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Terms of Services
MATRIXSENSE TECHNOLOGY GROUP LTD. (“MatrixSense”, “ChatSmart”, “we,” “us”, or “our”) Provides a Software as a Service (SaaS) based “Conversation Cloud”,
named “ChatSmart Platform” or “ChatSmart Solution” that allows our customers to store, manipulate, analyse and transfer messages between their business systems and their customers on ChatSmart – provided and third party messaging channels (the “Service”). A “Customer” is an entity with whom ChatSmart has an agreement to provide the Service.
This Terms of Service (the “Agreement”) is an agreement between the Customer and ChatSmart, together the “Parties” and each,
a “Party”, and is entered the date the Customer signs up for a ChatSmart account through the ChatSmart website or the date specified on the Service Agreement. (the “Effective Date”).
If you register for a ChatSmart account, you acknowledge your understanding of these terms and enter the Agreement on behalf of Customer. You furthermore acknowledge that Customer is not domiciled in Hong Kong. Please make sure you have the necessary authority to enter into the Agreement on behalf of Customer before proceeding.
BY USING ANY ELEMENT OF THE CHATSMART SOLUTION (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 15. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE CHATSMART SOLUTION, INCLUDING USE OF ANY PART THEREOF. CUSTOMER REPRESENTS AND WARRANTS TO CHATSMART THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE CHATSMART SOLUTION ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO CHATSMART THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
1. “Administrator Accounts” as defined in section 8.
2. “Administrative User” means an individual who is an employee or contractor of Customer and that Customer wishes to have access to and use of the ChatSmart Platform.
3. “Business” means either the Customer or Customer’s Client, as the case may be.
4. “Integrated Product” means any of the following: (i)
Customer Application, (ii) Custom-Integrated Business Applications, and (iii)
Pre-Integrated Third-Party Business Applications.
5. “Chat Participant” means an individual who communicates with a Business (a “User”) or on behalf of a Business (an “Agent”)
through the ChatSmart Platform.
6. “Conversation” means an exchange of any number of sent or received ChatSmart Messages between an individual Integrated Product and a Chat Participant in a month.
7. “Customer Account” as defined in section 8.
8. “Customer Application” means any software application or web site developed by Customer using or integrating with the ChatSmart APIs under the license terms of this Agreement.
9. “Customer’s Client” means any clients of the Customer.
10. “Customer Data” means any data, information, content,
records, and files that Customer (or any of its Administrative Users, Customers Clients or Chat Participants) loads, receive through, transmits to or enters into the ChatSmart Platform, and any data, information, content, records and files that the ChatSmart Platform obtains from Customer’s servers or systems or third parties on Customer’s behalf, including all intellectual property rights in any of the foregoing.
11. “Custom-Integrated Business Applications” means any business software applications used by Customer to interoperate with the ChatSmart Platform through the ChatSmart API, where such software has been integrated with the ChatSmart API by Customer, but which software, for greater certainty,
excludes Pre-Integrated Third-Party Business Applications and Customer Application(s).
12. “Messaging Channels” means either (i) web or (ii) a Third Party Messaging Platform that is integrated with the ChatSmart Solution.
13. “Modifications” means modifications, improvements,
customisations, updates, enhancements, aggregations, compilations, derivative works, translations, adaptations, and results from processing (including analyses, reports, databases, datasets, recommendations, and visual representations) in any form or medium, and “Modify” has a corresponding meaning.
14. “Personal Data” means any information relating to an identified or identifiable natural person any information relating to an identified or identifiable natural person (“Data Subject”)
15. “Pre-Integrated Third-Party Business Applications”
means third party business software used by Customer to interoperate with the ChatSmart Platform, where such software is already integrated with the ChatSmart Platform and is made available to customers on the ChatSmart Website.
16. “Services” means the services provided by ChatSmart to Customer that facilitates the communication between a Business and Chat Participants through a variety of Messaging Channels, as more particularly described on the ChatSmart Website.
17. “ChatSmart API” means the application programming interface, sample source code, tools, webhooks, instructions, documentation,
other materials, and any Modifications to it, made available by ChatSmart to Customer at that time including but not limited to sending messages, to assist Customer in developing its Customer Application that interoperates with the ChatSmart Platform.
18. “ChatSmart Message” means any communication sent or received between a Chat Participant and an Integrated Product using any component of the ChatSmart Solution.
19. “ChatSmart Platform” means the software, hardware, and systems used by ChatSmart to host and make the Services available for Customer’s use, including the Website, and any Modifications to it.
20. “ChatSmart Property” is as defined in section 5.
21. “ChatSmart Solution” means: (i) the ChatSmart Platform; (ii) the ChatSmart API; (iii) any Modifications to the preceding.
22. “ChatSmart Website” means any websites used by ChatSmart to provide the ChatSmart Services, including the website located at https://www.chatsmart.io.
23. “Third Party Messaging Platforms” means any third party platform that may be used by Chat Participants to transmit and receive messages with a Business, including but not limited to WhatsApp, Facebook Messenger,
WeChat, LINE and other platforms that ChatSmart may support in the future.
24. “ChatSmart Chatbot Module” means the module the ChatSmart developed for the customers that facilitate the assignment and routing of ChatSmart Messages to Agents. ChatSmart reserves the right to define the scope for the module.
2. ChatSmart Platform
Pre-Integrated Third-Party Business Applications, and Custom-Integrated Business Applications; and (ii) has taken all steps as necessary to enable interoperability between the ChatSmart Platform and all applicable Third Party Messaging Platforms, Pre-Integrated Third-Party Business Applications, and Custom-Integrated Business Applications, including acquiring the necessary approvals and API keys, whether directly or via Customer’s Clients, to access these messaging channels as a business.
3. License to ChatSmart API
License to ChatSmart API. Subject to Customer’s compliance with the terms and conditions of this Agreement, ChatSmart grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable,
revocable right and license during the Term to use the ChatSmart API solely (i)
to enable the Customer Application to interoperate with the ChatSmart Platform or (ii) for developing or enabling Custom-Integrated Business Applications that will only be used by Customer to interoperate with the ChatSmart Platform in accordance with the terms of this Agreement and any other policies and guidelines published by ChatSmart from time to time.
4. Trademark License
1. During the Term, Customer hereby grants to ChatSmart a worldwide, non-exclusive, non-transferable and non-sub-licensable (other than to affiliates) royalty-free licence to use Customer’s trademarks and logos made available to ChatSmart by Customer as part of this Agreement, solely in connection with the marketing, advertising, and promotion of the ChatSmart Solution, including listing the Customer and the Customer Application on the ChatSmart Website; and only in accordance with Customer’s reasonable trademark usage guidelines, as updated by Customer from time to time. Customer may require ChatSmart to cease using Customer’s trademarks and logos if, in the reasonable opinion of Customer, the continued display of Customer’s trademarks and logos would cause a materially adverse effect on Customer’s image and the goodwill associated with it.
2. During the Term, ChatSmart grants to Customer a limited, non-exclusive, non-transferable and non-sub-licensable (other than affiliates) royalty-free licence to use ChatSmart’s trademarks and logos made available to Customer by ChatSmart as part of this Agreement, solely in connection with the marketing, advertising, and promotion of the ChatSmart Solution, and only in accordance with ChatSmart’s reasonable trademark usage guidelines, as updated by ChatSmart from time to time. ChatSmart may require Customer to cease using the ChatSmart’s trademarks and logos if, in the reasonable opinion of ChatSmart, the continued display of the ChatSmart’s trademarks and logos would cause a materially adverse effect on ChatSmart’s image and the goodwill associated with it.
5. Reservation of Rights
ChatSmart expressly reserves all rights, title, and interest in, and Customer will not acquire any right, title or interest in: (i)
the ChatSmart Solution (or any part thereof) and any other materials or content provided by ChatSmart under this Agreement, including any and all Modifications to any of the foregoing; and (ii) all intellectual property rights in any of the foregoing (clauses (i) and (ii) are collectively, the “ChatSmart Property”), in each case, subject to the license rights expressly granted under Section 2, 3. All right, title and interest in the ChatSmart Property will remain with ChatSmart (or ChatSmart’s third party suppliers, as applicable).
For greater certainty, the ChatSmart Property is licensed and not “sold” to Customer.
Customer shall retain all right, title, and interest to any modifications, extensions, or derivative works of the ChatSmart SDKs that Customer develops or has developed on its behalf (such modifications,
extensions or derivative works, the “Customer Derivative Works”). The preceding does not prevent ChatSmart from exploiting any ChatSmart Property, including any independently developed future developments, modifications, adaptations,
changes, derivative works or new works, even if the preceding is similar or functionally identical to the Customer Derivative Works. Accordingly, Customer will not assert, whether directly or indirectly, any of its intellectual property rights in or to the Customer Derivative Works against ChatSmart or any customers or clients of ChatSmart.
6. ChatSmart’s Right to Use Customer Data
Customer acknowledges and agrees that ChatSmart may store, use, reproduce, modify, and transfer to its subcontractors, Customer Data, including Personal Data, solely in connection with delivering the Services under this Agreement. Customer further acknowledges and agrees that ChatSmart may store, use, reproduce, modify, and transfer data that is not related to an identified or identifiable natural person, including aggregated or de-identified data, without limitation, for its internal business purposes,
including but not limited to such purposes as analytics, quality assurance,
product and service improvement, and new product and service development.
Customer agrees to cause any Administrative User, Customer’s Client, and Chat Participant to agree to the same terms as this Section 6.
8. Customer Accounts; Use Restrictions
1. Customer Accounts. Upon Customer’s request, ChatSmart will issue one or more administrator accounts (the “Administrator Accounts”) to Customer that provides Customer with the capability to create accounts for use by individuals who are an employee or contractor of Customer and that Customer wishes to have access to and use of the ChatSmart Platform (each, an “Administrative User”). Customer will ensure that Administrative Users only use the ChatSmart Platform through their Customer Account. Customer will not share the Administrator Accounts with any other person and will not allow Administrative Users to share their Customer Account with any other person.
Customer will promptly notify ChatSmart of any actual or suspected unauthorized use of the ChatSmart Platform. ChatSmart reserves the right to suspend,
deactivate, or replace any Customer Account or Administrator Accounts if it determines that the Customer Account or Administrator Account, as applicable,
may have been used for an unauthorized purpose.
2. Use Restrictions. Customer acknowledges and agrees that it is responsible for the activities and communications of all Administrative Users and Chat Participants on the ChatSmart Platform, and the compliance by all Administrative Users, Customer’s Clients and Chat Participants with this Agreement, and any guidelines and policies published by ChatSmart from time to time. Without limiting the generality of any of the foregoing,
Customer will not, and will not permit any other person (including any Administrative Users, Customer’s Clients or Chat Participants) to:
1. use the ChatSmart Platform to send, upload, collect,
transmit, store, use, disclose or process, or ask ChatSmart to obtain from third parties or perform any of the above with respect to, any Customer Data:
that contains any computer viruses,
worms, malicious code, or any software intended to damage or alter a computer system or data;
that Customer or the applicable Administrative User, Customer’s Client or Chat Participant does not have the lawful right to send, upload, collect, transmit, store, use, disclose, process,
copy, transmit, distribute and display;
that is false, intentionally misleading,
or impersonates any other person;
that is bullying, harassing, abusive,
threatening, vulgar, obscene, or offensive or that contains pornography,
nudity, or graphic or gratuitous violence, or that promotes violence, racism,
discrimination, bigotry, hatred, or physical harm of any kind against any group or individual;
that is harmful to minors in any way or targeted at persons under the age of 16;
that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); or
that encourages any conduct that may violate, any applicable laws or would give rise to civil or criminal liability;
2. disable, overly burden, impair, or otherwise interfere with servers or networks connected to the ChatSmart Platform (e.g., a denial of service attack);
attempt to gain unauthorised access to the ChatSmart Platform;
1. use any data mining, robots, or similar data gathering or extraction methods, or copy, modify, reverse engineer, reverse assemble,
disassemble, or decompile the ChatSmart Solution or any part thereof or otherwise attempt to discover any source code, except as expressly provided for in this Agreement;
2. use the ChatSmart Solution for the purpose of building a similar or competitive product or service; or
3. use the ChatSmart Solution other than as permitted by this Agreement;
4. Fair Use Policy. The ChatSmart Solution is intended to facilitate communications between Chat Participants and a Business in the context of marketing, selling and supporting the business’ products and services. While ChatSmart sets no limits on the number of ChatSmart Messages that can be exchanged between any given Chat Participant and any given Business, in aggregate no Business shall exceed an average of 50 ChatSmart Messages per Active User Conversation in any given month. Such usage of the ChatSmart Platform exceeds any reasonable expectations of use and shall be deemed a violation of the terms of this Agreement, and the Customer will immediately terminate the applicable Business rights and access to the ChatSmart Solution or pay excess usage fees as defined by ChatSmart.
9. Email, Chat and Web Support
Customer will generally have access to ChatSmart’s technical support from 9:00 am to 6:00 pm GMT+8 on weekdays (other than holidays observed by ChatSmart) through email or chat support, or through the web site using our chat widget
10. Fees and Payment
1. Fees. Customer will pay to ChatSmart the applicable fees described on the ChatSmart Website or Service Agreement (the “Fees”)
during the Term in accordance with the payment terms set out herein.
2. Third-Party Messaging Platform Fees. For greater clarity, ChatSmart’s Fees do not include any charges that may be assessed by Third Party Messaging Platforms for access to or use of a channel. Such charges shall be the responsibility of Customer, whether paid directly to the Third Party Messaging Platforms or whether such access is resold through ChatSmart,
in which case ChatSmart shall advise Customer in writing as to the applicable charges and Customer shall have the right to accept such charges or decline them and not use the associated channel. In the event a Third Party Messaging Platforms imposes special requirements on ChatSmart beyond API integrations,
including but not limited to hosting endpoints unique to that channel, then ChatSmart shall have the right to charge Customer for this additional service and Customer shall have the right to accept such charges or decline them and not use the associated channel.
3. Payment Terms:
1. All Fees shall be in HK Dollars;
2. ChatSmart shall charge and invoice Customer the applicable Fees, in advance, by credit card, on the Effective Date and thereafter or as specified on the Service Agreement;
Payment obligations hereunder are not subject to any set-off or withholding rights whatsoever, any and all of which are hereby expressly waived by Customer.
1. Disputed Invoices or Charges. If Customer in good faith disputes any portion of a ChatSmart invoice or charge, Customer may provide a dispute notice to ChatSmart with written documentation identifying and substantiating the disputed amount within fifteen (15) days from receipt of the applicable invoice or charge, and if applicable, at the time it pays the undisputed portion of such invoice, withhold payment of such disputed portion.
If Customer does not report or does not provide such substantiating documentation within that period, Customer shall be deemed to have waived its right to dispute any and all portions of that invoice. For greater certainty,
Customer shall pay all undisputed amounts of that invoice in accordance with section 10 above.
11. Confidential Information
1. Definitions. For purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”
and the Party disclosing such information will be the “Discloser” and “Confidential Information” means any and all information of Discloser disclosed by Discloser to Recipient or otherwise coming into the possession of Recipient during the Term that is marked as “confidential” or that a reasonable person would understand to be confidential; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i)
information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
Notwithstanding the foregoing, the terms and conditions of this Agreement and all ChatSmart Property (including any part thereof), whether marked as “confidential” or not, will be ChatSmart’s Confidential Information will not be Customer’s Confidential Information.
2. Confidentiality Covenant. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose such Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii)
alter or remove from any Confidential Information of the Discloser any proprietary legend. The recipient will be deemed to have discharged its confidentiality obligations under this Section 11 (Confidential Information) if Recipient uses the same degree of care in safeguarding the Confidential Information of Discloser as it uses in protecting its own confidential information of a similar nature from unauthorized disclosure.
3. Exceptions to Confidentiality. Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by order of a court or similar judicial or administrative body, provided that the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its employees,
accountants, internal and external auditors, legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services related to ChatSmart’s business; or (iii) in the case of ChatSmart, to potential assignees, acquirers or successors of ChatSmart if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of ChatSmart.
12. Warranty; Disclaimer; Indemnity
1. Customer Warranty. Customer represents and warrants to, and covenants with, ChatSmart that (1) the Customer Data will only contain Personal Data in respect of which Customer has provided all notices and disclosures (including to each Data Subject), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable ChatSmart to provide the Services,
including with respect to the collection, storage, access, use, disclosure and transmission of Personal Data, including by or to ChatSmart and to or from all applicable third parties (including third-party providers of any Third Party Messaging Platforms); and (2) by connecting the WhatsApp Business Solution via the ChatSmart Platform, the Customer will be in compliance with the WhatsApp Business Solution Terms (https://www.whatsapp.com/legal/business-solution-terms/)
at all times when accessing and using the WhatsApp Business Solution via the ChatSmart Platform.
2. GENERAL DISCLAIMER. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE CHATSMART SOLUTION (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY CHATSMART TO CUSTOMER ARE PROVIDED “AS IS”,
“AS AVAILABLE”. FURTHERMORE, ANY PARTS OF THE CHATSMART SOLUTION DELIVERED THROUGH THE EARLY ACCESS PROGRAM, OR UNDER A FREE LABS SUBSCRIPTION ARE EXCLUDED FROM ANY WARRANTIES PROVIDED WITHIN THIS AGREEMENT.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, CHATSMART HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES,
REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE,
NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT,
ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. CHATSMART DOES NOT WARRANT THAT THE CHATSMART SOLUTION (OR ANY PART THEREOF) WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR-FREE, OR THAT ALL ERRORS CAN OR WILL BE CORRECTED. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, CHATSMART EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE CHATSMART SOLUTION (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
THIRD-PARTY MESSAGING PLATFORMS,
CUSTOMER APPLICATION, PRE-INTEGRATED THIRD-PARTY BUSINESS APPLICATIONS, AND CUSTOM-INTEGRATED BUSINESS APPLICATIONS DISCLAIMER. CUSTOMER ACKNOWLEDGES THAT CHATSMART’S PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT IS DEPENDENT ON: (I)
CUSTOMER HAVING TAKEN ALL STEPS NECESSARY TO ENABLE THE AVAILABLE INTEROPERABILITY BETWEEN THE CHATSMART PLATFORM AND ALL APPLICABLE THIRD PARTY MESSAGING PLATFORMS, CUSTOMER APPLICATION, PRE-INTEGRATED THIRD-PARTY BUSINESS APPLICATIONS, AND CUSTOM-INTEGRATED BUSINESS APPLICATIONS ( THROUGH THE USE OF THE CHATSMART API); AND (II) ACCESS TO SERVICES, SOFTWARE OR SYSTEMS OF THIRD PARTIES (INCLUDING THIRD PARTY SERVICE PROVIDERS OF ALL APPLICABLE THIRD PARTY MESSAGING PLATFORMS, PRE-INTEGRATED THIRD-PARTY BUSINESS APPLICATIONS, AND CUSTOM-INTEGRATED BUSINESS APPLICATIONS) AND DATA STORED OR MAINTAINED THEREON (COLLECTIVELY, THE “EXTERNAL DEPENDENCIES”). CHATSMART IS NOT RESPONSIBLE FOR ANY EXTERNAL DEPENDENCIES AND WILL HAVE NO LIABILITY IN RESPECT OF ANY INTERFERENCE WITH CUSTOMER’S USE OR ANY USER’S USE OF OR ACCESS TO THE CHATSMART SOLUTION OR SECURITY OR PRIVACY BREACHES ARISING FROM OR ATTRIBUTABLE TO ANY EXTERNAL DEPENDENCIES, AND CUSTOMER WAIVES ANY AND ALL CLAIMS AGAINST CHATSMART IN CONNECTION THEREWITH.
Indemnity. Customer will defend,
indemnify and hold harmless ChatSmart, its employees, officers, directors,
affiliates, agents, contractors, successors, and assigns against any and all third party (including Administrative Users, Customer’s Client, and Chat Participants) liability (including damages, recoveries, deficiencies, interest,
penalties and reasonable legal fees), directly or indirectly arising from or in connection with, or relating to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; (iii) use of the ChatSmart Solution (or any part thereof) by Customer, any Administrative User, any Customer’s Client or any Chat Participant in combination with any Customer Applications or any third party software, application or service; (iv) misrepresentation, criminal behaviour or gross negligence on the part of Customer, any Administrative User, any Customer’s Client, or any Chat Participant; or (v) any actual or alleged infringement, violation or misappropriation of the rights of any person (including intellectual property or privacy rights) as a result of Customer’s,
any Administrative User’s, any Customer’s Client or any Chat Participant’s use of the ChatSmart Solution (or any part thereof) contrary to the terms of this Agreement. Customer will fully cooperate with ChatSmart in defence of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of ChatSmart.
13. Limitation of Liabilities
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF CHATSMART IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED THE NUMBER OF FEES PAID BY CUSTOMER IN THE PRIOR 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR USD $500, WHICHEVER IS THE LESSER. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL CHATSMART’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL CHATSMART BE LIABLE TO CUSTOMER OR ANY USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III)
BUSINESS INTERRUPTION; (IV) ANY COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT,
REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT,
TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
14. Term and Termination
1. Term. This Agreement will commence on the Effective Date and continue to be in effect until your subscription has been terminated in accordance with the terms Customer agreed to on the ChatSmart website at the time of signup (the “Term”). For greater certainty, if Customer has subscribed to an ongoing subscription, then such subscription will automatically renew at its expiry for the same period of time, at the then-current subscription rate described on the ChatSmart Website.
2. Termination For Convenience. Either Party may elect to terminate this Agreement and your subscription to ChatSmart services as of the end of your then-current Term by providing notice, on or prior to the date thirty (30) days preceding the end of such Term. For clarity, per section 14), unless this Agreement and your subscription are so terminated,
your subscription will renew for a Term equivalent in length to the then expiring Term.
3. Refunds and Termination Charges. No refunds or credits for Fees will be provided if you elect to terminate this Agreement prior to the end of your Term. If you terminate this Agreement prior to the end of your Term, or ChatSmart effects such termination pursuant to Section 14, in addition to other amounts you may owe ChatSmart, you must immediately pay any then unpaid Fees associated with the remainder of your Term. This amount will not be payable by you in the event you terminate as a result of a material breach of this Agreement by ChatSmart, provided that you provide advance notice of such breach to ChatSmart and afford ChatSmart not less than thirty (30) days to reasonably cure such breach as provided for in section 14.
4. Termination for Cause. A Party may terminate this Agreement for cause (a) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership,
liquidation or assignment for the benefit of creditors. If this Agreement is terminated by you in accordance with this section, ChatSmart will, to the extent permitted by applicable law, refund you any prepaid fees covering the remainder of the Term after the effective date of termination. If this Agreement is terminated by ChatSmart in accordance with this section, you will pay any unpaid fees covering the remainder of the Term. In no event will termination relieve you of your obligation to pay any fees payable to ChatSmart for the period prior to the effective date of termination.
The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 5
(Reservation of Rights), Section 6 (ChatSmart’s Right to Use Customer Data),
Section 110 (Fees), Section 11 (Confidential Information), Section 12
(Warranty; Disclaimer; Indemnity), Section 13 (Limitation of Liabilities,
Section 15 (Survival) and Section 16 (General Provisions).
16. General Provisions
1. Notices. Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or two days after being sent by first-class mail postage prepaid to the official contact designated by the Parties and immediately after being received by the other Party’s server. Notices must be in writing and sent: (i) if to ChatSmart, to the address set out in the introductory paragraph of this Agreement; and (ii) if to Customer, to the current postal or email address that ChatSmart has on file with respect to Customer. ChatSmart may change its contact information by posting the new contact information on the ChatSmart Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with ChatSmart through the ChatSmart Platform current at all times during the Term.
2. Assignment. Customer will not assign this Agreement to any third party without ChatSmart’s prior written consent, which consent will not be unreasonably withheld. ChatSmart may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent in connection with any merger or change of control of ChatSmart or the sale of all or substantially all of ChatSmart’s assets provided that any such successor agrees to fulfil its obligations pursuant to this Agreement. Any assignment in violation of this Section will be void. The terms of this Agreement will be binding upon permitted assignees. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
3. Choice of Law. This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of Hong Kong SAR, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Hong Kong SAR and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
4. Construction. Except as otherwise provided in this Agreement, the Parties rights and remedies under this Agreement are cumulative.
The term “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
The terms “consent” or “discretion”, when used in respect of ChatSmart in this Agreement means the right of ChatSmart to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to Customer.
5. Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond ChatSmart’s reasonable control,
including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving ChatSmart employees), Internet service provider failures or delays,
or the unavailability or Modification by third parties of third party websites.
6. Severable. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement, and all other provisions of this Agreement will remain in full force and effect.
7. Waiver. A waiver of any provision of this Agreement must be in writing, and a waiver in one instance will not preclude enforcement of such provision on other occasions.
8. Independent Contractors. Customer’s relationship to ChatSmart is that of an independent contractor, and neither Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of ChatSmart.
9. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all other communications, whether written or oral.
10. Amendments. Subject to the following sentence, no amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, ChatSmart MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II)
POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY CHATSMART,
ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER). IF CUSTOMER HAS PREPAID ANY FEES TO CHATSMART AND PROVIDES NOTICE TO CHATSMART WITHIN 30 DAYS OF THE EFFECTIVE DATE OF AN AMENDMENT THAT CUSTOMER WISHES TO EXERCISE ITS TERMINATION FOR CONVENIENCE RIGHT PURSUANT TO SECTION 14 OF THIS AGREEMENT, THEN CHATSMART WILL REFUND CUSTOMER AN AMOUNT ON A PRO-RATED BASIS CALCULATED BASED ON THE EFFECTIVE DATE OF TERMINATION UNTIL THE END OF THE PREPAID SUBSCRIPTION PERIOD.
11. English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English.
Service Data Privacy Statement
MatrixSense Technology Group Limited (“MatrixSense”, “ChatSmart”, “we”,
“us”, or “our”) provides a Software as a Service (SaaS) based “Conversation Cloud” that allows our customers to store, manipulate, analyze and transfer messages between their business systems and their customers on a variety of ChatSmart-provided and third party messaging channels (the “Service“).
1. Agent: an individual who communicates within the Conversation Cloud on behalf of the Customer
1. For example, a member of the Customer’s web support team, or a representative of a third party to whom support has been outsourced
2. Chat Participants: Agents and Users who communicate within the Conversation Cloud
3. Customer: a legal entity with whom ChatSmart has an agreement to provide the Services
1. For clarity, a Customer may be a Controller or a Processor of Personal Data. Where a Customer is a Processor of Personal Data, ChatSmart shall process Personal Data as sub-processor on behalf of the Controller.
Instructions from the Controller regarding the processing Personal Data shall be given through the Processor.
4. User: an individual who communicates with a Customer or Agent within the Conversation Cloud
1. For example, a member of the public on Facebook Messenger, a visitor to the Customer’s Website, or the user of a mobile app
The following terms are used as defined in the EU General Data Protection Regulation (GDPR):
1. Controller: the natural or legal person, public authority, agency or another body which, alone or jointly with others,
determines the purposes and means of the processing of personal data
2. Personal Data: any information relating to an identified or identifiable natural person (“Data Subject“)
3. Processor: a natural or legal person, public authority, agency or another body which processes personal data on behalf of the controller
4. Third-Party: a natural or legal person, public authority, agency or body other than the data subject, controller, processor and persons who, under the direct authority of the controller or processor, are authorized to process personal data
3. Data We Process
ChatSmart may collect and process Personal Data about individuals for the purposes of account creation, billing, usage tracking,
ChatSmart Services are not directed to children under 16. If you learn that a child under 16 has provided us with Personal Data without consent, please contact us.
4. Types of Service Data
ChatSmart may process the following types of Service Data on behalf of Customers:
4.1. User Profile Information
The ChatSmart API enables Agents to communicate with Users via multiple platforms such as social media (e.g., Facebook Messenger),
and web apps (“Messaging Channels“). Each Channel transmits certain data about the User. Some examples include First Name, Last Name, Email Address, Phone Number, IP Address, Location, Avatar/Image, Username/Handle, Linked IDs, and others.
The types of Personal Data transmitted in the User profile depend on the data collected by the Controller, and the User’s privacy settings and preferences. The Controller may be the Messaging Channel (e.g.
Facebook, WeChat or WhatsApp); or web apps created using ChatSmart’s Software Development Kit.
4.2. Agent Profile Information
Customers may enable the configuration of profiles for their Agents, including details such as Name and Image.
4.3. Message Content
The message content may be structured or unstructured,
and may or may not contain Personal Data. ChatSmart handles all messages in the Conversation Cloud as Personal Data.
ChatSmart servers automatically record some information when Services are used, including information sent by browsers or mobile apps.
ChatSmart may collect information about the devices Services are being used on, including what type of device it is, operating system, device settings, application IDs, unique device identifiers, and crash data.
5. Purposes for Processing
ChatSmart processes the Personal Data types outlined above for the following purposes:
1. To provide and enhance our product and service offerings
2. To provide insights and statistics on an aggregated basis to help our Customers measure their performance, better understand their customers and improve their product and service offerings
3. To respond to customer requests for support or assistance
This policy is not intended to place any limits on what we do with data that is aggregated and/or de-identified. It is no longer associated with an identifiable user or Customer of the Services and is therefore not Personal Data.
6. How We Protect Data
With regard to the Service and Service Data, ChatSmart acts as a Processor on behalf of Customers. Customers have primary responsibility for interacting with Data Subjects, and the role of ChatSmart is generally limited to assisting Customers as needed. ChatSmart processes Service Data only upon a Customer’s instruction and shall have a duty to respect the security and confidentiality of Personal Data, pursuant to the measures outlined in agreements with Customers and as required by applicable law.
7. Privacy Program
ChatSmart maintains a managed privacy program to identify risks and implement preventative measures. Our Chief Privacy Officer,
supported by a network of senior professionals throughout the business and development teams, is responsible for managing the privacy program. The privacy program is and will be reviewed on a regular basis to provide for continued effectiveness.
8. Information Security
ChatSmart takes security seriously. We take various steps to protect the information you provide to us from loss, misuse, and unauthorised access or disclosure. These steps take into account the sensitivity of the information we collect, process and store, and the current state of technology.
To learn more about current practices and policies regarding security and confidentiality of Customer Data and other information,
please enquire us for our Security Notice, we keep that document updated as these practices evolve over time.
9. Transparency and Cooperation with Customers
ChatSmart undertakes to be transparent regarding its Personal Data processing activities and to provide Customers with reasonable cooperation to help facilitate their respective data protection obligations regarding Personal Data.
10. Data Breach Notification
In the event that ChatSmart becomes aware of any unauthorised access to or disclosure of Personal Data, ChatSmart will promptly notify affected Customers to the extent such notification is permitted by applicable law.
11. Customer Audits
Upon a Customer’s request, and subject to appropriate confidentiality obligations, ChatSmart shall make available to the Customer (or such Customer’s independent, third-party auditor) information regarding ChatSmart and third-party sub-processors’ compliance with the data protection requirements set forth in our agreements.
12. Obligations Upon Termination
Upon termination of the Services, ChatSmart shall, at the request of the Customer, delete, render un-identifiable, or return all Personal Data to the Customer. ChatSmart will certify that it has done so unless legislation prevents it from returning or destroying the data. In that case, ChatSmart will protect the data in accordance with its commitments and will not actively process the personal data transferred anymore.
13. Sharing and Disclosure
There are times when information described in this privacy statement may be shared by ChatSmart. This section discusses how ChatSmart may share such information. Customers determine their own policies for sharing and disclosure.
ChatSmart reserves the right to disclose or use aggregate or de-identified information for any purpose. For example, we may share aggregated or de-identified information with our partners or others for business or research purposes like telling a prospective ChatSmart Customer the average number of messages sent within a day.
14. Sub-processing by Third Parties
ChatSmart may retain third party sub-processors, and depending on the location of the third-party sub-processor, processing of Personal Data by such sub-processors may involve transfers of Personal Data.
Such third-party sub-processors shall process Personal Data only in accordance with the Customer’s instructions.
As of the date hereof, these third party providers include technical operations such as database monitoring, data storage and hosting services and customer support software tools.
Such third-party sub-processors have entered into written agreements with ChatSmart in accordance with the applicable requirements.
15. Compliance with Laws
ChatSmart may share or disclose data to comply with legal or regulatory requirements and to respond to lawful requests, court orders and legal process.
16. Enforcing Our Rights, Preventing Fraud, and Safety
ChatSmart may share or disclose data to protect and defend the rights, property, or safety of us or third parties, including enforcing contracts or policies, or in connection with the investigation and preventing fraud.
17. Changes to our Business Structure
ChatSmart may share or disclose data if we engage in a merger, acquisition, bankruptcy, dissolution, reorganization, sale of some or all of ChatSmart’s assets, financing, acquisition of all or a portion of our business, a similar transaction or proceeding, or steps in contemplation of such activities (e.g. due diligence).
18. Data Subject Rights
ChatSmart acts as a data processor on behalf of Customers. Customers have primary responsibility for interacting with Data Subjects, and the role of ChatSmart is generally limited to assisting Customers as needed.
19. Access, Correction, Amendment or Deletion Requests
ChatSmart shall promptly notify a Customer if ChatSmart receives a request from a Data Subject for access to, correction, amendment or deletion of that person’s Personal Data. ChatSmart shall not respond to any such Data Subject request without the Customer’s prior written consent except to confirm that the request relates to that Customer.
ChatSmart shall provide Customers with cooperation and assistance in a reasonable period of time and to the extent reasonably possible in relation to any request regarding Personal Data to the extent Customers do not have access to such Personal Data through their respective uses of the Services.
20. Handling of Complaints
Data Subjects may lodge a complaint about the processing of their respective Personal Data by contacting the relevant Customer or the ChatSmart Privacy department at the email address email@example.com.
ChatSmart shall promptly communicate the complaint to the Customer to whom the Personal Data relates.
Customers shall be responsible for responding to all Data Subject complaints forwarded by ChatSmart, except in cases where a Customer has disappeared factually or has ceased to exist in law or become insolvent. Where ChatSmart is aware of such a case, it undertakes to respond directly to Data Subjects’ complaints within thirty (30) days, including the consequences of the complaint and further actions Data Subjects may take if they are unsatisfied by the reply.
21. Regulatory Inquiries and Complaints
ChatSmart shall, to the extent legally permitted,
promptly notify a Customer if it receives an inquiry or complaint from a data protection authority in which that Customer is specifically named. Upon a Customer’s request, ChatSmart shall provide the Customer with cooperation and assistance in relation to any regulatory enquiry or complaint involving ChatSmart’s processing of Personal Data.
22. Changes to this Statement
We reserve the right to change the statement as our product develops. If we do so, we will post any changes on this page. On the usage of the Services, after those changes are in effect, you are hereby in agreement to the revised policy.
This document was last updated in December 2020.
23. Contacting ChatSmart
You may contact us at firstname.lastname@example.org