Terms and conditions
1. Definitions
Within this Agreement, unless the context otherwise requires, the following expressions shall have the following meanings:
"Business day" - means a day other than Saturday, Sunday, or legal holidays in Romania.
"Commencement Date" - means the date on which this Agreement shall become effective, being the date of your registration with us
"Confidential Information" - means all information that is expressly marked as confidential or that is obviously of a confidential nature or that is confirmed in writing to be confidential within 7 days of its disclosure.
"Initial Period" - means the first payment period of this Agreement, as specified in the chosen price plan.
"Services" - means the services to be provided by OnChat in accordance with the terms of this Agreement, namely i) the provision of the Software and ii) hosting services related to the use of the Software only.
"Software" - means the various software developed by our company as services accessible for online use, as described on our website at the time of your registration, but excluding any additional functionality not included at the time of initial subscription. In case additional functionalities are added to your subscription, either through an update or otherwise, these terms shall apply mutatis mutandis to such subsequent additional functionalities.
"Specifications" - means the description of the software provided as part of the Services, which describes its features and functions and which are available during any free trial period granted to the Client.
"Website" - means the website created by the Client using the Software.
Within this Agreement:
2. Rights Granted Over the Software
2.1 In accordance with the provisions of this Agreement, OnChat grants to the Client a non-exclusive, non-transferable, and worldwide limited right to use the Software, exclusively for the Client's commercial operations.
2.2 The Client has the right to use the Software to build their own website, upload, display, and store data, and print and store reports for the purpose of their commercial activities.
2.3 The Client acknowledges that they do not have a license to download the Software and are entitled to use the Software only as part of the Services, for a limited time, and in accordance with the provisions of this Agreement.
2.4 Without affecting other liability limitations contained in this Agreement, OnChat's sole obligation to the Client relates to providing access to the functioning of the Software and does not extend to any other service, including but not limited to advice or guidance regarding the use of the Software, the Client's business operations, financial management, or the performance of the Client's business within the applicable legal or regulatory framework or otherwise.
3. Hosting
3.1 The Client appoints OnChat as the manager of the hosting of the website in accordance with the provisions set forth in this Agreement.
3.2 OnChat will make arrangements for storing the website on an appropriate system, to which the Client has access for ongoing maintenance purposes, and will provide the website for access by internet users starting from the Commencement Date and thereafter.
3.3 OnChat agrees to perform system maintenance and other necessary actions reasonably to maintain access to the website.
3.4 OnChat will use reasonable efforts to ensure continuous access to the website, but shall not be liable for periods during which the servers are not operational due to i) server maintenance and software updates ii) technical errors for which reasonable efforts are made to rectify such errors, iii) user fault, or iv) due to a force majeure event.
3.5 OnChat will suspend the availability of the website on the internet at the written request of the Client, as soon as reasonably possible.
4. Access and Use
4.1 To benefit from the Services offered by OnChat, you must register according to the instructions, including creating a password and providing your store name along with other requested information. It is a condition of this agreement that you must be over 18 years old, and by registering with us, you confirm that you and any person you authorize to use the system created by you using the Services are over 18 years old.
4.2 On or after the Commencement Date, OnChat will provide the Client with access to the Services through a user account that includes a username and password. The Client will provide OnChat with additional contact and identity information before the Commencement Date, and access details are provided to the Client based on this information transmitted to OnChat. OnChat shall not be responsible if the Client cannot access the Services due to inaccurate information provided. The Client warrants that all information provided to OnChat is accurate.
4.3 If OnChat becomes aware of or suspects that an unauthorized person has gained or attempted to gain access to the Client's account, including the data stored therein, then OnChat shall notify the Client and immediately change the Client's security password. The Client shall promptly notify OnChat if they become aware of or suspect that an unauthorized person has gained or attempted to gain access to their account, including the data stored therein, and OnChat will change the Client's security password.
4.4 OnChat will provide the Services to the Client at all times, except where reasonable maintenance of the Software or Hosting is required, and in accordance with the Client's obligations to provide their own telecommunication means for accessing the Services. OnChat will make reasonable efforts to anticipate and communicate to the Client the periods during which the Services will not be available, and to the extent it has fulfilled this obligation, OnChat shall not be liable to the Client for any denial of access by the Client or the public (as applicable) to the Services during these periods.
4.5 Access to and use of the Services are subject to OnChat's privacy policy, updated from time to time, which is expressly incorporated into these terms.
5. Additional Marketing Consultancy
5.1 OnChat has the right to provide, from time to time, optional marketing consultancy in the form of newsletters, blogs, e-books, events, custom store templates, or other materials, in addition to the Services provided under a Payment Plan. For this, your email address and other contact details provided by you are required. These communications may also include advice on the more efficient use of existing or new features of OnChat's Services.
5.2 In using OnChat's Services, you are obligated to make reasonable efforts to keep abreast of current marketing advice and trends.
5.3 You acknowledge that any marketing advice provided by OnChat is given to keep you informed of current marketing trends and is provided without consideration of your business in particular, so you should not rely solely on it. It is recommended to seek tailored marketing advice for your business.
5.4 OnChat reserves the right to charge a fee for any marketing advice, provided that you are notified in advance or in accordance with an announced Payment Plan to which you have subscribed.
6. Fees and Payment
6.1 Over a period of 14 days starting from the Commencement Date, the Client benefits from a trial period of 14 days or until reaching the limit of 100 GPT-3.5 messages to analyze and evaluate the functionality of the Services offered by OnChat. If, after that period, the Client continues to have access to the Services, they will use the Services at rates according to the plans published by OnChat and chosen by the Client. To benefit from the trial period, the Client must fully register for the Services before this period.
6.2 Without affecting anything else written in this Agreement, regarding the trial period, OnChat reserves the right to interrupt, exclude, or limit any part of the Services at any time, without any liability to the Client, and makes no representation as to the suitability of the Services for the Client's purpose. For the avoidance of doubt, it is the Client's responsibility for any use of the Services during a payment period.
6.3 The Client must pay the fees for such Services periodically in advance, according to the chosen Plan, at the price indicated in the Client's request ("Fees"), in a currency chosen at OnChat's discretion from time to time. For the avoidance of doubt, once the fees become due, they must be paid in full for the entire period in advance, regardless of the breakdown information of these fees contained in OnChat's advertising materials. If the Client wishes to change the chosen price plan or if OnChat discontinues the extended functionality legally, the Client will remain responsible for the unused proportionate time from the initial price plan they subscribed to, unless OnChat makes an optional waiver communicated to the Client in accordance with the terms of the Agreement.
6.4 The Client must pay the Fees to OnChat in accordance with the subscription order through Stripe, Netopia Payment, PayPal, credit card payment, or other methods offered by OnChat, solely at OnChat's discretion, and the Client grants OnChat all necessary permissions and agrees to sign such documents as necessary for OnChat to receive payments in this manner.
6.5 OnChat may disable the Customer's access and use of the extended functionality of the Services, and OnChat is not obligated to provide all or part of the Services when there are unpaid fees in accordance with this Agreement.
6.6 The Fees payable under this Agreement do not include VAT, which shall be paid by the Client at the rate and in the manner currently set by law, unless otherwise specified.
6.7 For the avoidance of doubt, OnChat reserves the right to charge additional fees for additional functionalities or upgrades to the Services, provided that the Client may decide to cancel their subscription or not to benefit from these upgrades.
7. Duration and Automatic Renewal
7.1 The Services shall commence on the Commencement Date, shall continue for the Initial Period, and shall automatically renew thereafter in accordance with the chosen pricing plan. Except for the provisions in clause 6.2 above, either party may terminate this Agreement by giving timely notice to the other party before the renewal date, but shall be subject to other provisions of this Agreement regarding early termination.
7.2 OnChat has the right, at any time and from time to time, after the expiration of the Initial Period, to increase the Fees in accordance with any change in OnChat's standard fee rates, by sending the Client written notice at least 30 days before the renewal date of the chosen pricing plan. Upon receipt of such notice, the Client shall have the right to terminate this Agreement starting from the date this notice expires, by sending written notice of termination to OnChat at least 30 days before that date.
8. Data Preparation and Use of Services
8.1 The Client has sole responsibility for preparing, submitting, and using their data within and in connection with the Website, including, but not limited to:
8.2 The Client must ensure that any terms and conditions for the sale and purchase of its products using the Services are notified to its buyers, as OnChat assumes no responsibility regarding the provision or enforcement of these terms.
8.3 The Client retains all ownership rights and intellectual property rights to its data associated with the Website and the look and feel created by the Client in building the Website. OnChat or its licensors retain all ownership rights and intellectual property rights to the Software and to any copyright, trademarks, and goodwill used or created by OnChat.
8.4 The rights granted to the Client under the Agreement are also subject to the following:
8.6 Hereby, the Client grants OnChat the right to manage certain buyer data necessary for the operation of the Software, and OnChat undertakes to process this data in accordance with its privacy policy, periodically updated.
8.7 Hereby, the Client confirms familiarity with the PCI DSS requirements for payment card security. The Client must and hereby agrees to achieve PCI compliance in how it handles the credit card data of buyers, to contact its payment provider for additional information on using such a system. Hereby, the Client acknowledges and agrees that it is fully responsible for obtaining and using the PCI system, and consequently, OnChat has no responsibility or liability to the Client in this regard. Hereby, the Client fully indemnifies OnChat for the use or non-use of the PCI system.
9. Offline Storage
9.1 OnChat will maintain sufficient copies, consistent with current and evolving industry expectations, to protect against destruction, loss, or unauthorized alteration of the Client's website and will institute reasonable security procedures to restrict destruction, corruption, or unauthorized access to the website, data, and data files, including backup materials. It is the Client's responsibility to keep records of its data to ensure a higher level of data security and to meet any legal or regulatory record-keeping, disclosure, or other requirements to which the Client is subject.
9.2 OnChat makes no representation and assumes no responsibility regarding any legal or regulatory requirements to which the Client may be subject, and accepts no responsibility for the Client's compliance with these obligations.
10. Maintenance of Services
10.1 If the Client identifies any malfunction in the Services, it shall promptly notify OnChat. Upon receipt of such notice (or upon receipt of a similar notice from another OnChat client), OnChat shall use reasonable efforts to rectify such malfunction within a reasonable timeframe.
10.2 OnChat does not guarantee continuous access and use of aspects of the Services that rely on the use of third-party systems, such as, but not limited to, social media platforms, listing sites, search engines, chat rooms, or other platforms, and any reference to functionalities within the Services that depend on the continuous operation of these third-party systems is expressly limited in this regard.
10.3 In the event that the Services are not functioning and there is loss or damage to the Client's data or a portion thereof, which is not the result of the Client's actions, OnChat shall use backup copies to restore the Client's data free of charge, as soon as reasonably possible after the Services are available for use again (in accordance with known priorities). In any other case, OnChat may charge a reasonable fee for restoring the Client's data.
10.4 This clause sets out OnChat's entire liability for any loss or damage to the Client's data caused by any malfunction in the Services. OnChat shall not be liable for any other loss or damage suffered or incurred by the Client as a result of a malfunction or error in the Services.
11. Client Data and Website Content
11.1 The Client undertakes that its data prepared and used within the Services and on the website shall not be or contain anything illegal, obscene, blasphemous, threatening, malicious, discriminatory, defamatory, offensive, or inappropriate in any way towards the business purposes of OnChat, and shall not infringe the rights, including intellectual property rights, of third parties or affect OnChat's reputation in any way. Additionally, the Client undertakes to ensure that its use of the Services or its data content does not conflict with legal requirements. Although OnChat assumes no responsibility for ensuring the Client's compliance with these requirements, OnChat reserves the right to monitor any or all of the Client's use of the Services and to partially or wholly suspend the Services if OnChat has reasonable suspicions that the Client's use of the Services may violate the Client's obligations under this clause. Any decision made by OnChat under this clause may be made at OnChat's absolute discretion and may be implemented immediately. In the event that OnChat partially or wholly suspends the Services for reasons set out in this clause, OnChat shall have no obligation to refund any portion of the fees paid by the Client for the Services.
11.2 The Client shall indemnify OnChat and keep OnChat fully and effectively indemnified in relation to all actions, proceedings, claims, damages, and costs (including legal costs on a full indemnity basis) incurred by OnChat as a result of any breach of the commitments mentioned above.
12. Intellectual Property Rights and Confidential Information
12.1 The Client shall indemnify OnChat in the event of any claim made by any third party for alleged infringement of any copyright or other intellectual property rights resulting from the storage or processing of any Client data through the Services.
12.2 The Client shall treat as confidential all Confidential Information provided by OnChat. These obligations shall not extend to any information which was lawfully in the possession of the Client before commencement of negotiations leading to this Agreement or which is public knowledge or becomes public knowledge at a later date (unless this results from a breach of this clause).
13. Warranties
13.1 The Client acknowledges that the Services are not provided to meet the Client's individual requirements and therefore it is the Client's responsibility to ensure that the facilities and functions described in the Specification meet the Client's requirements.
13.2 Where the Client benefits from a free trial period, regardless of whether it uses the Services during this period, it acknowledges having had the opportunity to test its requirements for the Services, and by continuing to use the Services, the Client accepts that the Services meet the facilities and functions described in the Specification and that the Services meet the Client's requirements and are suitable for the intended purpose.
13.3 Without prejudice to any other provisions of this Agreement, any express or implied warranty term or condition by law is expressly excluded to the fullest extent possible, including but not limited to the merchantability or fitness for a particular purpose of the Services, and it is the Client's responsibility to ensure that the Services meet its needs.
14. Termination
14.1 Without prejudice to any other provisions of this Agreement, OnChat may, at its absolute discretion, immediately enforce the termination of this Agreement or suspend the Client's access to extended functionalities by sending a notification to the Client in the following situations:
14.2 Any termination of this Agreement (regardless of cause) shall not affect the rights or liabilities accrued to OnChat, nor shall it affect the coming into force or the continuation in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force after such termination.
14.3 In the event of termination of the Agreement due to the Client's fault, especially in cases where it has not paid all fees due at the time of termination, OnChat has the right to restrict access to the Services and without the obligation to return the Client's data, however, in these circumstances, OnChat will continue to securely and confidentially retain the data.
14.4 In any case, OnChat is not obligated to retain the Client's data for a period exceeding 3 months after any termination of this Agreement, except as required by law.
15. General
15.1 The Client shall not have the right to assign or otherwise transfer this Agreement or any of its rights and obligations herein, in whole or in part.
15.2 No waiver by OnChat of any right under this Agreement shall be effective unless it is expressly stated as a waiver and is communicated in writing to the Client.
15.3 Any legal costs, expenses, or fees incurred by OnChat for the recovery of outstanding payments shall be borne by the Client on a full indemnity basis.
15.4 This Agreement, together with any documents referred to in it, constitutes the entire agreement between the parties and supersedes any previous arrangements, understandings, or agreements between them relating to the subject matter covered herein.
15.5 The Client acknowledges and agrees that by entering into this Agreement, it does not rely on any promise, assurance, representation, warranty, or understanding (whether in writing or not) of any person (whether a party to this Agreement or not) relating to the subject matter of this Agreement, except as expressly provided in this Agreement.
15.6 Notices under this Agreement shall be made in writing, including by email or by messages from OnChat to the Client through the Services, and such notices shall be deemed delivered immediately.
15.7 This Agreement shall be governed by and construed in accordance with the laws of Romania. Any dispute that may arise between the parties in connection with this Agreement shall be settled by the Romanian courts, and the parties expressly submit to the exclusive jurisdiction of the Romanian courts for this purpose, except for the parties' obligation to initiate a round of good faith mediation before bringing any action before the court, in an attempt to reach a dispute resolution.
15.8 If, for any reason, any provision of this Agreement is deemed illegal or unenforceable, the other provisions of the agreement shall remain in force, except for those specific terms, subject to OnChat's option to terminate the Agreement, in which case the Client shall only be liable for the fees under the chosen pricing plan proportionate to the period used.
15.9 Any failure or delay by OnChat in exercising any rights or powers provided for in this Agreement shall not constitute a waiver of those rights or powers and shall not affect OnChat's right to exercise them subsequently.
16. Force Majeure
16.1 Notwithstanding anything else provided in this Agreement, OnChat shall not be liable for any delay in performing its obligations under this Agreement if such delay is caused by circumstances beyond its reasonable control (including, without limitation, any delay caused by the action or omission of the Client), provided that any delay by a subcontractor or supplier of OnChat shall not relieve that party of liability for delay unless such delay is beyond the reasonable control of such subcontractor or supplier. Subject to OnChat promptly notifying the Client in writing of the reasons for the delay (and the likely duration of the delay), the performance of OnChat's obligations shall be suspended for the duration of such circumstances, and OnChat shall be entitled to an extension of time for performance equal to the period of the delay. Unless the delay is caused by the action or omission of the Client (in which case the rights, remedies, and liabilities of the parties shall be those conferred and imposed by the other provisions of this Agreement and by law):
17. Liability, Limitation, and Indemnification
17.1 The Client shall indemnify OnChat and keep OnChat fully and effectively indemnified upon demand against any loss or damage to any property or caused to any person, including injury or death, arising from any negligent act or omission or breach of this Agreement by the Client, its employees, agents, or subcontractors.
17.2 Unless there is bodily injury or death to a person or any other liability that cannot be limited or excluded in accordance with the law (in which case no limit applies), OnChat's liability under this Agreement for each event or connected series of events shall not exceed the amount paid by the Client to OnChat in the preceding 12 months prior to the occurrence of such event or series of events.
17.3 Notwithstanding anything else provided in this Agreement, OnChat shall not be liable to the Client for loss of profits or contracts (except for the net loss of future earnings of OnChat under this Agreement), loss of reputation, or for any special, indirect loss, whether arising from negligence, breach of contract, or otherwise.
18. Data Protection Compliance
18.1 The Client must comply with the applicable data protection laws in the European Union to reflect its role as a data controller for the personal data collected from its users, whether through contracts, marketing, or other means.
18.2 By entering into this Agreement, the Client authorizes OnChat to act as the sole data controller for all purposes of the Client's use of the Services, to process the personal data of the Client's users for all purposes related to the provision of the Services, taking into account the confidentiality of the Client's users. Nothing in these terms exempts OnChat from its own direct responsibilities and liabilities under applicable data protection laws. The Client acknowledges that its personal data is processed by OnChat in accordance with OnChat's Privacy Policy, which is distinct from OnChat's obligations as a data processor for the Client. In this regard, OnChat:
18.2.1 may process the personal data of the Client's users and in any other case where it is required to do so by law, including by order of any competent court, legal obligation, or regulation;
18.2.2 may use a data processor at its own discretion and in accordance with data protection laws;
18.2.3 shall process such data securely.
18.3 OnChat must:
18.3.1 assist the Client in providing requests for access to data and any other assistance in exercising the rights of the Client's users;
18.3.2 assist the Client in fulfilling its data protection obligations, including notifying data security breaches;
18.3.3 allow the Client to conduct audits and inspections, provide the Client with any necessary information to ensure that both parties fulfill their obligations under applicable data protection laws, and immediately inform the Client if OnChat is requested to do anything that violates EU data protection law;
18.3.4 delete or return all personal data of the Client's users upon the Client's request at the end of the provision of the Services, unless the Client uses OnChat as an archive or for other materials. OnChat may charge the Client additional administration fees for such processing.
18.4 The Client must:
18.4.1 consistently provide updated and compliant privacy policies for each of its users;
18.4.2 maintain compliant systems and allow OnChat to inspect these systems to ensure that the Client's systems are compliant;
18.4.3 lawfully, fairly, and transparently obtain all personal data;
18.4.4 use OnChat as the sole data processor for personal data obtained from the Client's users;
18.4.5 ensure secure handling of data processing;
18.4.6 ensure the retention of records of personal data of the Client's users after the cessation of the provision of the Services in accordance with its data protection policy.
18.5 The Client, by entering into this Agreement, warrants and indemnifies OnChat against any loss or damage of any kind, whether direct or indirect, loss of profits, loss of reputation, or any other damages if the Client breaches applicable data protection laws.
18.6 The parties hereby acknowledge that international transfers of personal data of the Client's users may occur while the Client conducts its business. Therefore, to the extent that the other provisions of this agreement do not provide sufficient protection for international transfers and if the protection of the respective third country is not "adequate," with regard to all transfers outside the EEA, EEA, and EU, the Client agrees to be bound by the standard contractual clauses approved by the Commission, as provided for in Annex 1 to the Commission Decision of 5 February 2010 in accordance with Directive 2010/87/EU, which can be found here: https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:039:0005:0018:EN:PDF
18.7 Soldigo Srl (OnChat) is a company registered in Romania. To communicate with you, this may lead to the transfer of personal data of customers within the EEA, EEA, and to/from Romania. In order to protect your personal data, we make these transfers only to territories that the relevant EU authorities consider to have "adequate" protection and/or we have concluded contractual agreements for the protection of personal data of customers.
Within this Agreement, unless the context otherwise requires, the following expressions shall have the following meanings:
"Business day" - means a day other than Saturday, Sunday, or legal holidays in Romania.
"Commencement Date" - means the date on which this Agreement shall become effective, being the date of your registration with us
"Confidential Information" - means all information that is expressly marked as confidential or that is obviously of a confidential nature or that is confirmed in writing to be confidential within 7 days of its disclosure.
"Initial Period" - means the first payment period of this Agreement, as specified in the chosen price plan.
"Services" - means the services to be provided by OnChat in accordance with the terms of this Agreement, namely i) the provision of the Software and ii) hosting services related to the use of the Software only.
"Software" - means the various software developed by our company as services accessible for online use, as described on our website at the time of your registration, but excluding any additional functionality not included at the time of initial subscription. In case additional functionalities are added to your subscription, either through an update or otherwise, these terms shall apply mutatis mutandis to such subsequent additional functionalities.
"Specifications" - means the description of the software provided as part of the Services, which describes its features and functions and which are available during any free trial period granted to the Client.
"Website" - means the website created by the Client using the Software.
Within this Agreement:
- a reference to any law or legal provision includes a reference to that law or legal provision as amended, extended, or reenacted from time to time;
- words indicating the singular include the plural, words indicating a particular gender include all genders, and words indicating persons include legal entities and persons without legal personality; and (in each case) vice versa;
- any reference to a party in this Agreement includes a reference to its successors in rights and permitted assigns; and
- the headings to Clauses are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
2. Rights Granted Over the Software
2.1 In accordance with the provisions of this Agreement, OnChat grants to the Client a non-exclusive, non-transferable, and worldwide limited right to use the Software, exclusively for the Client's commercial operations.
2.2 The Client has the right to use the Software to build their own website, upload, display, and store data, and print and store reports for the purpose of their commercial activities.
2.3 The Client acknowledges that they do not have a license to download the Software and are entitled to use the Software only as part of the Services, for a limited time, and in accordance with the provisions of this Agreement.
2.4 Without affecting other liability limitations contained in this Agreement, OnChat's sole obligation to the Client relates to providing access to the functioning of the Software and does not extend to any other service, including but not limited to advice or guidance regarding the use of the Software, the Client's business operations, financial management, or the performance of the Client's business within the applicable legal or regulatory framework or otherwise.
3. Hosting
3.1 The Client appoints OnChat as the manager of the hosting of the website in accordance with the provisions set forth in this Agreement.
3.2 OnChat will make arrangements for storing the website on an appropriate system, to which the Client has access for ongoing maintenance purposes, and will provide the website for access by internet users starting from the Commencement Date and thereafter.
3.3 OnChat agrees to perform system maintenance and other necessary actions reasonably to maintain access to the website.
3.4 OnChat will use reasonable efforts to ensure continuous access to the website, but shall not be liable for periods during which the servers are not operational due to i) server maintenance and software updates ii) technical errors for which reasonable efforts are made to rectify such errors, iii) user fault, or iv) due to a force majeure event.
3.5 OnChat will suspend the availability of the website on the internet at the written request of the Client, as soon as reasonably possible.
4. Access and Use
4.1 To benefit from the Services offered by OnChat, you must register according to the instructions, including creating a password and providing your store name along with other requested information. It is a condition of this agreement that you must be over 18 years old, and by registering with us, you confirm that you and any person you authorize to use the system created by you using the Services are over 18 years old.
4.2 On or after the Commencement Date, OnChat will provide the Client with access to the Services through a user account that includes a username and password. The Client will provide OnChat with additional contact and identity information before the Commencement Date, and access details are provided to the Client based on this information transmitted to OnChat. OnChat shall not be responsible if the Client cannot access the Services due to inaccurate information provided. The Client warrants that all information provided to OnChat is accurate.
4.3 If OnChat becomes aware of or suspects that an unauthorized person has gained or attempted to gain access to the Client's account, including the data stored therein, then OnChat shall notify the Client and immediately change the Client's security password. The Client shall promptly notify OnChat if they become aware of or suspect that an unauthorized person has gained or attempted to gain access to their account, including the data stored therein, and OnChat will change the Client's security password.
4.4 OnChat will provide the Services to the Client at all times, except where reasonable maintenance of the Software or Hosting is required, and in accordance with the Client's obligations to provide their own telecommunication means for accessing the Services. OnChat will make reasonable efforts to anticipate and communicate to the Client the periods during which the Services will not be available, and to the extent it has fulfilled this obligation, OnChat shall not be liable to the Client for any denial of access by the Client or the public (as applicable) to the Services during these periods.
4.5 Access to and use of the Services are subject to OnChat's privacy policy, updated from time to time, which is expressly incorporated into these terms.
5. Additional Marketing Consultancy
5.1 OnChat has the right to provide, from time to time, optional marketing consultancy in the form of newsletters, blogs, e-books, events, custom store templates, or other materials, in addition to the Services provided under a Payment Plan. For this, your email address and other contact details provided by you are required. These communications may also include advice on the more efficient use of existing or new features of OnChat's Services.
5.2 In using OnChat's Services, you are obligated to make reasonable efforts to keep abreast of current marketing advice and trends.
5.3 You acknowledge that any marketing advice provided by OnChat is given to keep you informed of current marketing trends and is provided without consideration of your business in particular, so you should not rely solely on it. It is recommended to seek tailored marketing advice for your business.
5.4 OnChat reserves the right to charge a fee for any marketing advice, provided that you are notified in advance or in accordance with an announced Payment Plan to which you have subscribed.
6. Fees and Payment
6.1 Over a period of 14 days starting from the Commencement Date, the Client benefits from a trial period of 14 days or until reaching the limit of 100 GPT-3.5 messages to analyze and evaluate the functionality of the Services offered by OnChat. If, after that period, the Client continues to have access to the Services, they will use the Services at rates according to the plans published by OnChat and chosen by the Client. To benefit from the trial period, the Client must fully register for the Services before this period.
6.2 Without affecting anything else written in this Agreement, regarding the trial period, OnChat reserves the right to interrupt, exclude, or limit any part of the Services at any time, without any liability to the Client, and makes no representation as to the suitability of the Services for the Client's purpose. For the avoidance of doubt, it is the Client's responsibility for any use of the Services during a payment period.
6.3 The Client must pay the fees for such Services periodically in advance, according to the chosen Plan, at the price indicated in the Client's request ("Fees"), in a currency chosen at OnChat's discretion from time to time. For the avoidance of doubt, once the fees become due, they must be paid in full for the entire period in advance, regardless of the breakdown information of these fees contained in OnChat's advertising materials. If the Client wishes to change the chosen price plan or if OnChat discontinues the extended functionality legally, the Client will remain responsible for the unused proportionate time from the initial price plan they subscribed to, unless OnChat makes an optional waiver communicated to the Client in accordance with the terms of the Agreement.
6.4 The Client must pay the Fees to OnChat in accordance with the subscription order through Stripe, Netopia Payment, PayPal, credit card payment, or other methods offered by OnChat, solely at OnChat's discretion, and the Client grants OnChat all necessary permissions and agrees to sign such documents as necessary for OnChat to receive payments in this manner.
6.5 OnChat may disable the Customer's access and use of the extended functionality of the Services, and OnChat is not obligated to provide all or part of the Services when there are unpaid fees in accordance with this Agreement.
6.6 The Fees payable under this Agreement do not include VAT, which shall be paid by the Client at the rate and in the manner currently set by law, unless otherwise specified.
6.7 For the avoidance of doubt, OnChat reserves the right to charge additional fees for additional functionalities or upgrades to the Services, provided that the Client may decide to cancel their subscription or not to benefit from these upgrades.
7. Duration and Automatic Renewal
7.1 The Services shall commence on the Commencement Date, shall continue for the Initial Period, and shall automatically renew thereafter in accordance with the chosen pricing plan. Except for the provisions in clause 6.2 above, either party may terminate this Agreement by giving timely notice to the other party before the renewal date, but shall be subject to other provisions of this Agreement regarding early termination.
7.2 OnChat has the right, at any time and from time to time, after the expiration of the Initial Period, to increase the Fees in accordance with any change in OnChat's standard fee rates, by sending the Client written notice at least 30 days before the renewal date of the chosen pricing plan. Upon receipt of such notice, the Client shall have the right to terminate this Agreement starting from the date this notice expires, by sending written notice of termination to OnChat at least 30 days before that date.
8. Data Preparation and Use of Services
8.1 The Client has sole responsibility for preparing, submitting, and using their data within and in connection with the Website, including, but not limited to:
- OnChat shall not be responsible for any errors in the Client's use of data in connection with the Services.
- OnChat assumes no responsibility for the relationship between the Client and those who view and purchase from the Client's Website ("Buyers"), for which the Client is solely responsible, including viewing terms, purchase terms, disputes, communications.
- The Client's use of their chosen third-party payment provider from those offered by OnChat.
8.2 The Client must ensure that any terms and conditions for the sale and purchase of its products using the Services are notified to its buyers, as OnChat assumes no responsibility regarding the provision or enforcement of these terms.
8.3 The Client retains all ownership rights and intellectual property rights to its data associated with the Website and the look and feel created by the Client in building the Website. OnChat or its licensors retain all ownership rights and intellectual property rights to the Software and to any copyright, trademarks, and goodwill used or created by OnChat.
8.4 The rights granted to the Client under the Agreement are also subject to the following:
- the rights of any licensed user to use the Services (e.g., on a "named user" basis) may not be shared or used by more than one person (unless such license is fully reassigned to another authorized user, in which case the previous authorized user will no longer have the right to access or use the Services);
- except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or other means; and
- the Client agrees to use all reasonable efforts to prevent unauthorized access by third parties to the Services.
8.6 Hereby, the Client grants OnChat the right to manage certain buyer data necessary for the operation of the Software, and OnChat undertakes to process this data in accordance with its privacy policy, periodically updated.
8.7 Hereby, the Client confirms familiarity with the PCI DSS requirements for payment card security. The Client must and hereby agrees to achieve PCI compliance in how it handles the credit card data of buyers, to contact its payment provider for additional information on using such a system. Hereby, the Client acknowledges and agrees that it is fully responsible for obtaining and using the PCI system, and consequently, OnChat has no responsibility or liability to the Client in this regard. Hereby, the Client fully indemnifies OnChat for the use or non-use of the PCI system.
9. Offline Storage
9.1 OnChat will maintain sufficient copies, consistent with current and evolving industry expectations, to protect against destruction, loss, or unauthorized alteration of the Client's website and will institute reasonable security procedures to restrict destruction, corruption, or unauthorized access to the website, data, and data files, including backup materials. It is the Client's responsibility to keep records of its data to ensure a higher level of data security and to meet any legal or regulatory record-keeping, disclosure, or other requirements to which the Client is subject.
9.2 OnChat makes no representation and assumes no responsibility regarding any legal or regulatory requirements to which the Client may be subject, and accepts no responsibility for the Client's compliance with these obligations.
10. Maintenance of Services
10.1 If the Client identifies any malfunction in the Services, it shall promptly notify OnChat. Upon receipt of such notice (or upon receipt of a similar notice from another OnChat client), OnChat shall use reasonable efforts to rectify such malfunction within a reasonable timeframe.
10.2 OnChat does not guarantee continuous access and use of aspects of the Services that rely on the use of third-party systems, such as, but not limited to, social media platforms, listing sites, search engines, chat rooms, or other platforms, and any reference to functionalities within the Services that depend on the continuous operation of these third-party systems is expressly limited in this regard.
10.3 In the event that the Services are not functioning and there is loss or damage to the Client's data or a portion thereof, which is not the result of the Client's actions, OnChat shall use backup copies to restore the Client's data free of charge, as soon as reasonably possible after the Services are available for use again (in accordance with known priorities). In any other case, OnChat may charge a reasonable fee for restoring the Client's data.
10.4 This clause sets out OnChat's entire liability for any loss or damage to the Client's data caused by any malfunction in the Services. OnChat shall not be liable for any other loss or damage suffered or incurred by the Client as a result of a malfunction or error in the Services.
11. Client Data and Website Content
11.1 The Client undertakes that its data prepared and used within the Services and on the website shall not be or contain anything illegal, obscene, blasphemous, threatening, malicious, discriminatory, defamatory, offensive, or inappropriate in any way towards the business purposes of OnChat, and shall not infringe the rights, including intellectual property rights, of third parties or affect OnChat's reputation in any way. Additionally, the Client undertakes to ensure that its use of the Services or its data content does not conflict with legal requirements. Although OnChat assumes no responsibility for ensuring the Client's compliance with these requirements, OnChat reserves the right to monitor any or all of the Client's use of the Services and to partially or wholly suspend the Services if OnChat has reasonable suspicions that the Client's use of the Services may violate the Client's obligations under this clause. Any decision made by OnChat under this clause may be made at OnChat's absolute discretion and may be implemented immediately. In the event that OnChat partially or wholly suspends the Services for reasons set out in this clause, OnChat shall have no obligation to refund any portion of the fees paid by the Client for the Services.
11.2 The Client shall indemnify OnChat and keep OnChat fully and effectively indemnified in relation to all actions, proceedings, claims, damages, and costs (including legal costs on a full indemnity basis) incurred by OnChat as a result of any breach of the commitments mentioned above.
12. Intellectual Property Rights and Confidential Information
12.1 The Client shall indemnify OnChat in the event of any claim made by any third party for alleged infringement of any copyright or other intellectual property rights resulting from the storage or processing of any Client data through the Services.
12.2 The Client shall treat as confidential all Confidential Information provided by OnChat. These obligations shall not extend to any information which was lawfully in the possession of the Client before commencement of negotiations leading to this Agreement or which is public knowledge or becomes public knowledge at a later date (unless this results from a breach of this clause).
13. Warranties
13.1 The Client acknowledges that the Services are not provided to meet the Client's individual requirements and therefore it is the Client's responsibility to ensure that the facilities and functions described in the Specification meet the Client's requirements.
13.2 Where the Client benefits from a free trial period, regardless of whether it uses the Services during this period, it acknowledges having had the opportunity to test its requirements for the Services, and by continuing to use the Services, the Client accepts that the Services meet the facilities and functions described in the Specification and that the Services meet the Client's requirements and are suitable for the intended purpose.
13.3 Without prejudice to any other provisions of this Agreement, any express or implied warranty term or condition by law is expressly excluded to the fullest extent possible, including but not limited to the merchantability or fitness for a particular purpose of the Services, and it is the Client's responsibility to ensure that the Services meet its needs.
14. Termination
14.1 Without prejudice to any other provisions of this Agreement, OnChat may, at its absolute discretion, immediately enforce the termination of this Agreement or suspend the Client's access to extended functionalities by sending a notification to the Client in the following situations:
- The Client fails to pay the amount due in accordance with the terms of this Agreement, and such amount remains unpaid for 14 days after receipt of a written notice from OnChat that the amount has not been paid;
- The client substantially breaches any of the terms of this Agreement and, in the case of a breach that is capable of remedy, fails to remedy the breach within 14 days of receiving a request to do so from OnChat (the request must contain a warning of the intention to terminate);
- The Client appoints an administrator or special manager in respect of the Client or any part of its business or assets or a winding-up order is made against the Client or a competent court makes such an order or if the other party enters into a voluntary arrangement with its creditors or ceases or threatens to cease to carry on business.
14.2 Any termination of this Agreement (regardless of cause) shall not affect the rights or liabilities accrued to OnChat, nor shall it affect the coming into force or the continuation in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force after such termination.
14.3 In the event of termination of the Agreement due to the Client's fault, especially in cases where it has not paid all fees due at the time of termination, OnChat has the right to restrict access to the Services and without the obligation to return the Client's data, however, in these circumstances, OnChat will continue to securely and confidentially retain the data.
14.4 In any case, OnChat is not obligated to retain the Client's data for a period exceeding 3 months after any termination of this Agreement, except as required by law.
15. General
15.1 The Client shall not have the right to assign or otherwise transfer this Agreement or any of its rights and obligations herein, in whole or in part.
15.2 No waiver by OnChat of any right under this Agreement shall be effective unless it is expressly stated as a waiver and is communicated in writing to the Client.
15.3 Any legal costs, expenses, or fees incurred by OnChat for the recovery of outstanding payments shall be borne by the Client on a full indemnity basis.
15.4 This Agreement, together with any documents referred to in it, constitutes the entire agreement between the parties and supersedes any previous arrangements, understandings, or agreements between them relating to the subject matter covered herein.
15.5 The Client acknowledges and agrees that by entering into this Agreement, it does not rely on any promise, assurance, representation, warranty, or understanding (whether in writing or not) of any person (whether a party to this Agreement or not) relating to the subject matter of this Agreement, except as expressly provided in this Agreement.
15.6 Notices under this Agreement shall be made in writing, including by email or by messages from OnChat to the Client through the Services, and such notices shall be deemed delivered immediately.
15.7 This Agreement shall be governed by and construed in accordance with the laws of Romania. Any dispute that may arise between the parties in connection with this Agreement shall be settled by the Romanian courts, and the parties expressly submit to the exclusive jurisdiction of the Romanian courts for this purpose, except for the parties' obligation to initiate a round of good faith mediation before bringing any action before the court, in an attempt to reach a dispute resolution.
15.8 If, for any reason, any provision of this Agreement is deemed illegal or unenforceable, the other provisions of the agreement shall remain in force, except for those specific terms, subject to OnChat's option to terminate the Agreement, in which case the Client shall only be liable for the fees under the chosen pricing plan proportionate to the period used.
15.9 Any failure or delay by OnChat in exercising any rights or powers provided for in this Agreement shall not constitute a waiver of those rights or powers and shall not affect OnChat's right to exercise them subsequently.
16. Force Majeure
16.1 Notwithstanding anything else provided in this Agreement, OnChat shall not be liable for any delay in performing its obligations under this Agreement if such delay is caused by circumstances beyond its reasonable control (including, without limitation, any delay caused by the action or omission of the Client), provided that any delay by a subcontractor or supplier of OnChat shall not relieve that party of liability for delay unless such delay is beyond the reasonable control of such subcontractor or supplier. Subject to OnChat promptly notifying the Client in writing of the reasons for the delay (and the likely duration of the delay), the performance of OnChat's obligations shall be suspended for the duration of such circumstances, and OnChat shall be entitled to an extension of time for performance equal to the period of the delay. Unless the delay is caused by the action or omission of the Client (in which case the rights, remedies, and liabilities of the parties shall be those conferred and imposed by the other provisions of this Agreement and by law):
- any costs resulting from such delay shall be borne by the party generating them;
- OnChat may, if such delay continues for more than 2 weeks, terminate this Agreement immediately by written notice to the Client, in which case neither party shall be liable to the other in respect of such termination;
- both parties shall use all reasonable endeavors to avoid or reduce the impact of any force majeure event and to resume the performance of their obligations under this Agreement as soon as reasonably possible.
17. Liability, Limitation, and Indemnification
17.1 The Client shall indemnify OnChat and keep OnChat fully and effectively indemnified upon demand against any loss or damage to any property or caused to any person, including injury or death, arising from any negligent act or omission or breach of this Agreement by the Client, its employees, agents, or subcontractors.
17.2 Unless there is bodily injury or death to a person or any other liability that cannot be limited or excluded in accordance with the law (in which case no limit applies), OnChat's liability under this Agreement for each event or connected series of events shall not exceed the amount paid by the Client to OnChat in the preceding 12 months prior to the occurrence of such event or series of events.
17.3 Notwithstanding anything else provided in this Agreement, OnChat shall not be liable to the Client for loss of profits or contracts (except for the net loss of future earnings of OnChat under this Agreement), loss of reputation, or for any special, indirect loss, whether arising from negligence, breach of contract, or otherwise.
18. Data Protection Compliance
18.1 The Client must comply with the applicable data protection laws in the European Union to reflect its role as a data controller for the personal data collected from its users, whether through contracts, marketing, or other means.
18.2 By entering into this Agreement, the Client authorizes OnChat to act as the sole data controller for all purposes of the Client's use of the Services, to process the personal data of the Client's users for all purposes related to the provision of the Services, taking into account the confidentiality of the Client's users. Nothing in these terms exempts OnChat from its own direct responsibilities and liabilities under applicable data protection laws. The Client acknowledges that its personal data is processed by OnChat in accordance with OnChat's Privacy Policy, which is distinct from OnChat's obligations as a data processor for the Client. In this regard, OnChat:
18.2.1 may process the personal data of the Client's users and in any other case where it is required to do so by law, including by order of any competent court, legal obligation, or regulation;
18.2.2 may use a data processor at its own discretion and in accordance with data protection laws;
18.2.3 shall process such data securely.
18.3 OnChat must:
18.3.1 assist the Client in providing requests for access to data and any other assistance in exercising the rights of the Client's users;
18.3.2 assist the Client in fulfilling its data protection obligations, including notifying data security breaches;
18.3.3 allow the Client to conduct audits and inspections, provide the Client with any necessary information to ensure that both parties fulfill their obligations under applicable data protection laws, and immediately inform the Client if OnChat is requested to do anything that violates EU data protection law;
18.3.4 delete or return all personal data of the Client's users upon the Client's request at the end of the provision of the Services, unless the Client uses OnChat as an archive or for other materials. OnChat may charge the Client additional administration fees for such processing.
18.4 The Client must:
18.4.1 consistently provide updated and compliant privacy policies for each of its users;
18.4.2 maintain compliant systems and allow OnChat to inspect these systems to ensure that the Client's systems are compliant;
18.4.3 lawfully, fairly, and transparently obtain all personal data;
18.4.4 use OnChat as the sole data processor for personal data obtained from the Client's users;
18.4.5 ensure secure handling of data processing;
18.4.6 ensure the retention of records of personal data of the Client's users after the cessation of the provision of the Services in accordance with its data protection policy.
18.5 The Client, by entering into this Agreement, warrants and indemnifies OnChat against any loss or damage of any kind, whether direct or indirect, loss of profits, loss of reputation, or any other damages if the Client breaches applicable data protection laws.
18.6 The parties hereby acknowledge that international transfers of personal data of the Client's users may occur while the Client conducts its business. Therefore, to the extent that the other provisions of this agreement do not provide sufficient protection for international transfers and if the protection of the respective third country is not "adequate," with regard to all transfers outside the EEA, EEA, and EU, the Client agrees to be bound by the standard contractual clauses approved by the Commission, as provided for in Annex 1 to the Commission Decision of 5 February 2010 in accordance with Directive 2010/87/EU, which can be found here: https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:039:0005:0018:EN:PDF
18.7 Soldigo Srl (OnChat) is a company registered in Romania. To communicate with you, this may lead to the transfer of personal data of customers within the EEA, EEA, and to/from Romania. In order to protect your personal data, we make these transfers only to territories that the relevant EU authorities consider to have "adequate" protection and/or we have concluded contractual agreements for the protection of personal data of customers.
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