DatChat, Inc. (“DatChat”) is pleased to offer you the ability to send and receive encrypted messages (“Messages”) that will self-destruct after a pre-set period of time, create private social groups and change the rights to a message or post after they have been sent (the “Service”). We make the Service available to you through our proprietary software applications (the “Applications”) designed for a variety of Internet-enabled devices, including smart phones, tablets, and personal computers (collectively, “Devices”). Portions of the Service may also be available to you through our website at DatChat.com (the “Website”).
We provide the Service, the Applications, and the Website to you subject to the following terms and conditions, which are referred to in our Privacy Policy, on the Website, and on the Applications as the “Terms of Service”. These Terms of Service include by reference our Privacy Policy and our Acceptable Use Policy (collectively, this “Agreement”). “Service” as used in this Agreement includes the Applications and the Website, except where those terms are used separately. By accessing and using the Service in any manner, you acknowledge that you have read, understood, and agree to be legally bound by this Agreement. We may update this Agreement from time to time without notice to you. Your use of the Service after the changes to this Agreement are posted on the Website or made available to you through your Device(s) shall constitute your acceptance of the updated Agreement. If you do not agree to any of the terms and conditions in this Terms of Service or any provisions in our Privacy Policy or Acceptable Use Policy, as they may be updated from time to time, then you may not access or use the Service.
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
1. AGE RESTRICTION
The Service is available for individuals aged 13 years or older. If you are 13 or older, but under the age of majority in your jurisdiction, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it. If we discover or believe that you are underage, we will suspend your access to the Service and will reinstate your access only upon our confirmation of consent from your parent or guardian.
2. REGISTRATION
In order to use the Service, you must register with us. During the registration process, we will ask you to create an account, which includes a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist in authenticating your identity when you log-in in the future (“Unique Identifiers”). When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one user. You are solely responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Service using one or more of them. You agree to inform us promptly of any need to deactivate a Password or Sign-In Name or change any Unique Identifier. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason. DatChat will not be liable for any loss or damage caused by any unauthorized use of your account.
3. LICENSES
Subject to your compliance with all of the terms and conditions in this Agreement, DatChat grants to you a personal, non-exclusive, limited, revocable, non-sublicensable, and non-transferable license to (i) access, download and install the Applications on your Device(s) solely for the purpose of using the Service, (ii) use the Service to send and receive Messages to and from other users of the Service, and (iii) use any other features made available through the Service in accordance with the functionality of those features and this Agreement.
You grant to DatChat a worldwide, non-exclusive, sublicensable and transferable license to use, copy, distribute, create derivative works of, and display the information that you transmit, receive or otherwise provide through the Service, solely in order for us to provide the Service to you and our other users.
Our license to you, and your use of the Service, are expressly conditioned on your adherence to our Acceptable Use Policy, which is attached as Schedule A to these Terms of Service, and to your acceptance of our Privacy Policy.
4. INTELLECTUAL PROPERTY
The Service contains material, such as software, text, graphics, images, and other material provided by or on behalf of DatChat (collectively, the “Content”). The Content (excluding your Messages) presented to you as part of the Service is owned by DatChat or by its licensors and is protected by intellectual property rights under both United States and foreign laws. Except as expressly permitted under this Agreement, no right, title, or interest in or to any Content is transferred to you. The trademarks, service marks, logos, product names and company names (the “Trademarks”) used and displayed on or through the Service are registered and unregistered trademarks or service marks of DatChat and its licensors. Nothing on the Service or in this Agreement shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. All goodwill generated from the use of the Trademarks inures to the benefit of DatChat and its licensors, as applicable.
Elements of the Service are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated, in whole or in part, by any means, including but not limited to the use of framing or mirrors.
5. COMMUNICATIONS WITH US
With respect to any communications you send to us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including, but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation to you.
6. NO WARRANTIES; LIMITATION OF LIABILITY
YOU ACKNOWLEDGE THAT DATCHAT DOES NOT REPRESENT OR WARRANT THAT THE CONTENT AND ANY OTHER DATA OR INFORMATION PROVIDED THROUGH THE SERVICE WILL BE ACCURATE OR COMPLETE.
YOU ALSO ACKNOWLEDGE THAT THE SERVICE MAY CONTAIN BUGS, ERRORS, AND OTHER PROBLEMS THAT COULD CAUSE THE SERVICE TO BE UNAVAILABLE OR TO FAIL TO DELIVER MESSAGES OR OTHERWISE BE UNRELIABLE. CONSEQUENTLY, THE SERVICE AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT THE SERVICE OR THE CONTENT WILL BE ERROR-FREE OR UNINTERUPTED OR THAT THE SERVICE, ITS SERVERS, OR THE CONTENT ARE OR WILL BE SECURE OR FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
IN NO EVENT WILL DATCHAT, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR (I) ANY INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUE OR ANTICIPATED SAVINGS, LOST DATA, LOST GOODWILL, OR BUSINESS INTERRUPTION ARISING OUT OF THIS AGREEMENT OR RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE SERVICE OR THE CONTENT, REGARDLESS OF THE CAUSE OF ACTION (INCLUDING TORT AND BREACH OF CONTRACT) EVEN IF FORESEEABLE, AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES ARISING OUT OF THIS AGREEMENT OR THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SERVICE OR THE CONTENT, EXCEEDING, IN THE AGGREGATE, THE HIGHER OF FIFTY DOLLARS ($50) OR THE TOTAL FEES THAT YOU HAVE PAID TO US WITHIN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO ANY CLAIM FOR SUCH DAMAGES.
NOTHING IN THIS AGREEMENT SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
7. EXTERNAL SITES
The Service may contain links to third-party websites or may otherwise allow you to gain access to third-party websites (“External Sites”). These links and/or access to such External Sites are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your Devices from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
8. INDEMNIFICATION
You agree to defend, indemnify, and hold us and our officers, directors, employees, successors, agents, and assigns harmless from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement and/or your misuse of the Service. We shall provide notice to you of any such claim, suit, or proceeding. We reserve the right, at your expense, to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
9. COMPLIANCE WITH APPLICABLE LAWS
The Service is based in the United States. We make no claims concerning whether the Service may be used or are appropriate for use outside of the United States or for your particular industry, company, or intended use. Your access to and use of the Service is solely at your own risk. You are solely responsible for ensuring compliance with the applicable laws of your specific jurisdiction and industry.
10. TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Service, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Service at any time without prior notice or liability. You may terminate this Agreement by contacting us at support@DatChat.com. Upon any termination of this Agreement, the licenses granted above shall terminate, and you shall have no right to continue to use the Service. Sections 4-17 shall survive the termination of this Agreement.
11. DIGITAL MILLENNIUM COPYRIGHT ACT
DatChat respects the intellectual property rights of others, and we expect our users to do the same. We will review all claims of copyright infringement received and remove any Content posted or distributed in violation of applicable copyright laws.
Our designated agent under the United States Digital Millennium Copyright Act, 17 U.S.C. Section 1201, et seq., (the “DMCA”) for the receipt of any Notification of Claimed Infringement which may be given under the DMCA is as follows:
12. COMMUNICATIONS DECENCY ACT NOTICE
DatChat is a provider of “interactive computer services” as defined under the Communications Decency Act, 47 U.S.C. Section 230, and as such, our liability for defamation, libel, product disparagement, and other claims arising out of any Messages and Posts sent by our users is limited as described therein. We are not responsible for any Messages and Posts of our users. We neither warrant the accuracy of Messages or exercise any editorial control over Messages, nor do we assume any legal obligation for editorial control of Messages and Posts or liability in connection with Messages, including any responsibility or liability for investigating or verifying the accuracy of any Messages and Posts. In fact, as noted in our Privacy Policy, we do not (and cannot) read encrypted Messages.
13. CONTROLLING LAW
This Agreement and any action related thereto will be governed by the laws of the State of New Jersey without regard to its conflict of laws provisions.
14. BINDING ARBITRATION
In the event of a dispute arising under or relating to this Agreement, the Content, or the Service (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT’S RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 16 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
15. CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
16. EQUITABLE RELIEF
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of New Jersey, County of Middlesex for purposes of any such action by us.
17. MISCELLANEOUS
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement, including Schedule A and our Privacy Policy, constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. If any provision of this Agreement is deemed by a competent court or arbitrator to be invalid, void, or unenforceable, the parties agree that the court or arbitrator should endeavor to give effect to the parties’ intentions as reflected in the applicable provision, and any unenforceable provision shall be deemed severable and shall not affect the validity and enforceability of any remaining provision. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
Copyright 2020 DatChat, Inc. All rights reserved.
Schedule A - DatChat’s Acceptable Use Policy (“AUP”)
DatChat respects free and open discussion and dissemination of information. When there are competing interests at issue, however, DatChat reserves the right to take certain preventative or corrective actions. In order to protect these competing interests, DatChat has developed this AUP, which supplements and explains certain terms in the Agreement and further defines your rights and obligations when utilizing the Service. This AUP may be revised from time to time, without any obligation to notify you of the same. Your use of Service after changes to this AUP are made available through the Service shall constitute your acceptance of any new or additional terms.
When you obtain information via the Service, you must keep in mind that we cannot, and do not make any attempt to, monitor, verify, warrant, or vouch for the accuracy and quality of the information that you may acquire. For this reason, you must exercise your best judgment in relying on information obtained from the Service, and also should be aware that some material may be offensive. Because we cannot monitor or censor the Service, and will not attempt to do so, DatChat shall not be responsible for injury to you that results from inaccurate, unsuitable, offensive, or illegal Messages.
When you disseminate information via the Service, you must keep in mind that DatChat does not review, edit, censor, or take responsibility for any information you may create. When you place information on the Service, you have the same liability as other authors for copyright infringement, defamation, and other harmful speech. Also, because the information you create is carried over networks and may reach a large number of people, your Messages may affect other users and may harm our goodwill, business reputation, and operations. For these reasons, you violate this AUP and the Agreement when you engage in or facilitate the following prohibited activities: