Terms of Service
Effective Date: September 1, 2020
Please read these Terms of Service (the “Agreement”) carefully before
using the https://www.choosify.chat website
(together, or individually, the “Services”, “Choosify”, “us”, “we”, or
“our”). Your (“Customer,” “you”, or “your”) access to and use of the
Services is conditioned upon your acceptance of and compliance with this
Agreement. This Agreement applies to all visitors, users and others who
wish to access or use the Services. By accessing or using the Services you
agree to be bound by this Agreement. If you disagree with any part of this
Agreement then you do not have permission to access the Services.
- “Activation Link” means the link through which Customer may
sign up and make payment in order to receive Services.
- “Customer Content” means content, data and information
submitted to the Services by Customer or by a third party on behalf
of or for the benefit of Customer, including Customer’s customers
and prospective customers and visitors to Customer’s website(s).
- “Documentation” means Choosify’s then-current generally
available documentation, specifications, user manuals, etc. for the
Services, which can be located at www.choosify.chat or such other
URL as Choosify may provide from time to time, as well as any
documentation included in or attached to any Order Form or such
other Services-related documents provided to Customer.
- “Order Form” the document describing the Services and pricing
purchased by Customer and which incorporates these Terms of Service.
- “Platform” means Choosify’s proprietary, enterprise-level
- “Personal Data” means any information relating to an
identified or identifiable individual.
- “Sensitive Personal Information” means Personal Data subject
to specialized security regimes, including without limitation the
Health Insurance Portability and Accountability Act (“HIPAA”), and
the standards promulgated by the PCI Security Standards Council
- “Services” means Choosify’s products and/or services provided
- “Subscription Term” means the term for the
Services set forth in the applicable Order Form or Activation Link.
- “User” means an individual employee, consultant, contractor,
or agent of Customer who has been authorized by Customer to use the
Platform on behalf of Customer and its Affiliates.
- General Commercial Terms
- Access. During the term of your Order Form, we will provide
you with access to the Services.
- Fees and Payment. You agree to pay all applicable fees for
the Services as set forth on the invoice unless you provide written
notice of a dispute regarding such fees no later than 30 days after
the invoice date. Any and all payments you make to us for the
Services are final and non-refundable. If we agree to accept your
payment via invoice rather than by credit card, full payment must be
received within thirty (30) days from the invoice date. We will
provide you with notice of non-payment of any undisputed amount due.
Unless the full amount not in dispute has been paid, we may suspend
your access to the Services thirty (30) days after such notice. We
will not suspend the access to the Services while you are disputing
the applicable charges reasonably and in good faith and are
cooperating diligently to resolve the dispute. If your Services are
suspended for non-payment, we may charge a re-activation fee to
reinstate your access to the Services.
- Subscription Fees and Payment. If you are paying via a credit
card, you authorize us to charge your credit card or bank account
for all fees payable during the Subscription Term. You further
authorize us to use a PCI-compliant third party to process payments,
and consent to the disclosure of your payment information to such
third party. If you are paying by invoice, we will invoice you no
later than thirty (30) days before the beginning of the Subscription
Term and all other times during the Subscription Term when fees are
- Availability. Choosify will make commercially reasonable
efforts to make the Platform available within the defined uptime
percentage of at least 99.5% during the monthly billing period.
- Warranties. Choosify represents and warrants that the
Services will be provided in a professional and workmanlike manner
in accordance with industry standards.
- Use and Limitations of Use.
- Acceptable Use. You agree to comply with our Acceptable Use
- Prohibited and Unauthorized Use. You agree that you will not,
directly or indirectly, (1) make the Services available to, or use
the Services for the benefit of, anyone other than yourself or the
Users using the Services on your behalf; (2) sell, resell, license,
sublicense, distribute, rent, lease the Services, or include any
Services in a service bureau or outsourcing offering; (3) use the
Services to send SPAM or store or transmit infringing, libelous, or
otherwise unlawful, or tortious content, material or data; (4) store
or transmit material or data on or through the Services in violation
of law or third-party rights, including without limitation privacy
rights or any contract to which you are a party; (5) use the
Services to store or transmit malicious or disruptive code; (6)
interfere with or disrupt the integrity or performance of the
Services or third-party data contained therein; (7) attempt to gain
unauthorized access to the Services or its related systems or
networks; (8) permit direct or indirect access to or use of the
Services in a way that circumvents a contractual usage limit; (9)
copy the Services or any part, feature, function or user interface
thereof; (10) frame or mirror any part of any Services, other than
framing on your own internal intranets; (11) access or use the
Services for benchmarking or similar competitive analysis purposes
or in order to build a competitive product or service; (l12 modify,
translate, or create derivative works based on the Services or any
underlying software; (13) decompile, disassemble, decipher or
reverse-engineer the Services, or otherwise attempt to derive any
source code or underlying ideas or algorithms of any part of the
Services, (except to the extent such restriction is expressly
prohibited by applicable statutory law) or (14) breach Choosify’s
Acceptable Use Policy. Choosify may suspend any User’s access to any
or all subscription Services without notice in the event of a
violation of this Section.
- No Sensitive Information. YOU AGREE NOT TO USE THE PLATFORM
OR ANY SERVICES TO COLLECT, MANAGE OR PROCESS SENSITIVE PERSONAL
INFORMATION. Choosify WILL NOT BE RESPONSIBLE FOR ANY LIABILITY
RESULTING FROM YOUR USE OF THE PLATFORM OR ANY SERVICES TO COLLECT
OR PROCESS SENSITIVE PERSONAL INFORMATION.
- Subscription Term and Termination.
- Term and Renewal. Your initial Subscription Term will be
set forth in the Order Form or Activation Link. At the
expiration of the initial period, the Subscription Term will
automatically renew for additional periods of the same duration
unless either party provides the other party with written notice
of non-renewal at least thirty (30) days prior to the expiration
of the then-current term.
- Termination. If either party materially breaches any of
its duties or obligations under these Terms of Service or an
Order Form, and such breach is not cured within thirty (30)
calendar days of the non-breaching party providing the breaching
party of written notice of the breach, the non-breaching party
may terminate these Terms of Service or the applicable Order
Form, as applicable.
- Effect of Termination or Expiration. All provisions of
these Terms of Service, which by their nature should survive
termination shall survive termination, including, without
limitation, ownership provisions, warranty disclaimers,
indemnity and limitations of liability.
- General Legal Terms
- Customer Content. Our Services allow you to post, link,
store, share and otherwise make available certain information, text,
graphics, videos, or other material (“Customer Content”). You are
responsible for the Customer Content that you post on or through the
Services, including its legality, reliability, and appropriateness.
By posting Customer Content on or through the Services, you
represent and warrant that: (a) the Customer Content you post on or
through the Services is yours (you own it) and/or you have the right
to use it and the right to grant us the rights and license as
provided in these Terms of Service, and (b) the posting of your
Customer Content on or through the Services does not violate the
privacy rights, publicity rights, copyrights, contract rights or any
other rights of any person or entity. We reserve the right to
terminate the account of anyone found to be infringing on a
copyright or otherwise in violation of this section. We take no
responsibility and assume no liability for Customer Content you or
any third-party posts on or through the Services.
Choosify Proprietary Rights. You acknowledge that we retain all
right, title and interest in the Services, the Platform, our name,
logo or other marks (the “Choosify Marks”), and any related
intellectual property rights, including, without limitation, all
modifications, enhancements, derivative works, and upgrades thereto.
You agree that you will not use or register any mark, business name,
domain name or social media account name or handle which
incorporates in whole or in part the Choosify Marks. In addition,
information provided by Choosify as part of provision of the
Services is the property of Choosify or used with permission. You
may not distribute, modify, transmit, reuse, download, repost, copy,
or use such information, whether in whole or in part, for commercial
purposes or for personal gain, without express advance written
permission from us.
- Customer Proprietary Rights. You own and retain all the
rights to your Customer Content and you are responsible for
protecting those rights. These Terms of Service do not grant us any
ownership rights to Customer Content. You grant permission to us to
use the Customer Content as necessary to provide the Services and as
permitted by these Terms of Service. If you are using our Services
on behalf of another party, then you represent and warrant that you
have the sufficient and necessary rights and permissions to do so.
Choosify may collect and use data regarding the use and performance
of the Services in aggregated form, without use of any personal
data, to analyze and improve the Services and optimize company
- Indemnification. Choosify will indemnify, defend, and hold
you harmless against any claim made or brought by a third party, and
any resulting damages or costs (including reasonable
attorneys’ fees) awarded by a court or included as part of
afinal settlement (“Claim”), against you alleging that your use of
the Services in accordance with these Terms of Service or any Order
Form infringes or misappropriates such third party’s intellectual
property rights. The foregoing obligations do not apply with respect
to any Claim based on or arising from (a) unauthorized or illegal
use of the Services, (b) your breach of these Terms of Service, (c)
your use of the Services combined with products, services,
processes, content or materials not supplied by Choosify, or (d) the
unauthorized use of the Services by a third party using your user
information. You will indemnify, defend and hold us harmless, at
your expense, against any Claim brought against us (and our
officers, directors, employees, agents, service providers,
licensors, and affiliates) by a third party based upon or arising
out of Customer Content or any of the foregoing clauses (a) –
(d). The indemnified party will promptly: notify the indemnifying
party in writing of any such Claim; give the indemnifying party sole
control of the defense or settlement of such a Claim; and provide
the indemnifying party with any and all information and assistance
reasonably requested by it in connection with the defense or
settlement of the Claim. The indemnifying party shall not accept any
settlement that (i) requires the indemnified party to make an
admission of fault or wrongdoing; or (ii) imposes liability not
covered by these indemnification provisions without the indemnified
- Confidentiality. Each party acknowledges that as a result of
the Services provided, such party (the “Receiving Party”) may
receive information from the other party (the “Disclosing Party”)
that is designated as Confidential Information communicated orally
will be considered Confidential Information if the information is
confirmed in writing as being Confidential Information within a
reasonable time after the initial disclosure. (“Confidential
Information”). Your Confidential Information includes, but is not
limited to, internal business information, contact information
including names and email addresses of clients and prospective
clients, and other information about clients and prospective
clients. Choosify’s Confidential Information includes, but is not
limited to, information Choosify provides in its provision of the
Services, its business and marketing plans, technology and technical
information, product plans and designs, and business processes
disclosed by Choosify. The Receiving Party acknowledges that the
Disclosing Party’s Confidential Information will remain solely the
Disclosing Party’s property and proprietary information of the
Disclosing Party and that the Receiving Party’s knowledge of the
Disclosing Party’s Confidential Information may enable the Receiving
Party to cause the Disclosing Party’s irreparable harm upon the
unauthorized disclosure of such matters. The Receiving Party
covenants and agrees that it will not use or appropriate for its own
behalf, or disclose or communicate, directly or indirectly, any of
the Disclosing Party’s Confidential Information to any external
third-party individual, firm, company or other entity or person
without the Disclosing Party’s prior written consent, except to the
extent necessary to perform its obligations under the Agreement.
The Receiving Party shall take all commercially reasonable steps
required to protect the Disclosing Party’s Confidential Information
from unauthorized disclosure to any third party and shall keep the
Confidential Information protected while stored with industry
standard and commercially reasonable measures typically used in
similar commercial sectors.
The foregoing obligations of confidentiality do not apply to any
information that: (a) is made publicly known without fault of the
Receiving Party; (b) is lawfully disclosed to the Receiving Party by
a third-party having the right to disclose the information; (c) is
produced by the Receiving Party pursuant to legal process, or under
a court or government agency order to be produced, provided that the
Receiving Party shall promptly notify the Disclosing Party of the
request or order so that the Disclosing Party has a timely
opportunity to seek a protective order or other appropriate relief;
or (d) is developed by the Receiving Party independently of the
receipt of the Disclosing Party’s Confidential Information.
The Receiving Party shall, at the Disclosing Party’s option, return
or destroy all Confidential Information in Receiving Party’s
possession, and all copies thereof, at any time upon the Disclosing
- Publicity. You grant us the right to add your name and
company logo to our customer list and website.
- Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE
SERVICES ARE PROVIDED “AS IS”. FURTHER, EXCEPT AS PROVIDED HEREIN,
NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY
DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW
AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF
PERFORMANCE OR USAGE IN TRADE. CHOOSIFY MAKES NO REPRESENTATIONS OR
WARRANTIES REGARDING (A) THE SUITABILITY OR COMPLETENESS OF THE
SERVICES, (B) THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICES,
OR (C) THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS.
- Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR
PAYMENT OF FEES AND INDEMNIFICATION OBLIGATIONS, EACH PARTY’S
AGGREGATE LIABILITY WILL BE LIMITED TO THE THE TOTAL AMOUNTS YOU
HAVE ACTUALLY PAID TO CHOOSIFY IN THE TWELVE-MONTH PERIOD
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM. CHOOSIFY IS
NOT RESPONSIBLE FOR AND EXPRESSLY DISCLAIMS ANY LIABILITY WITH
RESPECT TO ALL THIRD-PARTY PRODUCTS THAT YOU USE. IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS
OPPORTUNITIES. THIS SECTION DOES NOT APPLY TO A PARTY’S
VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
- General Provisions
Force Majeure. Neither party will be responsible for failure or
delay of performance if caused by: an act of war, hostility or
sabotage; act of God; electrical, internet or telecommunication
outage that is not caused by the obligated party; government
restrictions; or other event outside the reasonable control of the
obligated party. Each party will use reasonable efforts to mitigate
the effect of a force majeure event.
Relationship of the Parties. The parties understand and agree that
no joint venture, partnership, employment or agency relationship
exists between us.
Compliance with Laws. We will comply with all applicable laws in our
provision of the Services and in our processing of Customer Content.
You will comply with all applicable laws in your use of the
Services, including the collection and compilation of any Personal
Data collected or submitted to the Services.
No Waiver. No delay in exercising any right or remedy or failure to
object will be considered a waiver of such right or remedy, or of
any other right or remedy. A waiver on one occasion shall not be a
waiver of any right or remedy on any future occasion.
Severability. If any part of these Terms of Service or of an Order
Form is determined to be invalid or unenforceable by applicable law,
then the invalid or unenforceable provision will be deemed
superseded by a valid, enforceable provision that most closely
matches the intent of the original provision and the remainder of
these Terms of Service will continue in effect.
Notices. Notice to Choosify will be sent to the contact address set
forth herein and will be deemed delivered as of the date the notice
is actually received. We will send you notices at the address you
have provided in your Choosify subscription account information. We
may give electronic notices by general notice via the Services or
may give electronic notices specific to you by email to your email
address(es) on record in our account information for you. You must
keep all of your account information current.
Entire Agreement. These Terms of Service (together with any Order
Forms and Activation Links) constitute the entire agreement between
us regarding our Services and supersedes and replaces any prior
agreements we might have had between us regarding the Services.
Assignment. Neither party may assign any of its rights or
obligations hereunder, whether by operation of law or otherwise,
without the other party’s prior written consent (not to be
unreasonably withheld); provided, however, either party may assign
these Terms of Service (including all Order Forms and Activation
Links), upon providing written notice to the other party, but
without the other party’s consent, to an affiliate or in connection
with a merger, acquisition, corporate reorganization, or sale of all
or substantially all of its stock or assets.
No Third-Party Beneficiaries. No person or entity not a party to the
Agreement will be a third-party beneficiary.
Authority. Each party represents and warrants that (a) it has full
corporate power and authority, and has obtained all corporate
approvals, permissions and consents necessary, to enter into these
Terms of Service and to perform its obligations hereunder; (b) these
Terms of Service are legally binding upon it and enforceable in
accordance with its terms; and (c) the execution, delivery and
performance of these Terms of Service do not and will not conflict
with any agreement, instrument, judgment or understanding, oral or
written, to which it is a party or by which it may be bound.
Precedence. In the event of a conflict of terms between these Terms
of Service and any Order Form, the Order Form will control.
Governing law. These Terms of Service shall be governed and
construed in accordance with the laws of the Commonwealth of
Massachusetts, United States, without regard to its conflict of law
Changes. We reserve the right, at our sole discretion, to modify or
replace these Terms of Service at any time. If a revision is
material, we will provide at least 30 days’ notice prior to any new
terms taking effect. What constitutes a material change will be
determined at our sole discretion. By continuing to access or use
our Services after any revisions become effective, you agree to be
bound by the revised Terms of Service. If you do not agree to the
new Terms of Service, you are no longer authorized to use the