This Chinwag Subscription Terms of Service ("Agreement") is entered into by and between the Chinwag entity set forth below ("Chinwag") and the entity or person placing an order for or accessing any Services ("Customer" or "you"). If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to "you" or "Customer" reference your company.
This Agreement permits Customer to purchase subscriptions to online software-as-a-service products and other services from Chinwag pursuant to any Chinwag ordering documents, online registration, order descriptions or order confirmations referencing this Agreement ("Order Form(s)") and sets forth the basic terms and conditions under which those products and services will be delivered. This Agreement will govern Customer's initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
The "Effective Date" of this Agreement is the date which is the earlier of (a) Customer's initial access to any Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement.
As used in this Agreement, "Chinwag" means (a) Chinwag, Inc.
Modifications to this Agreement : From time to time, Chinwag may modify this Agreement. Unless otherwise specified by Chinwag, changes become effective for Customer upon renewal of Customer's current Subscription Term (as defined below) or entry into a new Order Form. Chinwag will use reasonable efforts to notify Customer of the changes through communications via Customer's account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order Form, and in any event continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer's acceptance of such updated version. If Chinwag specifies that changes to the Agreement will take effect prior to Customer's next renewal or order (such as for legal compliance or product change reasons) and Customer objects to such changes, Customer may terminate the applicable Subscription Term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the Subscription Term.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT. THIS AGREEMENT CONTAINS MANDATORY ARBITRATION PROVISIONS THAT REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS. PLEASE READ IT CAREFULLY.
"Affiliate" means any entity under the control of Customer where "control" means ownership of or the right to control greater than 50% of the voting securities of such entity.
"AUP" means Chinwag's Acceptable Use Policy, available at https://gochinwag.com/terms-of-service or a successor URL.
"Contractor" means an independent contractor or consultant who is not a competitor of Chinwag.
"Customer Data" means any data of any type that is submitted to the Services by or on behalf of Customer, including without limitation: (a) data submitted, uploaded or imported to the Services by Customer (including from Third Party Platforms) and (b) data provided by or about People (including chat and message logs) that are collected from the Customer Properties using the Services.
"Customer Properties" means Customer's websites, apps, or other offerings owned and operated by (or for the benefit of) Customer through which Customer uses the Services to communicate with People.
"Dashboard" means Chinwag's user interface for accessing and administering the Services that Customer may access via the web or the Chinwag Apps.
"Documentation" means the technical user documentation provided with the Services.
"Feedback" means comments, questions, suggestions or other feedback relating to any Chinwag product or service.
"Chinwag App" means any mobile application or desktop client software included in the applicable Service that is made available by Chinwag.
"Chinwag Code" means certain JavaScript code, software development kits (SDKs) or other code provided by Chinwag for deployment on Customer Properties.
"Laws" means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
"People" (in the singular, "Person") means Customer's end user customers, potential customers, and other users of and visitors to the Customer Properties.
"Permitted User" means an employee or Contractor of Customer or its Affiliate who is authorized to access the Service.
"Sensitive Personal Information" means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards ("PCI DSS"); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act ("HIPAA"); or (iii) any other personal data of an EU citizen deemed to be in a "special category" (as identified in EU General Data Protection Regulation or any successor directive or regulation).
"Services" means Chinwag's proprietary software-as-a-service solution(s), including the Dashboard, Chinwag application programming interfaces (APIs), Chinwag Code and Chinwag Apps, as described in the applicable Order Form.
"Taxes" means any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Chinwag.
"Third-Party Platform" means any software, software-as-a-service, data sources or other products or services not provided by Chinwag that are integrated with Services as described in the Documentation.
2.1. Services Overview. Chinwag's Services are a suite of messaging software-as-a-service solutions offered through a single platform. The Services are designed to enable Customer to manage communications with People through the entire lifecycle of their relationship with Customer and to provide a Dashboard for accessing and managing Customer Data regarding those People. Customer may import and export Customer Data between the Services and certain Third-Party Platforms through supported integrations. The Services also include Chinwag Code deployed on Customer Properties to enable live chat and messaging functionality.
2.2. Provision of Services. Each Service is provided on a subscription basis for a set term designated on the Order Form (each, a "Subscription Term"). Chinwag may also offer Professional Services (as defined in Section 12) related to certain Services. Customer will purchase and Chinwag will provide the specific Services and related Professional Services (if any) as specified in the applicable Order Form.
2.3. Access to Services. Customer may access and use the Services solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Documentation and any scope of use restrictions designated in the applicable Order Form (including without limitation the number of People tracked). Use of and access to the Services is permitted only by Permitted Users. If Customer is given API keys or passwords to access the Services on Chinwag's systems, Customer will require that all Permitted Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. If Customer is accessing the Services using credentials provided by a third party (e.g., Google), then Customer will comply with all applicable terms and conditions of such third party regarding provisioning and use of such credentials. Customer will be responsible for any and all actions taken using Customer's accounts and passwords. If any Permitted User who has access to a user ID is no longer an employee (or Contractor, as set forth below) of Customer, then Customer will immediately delete such user ID and otherwise terminate such Permitted User's access to the Service. The right to use the Services includes the right to deploy Chinwag Code on Customer Properties in order to enable messaging, chat and similar functionality and to collect Customer Data for use with the Services as further described below.
2.4. Chinwag Apps. To the extent Chinwag provides Chinwag Apps for use with the Services, subject to all of the terms and conditions of this Agreement, Chinwag grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to use the object code form of the Chinwag Apps internally, but only in connection with Customer's use of the Service and otherwise in accordance with the Documentation and this Agreement.
2.5. Deployment of Chinwag Code. Subject to all of the terms and conditions of this Agreement, Chinwag grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to copy the Chinwag Code in the form provided by Chinwag on Customer Properties solely to support Customer's use of the Service and otherwise in accordance with the Documentation and this Agreement. Customer must implement Chinwag Code on the Customer Properties in order to enable features of the Services. Customer will implement all Chinwag Code in strict accordance with the Documentation and other instructions provided by Chinwag. Customer acknowledges that any changes made to the Customer Properties after initial implementation of Chinwag Code may cause the Services to cease working or function improperly and that Chinwag will have no responsibility for the impact of any such Customer changes.
2.6. Contractors and Affiliates. Customer may permit its Contractors and its Affiliates' employees and Contractors to serve as Permitted Users, provided Customer remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement, and any use of the Services by such individuals is for the sole benefit of Customer.
2.7. General Restrictions. Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Chinwag); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services (including without limitation (i) the "Powered by Chinwag" designation that may appear as part of the deployment of the Services on Customer Properties and (ii) notices on any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services.
2.8. Chinwag APIs. If Chinwag makes access to any APIs available as part of the Services, Chinwag reserves the right to place limits on access to such APIs (e.g., limits on numbers of calls or requests). Further, Chinwag may monitor Customer's usage of such APIs and limit the number of calls or requests Customer may make if Chinwag believes that Customer's usage is in breach of this Agreement or may negatively affect the Services (or otherwise impose liability on Chinwag).
2.9. Trial Subscriptions. If Customer receives free access or a trial or evaluation subscription to the Service (a "Trial Subscription"), then Customer may use the Services in accordance with the terms and conditions of this Agreement for a period of fourteen (14) days or such other period granted by Chinwag (the "Trial Period"). Trial Subscriptions are permitted solely for Customer's use to determine whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If Customer does not enter into a paid Subscription Term, this Agreement and Customer's right to access and use the Services will terminate at the end of the Trial Period. Chinwag has the right to terminate a Trial Subscription at any time for any reason. NOT WITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CHINWAG WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.
3.1. Rights in Customer Data. As between the parties, Customer will retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Chinwag. Subject to the terms of this Agreement, Customer hereby grants to Chinwag a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer.
3.2. Storage of Customer Data. Chinwag does not provide an archiving service. Chinwag agrees only that it will not intentionally delete any Customer Data from any Service prior to termination of Customer's applicable Subscription Term. Chinwag expressly disclaims all other obligations with respect to storage.
3.3. Customer Obligations
a) In General. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Chinwag that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data as contemplated in this Agreement (including granting Chinwag the rights in Section 3.1 (Rights in Customer Data)) and that no Customer Data will violate or infringe (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreements governing the Customer Properties or Customer's accounts with any Third-Party Platforms. Customer further represents and warrants that all Customer Data complies with the AUP. Customer will be fully responsible for any Customer Data submitted to the Services by any Person as if it was submitted by Customer.
b) No Sensitive Personal Information. Customer specifically agrees not to use the Services to collect, store, process or transmit any Sensitive Personal Information. Customer acknowledges that Chinwag is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Services are neither HIPAA nor PCI DSS compliant. Chinwag will have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.
c) Compliance with Laws. Customer agrees to comply with all applicable Laws in its use of the Services. Without limiting the generality of the foregoing, Customer will not engage in any unsolicited advertising, marketing, or other activities using the Services, including without limitation any activities that violate the Telephone Consumer Protection Act of 1991, CAN-SPAM Act of 2003 or any other anti-spam laws and regulations.
d) Disclosures on Customer Properties. Customer acknowledges that the Chinwag Code causes a unique cookie ID to be associated with each Person who accesses the Customer Properties, which cookie ID enables Chinwag to provide the Services. Customer will include on each Customer Property a link to its privacy policy that discloses Customer's use of third party tracking technology to collect data about People as described in this Agreement. Customer's privacy policy must disclose how, and for what purposes, the data collected through Chinwag Code will be used or shared with Chinwag as part of the Services. Customer must also provide People with clear and comprehensive information about the storing and accessing of cookies or other information on the Peoples' devices where such activity occurs in connection with the Services and as required by applicable Laws. For clarity, as between Customer and Chinwag, Customer will be solely responsible for obtaining the necessary clearances, consents and approvals from People under all applicable Laws.
e) Social Media Data
i. FullContact; Opt-Out. The Services use third-party services provided by FullContact, Inc. ("FullContact") to enable Customer to retrieve publicly-available information about People including without limitation social media information, profile information, gender, company, job titles, photos, physical addresses, and website URLs ("Social Media Data") based on People's email addresses input into the Services. FullContact uses People's email addresses as described in its privacy policy, available at https://www.fullcontact.com/privacy/. Customer may opt out of having People's email addresses sent to FullContact via the Dashboard.
ii. Restrictions. Customer agrees not to use any Social Media Data obtained via the Services for the purposes of cookie tracking, ad exchanges, ad networks, data brokerages, sending electronic communications (including email) in violation of applicable Law, or any other activity or purpose that may be identified as prohibited by Chinwag from time to time.
iii. Disclosures. Customer agrees to obtain all necessary clearances, consents and approvals from People in order to use Social Media Data as required under all applicable Laws, including without limitation by disclosing in Customer's privacy policy information about the collection and use of People's email addresses as set forth in this Section.
3.4. Indemnification by Customer. Customer will indemnify, defend and hold harmless Chinwag from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data or breach or alleged breach by Customer of Section 3.3 (Customer Obligations). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Chinwag at Customer's expense. Notwithstanding the foregoing sentence, (a) Chinwag may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Customer will not settle any claim without Chinwag's prior written consent, unless the settlement fully and unconditionally releases Chinwag and does not require Chinwag to pay any amount, take any action, or admit any liability.
3.5. Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that Chinwag may obtain and aggregate technical and other data about Customer's use of the Services that is non-personally identifiable with respect to Customer ("Aggregated Anonymous Data"), and Chinwag may use the Aggregated Anonymous Data to analyze, improve, support and operate the Services and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Customer and other Chinwag customers. For clarity, this Section 3.5 does not give Chinwag the right to identify Customer as the source of any Aggregated Anonymous Data.
3.6. EU-U.S. Privacy Shield. This Section 3.6 applies only if Customer has entered into this Agreement with Chinwag, Inc. as set forth above. Chinwag, Inc. participates in the EU-U.S. Privacy Shield framework. For more information, please see Chinwag's EU-U.S. Privacy Shield Statement, available at https://gochinwag.com/terms-of-service/#international-transfer-of-data or a successor URL.
Chinwag agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of any Service or Customer Data. However, Chinwag will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Chinwag's control.
The Services may support integrations with certain Third-Party Platforms. In order for the Services to communicate with such Third-Party Platforms, Customer may be required to input credentials in order for the Services to access and receive relevant information from such Third-Party Platforms. By enabling use of the Services with any Third-Party Platform, Customer authorizes Chinwag to access Customer's accounts with such Third-Party Platform for the purposes described in this Agreement. Customer is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Customer acknowledges and agrees that Chinwag has no responsibility or liability for any Third-Party Platform or any Customer Data exported to a Third-Party Platform. Chinwag does not guarantee that the Services will maintain integrations with any Third-Party Platform and Chinwag may disable integrations of the Services with any Third-Party Platform at any time with or without notice to Customer. For clarity, this Agreement governs Customer's use of and access to the Services, even if accessed through an integration with a Third-Party Platform.
6.1. Chinwag Technology. This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words "purchase", "sale" or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Chinwag or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and all Documentation, professional services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, "Chinwag Technology"). Except as expressly set forth in this Agreement, no rights in any Chinwag Technology are granted to Customer. Further, Customer acknowledges that the Services are offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of any of the Services, except for Chinwag Code and the Chinwag Apps in the format provided by Chinwag.
6.2. Feedback. Customer, from time to time, may submit Feedback to Chinwag. Chinwag may freely use or exploit Feedback in connection with any of its products or services.
7.1. Subscription Term and Renewals. Unless otherwise specified on the applicable Order Form, each Subscription Term will automatically renew for additional periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term.
7.2. Fees and Payment. All fees are as set forth in the applicable Order Form and will be paid by Customer within thirty (30) days of invoice, unless (a) Customer is paying via Credit Card (as defined below) or (b) otherwise specified in the applicable Order Form. Except as expressly set forth in Section 9 (Limited Warranty) and Section 14 (Indemnification), all fees are non-refundable. The rates in the Order Form are valid for the initial twelve (12) month period of each Subscription Term and thereafter may be subject to an automatic adjustment increase of up to ten percent (10%) per year. Customer is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable Order Form. If Customer is required by Law to withhold any Taxes from Customer's payment, the fees payable by Customer will be increased as necessary so that after making any required withholdings, Chinwag receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
7.3. Payment Via Credit Card. If you are purchasing the Services via credit card, debit card or other payment card ("Credit Card"), the following terms apply:
7.4. Suspension of Service. If Customer's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Chinwag reserves the right to suspend Customer's access to the applicable Service (and any related services) without liability to Customer until such amounts are paid in full. Chinwag also reserves the right to suspend Customer's access to the Services without liability to Customer if Customer's use of the Services is in violation of the AUP.
8.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
8.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
8.3. Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Services (including any and all related Chinwag Technology) and delete (or, at Chinwag's request, return) any and all copies of the Documentation, any Chinwag passwords or access codes and any other Chinwag Confidential Information in its possession. Provided this Agreement was not terminated for Customer's breach, Customer may retain and use internally copies of all reports exported from any Service prior to termination. Customer acknowledges that following termination it will have no further access to any Customer Data input into any Service, and that Chinwag may delete any such data as may have been stored by Chinwag at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
8.4. Survival. The following Sections will survive any expiration or termination of this Agreement: 2.7 (General Restrictions), 2.9 (Trial Subscriptions), 3.2 (Storage of Customer Data), 3.4 (Indemnification by Customer), 3.5 (Aggregated Anonymous Data), 6 (Ownership), 7.2 (Fees and Payment), 7.3 (Payment Via Credit Card), 8 (Term and Termination), 9.2 (Warranty Disclaimer), 13 (Limitation of Remedies and Damages), 14 (Indemnification), 15 (Confidential Information) and 17 (General Terms).
9.1. Limited Warranty. Chinwag warrants, for Customer's benefit only, that each Service will operate in substantial conformity with the applicable Documentation. Chinwag's sole liability (and Customer's sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for Chinwag to use commercially reasonable efforts to correct the reported non-conformity, or if Chinwag determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 9.1 will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to use provided on a no-charge, trial or evaluation basis.
9.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 9.1, ALL Services and PROFESSIONAL SERVICES ARE PROVIDED "AS IS". NEITHER CHINWAG NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. Chinwag does not warrant that Customer's use of the Services will be uninterrupted or error-free, nor does Chinwag warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss OR CORRUPTION. CHINWAG SHALL NOT BE LIABLE FOR THE RESULTS OF ANY COMMUNICATIONS SENT OR ANY COMMUNICATIONS THAT WERE FAILED TO BE SENT USING THE SERVICES. CHINWAG SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF CHINWAG. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
The Services are available subject to Chinwag's Service Level Agreement. ("SLA").
During the Subscription Term of each Service, Chinwag will provide end user support in accordance with Chinwag's Support Policy ("Support Policy").
Chinwag will provide the professional consulting services ("Professional Services") purchased in the applicable Order Form. The scope of Professional Services will be as set forth in a Statement of Work referencing this Agreement and executed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information ("SOW"). Unless Professional Services are provided on a fixed-fee basis, Customer will pay Chinwag at the per-hour rates set forth in the Order Form (or, if not specified, at Chinwag's then-standard rates) for any excess services. Customer will reimburse Chinwag for reasonable travel and lodging expenses as incurred. Customer may use anything delivered as part of the Professional Services in support of authorized use of the Services and subject to the terms regarding Customer's rights to use the Service set forth in Section 2 (Chinwag Services) and the applicable SOW, but Chinwag will retain all right, title and interest in and to any such work product, code or deliverables and any derivative, enhancement or modification thereof created by Chinwag (or its agents).
13.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
13.2. Liability Cap. INTERCOM'S AND ITS SUPPLIERS' ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO CHINWAG DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.
13.3. Excluded Claims. "Excluded Claims" means any claim arising (a) from Customer's breach of Section 2.7 (General Restrictions); (b) under Section 3.3 (Customer Obligations) or 3.4 (Indemnification by Customer); or (c) from a party's breach of its obligations in Section 15 (Confidential Information) (but excluding claims arising from operation or non-operation of any Service).
13.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 13 apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Chinwag will defend Customer from and against any claim by a third party alleging that a Service when used as authorized under this Agreement infringes a U.S. patent, U.S. copyright, or U.S. trademark and will indemnify and hold harmless Customer from and against any damages and costs finally awarded against Customer or agreed in settlement by Chinwag (including reasonable attorneys' fees) resulting from such claim, provided that Chinwag will have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Chinwag to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer's use of a Service is (or in Chinwag's opinion is likely to be) enjoined, if required by settlement or if Chinwag determines such actions are reasonably necessary to avoid material liability, Chinwag may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using such Service; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Term that was paid by Customer but not rendered by Chinwag. The foregoing indemnification obligation of Chinwag will not apply: (1) if such Service is modified by any party other than Chinwag, but solely to the extent the alleged infringement is caused by such modification; (2) if such Service is combined with products or processes not provided by Chinwag, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of such Service; (4) to any action arising as a result of Customer Data or any third-party deliverables or components contained within such Service; (5) to the extent the alleged infringement is not caused by the particular technology or implementation of the Service but instead by features common to any similar product or service; or (6) if Customer settles or makes any admissions with respect to a claim without Chinwag's prior written consent. THIS SECTION 14 SETS FORTH CHINWAG’S AND ITS SUPPLIERS' SOLE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
Each party (as "Receiving Party") agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Chinwag Technology, performance information relating to any Service, and the terms and conditions of this Agreement will be deemed Confidential Information of Chinwag without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Chinwag, the subcontractors referenced in Section 17.8 (Subcontractors)), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 15 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 15. The Receiving Party's confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
At the request of Chinwag, Customer agrees to the issuance of a joint press release ("Press Release") on a mutually agreed upon date or the 90th day from the Effective Date, whichever is earlier. Each party will have the right to approve the Press Release in advance, but such approval will not be unreasonably delayed or withheld. Customer also agrees to participate in other reasonable marketing activities that promote the benefits of the Services to other potential customers and to use of Customer's name and logo on Chinwag's web site and in Chinwag promotional materials. Customer agrees that Chinwag may disclose Customer as a customer of Chinwag.
17.1. Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party's assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 17.1 will be null and void.
17.2. Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
17.3. Governing Law; Dispute Resolution.
a) Direct Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, whether arising in contract, tort or otherwise, ("Dispute"), the parties shall first use their best efforts to resolve the Dispute. If a Dispute arises, the complaining party shall provide written notice to the other party in a document specifically entitled "Initial Notice of Dispute," specifically setting forth the precise nature of the dispute ("Initial Notice of Dispute"). If an Initial Notice of Dispute is being sent to Chinwag it must be emailed to legal@gochinwag.com.
Following receipt of the Initial Notice of Dispute, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interest, attempt to reach a just and equitable solution of the Dispute that is satisfactory to both parties ("Direct Dispute Resolution"). If the parties are unable to reach a resolution of the Dispute through Direct Dispute Resolution within thirty (30) days of the receipt of the Initial Notice of Dispute, then the Dispute shall subsequently be resolved by arbitration as set forth below.
b) Arbitration. IN THE EVENT THAT A DISPUTE BETWEEN THE PARTIES CANNOT BE SETTLED THROUGH DIRECT DISPUTE RESOLUTION, AS DESCRIBED ABOVE, THE PARTIES AGREE TO SUBMIT THE DISPUTE TO BINDING ARBITRATION. BY AGREEING TO ARBITRATE, THE PARTIES AGREE TO WAIVE THEIR RIGHT TO A JURY TRIAL. The arbitration shall be conducted before a single neutral arbitrator, before JAMS in San Francisco, California. The arbitration shall be administered by JAMS in accordance with this document and the JAMS Streamlined Rules and Procedures for the Arbitration, with one addition: The limitation of one discovery deposition per side shall be applied by the arbitrator, unless it is determined, based on all relevant circumstances, that more depositions are warranted. The arbitrator shall consider the amount in controversy, the complexity of the factual issues, the number of parties and the diversity of their interests and whether any or all of the claims appear, on the basis of the pleadings, to have sufficient merit to justify the time and expense associated with the requested discovery.
The arbitration will occur in San Jose, California, but the parties may choose to appear by person, by phone, by another virtual means, or through the submission of documents.
The arbitrator will issue a ruling in writing. Any issue concerning the extent to which any dispute is subject to arbitration, the applicability, interpretation, or enforceability of this agreement shall be resolved by the arbitrator. To the extent state law is applicable, the arbitrator shall apply the substantive law of California.
All aspects of the arbitration shall be treated as confidential and neither the parties nor the arbitrators may disclose the content or results of the arbitration, except as necessary to comply with legal or regulatory requirements. The result of the arbitration shall be binding on the parties and judgment on the arbitrator's award may be entered in any court having jurisdiction. The arbitrator shall award to the prevailing party, if any, the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration.c) Choice of Law and Jurisdiction. FOR ANY CLAIM WHICH IS NOT SUBJECT TO THIS DISPUTE RESOLUTION PROVISION, CUSTOMER AGREES TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN SAN FRANCISCO COUNTY, CALIFORNIA. IN ANY DISPUTE, CALIFORNIA LAW SHALL APPLY.
d) Construction and Joinder. THIS AGREEMENT MUST BE CONSTRUED AS IF IT WAS JOINTLY WRITTEN BY BOTH PARTIES. BOTH CUSTOMER AND CHINWAG AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS. NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. IN THE EVENT OF ANY DISPUTE CONCERNING THE VALIDITY OR ENFORCEABILITY OF THIS PROVISION, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.
e) Injunctive Relief. Notwithstanding the above provisions, Chinwag may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
17.4. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
17.5. Amendments; Waivers. Except as otherwise provided herein, no supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
17.6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved customer experience Chinwag may make changes to the Services, and Chinwag will update the applicable Documentation accordingly. The support and service level availability terms described in the Support Policy and the SLA may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease Chinwag's obligations as compared to those reflected in such terms as of the Effective Date).
17.7. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
17.8. Subcontractors. Chinwag may use the services of subcontractors and permit them to exercise the rights granted to Chinwag in order to provide the Services under this Agreement, provided that Chinwag remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Services as required under this Agreement.
17.9. Subpoenas. Nothing in this Agreement prevents Chinwag from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but Chinwag will use commercially reasonable efforts to notify Customer where permitted to do so.
17.10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent
17.11. Export Control. In its use of the Services, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a "terrorist supporting" country, (ii) Customer will not (and will not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations
17.12. Government End-Users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. All Services were developed fully at private expense. All other use is prohibited
17.13. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.
This Acceptable Use Policy applies to Chinwag’s (a) websites (including without limitation www.gochinwag.com, app.gochinwag.com, and any successor URLS, mobile or localized versions and related domains and subdomains) and (b) communications and messaging products and services ((a) and (b) collectively, “Services”). To keep the Services running safely and smoothly, we need our users to agree not to misuse them. Specifically, you agree not to:
Without affecting any other remedies available to us, Chinwag may permanently or temporarily terminate or suspend a user’s account or access to the Services without notice or liability if Chinwag (in its sole discretion) determines that a user has violated this Acceptable Use Policy.
This Cookie Policy explains how Chinwag, Inc. and its affiliates (collectively "Chinwag", "we", "us", and "ours"), use cookies and similar technologies to recognize you when you visit our websites, including without limitation www.gochinwag.com, app.chinwag.com, and any successor URLs, mobile or localized versions and related domains / sub-domains ("Websites") and/or our mobile application ("App") and / or our communication platform ("Platform"). It explains what these technologies are and why we use them, as well as your rights to control our use of them.
Cookies are small data files that are placed on your computer or mobile device when you visit a website, mobile app or use an online platform. Cookies are widely used by online service providers to facilitate and help to make the interaction between users and websites, mobile apps and online platforms faster and easier, as well as to provide reporting information.
Cookies set by the website and/or mobile app and/or platform owner (in this case, Chinwag) are called "first party cookies". Cookies set by parties other than the website and/or mobile app and/or platform owner are called "third party cookies". Third party cookies enable third party features or functionality to be provided on or through the website and/or mobile app and/or platform (e.g. like advertising, interactive content and analytics). The parties that set these third party cookies can recognise your computer or device both when it visits the website and/or mobile app and/or platform in question and also when it visits certain other websites and/or mobile apps and/or platforms.
We use first party and third party cookies for several reasons. Some cookies are required for technical reasons in order for our Websites and/or App and/or platform to operate, and we refer to these as "essential" or "strictly necessary" cookies. Other cookies also enable us to track and target the interests of our users to enhance the experience on our Websites and/or App and/or platform. Third parties serve cookies through our Websites and/or App and/or platform for analytics and other purposes. This is described in more detail below.
Our Websites
| Types of cookie | Who serves these cookies | How to refuse |
| Essential website cookies: These cookies are strictly necessary to provide you with services available through our Websites and to use some of its features, such as access to secure areas. | Chinwag, Inc. | Because these cookies are strictly necessary to deliver the Websites to you, you cannot refuse them. You can block or delete them by changing your browser settings however, as described below under the heading "How can I control cookies?". |
| Performance and functionality cookies: These cookies are used to enhance the performance and functionality of our Websites but are non-essential to their use. However, without these cookies, certain functionality like videos may become unavailable. | Chinwag | To refuse these cookies, please follow the instructions below under the heading "How can I control cookies?" |
| Analytics and customisation cookies: These cookies collect information that is used either in aggregate form to help us understand how our Websites are being used or how effective are marketing campaigns are, or to help us customise our Websites for you. | Google Analytics LinkedIn Analytics |
To refuse these cookies, please follow the instructions below under the heading "How can I control cookies?" Alternatively, please click on the relevant opt-out link below:
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| Advertising cookies: These cookies are used to make advertising messages more relevant to you. They perform functions like preventing the same ad from continuously reappearing, ensuring that ads are properly displayed for advertisers, and in some cases selecting advertisements that are based on your interests. | AppNexus Bing Ads DoubleClick Facebook Custom Audience Google AdWords Conversion Google Dynamic Remarketing LinkedIn Ads |
To refuse these cookies, please follow the instructions below under the heading "How can I control cookies?" Alternatively, please click on the relevant opt-out link below:
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| Social networking cookies: These cookies are used to enable you to share pages and content that you find interesting on our Websites through third party social networking and other websites. These cookies may also be used for advertising purposes too. | Facebook Connect | To refuse these cookies, please follow the instructions below under the heading "How can I control cookies?" Alternatively, please click on the relevant opt-out link below: |
Our App
| Types of cookie | Who serves these cookies | How to refuse |
| Advertising cookies: These cookies are used to make advertising messages more relevant to you. They perform functions like preventing the same ad from continuously reappearing, ensuring that ads are properly displayed for advertisers, and in some cases selecting advertisements that are based on your interests. | Facebook Custom Audience Google Dynamic Remarketing |
To refuse these cookies, please follow the instructions below under the heading "How can I control cookies?" Alternatively, please click on the relevant opt-out link below:
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| Social networking cookies: These cookies are used to enable you to share content that you find interesting on our App through third party social networking. These cookies may also be used for advertising purposes too. | Facebook Connect Facebook Social Graph |
To refuse these cookies, please follow the instructions below under the heading "How can I control cookies?" Alternatively, please click on the relevant opt-out link below:
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Cookies are not the only way to recognise or track visitors to a website and/or mobile app and/or platform. We may use other, similar technologies from time to time, like web beacons (sometimes called "tracking pixels" or "clear gifs"). These are tiny graphics files that contain a unique identifier that enable us to recognise when someone has visited our Websites and/or App and/or platform. In many instances, these technologies are reliant on cookies to function properly, and so declining cookies will impair their functioning.
Our Websites and/or App and/or platform may also use so-called "Flash Cookies" (also known as Local Shared Objects or "LSOs") to, among other things, collect and store information about your use of our services, fraud prevention and for other site operations.
If you do not want Flash Cookies stored on your computer, you can adjust the settings of your Flash player to block Flash Cookies storage using the tools contained in the Website Storage Settings Panel. You can also control Flash Cookies by going to the Global Storage Settings Panel and following the instructions (which may include instructions that explain, for example, how to delete existing Flash Cookies (referred to "information" on the Macromedia site), how to prevent Flash LSOs from being placed on your computer without your being asked, and (for Flash Player 8 and later) how to block Flash Cookies that are not being delivered by the operator of the page you are on at the time).
Please note that setting the Flash Player to restrict or limit acceptance of Flash Cookies may reduce or impede the functionality of some Flash applications, including, potentially, Flash applications used in connection with our services or online content.
Third parties may serve cookies on your computer or mobile device to serve advertising through our Websites and/or App and/or platform. These companies may use information about your visits to this and other websites in order to provide relevant advertisements about goods and services that you may be interested in. They may also employ technology that is used to measure the effectiveness of advertisements. This can be accomplished by them using cookies or web beacons to collect information about your visits to this and other websites and/or mobile apps and/or platforms in order to provide relevant advertisements about goods and services of potential interest to you. The information collected through this process does not enable us or them to identify your name, contact details or other personally identifying details unless you choose to provide these.
You have the right to decide whether to accept or reject cookies. You can exercise your cookie preferences by clicking on the appropriate opt-out links provided in the cookie table above.
You can set or amend your web browser controls to accept or refuse cookies. If you choose to reject cookies, you may still use our Websites and/or App and/or platform though your access to some functionality and areas may be restricted. As the means by which you can refuse cookies through your web browser controls vary from browser-to-browser, you should visit your browser's help menu for more information.
In addition, most advertising networks offer you a way to opt out of targeted advertising. If you would like to find out more information, please visit http://www.aboutads.info/choices/ or http://www.youronlinechoices.com.
We may update this Cookie Policy from time to time in order to reflect, for example, changes to the cookies we use or for other operational, legal or regulatory reasons. Please therefore re-visit this Cookie Policy regularly to stay informed about our use of cookies and related technologies.
The date at the top of this Cookie Policy indicates when it was last updated.
If you have any questions about our use of cookies or other technologies, please email us at team@gochinwag.com.
We, Chinwag, Inc., are committed to protecting your privacy. This Policy sets out the privacy principles we follow with respect to transfers of personal data from the European Economic Area ("EEA") and Switzerland to the United States, including personal data we receive from individuals residing in the EEA or Switzerland who visit our web and mobile sites or apps and/or who use any of our services or otherwise interact with us ("you").
We adhere to the EU-US Privacy Shield Framework and the Swiss-U.S. Privacy Shield Framework as set forth by the US Department of Commerce regarding the collection, use and retention of personal data from European Union member countries and Switzerland. Chinwag, Inc. has certified adherence to and commits to apply the Privacy Shield Principles of Notice, Choice, Accountability for Onward Transfer, Security, Data Integrity and Purpose Limitation, Access, and Recourse, Enforcement, and Liability.
For purposes of enforcing compliance with the Privacy Shield, we are subject to the investigatory and enforcement authority of the US Federal Trade Commission.
For more information about the Privacy Shield, see the US Department of Commerce's Privacy Shield website located at: https://www.privacyshield.gov. To review our certification on the Privacy Shield list, see the US Department of Commerce's Privacy Shield self-certification list located at: https://www.privacyshield.gov/list.
Our online privacy policy located at https://gochinwag.com/terms-of-service/#information-we-collect describes the categories of personal data we may receive in the United States, as well as the purposes for which we use that personal data. We will only process personal data in ways that are compatible with the purpose we collected it for, or for the purposes you later authorize. Before we use your personal data for a purpose that is materially different from the purpose we collected it for or that you later authorized, we will provide you with the opportunity to opt-out. We maintain reasonable procedures to help ensure that personal data we collect and use is reliable for its intended use, accurate, complete, and current.
We maintain reasonable and appropriate security measures to protect personal data from loss, misuse, unauthorized access, disclosure, alteration, or destruction in accordance with the Privacy Shield.
In general, when processing personal data to provide our services, we do so only on behalf of our customers and in accordance with their instructions. This means that if you wish to access any personal data we process on behalf of a Chinwag customer and request that we correct, amend, delete it if it is inaccurate or processed in violation of Privacy Shield, you should contact that customer with your request. We will then help them to fulfil that request in accordance with their instructions.
Where we process personal data collected via our website or via our services for our own account management, billing or marketing purposes, you may have the right to access personal data that we hold about you and request that we correct, amend, delete it if it is inaccurate or processed in violation of Privacy Shield. These access rights may not apply in some cases, including where providing access is unreasonably burdensome or expensive under the circumstances or where it would violate the rights of someone other than the individual requesting access. If you would like to request access to, correction, amendment, or deletion of your personal data, you can submit a written request to the contact information provided below. We may request specific information from you to confirm your identity. In some circumstances we may charge a reasonable fee for access to your information.
You may choose to change personal data or cancel an account by contacting us using the contact details below. You can also unsubscribe from our marketing communications by following the instructions or unsubscribe mechanism in the e-mail message.
You can direct any questions or complaints about the use or disclosure of your personal data to us at team@gochinwag.com. We will investigate and attempt to resolve any complaints or disputes regarding the use or disclosure of personal data within 45 days of receiving your complaint.
If you have an unresolved privacy or data use concern that we have not addressed satisfactorily, please contact the Data Protection Commission (Ireland). You can register a complaint at www.dataprotection.ie.
You may have the option to select binding arbitration for the resolution of your complaint under certain circumstances, provided you have taken the following steps: (1) raised your complaint directly with us and provided us the opportunity to resolve the issue; (2) made use of the independent dispute resolution mechanism identified above; and (3) raised the issue through the relevant data protection authority and allowed the US Department of Commerce an opportunity to resolve the complaint at no cost to you. To find out more about the Privacy Shield's binding arbitration scheme please see www.privacyshield.gov/article?id=My-Rights-under-Privacy-Shield.
If you have any questions regarding this Policy or if you need to request access to or update, change or remove personal data that we control, you can do so by contacting us at team@gochinwag.com.
We reserve the right to amend this Policy from time to time consistent with the Privacy Shield's requirements.
You are billed monthly for each app based on:
These are the “Pricing Metrics” that are used to calculate your bill. We bill you each month in advance based on what your Pricing Metrics were on the last day of the prior month.
We know that your usage, however, may change. If you increase or decrease the number of people you track, or change which Chinwag products or plans you use, we may charge you overages or issue you credits. These charges or credits will be based on how and when your Pricing Metrics changed over the course of the last month.
You can see your current monthly fee for each app when you first sign up and any time after that in your Billing Settings (available through your dashboard). To estimate any overage charges or credits based on changes in your Pricing Metrics, please use the price calculator in your Billing Settings.
If you are a visitor to an Chinwag Website, a recipient of Chinwag communications, a customer of an Chinwag Service or a teammate of a customer's Chinwag Service then except as expressly set forth below, this Privacy Policy applies to your use of such Website or Service.
If you are a visitor to or user of a third-party website or service (“Third-Party Property”) that utilizes any Chinwag communication or messaging products (such as the Chinwag chat widget), then any information you submit to such Third-Party Property (including via the Chinwag product) is collected under the privacy policy of the owner of such Third-Party Property, and you should contact such owner with any related requests or inquiries you may have. If you have any inquiries about this Privacy Policy, please email our Data Protection Officer at compliance@gochinwag.com.
At Chinwag, we respect the privacy rights and data protection rights of our users and recognize the importance of protecting the personal information we collect about you. Our Privacy Policy is designed to help you understand what information we collect and how we use and share that information. This Privacy Policy applies to our Websites and Services.
As used in this Privacy Policy, “Chinwag,” “us” and “we” refers to Chinwag, Inc. and its affiliates. The “Websites” means Chinwag’s websites (including without limitation www.gochinwag.com, app.gochinwag.com, and any successor URLS, mobile or localized versions and related domains and subdomains), and the “Services” means Chinwag’s communications and messaging products, applications and services, in each case in whatever format they may be offered now or in the future. The Websites and Services are collectively referred to herein as the “Offerings.”
A. Information Related to Your Interaction with Chinwag and the Offerings and communicating the Offerings.
Registration and Contact Information. We collect information about you when you (a) register to use the Services and (b) otherwise provide contact information to us via email, mail, or through our Offerings. This information you provide may include your username, first and last name, email address, mailing address or phone number.
Payment Information. When you purchase the Services, we will also collect transaction information, which may include your credit card information, billing and mailing address, and other payment-related information (“Payment Information”). We describe how Payment Information may be collected and processed in Section 4.
Technical, Usage and Location Information. We automatically collect information on how you interact with the Offerings, such as the IP address from which you access the Offerings, date and time, information about your browser, operating system and computer or device, pages viewed and items clicked. We may also collect location information, including location information automatically provided by your computer or device. We use cookies and similar technologies to collect some of this information. The Chinwag Messenger service (and specifically the domains widget.intercom.io and api-iam.intercom.io) does not collect, retain, or share data regarding a particular user's activity across multiple websites or applications that are not owned by Chinwag. Chinwag does assign each user a unique user ID within the scope of an individual website, but does not collect or retain IP or any information that would allow Chinwag to identify the same particular user on more than one website. For more information, please see Chinwag's Cookie Policy.
Third Party Platforms. We may collect information when you interact with our advertisements and other content on third-party sites or platforms, such as social networking sites. This may include information such as “Likes”, profile information gathered from social networking sites or the fact that you viewed or interacted with our content.
Other Information. We may collect other information from you that is not specifically listed here. We may use any such information in accordance with this Privacy Policy or as otherwise permitted by you.
Legal Basis. Our Legitimate Interest. Chinwag products work together to help sales, marketing, and support teams better communicate with customers. In order to engage visitors and leads we have a legitimate interest to collect relevant data and send messages based on this information. We consider your privacy and data protection rights when we pursue our legitimate interests and ensure that the way our Offerings work don't impact on those rights. For website visitors Chinwag will store this data for 9 months, for sales and marketing leads Chinwag will store this data until the individual opts out or where they have not engaged with Chinwag in 24 months.
B. Customer Data.
You may submit various types of information and data into the Services for hosting and processing purposes (“Customer Data”). Customer Data may include, without limitation, (a) billing information, personal information such as names, email addresses, phone numbers, location and photos of your end user customers, potential customers and other users of and visitors to your websites, apps and other properties (e.g. Teammates' details (“People”), which information may be input into the Services by you or collected by the Services using Chinwag tags, scripts and other code implemented on such properties, and (b) information contained in communications between you and People using the messaging features of the Services.
We will only use, disclose and otherwise process Customer Data for the purposes set forth in your agreement with us for the provisioning of the Services (“Customer Agreement”). The Services use third-party services provided by FullContact, Inc. (“FullContact”) to enable you to retrieve publicly-available information about People including without limitation social media information, profile information, gender, company, job titles, photos, physical addresses, and website URLs based on People’s email addresses input into the Services. FullContact uses People’s email addresses as described in its privacy policy, available at https://www.fullcontact.com/privacy/.
Legal Basis. We process and store Customer Data to perform our Customer Agreement with you. Without this information, we wouldn't be able to provide our Offerings to you. We also process Customer Data to pursue our legitimate interests by ensuring the smooth running of your Customer Agreement and to help your sales, marketing, and support teams better communicate with your customers. We consider your privacy and data protection rights when we pursue our legitimate interests and ensure that the way Offerings work don't impact on those rights.
We use your information in the following ways:
We do not sell, trade, share or transfer your personal information to third parties except in the following limited circumstances:
We may also share aggregated or anonymized information with third parties for other purposes. Such information does not identify you individually, but may include usage, viewing and technical information such as the types of Offerings our customers and users generally use, the configuration of their computers, and performance metrics related to the use of Offerings which we collected through our technology. If we are required under applicable law to treat such information as personal information, then we will only disclose it as described above. Otherwise we may disclose such information for any reason.
When you make a purchase on the Offerings, any credit card information you provide as part of your Payment Information is collected and processed directly by our payment processor Stripe through their Stripe Checkout service. We never receive or store your full credit card information. Stripe commits to complying with the Payment Card Industry Data Security Standard (PCI-DSS) and using industry standard security. Stripe may use your Payment Information in accordance with their own Privacy Policy here: https://stripe.com/us/checkout/legal.
The Offerings may also contain links to third party websites. This Privacy Policy applies solely to information collected by us. Even if the third party is affiliated with us through a business partnership or otherwise, we are not responsible for the privacy practices of such third party. We encourage you to familiarize yourself with the privacy policies of such third parties to determine how they handle any information they separately collect from you. Please be aware that we do not warn you when you choose to click through to another website when using the Offerings.
The Websites contain features that enable you to post reviews, comments or other content that is publicly viewable. You should be aware that any personal information you submit as part of those posts can be read, collected, or used by other visitors to the Websites, and could be used to send you unsolicited messages. We are not responsible for the personal information you choose to publicly post on the Websites. Please see our Website Terms of Use for more information and for other guidelines about posting content on the Websites.
Opt-Outs. We may provide you with the opportunity to “opt-out” of having your personal information used for certain purposes when we ask for this information. If you decide to opt-out, we may not be able to provide certain features of the Offerings to you.
Communication Preferences. If you no longer wish to receive our newsletter and promotional communications, you may opt-out of receiving them by following the instructions included on such communications or on the Offerings. Please note, however, that you may be unable to opt-out of certain service-related communications.
Blocking Cookies. You can remove or block certain cookies using the settings in your browser but the Offerings may cease to function properly if you do so. For more information, please see Chinwag's Cookie Policy.
How We Respond to Do Not Track Signals. Your Web browser may have a “do not track” setting which, when enabled, causes your browser to send a do not track HTTP header file or “signal” to each site you visit. At present, the Offerings do not respond to this type of signal.
Data Subject Rights. You can access, rectify, erase, restrict or export your personal information at any time by emailing us at team@gochinwag.com. You can object to our processing of your personal information at any time. Contact our Data Protection Officer with requests or concerns at compliance@gochinwag.com. If you are unsatisfied with the response you have the right to lodge a complaint with your supervisory authority.
When you use the Offerings, we make good faith efforts to provide you with access to your personal information upon your request and either provide you the means to correct this information if it is inaccurate or to delete such information at your request if it is not otherwise required to be retained by law or for legitimate business purposes. You may access, review, correct, update, change or delete your information at any time. To do so, please contact us at team@gochinwag.com with your name and the information requested to be accessed, corrected or removed, or if you are using the Service, sign in to your account, go to your profile, and make the desired changes. We may decline to process requests that are unreasonably repetitive or systematic, require disproportionate technical effort (for instance, requests concerning information residing on backup tapes), jeopardize the privacy of others, would be extremely impractical, or for which access is not otherwise required. In any case where we provide information access and correction, we perform this service free of charge, except if doing so would require a disproportionate effort.
Please note that if you cease using the Service or we terminate your access to the Service in accordance with your Customer Agreement, you may no longer have the ability to access or update your information.
We may retain your information as necessary to support the Offerings, comply with our legal obligations or resolve disputes. Note that content you post may remain on the Offerings even if you cease using the Offerings or we terminate your access to the Offerings.
We reserve the right to change our Privacy Policy at any time. If we make changes, we will post them and will indicate on this page the policy’s new effective date. If we make material changes to this policy, we will notify you by email or through notice on the Offerings.
The Offerings are not intended for use by anyone under the age of 16, nor does Chinwag knowingly collect or solicit personal information from anyone under the age of 16. If you are under 16, you may not attempt to register for the Offerings or send any information about yourself to us, including your name, address, telephone number, or email address. In the event that we confirm that we have collected personal information from someone under the age of 16 without verification of parental consent, we will delete that information promptly. If you are a parent or legal guardian of a child under 16 and believe that we might have any information from or about such child, please contact us at the email provided at the end of this Privacy Policy.
California Shine the Light Law. If you are a California resident and we disclose your personally identifiable information to third parties for such third parties’ direct marketing purposes, California’s Shine the Light Law (CA Civil Code Section 1798.83) allows you to request certain information from us about such disclosures. To make a request under the Shine the Light Law, please contact us at team@gochinwag.com. Please note that under California law, businesses are not required to respond to such requests more than once during any calendar year.
California Minors. At any time, you can delete or remove your posts using the same deletion or removal procedures described in Section 8 (Accessing and Updating Your Personal Information) above, or otherwise through the Offerings. If you have questions about how to remove your posts or if you would like additional assistance with deletion you can contact our support team at compliance@gochinwag.com. Although we offer deletion capability for our Offerings, you should be aware that the removal of posts may not ensure complete or comprehensive removal of that content or information posted through the Offerings.
The security of your personal information is important to us. We maintain a variety of appropriate technical and organizational safeguards to protect your personal information. We limit access to personal information about you to employees who we believe reasonably need to come into contact with that information to provide products or services to you or in order to do their jobs. Further, we have implemented reasonable physical, electronic, and procedural safeguards designed to protect personal information about you. When you enter sensitive information (such as your password), we encrypt that information in transit using industry-standard Transport Layer Security (TLS) encryption technology. No method of transmission over the Internet, method of electronic storage or other security methods are one hundred percent secure. Therefore, while we strive to use reasonable efforts to protect your personal information, we cannot guarantee its absolute security. You can find out more about our technical and organizational safeguards on our Security page.
We may from time to time transfer your personal information to other countries outside the United States and make it accessible to our parents, subsidiaries, affiliates and third party service providers internationally. We will protect your personal information in accordance with this Privacy Policy wherever it is processed. Chinwag has business entities in Europe, the United States and a number remote employees globally. Personal information may be processed in any country where an Chinwag employee accesses the Chinwag system.
Chinwag has self-certified to the EU-U.S. and Swiss-U.S. Privacy Shield. For more information, please see Chinwag’s EU-U.S. and Swiss-U.S. Privacy Shield Policy.
If you have questions or need to contact us about this Privacy Policy, please email us at compliance@gochinwag.com.
At Chinwag we take the protection of customer data extremely seriously. This Chinwag Security Policy describes the organizational and technical measures Chinwag implements platform wide designed to prevent unauthorized access, use, alteration or disclosure of customer data. The Chinwag services operate on Amazon Web Services (“AWS”); this policy describes activities of Chinwag within its instance on AWS unless otherwise specified. As you continue to learn more about Chinwag we recommend you also review our Terms of Service and Privacy Policy.
Our infrastructure and security team includes people who’ve played lead roles in designing, building, and operating highly secure Internet facing systems at companies ranging from startups to large public companies.
Incident Response Plan
Build Process Automation
All payment instrument processing for purchase of the Chinwag services is performed by Stripe. For more information on Stripe’s security practices, please see https://stripe.com/docs/security/stripe.
This Chinwag Service Level Agreement ("SLA") accompanies the Chinwag Subscription Terms of Service, available at https://gochinwag.com/terms-of-service/#service-level-agreement or a successor URL (the "Agreement") entered into between you ("Customer") and Chinwag. Capitalized terms used in this SLA that are not defined herein have the meanings given to them in the Agreement.
This Chinwag Support Policy ("Support Policy") accompanies the Chinwag Subscription Terms of Service, available at https://gochinwag.com/terms-of-service or a successor URL (the "Agreement") entered into between you ("Customer") and Chinwag. Capitalized terms used in this Support Policy that are not defined herein have the meanings given to them in the Agreement.
Chinwag offers support services for the Service ("Support") in accordance with the following terms:
A. Support Hours. Support is provided 24 hours per day, 7 days per week.
B. Submission and Customer Cooperation. Customer may report errors or abnormal behavior of the Service (" Incidents") by contacting Chinwag in the Service via the Chinwag Messenger or via email at team@gochinwag.com. Customer will provide information and cooperation to Chinwag as reasonably required for Chinwag to provide Support. This includes, without limitation, providing the following information to Chinwag regarding the Incident:
C. Incident Response. Chinwag's Support personnel will assign a priority level ("Priority Level") to each Incident and seek to provide responses in accordance with the table below.
| Priority Level | Description | Target Response Times |
| Priority 1 | Operation of the Service is critically affected (not responding to requests or serving content) for a large number of users; no workaround available. | 2 Hours |
| Priority 2 | Service is responding and functional but performance is degraded, and/or Incident has potentially severe impact on operation of the Service for multiple users. | 1 Day |
| Priority 3 | Non-critical issue; no significant impact on performance of the Service but user experience may be affected. | 3 Days |
D. Exclusions. Chinwag will have no obligation to provide Support to the extent an Incident arises from: (a) use of the Service by Customer in a manner not authorized in the Agreement or the applicable Documentation; (b) general Internet problems, force majeure events or other factors outside of Chinwag's reasonable control; (c) Customer's equipment, software, network connections or other infrastructure; or (d) third party systems, acts or omissions.
