Terms - WhatsHash

WhatsHash Terms:

Last Updated Nov 01, 2018

WhatsHash (“WhatsHash”, “we”, “us”, or “our”) provides a Software as a Service (SaaS) based that allows our customers to store, manipulate, analyze and transfer messages between their WhatsHash and their customers. A “Customer” is an entity with whom WhatsHash has an agreement to provide the Service.

This WhatsHash Terms of Service (the “Agreement”) is an agreement between the Customer and WhatsHash, together with the “Parties” and each, a “Party”, and is entered the date the Customer signs up for a WhatsHash account through the WhatsHash website or App.

If you register for a WhatsHash account, you acknowledge your understanding of these terms and enter the Agreement on behalf of Customer. You furthermore acknowledge that Customer is not domiciled in the province of Quebec. Please make sure you have the necessary authority to enter into the Agreement on behalf of Customer before proceeding.

BY USING ANY ELEMENT OF THE WHATSHASH (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 16(j). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE WHATSHASH SOLUTION, INCLUDING USE OF ANY PART THEREOF. IF CUSTOMER IS USING THE WHATSHASH SOLUTION ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO WHATSHASH THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.

1. Definitions

“Administrator Accounts” as defined in section 9.
“Administrative User” means an individual who is an employee or contractor of Customer and that Customer wishes to have access to and use of the WhatsHash Platform.
“Business” means either the Customer or Customer’s Client, as the case may be.
“Integrated Product” means any of the following: (i) Customer Application, (ii) Custom-Integrated Business Applications, and (iii) Pre-Integrated Third Party Business Applications.
“Chat Participant” means an individual who communicates with a Business (a “User”) or on behalf of a Business (an “Agent”) through the WhatsHash Platform.
“Conversation” means an exchange of any number of sent or received WhatsHash Messages between an individual Integrated Product and a Chat Participant in a month.
“Customer Account” as defined in section 9.
“Customer’s Client” means any clients of the Customer.
“Customer Data” means any data, information, content, records, and files that Customer (or any of its Administrative Users, Customer’s Clients or Chat Participants) loads, receive through, transmits to or enters into the WhatsHash Platform, and any data, information, content, records and files that the WhatsHash Platform obtains from Customer’s servers or systems or from third parties on Customer’s behalf, including any and all intellectual property rights in any of the foregoing.
“Modifications” means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations, adaptations, and results from processing (including analyses, reports, databases, datasets, recommendations, and visual representations) in any form or medium, and “Modify” has a corresponding meaning.
“Personal Data” means any information relating to an identified or identifiable natural person any information relating to an identified or identifiable natural person (“Data Subject”)
“Message” means any communication sent or received between a Chat Participant and an Integrated Product using any component of the WhatsHash Solution.
“WhatsHash Website” means any websites used by WhatsHash to provide the WhatsHash Services, including the website located at www.whatshash.com.

2. WhatsHash Platform

Provisioning of the WhatsHash Platform. Subject to Customer’s compliance with the terms and conditions of this Agreement, WhatsHash will make the WhatsHash Platform available to Customer on the terms and conditions set out in this Agreement, provided that:

(i) Customer has read and accepted and is in compliance with its obligations under the applicable terms of use related to all applicable Third Party Messaging Platforms, Pre-Integrated Third Party Business Applications, and Custom-Integrated Business Applications

(ii) has taken all steps as necessary to enable interoperability between the WhatsHash Platform and all applicable Third Party Messaging Platforms, Pre-Integrated Third Party Business Applications, and Custom-Integrated Business Applications, including acquiring the necessary approvals and API keys, whether directly or via Customer’s Clients, to access these messaging channels as a business.

3. EULA for Customer Application; Requirements for Customer Application

End-User License Agreement for Customer Applications. Customer may permit Chat Participants to use Customer Applications to communicate with Customer through the WhatsHash Platform. Customer will enter into an end-user license agreement (“EULA”) with such Chat Participants as a condition of such Chat Participant’s use of any Customer Applications. Customer will ensure that the EULA contains terms that are no less protective of WhatsHash as the terms of this Agreement.

Data Retention. WhatsHash will retain the history of every Conversation accessible for retrieval by Customer for a minimum of thirty (30) days.

4. Reservation of Rights

WhatsHash expressly reserves all rights, title, and interest in, and Customer will not acquire any right, title or interest in: (i) the WhatsHash Solution (or any part thereof) and any other materials or content provided by WhatsHash under this Agreement, including any and all Modifications to any of the foregoing; and (ii) all intellectual property rights in any of the foregoing (clauses (i) and (ii) are collective, the “WhatsHash Property”), in each case, subject to the license rights expressly granted under Section 2, 3, 4(a). All right, title and interest in the WhatsHash Property will remain with WhatsHash. For greater certainty, the WhatsHash Property is licensed and not “sold” to Customer.

5. WhatsHash’s Right to Use Customer Data

Customer acknowledges and agrees that WhatsHash may store, use, reproduce, Modify, and transfer to its subcontractors, Customer Data, including Personal Data, solely in connection with delivering the Services under this Agreement. Customer further acknowledges and agrees that WhatsHash may store, use, reproduce, Modify, and transfer data that is not related to an identified or identifiable natural person, including aggregated or de-identified data, without limitation, for its internal business purposes, including but not limited to such purposes as analytics, quality assurance, product and service improvement, and new product and service development. Customer agrees to cause any Administrative User, Customer’s Client, and Chat Participant to agree to the same terms as this Section 5.

6. Privacy

Customer understands that Personal Data, including of Administrative Users, Customer’s Client and Chat Participants, will be treated in accordance with WhatsHash’s privacy policy (the “Privacy Policy”). The Privacy Policy, including the Service Data Privacy Statement, is hereby incorporated by reference and forms part of this Agreement.

7. Customer Accounts; Use Restrictions

Customer Accounts. Upon Customer’s request, WhatsHash will issue one or more administrator accounts (the “Administrator Accounts”) to Customer that provides Customer with the capability to create accounts for use by individuals who are an employee or contractor of Customer and that Customer wishes to have access to and use of the WhatsHash Platform (each, an “Administrative User”). Customer will ensure that Administrative Users only use the WhatsHash Platform through their Customer Account. Customer will not share the Administrator Accounts with any other person and will not allow Administrative Users to share their Customer Account with any other person. Customer will promptly notify WhatsHash of any actual or suspected unauthorized use of the WhatsHash Platform. WhatsHash reserves the right to suspend, deactivate, or replace any Customer Account or Administrator Accounts if it determines that the Customer Account or Administrator Account, as applicable, may have been used for an unauthorized purpose.

Use Restrictions. Customer acknowledges and agrees that it is responsible for the activities and communications of all Administrative Users and Chat Participants on the WhatsHash Platform, and the compliance by all Administrative Users, Customer’s Clients and Chat Participants with this Agreement, and any guidelines and policies published by WhatsHash from time to time. Without limiting the generality of any of the foregoing, Customer will not, and will not permit any other person (including any Administrative Users, Customer’s Clients or Chat Participants) to:

use the WhatsHash Platform to send, upload, collect, transmit, store, use, disclose or process, or ask WhatsHash to obtain from third parties or perform any of the above with respect to, any Customer Data:
that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
that Customer or the applicable Administrative User, Customer’s Client or Chat Participant does not have the lawful right to send, upload, collect, transmit, store, use, disclose, process, copy, transmit, distribute and display;
that is false, intentionally misleading, or impersonates any other person;
that is bullying, harassing, abusive, threatening, vulgar, obscene, or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual;
that is harmful to minors in any way or targeted at persons under the age of 16;
that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); or
that encourages any conduct that may violate, any applicable laws or would give rise to civil or criminal liability;
disable, overly burden, impair, or otherwise interfere with servers or networks connected to the WhatsHash Platform (e.g., a denial of service attack);
attempt to gain unauthorized access to the WhatsHash Platform;
use any data mining, robots, or similar data gathering or extraction methods, or copy, Modify, reverse engineer, reverse assemble, disassemble, or decompile the Whatsh Solution or any part thereof or otherwise attempt to discover any source code, except as expressly provided for in this Agreement;
use the WhatsHash Solution for the purpose of building a similar or competitive product or service; or
use the WhatsHash Solution other than as permitted by this Agreement;

Fair Use Policy. The WhatsHash Solution is intended to facilitate communications between Chat Participants and a Business in the context of marketing, selling and supporting the Business’ products and services. While WhatsHash sets no limits on the number of WhatsHash Messages that can be exchanged between any given Chat Participant and any given Business. Such usage of the WhatsHash Platform exceeds any reasonable expectations of use and shall be deemed a violation of the terms of this Agreement and the Customer will immediately terminate the applicable Business rights and access to the WhatsHash Solution or pay excess usage fees as defined by WhatsHash.

8. Email and Web Support

Customer will generally have access to WhatsHash technical support from 10:00am to 5:00pm IST on weekdays (other than holidays observed by WhastHash) through email support, or through the web site using our chat widget.

9. Fees and Payment

Fees. Customer will pay to WhatsHash the applicable fees described on the WhatsHash Website (the “Fees”) during the Term in accordance with the payment terms set out herein.

Payment Terms.

All Fees shall be in U.S. Dollars;
WhatsHash shall charge and invoice Customer the applicable Fees, in advance, by credit card, on the Effective Date and on every monthly anniversary thereafter;
Disputed Invoices or Charges. If Customer in good faith disputes any portion of a WhatsHash invoice or charge, Customer may provide a dispute notice to WhatsHash with written documentation identifying and substantiating the disputed amount within fifteen (10) days from receipt of the applicable invoice or charge, and if applicable, at the time it pays the undisputed portion of such invoice, withhold payment of such disputed portion. If Customer does not report or does not provide such substantiating documentation within that period, Customer shall be deemed to have waived its right to dispute any and all portions of that invoice. For greater certainty, Customer shall pay all undisputed amounts of that invoice.

Late Payment. Except for bona fide disputed amounts, any failure to make a payment of any Fees or taxes in strict conformity with the requirements of this section 10 entitle WhatsHash to suspend, in whole or in part, access to Services, until such payment is received. Additionally, WhatsHash shall assess and Customer shall pay a charge, compounded monthly, of the lesser of (a) 1.5% per month (19.56% per year) or (b) the highest amount allowed by law on all past due amounts (except amounts disputed pursuant to section (c) above). Furthermore, upon any such failure, all outstanding amounts shall become due and payable without further delay.

10. Confidential Information

Definitions. For purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient” and the Party disclosing such information will be the “Discloser” and “Confidential Information” means any and all information of Discloser disclosed by Discloser to Recipient or otherwise coming into the possession of Recipient during the Term that is marked as “confidential” or that a reasonable person would understand to be confidential; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations. Notwithstanding the foregoing, the terms and conditions of this Agreement and all WhatsHash Property (including any part thereof), whether marked as “confidential” or not, will be WhatsHash’s Confidential Information will not be Customer’s Confidential Information.

Confidentiality Covenant. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose such Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. The recipient will be deemed to have discharged its confidentiality obligations under this Section 9 (Confidential Information) if Recipient uses the same degree of care in safeguarding the Confidential Information of Discloser as it uses in protecting its own confidential information of a similar nature from unauthorized disclosure.

11. Warranty; Disclaimer; Indemnity

Customer Warranty. Customer represents and warrants to, and covenants with, WhatsHash that (1) the Customer Data will only contain Personal Data in respect of which Customer has provided all notices and disclosures (including to each Data Subject), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable WhatsHash to provide the Services, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Data, including by or to WhatsHash and to or from all applicable third parties (including third-party providers of any Third Party Messaging Platforms); and (2) by connecting the WhatsApp Business Solution via the WhatsHash Platform, the Customer will be in compliance with the WhatsApp Business Solution Terms (https://www.whatsapp.com/legal/business-solution-terms/) at all times when accessing and using the WhatsApp Business Solution via the WhatsHash Platform.

GENERAL DISCLAIMER. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE WHATSHASH SOLUTION (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY WHATSHASH TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”. FURTHERMORE, ANY PARTS OF THE WHATSHASH SOLUTION DELIVERED THROUGH THE EARLY ACCESS PROGRAM, OR UNDER A FREE LABS SUBSCRIPTION ARE EXCLUDED FROM ANY WARRANTIES PROVIDED WITHIN THIS AGREEMENT.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, WHATSHASH HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WHATSHASH DOES NOT WARRANT THAT THE WHATSHASH SOLUTION (OR ANY PART THEREOF) WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, OR THAT ALL ERRORS CAN OR WILL BE CORRECTED. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, WHATSHASH EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE WHATSHASH SOLUTION (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.

Indemnity. Customer will defend, indemnify and hold harmless WhatsHash, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party (including Administrative Users, Customer’s Client, and Chat Participants) liability (including damages, recoveries, deficiencies, interest, penalties and reasonable legal fees), directly or indirectly arising from or in connection with, or relating to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; (iii) use of the WhatsHash Solution (or any part thereof) by Customer, any Administrative User, any Customer’s Client or any Chat Participant in combination with any Customer Applications or any third party software, application or service; (iv) misrepresentation, criminal behaviour or gross negligence on the part of Customer, any Administrative User, any Customer’s Client, or any Chat Participant; or (v) any actual or alleged infringement, violation or misappropriation of the rights of any person (including intellectual property or privacy rights) as a result of Customer’s, any Administrative User’s, any Customer’s Client or any Chat Participant’s use of the WhatsHash Solution (or any part thereof) contrary to the terms of this Agreement. Customer will fully cooperate with WhatsHash in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of WhatsHash.

12. Term and Termination

Term. This Agreement will commence on the Effective Date and continue to be in effect until your subscription has been terminated in accordance with the terms Customer agreed to on the WhatsHash website at time of signup (the “Term”). For greater certainty, if Customer has subscribed to an ongoing subscription, then such subscription will automatically renew at its expiry for the same period of time, at the then-current subscription rate described on the WhatsHash Website.

Termination For Convenience. Either Party may elect to terminate this Agreement and your subscription to WhatsHash services as of the end of your then current Term by providing notice, on or prior to the date thirty (30) days preceding the end of such Term. For clarity, per section 15(a), unless this Agreement and your subscription is so terminated, your subscription will renew for a Term equivalent in length to the then expiring Term.

Refunds and Termination Charges. No refunds or credits for Fees will be provided if you elect to terminate this Agreement prior to the end of your Term. If you terminate this Agreement prior to the end of your Term, or WhatsHash effects such termination pursuant to Section 12(d), in addition to other amounts you may owe WhatsHash, you must immediately pay any then unpaid Fees associated with the remainder of your Term. This amount will not be payable by you in the event you terminate as a result of a material breach of this Agreement by WhatsHash, provided that you provide advance notice of such breach to WhatsHash and afford WhatsHash not less than thirty (30) days to reasonably cure such breach as provided for in section 12(d).

Termination for Cause. A Party may terminate this Agreement for cause (a) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement is terminated by you in accordance with this section, WhatsHash will, to the extent permitted by applicable law, refund you any prepaid fees covering the remainder of the Term after the effective date of termination. If this Agreement is terminated by WhatsHash in accordance with this section, you will pay any unpaid fees covering the remainder of the Term. In no event will termination relieve you of your obligation to pay any fees payable to WhatsHash for the period prior to the effective date of termination.

Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason.

13. General Provisions

Notices. Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or two days after being sent by first class mail postage prepaid to the official contact designated by the Parties and immediately after being received by the other Party’s server. Notices must be in writing and sent: (i) if to WhatsHash, to the address set out in the introductory paragraph of this Agreement; and (ii) if to Customer, to the current postal or email address that WhatsHash has on file with respect to Customer. WhatsHash may change its contact information by posting the new contact information on the WhatsHash Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with WhatsHash through the WhatsHash Platform current at all times during the Term.

Assignment. Customer will not assign this Agreement to any third party without WhatsHash’s prior written consent, which consent will not be unreasonably withheld. WhatsHash may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent in connection with any merger or change of control of WhatsHash or the sale of all or substantially all of WhatsHash’s assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Any assignment in violation of this Section will be void. The terms of this Agreement will be binding upon permitted assignees. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.

Choice of Law. This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the State of Gujarat, India and the laws of India applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Ahmedabad, Gujarat, India and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.

Construction. Except as otherwise provided in this Agreement, the Parties rights and remedies under this Agreement are cumulative. The term “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of WhatsHash in this Agreement means the right of WhatsHash to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to Customer.

Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond WhatsHash’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving WhatsHash employees), Internet service provider failures or delays, or the unavailability or Modification by third parties of third party websites.

Severable. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.

Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.

Independent Contractors. Customer’s relationship to WhatsHash is that of an independent contractor, and neither Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of WhatsHash.

Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all other communications, whether written or oral.

Amendments. Subject to the following sentence, no amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, WHATSHASH MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY WHATSHASH, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER). IF CUSTOMER HAS PREPAID ANY FEES TO WHATSHASH AND PROVIDES NOTICE TO WHATSHASH WITHIN 30 DAYS OF THE EFFECTIVE DATE OF AN AMENDMENT THAT CUSTOMER WISHES TO EXERCISE ITS TERMINATION FOR CONVENIENCE RIGHT, THEN WHATSHASH WILL REFUND CUSTOMER AN AMOUNT ON A PRO-RATED BASIS CALCULATED BASED ON THE EFFECTIVE DATE OF TERMINATION UNTIL THE END OF THE PREPAID SUBSCRIPTION PERIOD.

English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English.

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