Terms & Conditions
BLUE SKY CHAT
TERMS & CONDITIONS
1.1 Blue Sword Pty. Ltd. ACN 151 715 945 trading as Blue Sky Chat 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 Blue Sky Chat agreeing to provide the Services to you, you agree to be bound by the following terms and conditions (Terms and Conditions).
2.1 Blue Sky Chat 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 Blue Sky Chat widget access to the online web-based chat platform provided by Blue Sky Chat and integration services;
b) installing code onto your website in the event technical support is provided by Blue Sky Chat at its sole discretion;
c) making available sales agents and live chat 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 Blue Sky Chat;
e) collecting information from the Clients including their contact details (Client Information);
f) providing you with Client Information for follow up on any leads Blue Sky Chat generates.
2.2 Blue Sky Chat agrees to provide you with information it collects from your Clients which will become your property but will also be the property of Blue Sky Chat pursuant to clause 7 below.
2.3 Blue Sky Chat agrees to make available the Services to you 24 hours a day and 7 days a week on a best endeavors 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 Blue Sky Chat online chat. As these services are run by real people, sometimes agents may be sick or due to technical glitches the system may not operate. You acknowledge that by agreeing to these terms and conditions that Blue Sky Chat will make every endeavor possible to strive towards 24 hours a day and 7 days a week Services subject to the aforementioned.
2.4 Blue Sky Chat advises and you acknowledge that from time to time the Services will be interrupted for the purposes of improving and or maintaining Blue Sky Chat operating systems. Blue Sky Chat 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.
- Term and Termination
3.1 This Agreement commences on the date you pay the Blue Sky Chat 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 Blue Sky Chat no less than 30 days prior to the expiry of each term.
3.3 In the event that you Terminate your Agreement with Blue Sky Chat electronically through the Blue Sky Chat Portal without giving 30 days written notice as stated in 3.2, you agree that Blue Sky Chat may charge you at its full discretion a 1 month pre-mature termination fee based on your current Subscription rate.
3.4 Subject to Clause 3.2, you agree that Blue Sky Chat reserves the right to charge you at its full discretion a 1 month pre-mature termination fee for failure to provide written notice to Blue Sky Chat in accordance with Clause 3.2 anytime within 12 months from pre-maturely terminating your Blue Sky Chat account in the event that written notice to cancel your account is not provided within 30 days prior to the expiry of each term.
3.5 You acknowledge and agree that you are not entitled to a refund, in part or full, of the Blue Sky Chat Fees you have paid in advance for the Services
3.6 Blue Sky Chat may terminate this Agreement:
- a) at any time at its sole discretion; 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 Blue Sky Chat 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.
3.7 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 Blue Sky Chat will not be liable to pay you any refund, in part or whole, of the Blue Sky Chat Fees.
3.8 Without limiting the other provisions in this clause 3, Blue Sky Chat reserves the right to suspend the Services for a breach of this Agreement until such time as you rectify the breach.
- Your Responsibilities
4.1 Blue Sky Chat 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) Blue Sky Chat policies and guidelines as Blue Sky Chat notifies 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 Blue Sky Chat. If in any event such a Claim is brought against Blue Sky Chat as a result of content on your website, you agree that you will fully indemnify Blue Sky Chat against any Claim or costs.
4.3 You agree that you will not interfere with or disrupt the integrity or performance of the Blue Sky Chat Services including but not limited to by way of storing or transmitting code and or Malicious Code.
4.4 Blue Sky Chat 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. You agree and acknowledge that Blue Sky Chat will not take any responsibility for any viruses or defects that occur to your website, server or computer as a result of using any Services or client portals provided by Blue Sky Chat.
4.5 You agree to make appropriate and timely disclosures to your Clients that Blue Sky Chat 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.
- Payment Terms
5.1 You agree to pay all fees specified and notified from time to time (Blue Sky Chat Fees). Blue Sky Chat Fees are quoted in a number of currencies and are exclusive of GST where the Services are provided in Australia. (Please refer to clause 6 below).
5.2 You agree to pay the Blue Sky Chat Fees in advance in return for Blue Sky Chat 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 Blue Sky Chat Fees by the due date, in addition to any other Blue Sky Chat rights and remedies, Blue Sky Chat 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 Blue Sky Chat Fees.
5.4 You agree to be charged and to pay Blue Sky Chat weekly for any additional leads or enquiries that are above your allocated quota. You agree that these fees are payable weekly and are charged directly to your credit card or other financial instruments provided to Blue Sky Chat for the purpose of payment of fees.
5.5. You agree that Blue Sky Chat will determine the classification of any additional chats that are above your standard quota as either additional leads or enquiries and acknowledge that these fees are in accordance with your chosen plan.
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).
- Intellectual Property Rights
7.1 Blue Sky Chat 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 Blue Sky Chat and/or our licensors own all intellectual property rights in the Services, Blue Sky Chat 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, Client Portal, Blue Sky Chat, 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, Blue Sky Chat or any material related to the Services or Blue Sky Chat, including but not limited to:
- a) create derivate works based on the Services or Blue Sky Chat;
- b) copy any features, functions or graphics of Blue Sky Chat or the Services;
- c) copy, frame or mirror any part or content of the Services or Blue Sky Chat;
- d) reverse engineer the Services or Blue Sky Chat; and
- e) access the Services or Blue Sky Chat in order to build a competitive product or service, or copy any features, functions or graphics of the Services or Blue Sky Chat.
7.5 This clause 7 survives termination of these Terms and Conditions for any reason whatsoever.
- 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.
- Grant of right to publish
9.1 By subscribing to Blue Sky Chat, you grant Blue Sky Chat the right to use and publish your name, logo and trade mark, together with reference(s) for the purposes of identifying you as a Blue Sky Chat 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 Blue Sky Chat and Blue Sky Chat will endeavour to appropriately respond within 14 business days of your request.
- No Warranties or Guarantees
10.1 Blue Sky Chat 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 Blue Sky Chat does not warrant or guarantee the functionality of Blue Sky Chat, or Blue Sky Chat’s ability to service your chat or interact with your Clients, or that the Services will be uninterrupted or error free.
10.3 Blue Sky Chat does not guarantee or warrant that its supply of the Services will generate any increase in sales, leads, 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 Blue Sky Chat by you or anyone else, and for conclusions drawn from such use or access. Blue Sky Chat 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 Blue Sky Chat;
- 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 Blue Sky Chat are provided to you on an “as is” basis.
10.5 Blue Sky Chat does not guarantee or warrant that the amount of leads or enquiries in your package will be reached or provided to you each month.
10.6 Blue Sky Chat does not guarantee or warrant that any suggestions or comments provided to us via the chat portal in relation to chats will be taken into account for the purpose of updating our database. You acknowledge that these are merely suggestions and it is in the full discretion of Blue Sky Chat to integrate these into our database.
- Limitation of Liability
11.1 Blue Sky Chat 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) paying the cost of having the services supplied again up to an amount equivalent to the Blue Sky Chat Fees for a one month period.
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, damage incurred to your website, brand damage for business interruption, loss of income, loss revenue, loss of sales, 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, 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 Blue Sky Chat and the users or your Clients (whether via Blue Sky Chat or otherwise, nor any reliance on Blue Sky Chat and chats via Blue Sky Chat) 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 Blue Sky Chat, nor should Blue Sky Chat 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 Blue Sky Chat is not liable or accountable for your site contents.
11.9 Blue Sky Chat does not take any responsibility and cannot be held liable whatsoever should our technical department or any other trained Agent of Blue Sky Chat upon installation of the Blue Sky Chat software on your website / web server cause your website to be dysfunctional.
11.10 You acknowledge and are solely responsible for any logos provided by Blue Sky Chat which are customized in your chat window and certify that you have the full legal right to display such. You acknowledge that you provide full discretion for Blue Sky Chat to use this logo for the purpose of customizing Blue Sky Chat on your website. You acknowledge that you will indemnify Blue Sky Chat for any legal costs incurred as a result of the logo or any other images provided to Blue Sky Chat in the event of a legal claim against Blue Sky Chat.
12.1 You agree to indemnify and keep indemnified Blue Sky Chat against any third party claim against Blue Sky Chat for any loss, damage or liability that arises in connection with providing you the Services in accordance with these Terms and Conditions.
- 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.
14.1 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.
15.1 You acknowledge and consent that you must not assign, transfer, resell, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement, without obtaining Blue Sky Chat’s prior written consent.
15.2 You acknowledge and consent that in the event of a breach of Clause 15.1 you may be held financially liable and/or required to indemnify Blue Sky Chat for loss of income, brand damage and other indirect costs suffered by Blue Sky Chat as a result.
15.3 Blue Sky Chat 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.
- 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 (including a reseller) 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.
17.1 This Agreement is governed by the laws of the State of New South Wales, Australia and you submit to the exclusive jurisdiction of the Courts of the State of New South Wales.
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 Blue Sky Chat 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) “Blue Sky Chat Fees” means the fees Blue Sky Chat charges including additional fees rendered as a result of additions to your quota and you agree to pay pursuant to clause 5;
f) “Blue Sky Chat” means all intellectual property rights existing prior to the provision of each of the Services (including, without limitation, Blue Sky Chat) and all modifications, enhancements, derivations or updates thereto in Blue Sky Chat trademarks, service marks, trade dress, chat portals, trade names, logos, slogans, designs, corporate names, and other similar indicia of origin; 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 Blue Sky Chat; in the Chat and Lead databases and in all any data, content or information collected by us or by our employees or agents, in all content, text, materials and conversations arising from, or as a result of, Blue Sky Chat.
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.
- 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.