LeadChat
Terms and Conditions
1.
Introduction
1.1 Leadchat Pty Ltd (ACN 166 519 099) trading as LeadChat (LeadChat) is in the business of providing online live-chat web reception and sales related
services to its clients for the purposes of generating leads (Services). In consideration for LeadChat agreeing to provide the Services to you, you agree
to be bound by the following terms and conditions (Terms and Conditions).
1.2 When you subscribe to LeadChat for its Services, you agree that by checking the “Terms and Privacy” box, you represent that you have carefully read the
LeadChat Terms and Conditions and Privacy Policy and have the capacity and proper authorisation to agree to be bound by the Terms and Conditions and the
Privacy Policy and LeadChat is entitled to rely upon that representation for the purposes of providing you with the Services.
2.1 LeadChat agrees to provide you with the Services using reasonable care, diligence and skill in accordance with your written direction for the Term
you have subscribed and paid for in advance including but not limited to:
a) providing you with code, the LeadChat widget access to the online web-based chat platform provided by LeadChat and integration services;
b) installing code onto your website;
c) making available sales agents for the purposes of engaging live with existing and potential clients that visit your website (Clients);
d) providing Clients with details of your business in accordance with your written direction and as settled in advance between you and LeadChat;
e) collecting information from the Clients including their contact details (Client Information);
f) providing you with Client Information for follow up on any leads LeadChat generates.
2.2 LeadChat agrees to provide you with information it collects from your Clients which will become your property but will also be the property of LeadChat
pursuant to clause 7 below.
2.3 LeadChat agrees to make available the Services to you 24 hours a day and 7 days a week on a best endeavours basis, subject to clause 2.4 below. You
acknowledge that from time to time there may be delays in providing a sales agent to attend to a Client’s LeadChat online chat.
2.4 LeadChat advises and you acknowledge that from time to time the Services will be interrupted for the purposes of improving and or maintaining
LeadChat operating systems. LeadChat will, where possible, provide you with at least 24 hours email notice of any planned downtime interruption to the
Services to the email address you have provided with your subscription.
3.1 This Agreement commences on the date you pay the LeadChat Fees specified in clause 5 (Commencement Date) and continues until validly terminated under this Agreement (Term)..
3.2 This Agreement automatically renews for further successive terms of the same duration as your minimum term. You may terminate this Agreement by providing written notice to Leadchat no less than 30 days prior to the expiry of each term.
3.3 You are not entitled to a refund, in part or full, of the LeadChat Fees you have paid in advance for the Services, notwithstanding you terminate your
subscription prior to the end of the Term.
3.4 LeadChat may terminate this Agreement:
a) at any time at its sole discretion upon 1 business day notice; or
b) with immediate effect where you have breached a term of this Agreement and have failed to rectify the breach within 7 business days of the date of
LeadChat providing you with written notice of the breach; or
c) with immediate effect for any breach we consider, at our sole discretion, to be serious or persistent;
d) with immediate effect if you are placed into receivership, official management, liquidation, you enter into any arrangement with your creditors, you
claim to be or likely to become insolvent or you cease or threaten to cease to trade.
3.5 Upon termination of this Agreement for any reason all licenses and rights of access granted under this Agreement shall immediately terminate and you
agree that LeadChat will not be liable to pay you any refund, in part or whole, of the LeadChat Fees.
3.6 Without limiting the other provisions in this clause 3, LeadChat reserves the right to suspend the Services for a breach of this Agreement until such
time as you rectify the breach.
4.
Your Responsibilities
4.1 LeadChat agrees to provide you with the Services on condition that you use the Services in accordance with:
a) any applicable laws, relevant industry regulations, guidelines and standards; and
b) LeadChat policies and guidelines as LeadChat notifies to you from time to time.
4.2 You agree that you will not use the Services in connection with a website or business that stores, transmits or publishes material that may reasonably
be considered to be illegal, defamatory, inflammatory or otherwise unlawful or tortuous or that may give rise to a third party claim against LeadChat.
4.3 You agree that you will not interfere with or disrupt the integrity or performance of the LeadChat Services including but not limited to by way of
storing or transmitting code and or Malicious Code.
4.4 LeadChat takes reasonable measures to protect your account from computer viruses or other defects. However, you agree it is your responsibility to
protect your account and your site by installing and implementing your own security and system checks such as using up-to-date anti-virus, firewall and
anti-spyware software.
4.5 You agree to make appropriate and timely disclosures to your Clients that LeadChat supplies the Services to you independently and separate from your
business and such supply does not constitute support or endorsement of your site or your business.
5.1 You agree to pay all fees specified and notified from time to time (LeadChat Fees). LeadChat Fees are quoted in a number of currencies
and are inclusive of GST where the Services are provided in Australia. (Please refer to clause 6 below).
5.2 You agree to pay the LeadChat Fees in advance in return for LeadChat agreeing to supply the Services to you for the Term or any part of that Term.
5.3 In the event you fail to pay the LeadChat Fees by the due date, in addition to any other LeadChat rights and remedies, LeadChat may immediately suspend
the Services by means including but not limited to disabling your password and or denying you access to your account until such time as you pay all
outstanding LeadChat Fees.
6.1 To the extent that any supply to be made by either party (“Supplying Party”) to the other party (“Recipient Party”) under this Agreement is a taxable
supply, the parties acknowledge and agree that, unless otherwise specified by the Supplying Party any amount expressed as payable and anything else to be
provided, by the Recipient Party for that taxable supply has been determined and agreed on the basis that it is the value of the taxable supply (“GST
Exclusive Amount”) and not the price for that supply.
6.2 The consideration for each taxable supply made under this Agreement must be the GST Inclusive Amount. The GST Inclusive Amount for a taxable supply
will in each case be the amount determined by multiplying the GST Exclusive Amount by the GST rate current at the date of making the taxable supply (“GST
Factor”) and adding the GST Factor to the GST Exclusive Amount. The recovery of consideration for any taxable supply made under this agreement is subject
to the Supplying Party issuing to the Recipient Party a tax invoice in respect of the supply.
6.3 The expressions “consideration”, “GST”, “input tax credit”, “price”, “supply”, “taxable supply”, “tax invoice” and “value” have the same meaning as in
A New Tax System (Goods and Services Tax) Act 1999 (Cth).
7. Intellectual Property Rights
7.1 LeadChat retains ownership of all Client Information it collects in connection with the Services, notwithstanding that the Client Information will
also become your property.
7.2 You acknowledge and agree that LeadChat and/or our licensors own all intellectual property rights in the Services, LeadChat and the Chat and Lead
databases including but not limited to any registered and unregistered trademarks, trade names, trade secrets, copyright, patents, data bases, licenses.
7.3 These Terms and Conditions do not have the effect of granting you intellectual property rights in, or in connection with, the Services, LeadChat, the
Chat and Lead databases, whether existing now or at any time in the future.
7.4 You agree that you will not transmit, copy, publish, distribute, modify, improve or otherwise alter the Services, LeadChat or any material related to
the Services or LeadChat, including but not limited to:
a) create derivate works based on the Services or LeadChat;
b) copy any features, functions or graphics of LeadChat or the Services;
c) copy, frame or mirror any part or content of the Services or LeadChat;
d) reverse engineer the Services or LeadChat; and
e) access the Services or LeadChat in order to build a competitive product or service, or copy any features, functions or graphics of the Services or
LeadChat.
7.5 This clause 7 survives termination of these Terms and Conditions for any reason whatsoever.
8.
Mutual Confidentiality
8.1 A party (“Receiving Party”) must:
a) keep confidential all information disclosed (whether orally or in writing or in any other form) by the other party “Disclosing Party”) which is
identified as being confidential or which such party knows or ought to know is confidential, or any other information of a confidential nature brought to
the attention of a party (“Confidential Information”);
b) take all reasonable steps to secure and keep secure all Confidential Information coming into its possession or control and only use the Confidential
Information for the purposes of performing, and to the extent necessary to perform, its obligations under this Agreement.
8.2 The restrictions in clause 8.1 do not apply to the extent that the Confidential Information:
a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party.
c) is received from a third party without breach of any obligation owed to the Disclosing Party.
d) was independently developed by the Receiving Party.
8.3 Except as otherwise permitted in writing by the Disclosing Party:
a) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but
in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of
this Agreement; and
b) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need
such access for purposes consistent with this Agreement.
8.4 You must comply with the Privacy Act 1988 (Cth), all other applicable privacy and spam legislation, all guidelines issued by the Office of the Federal
Privacy Commissioner and similar regulatory bodies, and all of our reasonable directions relating to personal information.
8.5 You must not, directly or indirectly use personal information collected in connection with the Services except to the extent and for the purposes for
which the personal information was collected in connection with this Agreement.
9.1 By subscribing to LeadChat, you grant LeadChat the right to use and publish your name, logo and trade mark, together with reference(s) for the purposes
of identifying you as a LeadChat client, in any medium whatsoever, including, without limitation, on our website or marketing collateral.
9.2 In the event you do not wish your details to be published in connection with this clause 9, you must by written request advise LeadChat and LeadChat
will endeavour to appropriately respond within 14 business days of your request.
10.
No Warranties or Guarantees
10.1 LeadChat does not warrant or guarantee the delivery or availability or continuity of the supply of the Services or of any future functionality of the
Services.
10.2 LeadChat does not warrant or guarantee the functionality of LeadChat, or LeadChat’s ability to service your chat or interact with your Clients, or
that the Services will be uninterrupted or error free.
10.3 LeadChat does not guarantee or warrant that its supply of the Services will generate any increase in sales, business activity, profits, clicks to your
site, exposure or prominence of your business or site.
10.4 Except as expressly and specifically provided in this Agreement (and subject to any requirements at law):
a) you assume sole responsibility for results obtained from, or in reliance on, the use of, or access to, the Services and LeadChat by you or anyone else,
and for conclusions drawn from such use or access. LeadChat assumes no liability for any damage caused by errors or omissions in any information or
instructions arising as a result of supplying the Services or LeadChat;
b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent
permitted by applicable law, excluded from this Agreement;
c) the Services and LeadChat are provided to you on an “as is” basis.
11.
Limitation of Liability
11.1 LeadChat is not liable to you for any loss caused by any failure to observe the Terms and Conditions of this Agreement, where such failure is
occasioned by causes beyond its reasonable control including Force Majeure Events.
11.2 You acknowledge that our ability to provide the Services is dependent upon your full and timely co-operation (which you agree to provide), and any
other information and data provided by you or on your behalf. We will not be liable for any delays resulting from your failure to fulfil any of your
obligations.
11.3 The provisions of the Competition and Consumer Act 2010 (Cth) (CCA) and all other relevant legislation which have the effect of implying conditions,
terms and/or warranties are excluded to the extent permitted by law.
11.4 Your exclusive remedy against us for any claim relating to or concerning the Services supplied to you pursuant to this Agreement, is limited to:
a) us supplying goods or performing services again;
b) paying the cost of having the services supplied again up to an amount equivalent to the LeadChat Fees for a one month period; or
c) refunding the LeadChat Fee paid by you for the relevant Service.
11.5 You agree you are not entitled to any incidental, consequential or other damages, including but not limited to, damages for loss of profits, loss or
corruption of data or information, loss of goodwill or reputation, for business interruption, loss or diminishing of traffic or search engine ranking, for
personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence or negligent
misrepresentation, and for any other pecuniary or other loss whatsoever, notwithstanding LeadChat fault, of tort (including negligence), strict or product
liability, breach of contract or breach of warranty.
11.6 We do not assume any risk, in the interaction between LeadChat and the users or your Clients (whether via LeadChat or otherwise, nor any reliance on
LeadChat and chats via LeadChat) by users or your Clients, or any act, omission, liability, cost, injury or death arising therefrom.
11.7 We do not provide any advice to end users of LeadChat, nor should LeadChat or the live chat software or application be considered an emergency
response, advice, support or educational tool (nor any similar function).
11.8 You are solely responsible for the contents of your site and LeadChat is not liable or accountable for your site contents.
12.
Indemnity
12.1 You agree to indemnify and keep indemnified LeadChat against any third party claim against LeadChat for any loss, damage or liability that arises in
connection with providing you the Services in accordance with these Terms and Conditions.
13.
Waiver and Amendment
13.1 Any waiver, amendment or variation of this Agreement must be in writing and signed by all the parties.
13.2 Any waiver by any party to a breach of this Agreement shall not be deemed to be a waiver of a subsequent breach of the same or a different kind.
14. Severance
14.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid,
unenforceable or illegal, it shall be severed from this Agreement and the other provisions shall remain in force to the extend they are workable in the
absence of the severed provision.
14.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply
with whatever modification is necessary to give effect to the commercial intention of the parties.
15.
Assignment
15.1 You must not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement,
without obtaining LeadChat’s prior written consent.
15.2 LeadChat reserves the right to assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under
this Agreement at any time without notice to you.
16.
No Partnership or Agency
16.1 Nothing in this Agreement is intended to or shall operate to create a relationship or partnership between the parties, or authorise either party to
act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise bind the other in any way.
17.
Jurisdiction
17.1 This Agreement is governed by the laws of the State of Victoria, Australia and you submit to the exclusive jurisdiction of the Courts of the State of
Victoria.
18.
Definitions
18.1 In this Agreement, the following words shall have the following meanings:
a) “Agreement” means these Terms & Conditions;
b) “Clients” means existing and potential clients who visit your site and described in clause 2.1c);
c) “Client Information” means information LeadChat collects for the Clients in connection with the Services and described in clause 2.1e);
d) “Force Majeure Event” means acts, events, omissions or accidents beyond the reasonable control of a party, including, without limitation, strikes,
lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, internet service provider failures or
delays, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident,
breakdown of plant or machinery, fire, flood, storm, typhoon, tsunami, earthquakes or default of suppliers or sub-contractors;
e) “LeadChat Fees” means the fees LeadChat charges and you agree to pay pursuant to clause 5;
f) “LeadChat IP” means all intellectual property rights:
i. existing prior to the provision of each of the Services (including, without limitation, LeadChat) and all modifications, enhancements, derivations or
updates thereto;
ii. in LeadChat trademarks, service marks, trade dress, trade names, logos, slogans, designs, corporate names, and other similar indicia of origin;
iii. in all programming modules, code methodologies, computer programs, material, tools, data, know-how, deliverables, content and anything else
generated or created in the course of providing (directly or indirectly) the Services or otherwise contained in and collected as a result of providing the
Services and LeadChat;
iv. in the Chat and Lead databases and in all any data, content or information collected by us or by our employees or agents;
v. in all content, text, materials and conversations arising from, or as a result of, LeadChat.
g) “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;
h) “Services” means the services set out in clause 2;
i) “Term” means the term described in clause 3.
19.
Acceptance of Terms and Conditions
19.1 By subscribing for and or receiving the supply of the Services, you accept these Terms and Conditions.
20.
Entire Agreement
20.1 This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement,
understanding or agreement between them.
