TERMS OF USE

Effective From: 24/09/2020
Last Updated on: 09/03/2021

1. TERMS OF USE

By downloading, browsing, availing, accessing and/or using the CommChat AG.’s (hereinafter referred to as “COMMCHAT”, “us”, “our”, or “we”) mobile application “Communicator” (hereinafter referred to as “App”) the user ("Users", "User") agree to be bound by this Terms of Use & additional terms of any third-party licenses applicable to third-party software, services and technology included with devices, apps and services. COMMCHAT reserve the right to amend these terms and conditions at any time. If User disagree with any of these Terms of Use, User must immediately discontinue User’s access to the App and User’s use of the services offered on the App. Continued use of the App and its services will constitute acceptance of these Terms and Conditions of Use, as may be amended from time to time

2. DEFINITIONS

In these Terms and Conditions of Use, the following capitalized terms shall have the following meanings, except where the context otherwise requires:

“Account” means an account created by a User on the App as part of Registration.

“App” refers to the mobile application, platform, servers, website, source code, desktop application and software associated with “Communicator” and developed by COMMCHAT that enables the User to commence instant messaging, calls, video-calls, group calls and file sharing.

“Device” means the mobile phone, tablet PC, personal computer or laptop used by the User to enable the services of the App.

“Identity Information” means any external, biological or physical information or any other information which individually or jointly can identify a person or a system, his/her name, address, Date of birth, mother’s name , father’s name, National identity , birth and death registration number, finger print, phone number, email address, passport number, bank account number , driver’s license , E-TIN number, Electronic or digital signature, login information, username, Credit or Debit card number, voice print , retina image , iris image , signature, DNA profile, Security related questions and/or any other identification.

"Register" means to create an Account on the App and "Registration" means the act of creating such an Account.

"Services" means all the services provided by the App and/or subsequent and relevant services or benefits deriving out of the App; which includes online-offline messaging, messaging related features, sharing document, texts, contact, video, audio and images (including photographs) through attachments, file transfer and emoji.

“COMMCHAT” means CommChat AG.and shall include its Affiliates and Subsidiaries.

“User" means User using Communicator App and may also include plural form of the word in cases.

3. GENERAL ISSUES ABOUT THE APP AND THE SERVICES

3.1 Applicability of terms and conditions: The use of any Services and/or the App.

3.2 Scope: The App and the Services are for User’s noncommercial, personal use only and must not be used for business purposes; unless permitted by the COMMCHAT.

3.3 Prevention on use: COMMCHAT reserves the right to prevent User using the App and the Service (or any part of them).

3.4 Changes: Changes that confer advantages to User or are neutral in this regard shall have immediate effect. All other changes shall be communicated to User through updates and notifications during, after or prior to their effectiveness. User shall be deemed to have consented to changes and updates. In principle, changes shall be deemed to be reasonable for User.

3.5 Authorization to Use Information: By submitting any identity information, registration information, any data, contacts, and/or information including, without limitation, reviews, responses, account entries, posts, questions, videos, text, video, documents, audio, recordings, images (including photographs), login data, offline/online status, location and audios, images/photograph and/or videos collected through User’s device’s camera, audio recorded and/or transmitted through User’s device’s microphone sensors that User uploads, posts, transmits, or otherwise disseminates using, or in connection with the App’s services (altogether referred to as “Information”) via this App, User represent that User are the owner of the information, or have proper authorization from the owner of the Information to use, reproduce and distribute it. User hereby grant COMMCHAT a worldwide, royalty-free, non-exclusive authorization to store, process, and encrypt such information.

3.6 User Content: User is solely responsible for all content, including, without limitation, reviews, responses, profile entries, posts, questions, videos, identity information, images, and audios that User uploads, posts, transmits, or otherwise disseminates using, or in connection with, COMMCHAT's Services. User ensures that he/she has all rights necessary to do so.

3.7 Suggestions: COMMCHAT welcome User’s comments regarding the App and the Services of it. If User elect to provide or make available suggestions, comments, ideas, improvements, or other information or materials to us (“Suggestions”) in connection with or related to the App or Service, User grant us a non-exclusive, irrevocable, perpetual, worldwide, royalty-free, transferable license, with the right to sublicense, to use and disclose such Suggestions in any manner and via any media the COMMCHAT chooses, without reference to its source and without any other obligation.

3.8 Age Restriction: Minors may use the App, however under adult supervision and in subject to the agreement of this terms of use by the minor user’s parent or guardian.

3.9 Devices and Software: The User is solely responsible for the device, necessary software, other required Apps and internet connection.

4. REGISTRATION

The User must register for the App’s Services with correct and detailed data, required identity information, phone number, email address, date of birth, name of the country, username, and login credentials. Any change or update to registration data, identity information, phone number and/or email address must be made using the in-app registration information update feature. In regards to which the User agrees to accept messages and phone calls (from COMMCHAT or its third-party service providers) with verification codes to register for the App’s Services.

5. PHONE/EMAIL CONTACTS

The contacts from the User’s mobile phone or email address book shall be updated regularly. The User herby authorizes COMMCHAT to obtain such contacts to enable the App’s Services.

6. USER OBLIGATIONS

6.1 User warrant that all information provided on Registration and contained as part of User Account is true, complete and accurate and that User will promptly inform us of any changes to such information by updating the information in User Account.

6.2 It is User’s responsibility to ensure that information available through the App or the Services meet User’s requirements.

6.3 Not to misrepresent User’s age or pretend to be an adult if User is not;

6.4 Not to circulate, conduct and/or encourages, pornographic, sexually explicit, violent or contents of mature nature while availing the service or via the App.

6.5 Not to sell, resell, or commercially use the Service or App without the permission of COMMCHAT.

6.6 Copy, reproduce, distribute, publicly perform, or publicly display App, except as expressly permitted by COMMCHAT and/or our licensors;

6.7 Modify the App, remove any proprietary rights notices or markings, or otherwise make any derivative uses of the Service and/or App, except as expressly set forth in this Terms of Use;

6.8 Not to violate any applicable law, contract, intellectual property, and/or other third-party right, and/or commit a tort;

6.9 Not to commit fraud and/or other unlawful activity through the App;

6.10 Not to engage in any harassing, exploit, threatening, intimidating, predatory, stalking and/or racially demeaning or aggravated conduct;

6.11 Access or attempt to access another user account without authorization from that user and the COMMCHAT;

6.12 Not to attempt to circumvent any content-filtering techniques that COMMCHAT employed or attempt to access any feature or area of the Service that the User are not authorized to access;

6.13 Not to connect to and/or access into any of COMMCHAT’s computer system or network without authorization;

6.14 Not to use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Service or that could damage, disable, overburden, mirror or impair the functioning of the Service in any manner;

6.15 Not to use any automation software or any other or third party unauthorized software designed to modify or interfere with App.

6.16 Not to copy, modify, create derivative works from, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Service is based;

6.17 Not to decrypt, transfer, frame or display, any part of the Service;

6.18 Not to use the Service for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates this Terms of use;

6.19 Not to use the information in the Service to create or sell a similar service; or

6.20 Not to use the Service for the purpose of soliciting, selling, or offering services, merchandise, or products, without the permission of COMMCHAT.

7. RULES ABOUT USE OF THE SERVICE AND THE APP

7.1 COMMCHAT does not warrant that the results that may be obtained from the use of the App or services will be effective, accurate, or reliable.

7.2 COMMCHAT will use reasonable endeavors to correct any errors or omissions as soon as practicable after being notified of them. However, COMMCHAT does not guarantee that the Services or the App will be free of faults, and COMMCHAT does not accept liability for any such faults, errors or omissions. In the event of any such error, fault or omission, User should report it by contacting us through the contact address and number provided in Clause-15.

7.3 COMMCHAT does not warrant that User’s use of the Services or the App will be uninterrupted and COMMCHAT does not warrant that any information (or messages) transmitted via the Services or the App will be transmitted accurately, reliably, in a timely manner or at all. Notwithstanding that COMMCHAT will try to allow uninterrupted access to the Services and the App, access to the Services and the App may be suspended, restricted or terminated at any time.

7.4 COMMCHAT does not give any warranty that the Services and the App are free from viruses or anything else which may have a harmful effect on any technology.

7.5 COMMCHAT reserves the right to change, modify, substitute, suspend or remove without notice any information or Services on the App from time to time. User’s access to the App and/or the Services may also be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or services. COMMCHAT will attempt to restore such access as soon as COMMCHAT reasonably can. For the avoidance of doubt, COMMCHAT reserves the right to withdraw any information or Services from the App at any time.

7.6 COMMCHAT reserves the right to block access to and/or to edit or remove any material, which in our reasonable opinion may give rise to a breach of these Terms and Conditions of Use.

8. SUSPENSION AND TERMINATION

8.1 If any User uses (or anyone other than User, with User’s permission uses) the App, any Services in contravention of these Terms and Conditions of Use, COMMCHAT may suspend the User’s use of the Services and/or App.

8.2 If COMMCHAT suspend the Services or App, COMMCHAT may refuse to restore the Services or App for User’s use until COMMCHAT receives an assurance from User, in a form COMMCHAT deems acceptable, that there will be no further breach of the provisions of these Terms and Conditions of Use.

8.3 COMMCHAT shall fully co-operate with any law enforcement authorities or court order requesting or directing COMMCHAT to disclose the identity or locate anyone in breach of these Terms and Conditions of Use.

8.4 Without limitation to anything else in this Clause 8, COMMCHAT shall be entitled immediately or at any time (in whole or in part) to: (a) suspend the Services and/or App; (b) suspend User’s use of the Services and/or App; and/or (c) suspend the use of the Services and/or App for persons COMMCHAT believes to be connected (in whatever manner) to User, if:

8.4.1 User commits any breach of these Terms of Use;

8.4.1.1 COMMCHAT suspects, on reasonable grounds, that User have, might or will commit a breach of these Terms of Use; or

8.4.1.2 COMMCHAT suspects, on reasonable grounds, that User may have committed or be committing any fraud against us or any person.

8.5 COMMCHAT’s rights under this Clause 8 shall not prejudice any other right or remedy COMMCHAT may have in respect of any breach or any rights, obligations or liabilities accrued prior to termination.

9. INTELLECTUAL PROPERTY RIGHTS

The Service and all related content and materials (excluding Submitted Content (defined below), the designs of each of the foregoing (collectively, the “Intellectual Property”), and any and all intellectual property rights in the foregoing, as between the COMMCHAT and the User, shall at all times remain the exclusive property of the COMMCHAT and its third-party licensors. Any thirdparty software included in the Service is licensed subject to the additional terms of the applicable third-party license. The User is not acquiring any rights in or to the App other than a non-exclusive right to access and use the Service solely in accordance with the terms of use. Nothing contained on the App should be construed as granting by implication, estoppel, or otherwise, any license or right to use any trademark displayed on the App without our written permission. Misuse of any trademarks or any other content displayed on the App is prohibited.

10. LIMITATION OF LIABILITY AND RELEASE

User hereby expressly waive and release, any and all claims and liabilities against the COMMCHAT and its officers, directors, managers, members, employees, shareholders, agents, contractors and representatives (the “released parties”) that arises from User’s use of the services including, without limitation, User’s use of the services in violation of this terms of use or any applicable laws or regulations. Under no circumstances shall the released parties be liable for any direct or indirect losses or damages arising out of or in connection with the use of or inability to use the service. This is a comprehensive limitation of liability that applies to all losses and damages of any kind (whether general, special, consequential, incidental, exemplary, or otherwise, including loss of data, income or profits), whether in contract, negligence, gross negligence, or other tortious action, even if an authorized representative of COMMCHAT has been advised of or should have known of the possibility of such damages.

11. GOVERNING LAW & DISPUTE RESOLUTION

Please read the following section carefully because it requires you to arbitrate certain disputes and claims with foundation and limits the manner in which you can seek relief from us.

A. This Terms of Use and the rights of the Parties hereunder will be governed by and construed in accordance with the laws of Switzerland, exclusive of conflict or choice of law rules. Notwithstanding the preceding sentence with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Terms of Use will be governed by the Federal Act on Private International Law, 1987 & Code of Civil Procedure, 2008 of Switzerland.

B. To the extent feasible, the Parties desire to resolve any dispute, claim, or controversy arising out of or relating to your use of or access of the Service, this Terms of Use or the breach, termination, enforcement, interpretation or validity of this Terms of Use, including the determination of the scope or applicability of this Terms of Use to arbitrate (a “Dispute”) through discussions and negotiations between each other. The Parties agree to attempt to resolve any Disputes by negotiation with the other Party (by phone, electronic correspondence, or written correspondence). If, after good faith discussions, the Dispute(s) cannot be resolved solely between the Parties, such Dispute(s) will be determined by arbitration in Switzerland before an arbitrator(s) mutually agreed upon according to the relevant rules and manners of Federal Act on Private International Law, 1987 & Code of Civil Procedure, 2008.

12. AMENDMENTS TO THE PRIVACY POLICY

We may make changes to the Privacy Policy from time to time. A link to the most current Privacy Policy will be available on the home page of the App and we will indicate the date of the “Latest Update” at the top of the Privacy Policy. You are held responsible to visit this page periodically to review the most current Privacy Policy. In addition, your continued use of these Apps following the posting of such changes constitutes your acceptance of the amended Privacy Policy.

After incorporation of the new content in the Privacy Policy, the users shall declare to have read and accepted the new content and all its content. In case of modification, change or termination of any of the content in these Privacy Policy under sentence or judgment given by a competent court or under an award made by an arbitrator or by a court of arbitration, the other content that have not been modified, changed, or resolved remain in force and shall be valid for both parties.

13. AMENDMENTS TO THE TERMS OF USE

We may make changes to the Terms of Use from time to time. A link to the most current Terms of Use will be available on the home page of the App and we will indicate the date of the “Latest Update” at the top of the Terms of Use. User are held responsible to visit this page periodically to review the most current Terms of Use. In addition, User’s continued use of these services following the posting of such changes constitutes User’s acceptance of the amended Terms of Use.

After incorporation of the new content in the Terms of Use and Privacy Policy, the User shall declare to have read and accepted the new content and all its content. In case of modification, change or termination of any of the content in these Terms of Use and Privacy Policy under sentence or judgment given by a competent court or under an award made by an arbitrator or by a court of arbitration, the other content that have not been modified, changed, or resolved remain in force and shall be valid for both parties.

14. INDEMNIFICATION

14.1User agrees to indemnify and hold COMMCHAT harmless from and against all claims, loss, consequential and/or incidental loss, damages, expenses. and liabilities arising from or in any way related to any third-party claims relating to User's culpable:

14.1.1 Misuse of the Services (including any actions taken by a third-party using his/her User Account);

14.1.2 Violation of these Terms, and/or;

14.1.3 Intentional infringement of third-party intellectual property rights.

14.2 In the event of such a claim, suit, or action ("Claim"), COMMCHAT will provide notice of the Claim to the contact information provided by User when registering his/her User Account (provided that failure to deliver such notice shall not eliminate or reduce User's indemnification obligations hereunder).

15. ASSIGNMENT

User may not assign, delegate, or transfer his/her agreements with COMMCHAT or his/her rights or obligations hereunder, or his/her User Account, in any way (by operation of law or otherwise) without COMMCHAT's prior written consent. COMMCHAT may transfer, assign, or delegate its agreements with User and its rights and obligations without consent.

16. AMENDMENTS TO THE TERMS OF USE

We may make changes to the Terms of Use from time to time. A link to the most current Terms of Use will be available on the home page of the App and we will indicate the date of the “Latest Update” at the top of the Terms of Use. User are held responsible to visit this page periodically to review the most current Terms of Use. In addition, User’s continued use of these services following the posting of such changes constitutes User’s acceptance of the amended Terms of Use.

17. ADDITIONAL TERMS AND CONDITIONS

17.1 The following additional terms apply to COMMCHAT's applications available via the Apple, Inc. ("Apple") App Store (the "Apple Application"):

a) The Apple Application is licensed to User on a limited, non-exclusive, non-transferrable, non-sub-licensable basis, solely to be used in connection with the Services for User's private, personal, non-commercial use, subject to all the Terms as they are applicable to the Services.

b) Both User and COMMCHAT acknowledge that the Terms are concluded between User and COMMCHAT only, and not with Apple, and that Apple is not responsible for the Apple Application or the content.

c) User will only use the Apple Application in connection with an Apple device that User owns or controls.

d) User acknowledges and agrees that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple Application.

e) In the event of any failure of the Apple Application to conform to any applicable warranty, including those implied by law, User may notify Apple of such failure; upon notification, Apple's sole warranty obligation to User will be to refund to User the purchase price, if any, of the Apple Application; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple Application.

f) User acknowledges and agrees that COMMCHAT, and not Apple, is responsible for addressing any claims User or any third-party may have in relation to the Apple Application.

g) User acknowledges and agrees that, in the event of any third-party claim that the Apple Application or User possession and use of the Apple Application infringes that third-party's intellectual property rights, COMMCHAT, and not Apple, will be responsible for the investigation, defense, settlement, and discharge of any such infringement claim.

h) User represents and warrants that User is not located in a country subject to a Switzerland Government embargo, or that has been designated by the Switzerland Government as a "terrorist supporting" country, and that User is not listed on any Switzerland Government list of prohibited or restricted parties.

i) Both User and COMMCHAT acknowledge and agree that, in User's use of the Apple Application, User will comply with any applicable third-party terms of agreement which may affect or be affected by such use.

j) Both User and COMMCHAT acknowledge and agree that Apple and Apple's subsidiaries are third-party beneficiaries of these Terms, and that upon User's acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against User as the third-party beneficiary hereof.

17.2 The following additional terms apply to COMMCHAT's applications available via the Google Inc. ("Google") Google Play store (the "Android Application"):

a) Notwithstanding anything to the contrary in these Terms, if User uses the Android Application User hereby acknowledges and agrees that:

i. the Android Application relies in part on functionality provided by Google (the "Google Functionality");

ii. any information provided by User via the Android Application may be shared with Google in connection with User's use of the Google Functionality;

iii. all such information shall be handled by Google in accordance with the then-current Google Privacy Policy (currently available at http://www.google.com/privacy.html ), as may be amended by Google from time to time;

b) User acknowledges and agrees that Google has no obligation whatsoever to furnish any maintenance and support services with respect to the Android Application;

c) In the event of any failure of the Android Application to conform to any applicable warranty, including those implied by law, User acknowledges that Google has no warranty obligation whatsoever with respect to the Android Application;

d) User acknowledges and agrees that COMMCHAT, and not Google, is responsible for addressing any claims User or any third-party may have in relation to the Android Application and that Google will not be liable to User for any claims, losses, liabilities, damages, costs or expenses attributable to any failure of the Android Application.

18. CONTACT US

If you have any questions about our app or this Terms of Use, please contact us as follows:

COMMCHAT AG.
Address:
c/o VISCHER AG
Aeschenvorstadt 4, Basel, BASEL-STADT 4051, Switzerland.
Email: contact@commchat.com