other government agencies to suspend Services.

If we suspend the Services pursuant to this Section 3.3 or Section 6.3 (Fees and Payment Terms), we will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you may incur in connection with any such suspension.

Objections to suspension or disabling of user accounts should be made to info@yakchat.com within 30 days of being notified about the suspension. We may terminate a suspended or disabled user account after 30 days. We will also terminate your user account on your request.

In addition, we reserve the right to terminate your access to any Beta Service in case of unexpected technical issues or discontinuation of the Beta Service. You have the right to terminate your user account if YakChat breaches its obligations under these Terms and in such event, you will be entitled to prorated refund of any prepaid fees. Termination of user account will include denial of access to all Services, deletion of information in your user account such as your email address and password and deletion of all data in your user account.

We can suspend our services to you for several reasons:

(a) You or your end users violate these terms, including our Acceptable Use Policy and our Service and Country Specific Requirements ;

(b) You send fraudulent traffic using our services or your use of our services negatively impacts the operation of our services;

(c) Legal or regulatory conditions make it impracticable for our services to operate;

(d)  Your use or your end users’ use threatens the security or operability of our services; or

(e) Your information in your account isn’t true, accurate, or complete.

(f) we suspect illegal activity,

(g) extended periods of inactivity of your account, or

(h) where there are requests by law enforcement or other government agencies to suspend Services.

You are responsible for any fees that you owe us or otherwise incur while our services are suspended. We also won’t be liable for any consequences that result from the suspension of our services.

3.4 Changes to the Services.  The features and functions of the Services, including the YakChat APIs and our SLA, may change over time; provided, however, we will not materially decrease the overall functionality of the Services. It is your responsibility to ensure each Customer Application (as defined below) is compatible with the then-current Services. Although we try to avoid making changes to the Services that are not backwards-compatible, if any such changes become necessary, we will use reasonable efforts to let you know at least sixty (60) days prior to implementation. In the event we make a non-backwards compatible change to a YakChat API and such change materially and negatively impacts your use of the Services (‘Adverse API Change’), (a) you will notify us of the Adverse API Change and (b) we may agree to work with you, in our sole discretion, to resolve or otherwise address the Adverse API Change, except where we, in our sole discretion, have determined that an Adverse API Change is required for security reasons, by telecommunications providers, or to comply with applicable law or regulation.

3.5 Sample Files and Applications.YakChat may provide sample files and applications for the purpose of demonstrating the possibility of using the Services effectively for specific purposes. The information contained in any such sample files and applications consists of random data. YakChat makes no warranty, either express or implied, as to the accuracy, usefulness, completeness or reliability of the information or the sample files and applications.

We’re always looking to innovate and make our services better, so our APIs anSLA may change over time.  We will let you know in advance if any API changes aren’t backwards-compatible. We may also work with you to resolve any significant negative impacts that result from the API changes that aren’t backwards-compatible.

4. Your Responsibilities #

You will:

(a) be solely responsible for all use of the Services and Documentation under your account, including the quality and integrity of any data and other information made available to us by or for you through the use of the Services under these Terms (‘Customer Data’) and each software application or service that you make available to End Users that interfaces with the Services (each, a ‘Customer Application’);

(b) not transfer, resell, lease, license, or otherwise make available the Services to third parties (except to make the Services available to End Users in connection with the use of each Customer Application as permitted under these Terms) or offer them on a standalone basis;

(c) use the Services only in accordance with these Terms, our Acceptable Use Policy, including our  therein, the applicable Documentation, any applicable Order Form(s), and applicable law or regulation;

(d) be solely responsible for all acts, omissions, and activities of anyone who accesses or otherwise uses any Customer Application (‘End User’), including End Users’ compliance with these Terms, our Acceptable Use Policy, including our Service and Country Specific Requirements therein, the applicable Documentation, any applicable Order Form(s), and applicable law or regulation;

(e) do your best to prevent unauthorized access to or use of the Services and notify us promptly of any such unauthorized access or use;

(f) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; and

(g) comply with the representations and warranties you make in Section 8 (Representations, Warranties, and Disclaimer).

Some ‘dos and don’ts’ to keep in mind when using the services: 

(a) You’re responsible for all use of our services under your account, including your data and the software applications you develop or services you offer;

(b) You won’t transfer, resell, or make available to third parties our services, except to your end users as part of the software applications or services you offer;

(c)  You’ll use our services in accordance with these terms, our Acceptable Use Policy, including our service and country-specific terms, and any laws or regulations;

(d)  You’ll be responsible for your end users’ acts, omissions, and activities;

(e) You’ll prevent unauthorized access to or use of our services;

(f) You’ll cooperate during information requests; and

(g) You’ll comply with your promises in Section 8 (Representations, Warranties, and Disclaimer).  

We will not be liable for any loss or damage arising from unauthorized use of your account.

We have no liability for any unauthorized use under your account.

If you are the party that accepted these Terms and you re-assign your account to a third-party reseller for administration purposes, such account re-assignment will not excuse your obligations under these Terms. Your use of the Services will continue to be subject to these Terms.

If you re-assign your account to a third-party reseller, you are still responsible for your obligations under these terms.

5. Affiliates #

5.1 Your Affiliates.  Your Affiliates are not permitted to use the Services under these Terms that you accepted. Each of your Affiliates that wants to use the Services must accept these Terms individually and create its own account.

Your affiliates (namely a parent company or a subsidiary that your company controls) are not permitted to use our services under these terms. Each of your affiliates must create its own account and accept and agree to these terms individually.

5.2 Our Affiliates.  Our Affiliates may provide the Services, or a portion thereof, to you in accordance with these Terms and any applicable Order Form(s) with such Affiliates. We will (a) be responsible for the Services our Affiliates provide and (b) not be relieved of our obligations under these Terms if our Affiliates provide the Services or a portion thereof. We will enforce these Terms relating to the Services our Affiliates provide. Notwithstanding anything to the contrary in these Terms, our Affiliates may directly bill you (x) for the Services they provide or (y) solely as a billing agent for us or another Affiliate of ours providing the Services, as applicable.

Our affiliates may provide you with our services or bill you on behalf of us or another YakChat entity providing our services.

6. Fees and Payment Terms #

6.1 Fees.  You agree to pay fees in accordance with the then-current applicable rates available at:

 https://www.yakchat.com/sms-price-plans-for-microsoft-365-usa/  or

https://www.yakchat.com/sms-price-plans-for-microsoft-365-uk/ or 

 https://www.yakchat.com/flexible-sms-price-plans-for-office-365-australia/ ,

unless otherwise set forth in the applicable Order Form(s).

You agree to pay the fees generated under your account.  If you don’t have an order form for mutually agreed upon fees for certain services, then you will pay the applicable rates listed at:

https://www.yakchat.com/sms-price-plans-for-microsoft-365-usa/ or 

https://www.yakchat.com/sms-price-plans-for-microsoft-365-uk/ or 

 https://www.yakchat.com/flexible-sms-price-plans-for-office-365-australia/

Additionally, we will charge you, and you will pay, in accordance with Section 6.3 (Fees and Payment Terms), any and all additional costs, fines, or penalties we incur from a governmental or regulatory body or telecommunications provider as a result of your use of the Services.

If your use of our services causes us to incur additional costs, fines, or penalties, we will automatically bill you for it.

6.1.1 The Services are available under subscription plans of various durations. Payments for subscription plans of duration of less than a year can be made only by Credit Card. Your subscription will be automatically renewed at the end of each subscription period unless you inform us that you do not wish to renew the subscription. At the time of automatic renewal, the subscription fee will be charged to the Credit Card last used by you. We provide you the option of changing the details if you would like the payment for the renewal to be made through a different Credit Card. If you do not wish to renew the subscription, you must inform us at least seven days prior to the renewal date. If you have not downgraded to a free plan and if you have not informed us that you do not wish to renew the subscription, you will be presumed to have authorized YakChat to charge the subscription fee to the Credit Card last used by you. Please click here to know about our Refund Policy.

From time to time, we may change the price of any Service or charge for use of Services that are currently available free of charge. Any increase in charges will not apply until the expiry of your then current billing cycle. You will not be charged for using any Service unless you have opted for a paid subscription plan.

6.2 Taxes and Communications Surcharges.

6.2.1 Taxes.  All fees are exclusive of any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes (collectively, ‘Taxes’). You will pay all Taxes associated with these Terms, excluding any taxes based on our net income, property, or employees. If you are required by applicable law to withhold any Taxes from payments owed to us, you will reduce or eliminate such withheld Taxes upon receipt of the appropriate tax certificate or document provided by us. You will provide us with proof of payment of any withheld Taxes to the appropriate authority. Taxes will be shown as a separate line item on an invoice.

6.2.2 Communications Surcharges.  All fees are exclusive of any applicable communications service or telecommunication provider (e.g., carrier) fees or surcharges (collectively, ‘Communications Surcharges’). You will pay all Communications Surcharges associated with your use of the Services. Communications Surcharges will be shown as a separate line item on an invoice.

6.2.3 Exemption.  If you are exempt from paying certain Taxes or Communications Surcharges, you will provide the necessary exemption information as requested by us or a valid exemption certificate issued by the appropriate authority via e-mail to info@yakchat.com. You will be exempt on a going-forward basis once we approve your exemption request. If the appropriate authority determines, at any time, that you are not exempt from paying any Taxes or Communications Surcharges, you will promptly pay such Taxes or Communications Surcharges to us, plus any applicable interest or penalties.

You also agree to pay all applicable taxes and communications surcharges (e.g., pass-through carrier fees). If you are exempt from paying any taxes or communications surcharges, though, please let us know and provide us with the exemption information or proof.

6.3 Payment Terms.  Payment obligations are non-cancelable and fees, Taxes, and Communications Surcharges (collectively, ‘Fees’) once paid, are non-refundable. Except as otherwise set forth in the applicable Order Form(s) and subject to Section 6.4 (Payment Disputes), you will pay the Fees due under these Terms in accordance with the following applicable payment method:

You will pay us for any services you use. If you add funds to your account via credit card, then you must make sure you have added sufficient funds to cover the fees you owe us. If you do not have sufficient funds in your account to cover the fees you owe us or your credit card declines, then we may suspend our services to all of your accounts.

6.3.1 Credit Card Payment Terms.  If you elect to add funds to your account by credit card and use such funds to pay the Fees due, you are responsible for ensuring that such funds cover the Fees due. If your account does not have sufficient funds or your credit card declines a charge for the Fees due, we reserve the right to suspend the Services to all of your accounts until the Fees due are paid in full.

If we approve you for invoicing, you agree to pay the fees owed to us in US dollars, unless we agree to another currency in writing, no later than 30 days after the date of the invoice.

6.3.2 Invoicing Payment Terms.  If you elect to receive invoices and we approve you for the same, invoices will be sent to you each month via email to the email address(es) you designate in your account. You will pay the Fees due within thirty (30) days of the date of the invoice. Except as otherwise set forth in the applicable Order Form(s) or an invoice to the extent you procure the Services without an Order Form, the Fees are payable in United States dollars. If you fail to pay the Fees and remedy such failure within fifteen (15) days of the date we provide you with written notice of the same, we may (a) assess, and you will pay, a late fee of the lesser of 1.5% per month or the maximum amount allowable by applicable law and (b) suspend the Services to all of your accounts until the Fees are paid in full.

If you don’t pay on time, then we may send you a late notice. If we don’t get your payment within 15 days of the date of the late notice, then we may charge a late fee and suspend our services to all of your accounts. Please pay us on time.

6.4 Payment Disputes.  You will notify us in writing within sixty (60) days of the date we bill you for any Fees that you wish to dispute. You may withhold the disputed Fees until the dispute is resolved. Where you are disputing any Fees, you must act reasonably and in good faith and will cooperate diligently with us to resolve the dispute. We will not charge you a late fee or suspend the provision of the Services for unpaid Fees that are in dispute, unless you fail to cooperate diligently with us or we determine your dispute is not reasonable or brought in good faith.  

If you ever think that we charged you the wrong amount and you want to dispute it, then let us know, in writing, within 60 days of the billing date for the charge in question. You have to be reasonable when disputing a charge. You must be acting in good faith and cooperating with us to resolve the dispute.

7. Ownership, Customer Data, and Confidentiality #

7.1 Ownership.  As between the parties, we exclusively own and reserve all right, title, and interest in and to the Services, the Documentation, our Confidential Information (as defined below), and any data that is derived from the use of the Services that does not directly or indirectly identify you, End Users, or any natural person and includes (a) data such as volumes, frequencies, bounce rates and Service performance data and (b) subject to any restrictions under applicable laws, data that is anonymized, de-identified, and/or aggregated such that it could no longer directly or indirectly identify you, End Users, or any natural person, and any feedback or suggestions provided by you or an End User regarding the Services. As between the parties, you exclusively own and reserve all right, title, and interest in and to each Customer Application, your Confidential Information, and Customer Data, subject to our rights to process Customer Data in accordance with these Terms.

What’s ours is ours, including our services, the documentation, our confidential information, data that is derived from the use of our services that does not identify or no longer identifies you, your end users, or any natural person, and any feedback you or your end users have about our services. What’s yours is yours, including your software applications or services, your confidential information, and your data.

7.2 Customer Data.  You grant us and our Affiliates the right to process Customer Data as necessary to provide the Services in a manner consistent with these Terms, and our Privacy Policy. If you do not agree with the terms of our Privacy Policy you must stop using the Services immediately.

7.3 Personal Information and Privacy. Personal information you provide to YakChat through the Service is governed by YakChat Privacy Policy. Your election to use the Service indicates your acceptance of the terms of the YakChat Privacy Policy. You are responsible for maintaining confidentiality of your username, password and other sensitive information. You are responsible for all activities that occur in your user account and you agree to inform us immediately of any unauthorized use of your user account by email to info@yakchat.com. We are not responsible for any loss or damage to you or to any third party incurred as a result of any unauthorized access and/or use of your user account, or otherwise.

7.4 User Generated Content.  You may transmit or publish content created by you using any of the Services or otherwise. However, you shall be solely responsible for such content and the consequences of its transmission or publication. Any content made public will be publicly accessible through the internet and may be crawled and indexed by search engines. You are responsible for ensuring that you do not accidentally make any private content publicly available. Any content that you may receive from other users of the Services, is provided to you AS IS for your information and personal use only and you agree not to use, copy, reproduce, distribute, transmit, broadcast, display, sell, license or otherwise exploit such content for any purpose, without the express written consent of the person who owns the rights to such content. In the course of using any of the Services, if you come across any content with copyright notice(s) or any copy protection feature(s), you agree not to remove such copyright notice(s) or disable such copy protection feature(s) as the case may be. By making any copyrighted/copyrightable content available on any of the Services you affirm that you have the consent, authorization or permission, as the case may be from every person who may claim any rights in such content to make such content available in such manner. Further, by making any content available in the manner aforementioned, you expressly agree that YakChat will have the right to block access to or remove such content made available by you if YakChat receives complaints concerning any illegality or infringement of third party rights in such content. By using any of the Services and transmitting or publishing any content using such Service, you expressly consent to determination of questions of illegality or infringement of third party rights in such content by the agent designated by YakChat for this purpose.

For procedure relating to complaints of illegality or infringement of third-party rights in content transmitted or published using the Services, click here.

If you wish to protest any blocking or removal of content by YakChat, you may do so in the manner provided here.

We or our affiliates can use and disclose any data that you provide to us in order to provide you with our services according to our promises in these terms and the terms of our  

If you do not agree with our  you must stop using our services immediately.

7.5 Confidentiality

7.5.1 Definition.  ‘Information’ means any information or data, regardless of whether it is in tangible form, disclosed by either party (‘Disclosing Party’) to the other party (‘Receiving Party’) that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure, including, without limitation, Order Form(s), Customer Data, security reports and attestations, audit reports, customer lists, pricing, concepts, processes, plans, designs and other strategies, ‘know how’, financial, and other business and/or technical information and materials of Disclosing Party and its Affiliates. Confidential Information does not include any information which: (a) is publicly available through no breach of these Terms or fault of Receiving Party; (b) was properly known by Receiving Party, and to its knowledge, without any restriction, prior to disclosure by Disclosing Party; (c) was properly disclosed to Receiving Party, and to its knowledge, without any restriction, by another person without breach of Disclosing Party’s rights; or (d) is independently developed by Receiving Party without use of or reference to the Confidential Information of Disclosing Party.

7.5.2 Use and Disclosure.  Except as otherwise authorized by Disclosing Party in writing, Receiving Party will not

(a) use any Confidential Information of Disclosing Party for any purpose outside of exercising Receiving Party’s rights or fulfilling its obligations under these Terms and

(b) disclose or make Confidential Information of Disclosing Party available to any party, except to its, its Affiliates’, and their respective employees, legal counsel, accountants, contractors, and in our case, subcontractors (collectively, ‘Representatives’) who have a ‘need to know’ as necessary for Receiving Party to exercise its rights or fulfill its obligations under these Terms.

Receiving Party is responsible for its Representatives’ compliance with this Section 7.5. Representatives will be legally bound to protect Confidential Information of Disclosing Party under terms of confidentiality that are at least as protective as the terms of this Section 7.5. Receiving Party will protect the confidentiality of Confidential Information of Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information but in no event less than reasonable care. 

Neither party will tell anyone else about or use the confidential information that it got from the other party, except as agreed to in these terms.

7.5.3 Compelled Disclosure. Receiving Party may disclose Confidential Information of Disclosing Party if so required pursuant to a regulation, law, subpoena, or court order (collectively, ‘Compelled Disclosures’), provided Receiving Party gives Disclosing Party notice of a Compelled Disclosure (to the extent legally permitted). Receiving Party will provide reasonable cooperation to Disclosing Party in connection with a Compelled Disclosure at Disclosing Party’s sole expense.

Either party may disclose the confidential information it got from the other party if required by a law, regulation, subpoena, or a court order, if the parties fulfill certain conditions, such as providing notice (if legally allowed) and reasonable cooperation.

7.5.4 Injunctive Relief.  The parties expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 7.5 and that, in the event of an actual or threatened breach of the provisions of this Section 7.5, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.

Money alone may not be enough to make either party whole if the other party breaks its promise of confidentiality. So, the parties can seek other remedies (like gag orders), if needed.

8. Representations, Warranties, and Disclaimer #

8.1 Customer Data.  You represent and warrant that you have provided, and will continue to provide, adequate notices and have obtained, and will continue to obtain, the necessary permissions and consents to provide Customer Data to us for use and disclosure pursuant to Section 7.2 (Customer Data).

You promise that you are only giving us any data for which you’ve given required notices and gotten required permissions, including in a manner as required by law or regulation. In addition, we will only use and disclose this data according to Section 7.2 (Customer Data) above.

8.2 Services.  We represent and warrant that the Services perform materially in accordance with the applicable Documentation. Our sole obligation, and your sole and exclusive remedy, in the event of any failure by us to comply with this Section 8.2 will be for us to, at our option, (a) remediate any material non-conformity or (b) refund to you the Fees you actually paid for the time period during which the affected Services do not comply with this Section 8.2.

We promise that our services will work the way we say they will in our documentation.

8.3 Anti-Corruption and International Trade Laws.  Each party

(a) warrants that it will conduct business in accordance with all applicable anti-corruption, anti-money laundering, economic and trade sanctions, export controls, and other international trade laws, regulations, and governmental orders (collectively, ‘Anti-Corruption and Trade Laws’) in the jurisdictions that apply directly or indirectly to the Services, including, without limitation, the United States and

(b) represents that it has not made, offered, promised to make, or authorized any payment or anything of value in violation of Anti-Corruption and Trade Laws. You will promptly notify us in writing of any actual or potential violation of Anti-Corruption and Trade Laws in connection with the use of the Services and take all appropriate steps to remedy or resolve such violations, including any steps requested by us. You represent that you have obtained and warrant that you will continue to obtain all licenses or other authorizations required to export, re-export, or transfer the Services. Each party represents that it (and, in your case, also End Users) is not on any government prohibited, denied, unverified-party, sanctions, debarment, or exclusion list or export-controlled related restricted party list (collectively, ‘Sanctions Lists’). You will:

(a) immediately discontinue your use of the Services if you are placed on any Sanctions List and

(b) remove an End User’s access to the Services if such End User becomes placed on any Sanctions List. You represent that you have not and warrant that you will not export, re-export, or transfer the Services to an entity on any Sanctions List without prior authorization from the applicable governmental authority. Notwithstanding anything to the contrary in this Agreement, either party may terminate this Agreement immediately upon written notice to the other party if the other party is in breach of its obligations in this Section 8.3. If your account is blocked because it is operating in a country or region prohibited under this Section 8.3, you will receive notice of your account being inoperable when you attempt to log into your account in such prohibited country or region.

Each party swears to follow anti-corruption, anti-money laundering, economic and trade sanctions, export controls, and other international trade laws, regulations, and government orders. Each party also swears that it, or its organization, is not on any government sanctions or restricted party lists of people and organizations that companies like YakChat are not allowed to do business with.

8.4 DISCLAIMER.  WITHOUT LIMITING A PARTY’S  EXPRESS WARRANTIES AND OBLIGATIONS UNDER THESE TERMS, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, THE SERVICES ARE PROVIDED ‘AS IS,’ AND WE MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. WE ADDITIONALLY DISCLAIM ALL WARRANTIES RELATED TO THIRD PARTY TELECOMMUNICATIONS PROVIDERS. YOU ACKNOWLEDGE THE INTERNET AND TELECOMMUNICATIONS PROVIDERS’ NETWORKS ARE INHERENTLY INSECURE. ACCORDINGLY, YOU AGREE WE ARE NOT LIABLE FOR ANY CHANGES TO, INTERCEPTION OF, OR LOSS OF CUSTOMER DATA WHILE IN TRANSIT VIA THE INTERNET OR A TELECOMMUNICATIONS PROVIDER’S NETWORK. BETA OFFERINGS ARE PROVIDED ‘AS IS’ AND ‘AS AVAILABLE’ WITH NO WARRANTIES WHATSOEVER, AND WE WILL HAVE NO LIABILITY AND NO OBLIGATION TO INDEMNIFY FOR ANY BETA OFFERING WHATSOEVER. 

Except for any of our explicit warranties in this Section 8, we are offering our services ‘as is.’ You also understand that we are not responsible if anything happens to your data outside of our network or for anything that happens because of your use of our beta offerings, and we won’t indemnify for them either.

9. Mutual Indemnication #

9.1 Indemnification by Us.

9.1.1 Scope of Indemnification.  We will defend you from and against any claim, demand, suit, or proceeding made or brought against you by a third party alleging that our provision of the Services infringes or misappropriates such third party’s intellectual property rights (‘Infringement Claim’). We will indemnify you from any damages, fines or penalties imposed by a government or regulatory body, attorneys’ fees, and costs awarded against you or for settlement amounts approved by us for an Infringement Claim.

If our services violate someone else’s intellectual property rights, then we will fight that fight and pay the fines, damages, and costs awarded by a court or that we approve as part of a settlement.

9.1.2 Infringement Options.  If our provision of the Services has become, or in our opinion is likely to become, the subject of any Infringement Claim, we may at our option and expense:

(a) procure the right to continue providing the Services as set forth in these Terms;

(b) modify the Services to make them non-infringing; or          

(c) if the foregoing options are not reasonably practicable, terminate these Terms, or, if applicable, terminate the Services that are the subject of any Infringement Claim, and refund you any unused pre-paid fees.

If we think our services may violate someone else’s intellectual property rights, then we may try to obtain the right for us to continue to provide our services or modify our services so they are no longer infringing. If we are unable to do either, then we may terminate these terms, close your account, and refund you any unused pre-paid fees.

9.1.3 Limitations.  We will have no liability or obligation under this Section 9.1 with respect to any Infringement Claim

(a) arising out of your use of the Services in breach of these Terms;

(b) arising out of the combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves be infringing; or

(c) arising from Services for which there is no charge.

There are limits on what we indemnify you for. We will not pay for any fines, damages, or costs for:

(a) A claim that was filed because you violated these terms;

(b) Any intellectual property infringement claim that arises from your use of our services in combination with other applications, products, or services; or

(c) Any of our services that are free of charge.

9.2 Indemnification by You.  You will defend us, our officers, directors, employees, and Affiliates (collectively, ’YakChat Indemnified Parties) from and against any claim, demand, suit, or proceeding made or brought against a YakChat Indemnified Party y a  third party  alleging or arising out of (a) your or any End Users’ breach of Section 4 (Your Responsibilities) or (b) a Customer Application, including, without limitation, any claims that a Customer Application, or your or any End Users’ use of a Customer Application, infringes or misappropriates such third party’s intellectual property rights (collectively, ‘Customer Indemnifiable Claims’). You will indemnify us from any damages, fines or penalties imposed by a government or regulatory body, attorneys’ fees, and costs awarded against a YakChat Indemnified Party or for settlement amounts approved by you for a Customer Indemnifiable Claim. 

If someone comes after us for:

(a)  You or your end users’ violation of Section 4 (Your Responsibilities), or

(b) Something related to your software applications or services, then you have to fight those fights and cover the fines, damages, or costs awarded by a court or approved by you as part of a settlement.

9.3 Conditions of Indemnification.  As a condition of the foregoing indemnification obligations:

(a) the indemnified party (Indemnified Party) will promptly notify the indemnifying party (Indemnifying Party) of any Infringement Claim or Customer Indemnifiable Claim (individually and collectively referred to as a ‘Claim’); provided, however, any failure to give such prompt notice will not relieve Indemnifying Party of its obligations under this Section 9 except to the extent that  Indemnifying Party was actually and materially prejudiced by such failure;

(b) Indemnifying Party will have the sole and exclusive authority to defend or settle any Claim; and

(c) Indemnified Party will reasonably cooperate with Indemnifying Party in connection with Indemnifying Party’s activities under this Section 9 at Indemnifying Party’s expense.

Indemnified Party reserves the right, at its own expense, to participate in the defense of any Claim. Notwithstanding anything to the contrary in this Section 9, Indemnifying Party will not settle any Claims for which it has an obligation to indemnify pursuant to this Section 9 admitting liability or fault on behalf of Indemnified Party, nor create any obligation on behalf of Indemnified Party, without Indemnified Party’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed.

9.4 Exclusive Remedy.  This Section 9 states Indemnifying Party’s sole liability to, and Indemnified Party’s exclusive remedy against, the other party for any third-party claims.

If either party wants to be indemnified by the other for a particular claim, then the party requesting indemnification needs to do certain things – namely give notice of the claim, cooperate, and let the party providing the indemnification handle the defense or settlement of the claim. If these things are not done, then the other party may not have to provide the requested indemnification. See the legal language to the right for what is specifically required.

10. Limitation of Liability #

10.1 LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES.  IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, LOST DATA, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

Generally speaking, neither party owes the other party for any bad things that might indirectly result from our services or from a failure of a party to carry out its promises under these terms.

10.2 LIMITATION OF LIABILITY.  IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU UNDER THESE TERMS FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.

Generally speaking, any direct damages either party might owe to the other party cannot be more than the amount you’ve paid (or should have paid) us in the previous 12-month period starting from when the first incident occurred for the specific services giving rise to the claim.

10.3  EXCEPTIONS TO THE LIMITATION OF LIABILITY NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 10.1 (LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES) AND SECTION 102 (LIMITATION OF LIABILITY), THE LIMITATIONS IN SECTION 10.1 AND 102 DO NOT APPLY TO (a) YOUR BREACH OF SECTION 4 (YOUR RESPONSIBILITIES); (b) YOUR BREACH OF SECTION 6 (FEES PAYMENT TERMS); OR (c) AMOUNTS PAYABLE PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (MMUTUAL INDEMNIFICATION).

THE PROVISIONS OF THIS SECTION 10 ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH IN THIS SECTION 10 IN DETERMINING WHETHER TO ENTER INTO OR OTHERWISE ACCEPT THESE TERMS.

The only exceptions that apply to the limitations in Section 10.1 and Section 10.2 are indirect and direct damages for your violation of Section 4 (Your Responsibilities) or Section 6 (Fees and Payment Terms) or for the claims covered under Section 9 (Mutual Indemnification).

11. Use of Marks #

12.1 Term.  These Terms, as may be updated from time to time, will commence on the date they are accepted by you and continue until terminated in accordance with Section 12.2 (Termination) (Term).

These terms become effective on the day you accept them and create an account to use our services.

12. Term, Termination, and Survival #

12.1 Term.  These Terms, as may be updated from time to time, will commence on the date they are accepted by you and continue until terminated in accordance with Section 12.2 (Termination) (Term).

These terms become effective on the day you accept them and create an account to use our services.

 

12.2 Termination.

12.2.1 For Convenience.  Either party may terminate these Terms and close all of your accounts for any reason upon thirty (30) days written notice to the other party. Notwithstanding the preceding sentence, if there is an Order Form(s) in effect, Customer may not terminate these Terms until such Order Form(s) has expired or been terminated in accordance with its terms.

Either party may terminate these terms for any reason 30 days after informing the other party in writing. However, if there are any order forms in effect, you may not terminate these terms until those order forms have expired or been terminated.

Termination will result in the closure of all of your accounts.

12.2.2 Material Breach.  We may terminate these Terms (including all Order Form(s)) and close all of your accounts in the event you commit any material breach of these Terms and fail to remedy such material breach within fifteen (15) days of the date we provide written notice of such material breach to you. For the avoidance of doubt, your breach of our Acceptable Use Policy, including our Service and Country Specific Requirements therein, will be considered a material breach of these Terms. You may also terminate these Terms (including all Order Form(s)) in the event we commit a material breach of these Terms and fail to remedy such material breach within fifteen (15) days of the date you provide written notice of such material breach to us. 

If you significantly violate these terms and don’t fix the violation within 15 days of us telling you about the violation, then we may terminate these terms. Similarly, if we significantly violate these terms and don’t fix the violation within 15 days of you telling us about the violation, then you may terminate these terms. Please note that your violation of our  is considered a significant violation.

Termination will result in the closure of all of your accounts.

12.2.3 Insolvency.  Subject to applicable law, either party may terminate these Terms immediately and close all of your accounts by providing written notice in the event of the other party’s liquidation, commencement of dissolution proceedings, or any other proceeding relating to a receivership, failure to continue business, assignment for the benefit of creditors, or becoming the subject of bankruptcy.

Either party may also terminate these terms by providing the other party with written notice if the other party goes bankrupt or fails to continue its business.

Termination will result in the closure of all of your accounts.

2.3 Survival.  Upon termination of these Terms, the terms of this Section 12.3, and the terms of the following Sections will survive (i.e. still apply): Section 3.1(b) (regarding our Security Overview), Section 6 (Fees and Payment Terms), Section 7 (Ownership, Customer Data, and Confidentiality), Section 8.4 (Disclaimer), Section 9 (Mutual Indemnification), Section 10 (Limitation of Liability), and Section 13 (General).

12.4 Inactive User Accounts.  YakChat reserves the right to terminate unpaid user accounts that are inactive for a continuous period of 120 days. In the event of such termination, all data associated with such user account will be deleted. We will provide you prior notice of such termination and option to back-up your data. The data deletion policy may be implemented with respect to any or all of the Services. Each Service will be considered an independent and separate service for the purpose of calculating the period of inactivity. In other words, activity in one of the Services is not sufficient to keep your user account in another Service active. In case of accounts with more than one user, if at least one of the users is active, the account will not be considered inactive.

Some terms live on even after these terms end. That includes your payment obligations and the specific sections mentioned on the right.

13. General #

13.1 No Waiver and Order of Precedence.  No failure or delay by either party in exercising any right or enforcing any provision under these Terms will constitute a waiver of that right, provision, or any other provision. Any waiver must be in writing and signed by each party to be legally binding. Titles and headings of sections of these Terms are for convenience only and will not affect the construction of any provision of these Terms. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable Order Form, (2) these Terms, (3) our  Acceptable Use Policy, including our Country Specific Requirements therein, (4) any other terms incorporated by reference herein, and (5) the applicable Documentation.

Just because we don’t enforce some part of these terms against you now doesn’t mean we can’t enforce them against you later. If the various documents that are referred to in these terms seem to be in conflict, we explain which documents will prevail over the other ones.

13.2 Assignment.  You will not assign, delegate, or otherwise transfer these Terms or any applicable Order Form(s), in whole or in part, without our prior written consent. Any attempt by you to assign, delegate, or transfer these Terms or any applicable Order Form(s) without our consent will be null and void. We may assign, delegate, or otherwise transfer these Terms or any applicable Order Form(s), in whole or in part, without your consent. Subject to this Section 13.2, these Terms and any applicable Order Form(s) will be binding on each party and each party’s successors and assigns.

You cannot transfer these terms or any order forms to someone else or another party without our permission first. We can transfer these terms or any order forms to someone else or another party without your permission.

Termination will result in the closure of all of your accounts.

13.3 Relationship.  Each party is an independent contractor in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or will be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Each party will be solely responsible for all of its respective employees and agents and its respective labor costs and expenses arising in connection with its respective employees and agents. Each party will also be solely responsible for any and all claims, liabilities, damages, or debts of any type that may arise on account of each of its respective activities, or those of its respective employees and agents, in the performance of these Terms. Neither party has the authority to commit the other party in any way and will not attempt to do so or imply that it has the right to do so.

These terms don’t create any special relationship between the parties, like an employer-employee relationship, joint venture, or a partnership. Nothing will change that. Each party will be responsible for its own employees and agents.

13.4 Severability.  If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect.

If any part of these terms is not enforceable, the rest of these terms will still be enforceable.

13.5 Notices.  Notices to us under these Terms will be provided via email to info@yakchat.com. Notices to you under these Terms will be provided via (a) email to the email address you designate in your account or (b) your account portal.

If you need to notify us, you must send notices via email to info@yakchat.com.

If we need to notify you, we’ll notify you via email at the email address designated in your account or via your account portal.

13.6 Force Majeure. No failure, delay, or default in performance of any obligation of a party will constitute an event of default or breach of these Terms to the extent that such failure to perform, delay, or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil, or military authority, fire, strike, lockout, or other labor dispute, flood, terrorist act, war, riot, theft, earthquake, or other natural disaster. The party affected by such cause will take all reasonable actions to minimize the consequences of such cause.

If either party can’t keep its promises because something crazy happens beyond its control (think earthquake, massive power outage, war, etc.), then that doesn’t count as a violation of these terms.

13.7 Government Terms.  We provide the Services, including any related software and technology, for ultimate federal government end use solely in accordance with these Terms. If you (or any End Users) are an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by these Terms. All other use is prohibited and no rights other than those provided in these Terms are conferred. The Services were developed fully at private expense.

If you’re associated with a government entity, these terms apply to your use of our services.

13.8 Dispute Resolution.  In the event of a dispute, claim, or controversy arising out of or in connection with these Terms or the breach, termination, enforcement, interpretation, or validity thereof (other than for disputes, claims, or controversies related to the intellectual property of a party) (collectively, ‘Disputes’), each party’s senior representatives will engage in good faith negotiations with the other party’s senior representatives to amicably resolve a Dispute. If parties are unable to resolve a Dispute within thirty (30) days after the first request to engage in good faith negotiations or within such other time period as the parties may agree to in writing, then either party may commence binding arbitration under JAMS’ Comprehensive Arbitration Rules and Procedures. The parties will share equally the fees and expenses of the JAMS arbitrator. The arbitration will be conducted by a sole arbitrator chosen by the mutual agreement of the parties or, failing that, by JAMS under its then prevailing rules. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator will have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies. Each party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. Any arbitration proceedings will take place in (a) San Francisco, California if  Customer is domiciled in any country outside of the European Economic Area or its regions or territories, the United Kingdom, Switzerland, Andorra, or Vatican City or (b) London, England if Customer is domiciled in any country within the European Economic Area or its regions or territories, the United Kingdom, Switzerland, Andorra, or Vatican City.

Any controversy or claim arising out of or relating to the Terms shall be determined by the appointment of a single arbitrator to be agreed between the parties, or failing agreement within fourteen days, after either party has given to the other a written request to concur in the appointment of an arbitrator, by an arbitrator to be appointed by the President or a Vice President of the Chartered Institute of Arbitrators.

The decision of the arbitrator shall be final and unappealable. The arbitration shall be conducted in England and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Notwithstanding anything to the contrary, YakChat may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction.

If there is a dispute (except intellectual property disputes), the parties will escalate the dispute internally to see if it can be resolved. If it can’t, the parties agree to go to binding arbitration in San Francisco, California, unless your legal residence is in the EEA, UK, or Switzerland, Andorra, or Vatican City, in which case we will go to binding arbitration in London, England.

13.9 Governing Law and Venue.  Unless unenforceable under applicable law, these Terms will be governed by and interpreted in accordance with the laws of the applicable state or country identified below, without regard to conflicts of laws and principles that would cause the laws of another jurisdiction to apply. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in Section 13.8 (Dispute Resolution), any legal suit, action, or proceeding arising out of or related to these Terms or the Services will be instituted in the applicable courts identified below, and each party consents to the personal jurisdiction of these courts.

If the parties have a dispute, then California laws will apply, unless your legal residence is in the EEA, UK, or Switzerland, Andorra, or Vatican City, in which case the laws of England and Wales will apply. We definitely don’t want to, but, if the parties have to go to court, then it will be in San Francisco, California if California law applies or London, England if the laws of England and Wales apply. Court isn’t a great option, but at least it’ll be in two of the best cities in the world!

If Customer is domiciled in: Governing Law: Courts with personal jurisdiction
Any country outside the European Economic Area or its regions or territories, the United Kingdom, Switzerland, Andorra, or Vatican City State of California State or federal courts of San Francisco, California, United States of America
Any country within the European Economic Area or its regions or territories, the United Kingdom, Switzerland, Andorra, or Vatican City England and Wales Courts of London, England
If Customer is domiciled in:
Any country outside the European Economic Area or its regions or territories, the United Kingdom, Switzerland, Andorra, or Vatican City
Governing Law:
State of California
Courts with Personal Jurisdiction:
State or federal courts of San Francisco, California, United States of America
If Customer is domiciled in:
Any country within the European Economic Area or its regions or territories, the United Kingdom, Switzerland, Andorra, or Vatican City
Governing Law:
England and Wales
Courts with Personal Jurisdiction:
The Courts of England and Wales

13.10 Class Action Waiver.  Each party agrees that any Disputes between the parties must be brought against each other on an individual basis only. That means neither party can bring a Dispute as a plaintiff or class member in a class action, consolidated action, or representative action. An arbitrator cannot combine more than one person’s or entity’s Disputes into a single case and cannot preside over any consolidated class or representative proceeding. Each party agrees the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought a Dispute and cannot impact or otherwise be used to decide Disputes with other people or entities, including other YakChat customers. If a court decides that this Section 13.10 is not enforceable or valid, then this Section 13.10 will be null and void. But, the rest of these Terms will still apply.

Neither party will bring a class action suit against the other party. If, for some reason, a court decides that this Section 13.10 isn’t enforceable, then this Section 13.10 will go away.

13.11 Entire Agreement.  Except as provided in these Terms and any exhibits or attachments, applicable Order Form(s), or other terms incorporated by reference into these Terms, these Terms supersede all prior and contemporaneous proposals, statements, sales materials, presentations, or agreements, oral and written. The parties agree that Section 7.3 (Confidentiality) hereby supersedes and prevails over all prior, contemporaneous, and future non-disclosure or confidentiality agreements between the parties in their entirety. No oral or written information or advice given by us, our agents, or our employees will create a warranty or in any way increase the scope of the warranties or obligations under these Terms. Any term or condition stated in your vendor registration form or registration portal or in any purchase order document or similar document provided by you will be construed solely as evidence of your internal business processes, and the terms and conditions contained thereon will be null and void and have no effect with regard to these Terms between the parties and be non-binding against us even if accepted or signed by us after the date you accept these Terms.

This is the only set of terms that governs the parties’ relationship. Any purchase order or other terms that you provide will not be binding or valid.

14. Additional Terms #

14.1 If you are domiciled in the European Economic Area (EEA), the United Kingdom, or Switzerland, nothing in these Terms will exclude or limit the liability of either party for (i) gross negligence or intentional misconduct of such party; (ii) death or personal injury caused by such party’s negligence; (iii) fraud or fraudulent misrepresentation; or (iv) any other liability to the extent that the same may not be excluded or limited as a matter of applicable law.

These terms apply to you if your legal residence is in the EEA, UK, or Switzerland.

14.2 If you are domiciled in Germany, we warrant that the Services will operate in accordance with the applicable Documentation and will materially comply with any specifications contained the applicable Documentation. The parties agree that to the extent you are entitled to any statutory warranty rights, the applicable statutory warranty period is hereby reduced to twelve (12) months and any and all further warranties are excluded.

These terms apply to you if your legal residence is in Germany.

14.3 If you are a microenterprice, small enterprise, or not for profit organisation and we provide you with the Services within the European Economic Area or United Kingdom, you have read and agree to the European Electronic Communications Code Rights Waiver.

These terms apply to you if you are a microenterprise, small enterprise, or not for profit organization in the EEA or UK.

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