Updated on January , 2021
THESE TERMS OF SERVICE (the “Terms”) govern how you (“Client”) may use the Platform (as the term has been defined hereinbelow) provided by PurpleTalk, Inc. (“Company”). Client and Company are each a “Party” and collectively the “Parties”.
By registering or using the Platform or the Websites (as the term has been defined hereinbelow) you agree to be bound by the Terms. If you are using the Platform or the Websites on behalf of an organization, you are agreeing to the Terms for that organization (in which event, “you”, “your” or “Client” will refer to that organization) and promising to the Company that you have the authority to bind that organization to the Terms unless that organization has a separate written contract in effect with us (an “Agreement”), in which event the Terms and the Agreement will govern your use of the Platform; provided that if there is any conflict between the Terms and an Agreement, the provisions of the Agreement shall control. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE PLATFORM OR WEBSITES.
If you have any comments or questions regarding the Terms or wish to report any violation of the Terms, you may contact us at security@upshot-ai-team
SECTION 1: DEFINITIONS
Capitalized terms used but not defined elsewhere in the Terms shall have the following definitions:
1.1 “Affiliate” means, with respect to any party, any other party directly or indirectly controlling, controlled by or under common control with such Party.
1.2 “Client Content” means the digital, audio-visual materials as made available by Client to Company, including, but not limited to: data, data feeds, and metadata as may be set forth on any invoice or subscription order.
1.3 “Intellectual Property Rights” means all intellectual property and proprietary rights of any nature or kind, whether protected, created, or arising under any applicable law, and all worldwide common law, statutory, and other rights in, arising out of, or associated therewith, including but not limited to trademarks, copyrights, patents, domain names, and trade secrets.
1.4 “Platform” means the Upshot platform provided by the Company which allows companies the ability to analyze user behavior across mobile applications and websites and engage them with personalized, contextual messaging.
1.5 “Websites” means any domain or website provided by the Company, whether or not used in conjunction with the Platform.
SECTION 2: LICENSE
2.1 License Grant. In accordance with the terms herein, Company grants to Client a limited, non-exclusive, non-transferable license during the Term (as defined in Section 9.1) to use the Platform incorporated with Client Content.
2.2 Scope of Use. Except in accordance with the terms herein or as reasonably required for Client to avail itself of the intended functionality of the Platform as contemplated in a form of invoice or subscription order, if any, Client will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform or any software, documentation or data related to Platform; modify, translate, or create derivative works based on the Platform (except to the extent expressly permitted by Company or authorized within the Platform); use the Platform otherwise for the benefit of a third party; or remove any proprietary notices or labels.
SECTION 3: OBLIGATIONS
3.1 Onboarding. Company shall onboard Client to the Platform and provide the Platform per the feature specifications, if any, in the applicable form of invoice or subscription order form, if any. Parties shall provide each other with reasonable assistance, access, and information in order to initiate the Client’s use of the Platform. Client’s using any free or self-service offerings will have access to documentation and community forums to assist in their onboarding.
3.2 Cooperation. Both Company and Client acknowledge that a successful integration of Client Content and the Platform, including any modifications thereto, shall require their full and mutual good faith cooperation, and Client and Company acknowledge that they shall timely fulfill their responsibilities in this regard.
3.3 Service Level Terms. Subject to the Terms, Company will use commercially reasonable efforts to provide Client the Platform. Subject to the terms hereof, Company will provide the Client with reasonable technical support services in accordance with the Company’s standard practice. The Company does not make any commitment that the Platform or the Websites will be available at all times or during any downtime (a) caused by outages to any public Internet backbones, networks or servers, (b) caused by any failures of your equipment, systems or local access services, (c) for previously scheduled maintenance, (d) caused by any third-party vendor or service provider of the Company, or (e) relating to events beyond the Company’s (or its licensors’ or service provider’s) control, including strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where the Company or its servers are located or co-located.
3.4 Updates. From time to time, the Company may provide upgrades, patches, enhancements, or fixes for the Platform or the Websites to its users generally without additional charge (“Updates”), and such Updates will become part of the Platform and/or the Websites, and subject to the Terms and/or an Agreement. Notwithstanding the foregoing, the Company shall have no obligation under this the Terms or otherwise to provide any such Updates. You understand that the Company may cease supporting old versions or releases of the Platform or the Websites at any time in its sole discretion.
3.5 Client Content. All Client Content is your sole responsibility . You acknowledge that all Client Content transmitted or accessed by you using the Platform or the Websites, is at your own risk and you will be solely responsible and liable for any damage or loss to you or any other party resulting therefrom. You remain solely responsible for all Client Content that you transmit in connection with the Platform, and you warrant that you possess all rights necessary to provide such Client Content. We reserve the right to remove any objectionable Client Content from the Platform at our sole discretion. You understand that by providing Client Content in connection with the Platform, you hereby grant us a non-exclusive, worldwide, royalty-free right to fully exploit such Client Content (including all related intellectual property rights) in connection with our provision of the Platform to you.
SECTION 4: USE OF THE PLATFORM AND WEBSITES
4.1 Account. You may be required to establish an account in order to use the Platform and/or take advantage of certain features. If so, you agree to (a) provide true, accurate, current, and complete information about yourself as prompted by the Platform; and (b) as permitted, maintain and promptly update such information. If you provide any information that is false, inaccurate, or outdated or Upshot.ai has reasonable grounds to suspect that such information is false, inaccurate, or outdated, Upshot.ai has the right to suspend or terminate your account and prohibit any and all current or future use of the Platform by you. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your account. This password is encrypted. We advise against sharing your password with anyone and if you do lend your password, then you are responsible for any actions taken by anyone you lent your password to, including indemnifying us for any loss. If you access your account via a third-party site or service, you may have additional or different sign-in protections via that third-party site or service. You need to prevent unauthorized access to your account by selecting and protecting your password and/or other sign-in mechanisms appropriately and limiting access to your computer, browser, or mobile device by signing off after you have finished accessing your account. Your account is meant to be private and you shall not share accounts for any reason. You agree to immediately notify us of any unauthorized use of your password or account or any other breach of security. You agree to be responsible for all charges resulting from the use of your account via the Platform and shall indemnify any losses we incur due to your use or misuse of the Platform, including charges resulting from any unauthorized use of your account
4.2 Lawful Use. You agree to use the Platform and the Websites only for lawful purposes and that you are responsible for your use of and communications and content you may post via the Platform or the Websites. You agree not to post or transmit any unlawful, infringing, threatening, harassing, defamatory, vulgar, obscene, profane, indecent, offensive, hateful, or otherwise objectionable material of any kind, including any material that encourages criminal conduct or conduct that would give rise to civil liability, infringes upon others’ intellectual property rights, impersonates any individual or entity, or otherwise violates any applicable law. You agree not to use the Platform or the Websites in any manner that interferes with its normal operation or with any other user’s use of the Platform or the Websites. You may not do any of the following while accessing or using the Platform or the Websites: (i) access, tamper with, or use non-public areas of the Websites, our computer systems, or the technical delivery systems of our providers; (ii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (iii) access or search or attempt to access or search the Websites by any means other than through our currently available, published interfaces that are provided by us, unless you have been specifically allowed to do so in a separate agreement with us; (iv) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Platform or the Websites to send altered, deceptive or false source-identifying information; or (v) interfere with, or disrupt, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Platform or the Websites, or otherwise creating an undue burden on the Platform or the Websites. You may not use manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the Websites. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of any part of the Platform or the Websites.
4.3 Access. You further agree that you will not access the Website or Platform by any means except through the interface provided by Upshot.ai for access. Creating or maintaining any link from another application to any page at the Websites without the prior authorization of Upshot.ai is prohibited. Running or displaying the Websites, or any information or material displayed via the Websites in frames or through similar means on another website or application without the prior authorization of Upshot.ai is prohibited. Any permitted links to the Websites must comply with all applicable laws, rules, and regulations.
4.4 Local Law. Upshot.ai makes no representation that Materials contained, described, or offered via the Platform or the Websites are accurate, appropriate or available for use in your jurisdiction, or that these Terms of Service comply with the laws of any specific jurisdiction. Visitors who use the Platform or the Websites do so on their own initiative and are responsible for compliance with all applicable law. You agree that you will not access the Platform or the Websites from any territory where its contents are illegal and that you, and not the Upshot.ai Parties, are responsible for compliance with applicable law.
4.5 Third-Party Sites. Links provided via the Platform or the Websites to third-party websites and services are provided only as a convenience. If you use these links, you may leave the Platform or the Websites. Upshot.ai does not control nor endorse any such third-party websites. You agree that the Upshot.ai Parties, as defined below, will not be responsible or liable for any content, goods, or services provided by such third-party websites or for your use or inability to use such third-party websites. You will use such links at your own risk.
SECTION 5: COMPENSATION
5.1 Compensation. Client will pay Company the amounts specified in each form of invoice or subscription order form. Company will invoice Client for items set forth in the invoice or subscription order form if any, and Client will pay for invoices issued in any given month and payment must be received by Company thirty (30) days after the invoice date, unless the applicable invoice or subscription order contains payment terms that are different. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Platform. Client shall be responsible for all taxes associated with the Platform other than taxes based on Company’s net income. company may turn off Client access to Platform without notice for any unpaid and due invoices. All payments shall be made by Client to such bank accounts or addresses as may be designated in writing by Company from time to time.
SECTION 6: INTELLECTUAL PROPERTY RIGHTS
6.1 Client Ownership. As between Client and Company, all right, title, and interest (including without limitation all Intellectual Property Rights) in and to Client Content shall be and remain the sole and complete property of Client. If the development of the Platform results in new derivative works of Client Content that constitute audio or visual assets, excluding in all cases the Company Materials as defined in Section 6.2 below (“Client Content Derivative Works”), then all right, title and interest in Client Content Derivative Works (including all Intellectual Property Rights therein) shall belong to Client and shall be deemed to be Client Content for purposes of the licenses granted pursuant to the Terms. Company hereby irrevocably and exclusively grants, transfers and assigns to Client all Intellectual Property Rights that Company has, or may have, in or to Client Content Derivative Works. With respect to any so-called “moral rights,” exercisable with respect to Client Content Derivative Works, Company hereby unconditionally waives such rights and the enforcement thereof.
6.2 Company Ownership. As used herein, “Company Materials” means:
- all materials that were created by Company prior to the date of the Terms including the Platform and the layout and flow of the Platform, and
- any other materials created under the scope of the Terms or subsequent to the Terms, excluding those portions of any of materials which comprise Client Content or Client Content Derivative Works, but including without limitation:
- all originally created or licensed audio or visual assets, computer software, code, routines, tools, application engines, algorithms, inventions and other technology contained in or used by Company in the development of the Platform; and
- the technical and/or maintenance documentation, if any, of or concerning the Platform.
Company shall at all times be and remain, the sole and exclusive owner of the Company Materials and all Intellectual Property Rights pertaining thereto. Without limiting the generality of the foregoing, nothing in the Terms shall be deemed to grant or assign to Client any proprietary or ownership interest or Intellectual Property Rights in or to Platform, the Company Materials or any derivatives of such, other than the license rights specifically set forth herein.
6.3 Permitted Activity. Notwithstanding the foregoing, Client acknowledges that Company may develop and distribute software and applications using Company Materials and that nothing in the Terms shall prevent the foregoing.
6.4 Marks and other Intellectual Property. All trademarks, service marks, trade names, domain names, slogans, logos, and other indicia of origin that appear on or in connection with any aspect of the Platform or the Websites are either the property of the Company, its affiliates or licensors. The Company retains the right to rescind and terminate the limited license granted hereunder at any point, for any reason. All rights not expressly granted herein by the Company to you are fully reserved by the Company, its advertisers, and licensors. Some of the company and product names, logos, brands, and other trademarks featured or referred to within the Platform and the Websites may not be owned by us, and are the property of their respective trademark holders. These trademark holders are not affiliated with, nor do they sponsor or endorse, the Company, the Platform, the Websites, and/or our products and services.
SECTION 7: CONFIDENTIALITY
7.1 Confidentiality. In connection with the services provided under the Terms, a Party may, from time to time, be exposed to and will be furnished with certain information relating to the other Party’s plans for certain products and services that are confidential (as such is designated or marked by such Party). During the term of the Terms and for a period of five (5) years thereafter, each Party shall keep confidential and not reveal or disclose to any third party any of said information, material, or data. Each Party will not disclose or make known to anyone, directly or indirectly, the terms of the Terms. The provisions of this paragraph shall not apply to information that is or becomes publicly available through no fault of the receiving Party or its representatives or information that is required to be disclosed pursuant to a court order or any applicable laws, rules, or regulations.
7.2 Publicity; Credit. Company shall have the ability to issue a press release in connection with this Agreement and use Client’s logo on the Company website and other marketing materials. Company will work with the Client to get approval on using their logo on the Company’s press release and case study. Furthermore, Company has the right to include a branding mark “Powered by Upshot.ai” in a visible form with a hyperlink to www.upshot.ai in the message body of any supported notification channels such as emails sent from Company as long as the Client is using platform for FREE/Unpaid tier.
7.3 Data Collection. In carrying out its obligations and obtaining the benefits under the Terms, each Party will comply with applicable laws, including applicable privacy laws. Company will not access or collect any Personal Information except as strictly necessary to perform its obligations under the Terms (including the collection of Personal Information of Client) or to fulfill any legal requirements. Client may capture Personal Information and send it to the Platform. “Personal Information” means information provided by Client or collected by Company under the Terms, which information identifies or can be used to identify, contact, or locate the person or device to whom that information pertains. Personal Information includes name, address, phone number, fax number, email address, social security number, or other government-issued identifiers, and credit card information. Additionally, to the extent other information (including a personal profile, unique identifier, and/or biometric information is associated or combined with Personal Information), then that information is also Personal Information. Company will not use Personal Information accessed or collected while performing under the Terms for any purpose other than those expressly permitted by the Terms.
- Limitations on Disclosure of Personal Information. Company will not share any Personal Information that is collected or accessed by it while performing under the Terms with any third parties for any reason except as necessary to carry out its obligations hereunder or as required to comply with the law, and only under terms and conditions substantially similar to those contained in this Section. If Company is served with a court order compelling disclosure of any Personal Information or with notice of proceedings for such an order, Company shall (i) give Client reasonable notice prior to such disclosure to allow Client a reasonable opportunity to seek a protective order or equivalent, and (ii) at Client’s discretion, either assist Client in opposing the order or provide Client the opportunity to intervene before Company files any response to the order or notice.
- Protection of Personal Information. Company will take reasonable steps to protect Personal Information in Company’s possession from unauthorized use, access, disclosure, alteration, or destruction. Security measures will include access controls, encryption, and other means, where appropriate.
- De-Identified Data. Notwithstanding anything herein, Company shall be permitted to create, use, license, sell or disclose De-Identified Data. “De-Identified Data” shall mean Personal Information (i) for which all identifiers have been removed such that the data, alone or in combination with other reasonably available data, cannot be attributed to or associated with or cannot identify any person, and the unauthorized access, use, disclosure, modification, storage, destruction, or loss of the data would not trigger the application of any privacy law or any security breach notification law, and (ii) that has been combined with similar data such that the original data forms a part of a larger data set. Company may retain De-Identified Data.
SECTION 8: REPRESENTATIONS AND WARRANTIES: INDEMNITY; LIMITATION OF LIABILITY
8.1 Company Representations and Warranties. Company represents, warrants, and undertakes as follows:
- Company is free to enter into and fully perform the Terms.
- The entering into of the Terms by Company does not violate any agreements, rights, or obligations existing between Company and any other person, firm, or corporation.
- It will use commercially reasonable efforts to not directly introduce to the Client Content, Websites, or Platform any virus, worm, Trojan horse, spyware, or other form of malware.
8.2 Client Representations and Warranties. Client represents, warrants, and undertakes as follows:
- It is free to enter into and fully perform the Terms.
- The entering into of the Terms by Client does not violate any agreements, rights or obligations existing between Client and any other person, firm, or corporation.
- It has and will have through the Term, the right to contract, and provide Client Content to Company in accordance with the terms and conditions of the Terms.
- It will use commercially reasonable efforts to not directly introduce to the Client Content, Websites, or Platform any virus, worm, Trojan horse, spyware, or other form of malware.
- It is of legal age to form a binding contract or is a duly authorized individual of legal age of such legal entity who has the authority to enter into this legally binding contract; all registration information you submit is accurate and truthful; you will maintain the accuracy of such information, and you are legally permitted to use and access the Platform and the Websites, and take full responsibility for the selection and use of and access to the Platform and the Websites.
- Client Content is owned or adequately licensed by Client and does not, to its knowledge, infringe upon or violate any copyright, trademark, or other proprietary rights of any third party.
8.3 Warranty and Disclaimer. YOUR USE OF THE PLATFORM AND THE WEBSITES IS AT YOUR SOLE RISK. THE PLATFORM, THE WEBSITES, AND THE ASSOCIATED MATERIALS AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS OF SERVICE, THE COMPANY, ITS PARENT, SUBSIDIARY AND/ OR OTHER AFFILIATED COMPANIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND OTHER REPRESENTATIVES (COLLECTIVELY, THE “UPSHOT.AI PARTIES”), EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE UPSHOT.AI PARTIES MAKE NO WARRANTY THAT (I) THE PLATFORM OR THE WEBSITES WILL MEET YOUR REQUIREMENTS; (II) THE PLATFORM OR THE WEBSITES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) INFORMATION THAT MAY BE OBTAINED VIA THE PLATFORM OR THE WEBSITES WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY AND ALL PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL, INCLUDING ALL MERCHANDISE, GOODS, AND SERVICES, OBTAINED OR PURCHASED BY YOU DIRECTLY OR INDIRECTLY THROUGH THE PLATFORM OR THE WEBSITES WILL MEET YOUR EXPECTATIONS OR NEEDS; AND (V) ANY ERRORS IN THE PLATFORM OR THE WEBSITES WILL BE CORRECTED.
8.4 Exclusion of Damages. THE UPSHOT.AI PARTIES SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THE USE OF OR INABILITY TO USE THE PLATFORM, INCLUDING ANY LIABILITY: (I) AS A PUBLISHER OF INFORMATION; (II) FOR ANY INCORRECT OR INACCURATE INFORMATION OR ANY ‘BUG’ OF THE PLATFORM OR THE WEBSITES; (III) FOR ANY UNAUTHORIZED ACCESS TO OR DISCLOSURE OF YOUR TRANSMISSIONS OR DATA; (IV) FOR STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR VIA THE PLATFORM OR THE WEBSITES; (V) FOR ANY DISPUTES BETWEEN USERS OF THE PLATFORM OR THE WEBSITES, OR BETWEEN A USER OF THE PLATFORM OR THE WEBSITES AND A THIRD PARTY; OR (VI) FOR ANY OTHER MATTER RELATING TO THE PLATFORM OR THE WEBSITES, OR ANY THIRD PARTY. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF AN INDIVIDUAL ADVISES THE UPSHOT.AI PARTIES OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE COMPANY AND YOU. THE PRODUCTS, INFORMATION, AND SERVICES OFFERED ON AND THROUGH THE PLATFORM OR THE WEBSITES WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS.
8.5 Limitation of Liability. NOTWITHSTANDING THE FOREGOING, THE SOLE AND ENTIRE MAXIMUM LIABILITY OF THE UPSHOT.AI PARTIES FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO THE CHARGES PAID BY YOU DIRECTLY TO THE COMPANY VIA THE PLATFORM OR THE WEBSITES FOR SERVICES PROVIDED SOLELY AND DIRECTLY BY UPSHOT.AI TO YOU IN THE SIX MONTHS PRIOR TO SUCH CAUSE OR CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU.
If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
8.6 Indemnification. You agree to indemnify, defend and hold harmless the Upshot.ai Parties against all claims, demands, causes of action, losses, expenses, damages, and costs (including any reasonable attorneys’ fees), resulting from or arising from or relating to your use of the Platform or the Websites, any activity related to your account by you or any other person permitted by you, any Client Content that you submit to, post on or transmit through the Platform or the Websites, your breach of the Terms, your infringement or violation of any rights of another, or termination of your access to the Platform or the Websites. We reserve the right to assume, at our sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with us in the defense of any such claim, action, settlement or compromise negotiations, as requested by us.
SECTION 9: TERMINATION
9.1 Term of Terms. Subject to earlier termination as provided below, the Terms is for the term as specified in the applicable form of invoice or subscription order form, if any, and if no term is specified, monthly, and shall be automatically renewed for additional periods of the same duration as the initial term specified in the applicable form of invoice or subscription order form(collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current Term.
9.2 Termination for Breach with a Cure Period. If either Party materially breaches the Terms, then the non-breaching Party shall provide the other with written notice of such breach. If such breach is not cured or otherwise resolved within thirty (30) days of delivery of such written notice, then the non-breaching Party will have the right to immediately terminate the Terms.
9.3 Termination for Breach without a Cure Period. Notwithstanding anything to the contrary in Section 9.1, either Party shall have the right to terminate the Terms immediately (without any cure period) in the event of any of the following: (i) a material breach of the confidentiality provisions herein; (ii) the other Party makes an assignment of all or substantially all of its assets for the benefit of its creditors, if a receiver, trustee, liquidator or sequestrator of all or substantially all of each Party’s assets is appointed, or if the other Party discontinues its business, or (iii) the other Party: (A) files a voluntary petition in bankruptcy under the United States Bankruptcy Code or any successor statute or (B) has an involuntary bankruptcy petition filed against it, which is not dismissed within ninety (90) days after the filing date.
9.4 Termination for Convenience. Company may terminate the Terms for convenience, and without cause, upon thirty (30) days prior written notice to Client; provided that Company will provide a pro-rata refund of advanced fees for the Platform.
9.5 Effect of Expiration or Termination. Upon expiration or earlier termination of the Terms, all rights granted to each Party herein shall forthwith revert to the granting Party, including, but not limited, to the license, with the following consequences:
- Any compensation accrued but not paid will become immediately due and payable.
- Upon termination of the Terms, Client’s right to access and use the Platform shall immediately terminate, Client shall immediately cease all use of the Platform, and Client shall destroy or return to Company and make no further use of any proprietary, materials, or other items (and all copies thereof) belonging to Company. Upon any termination, Company will make all Client Content available to Client for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Client Content. All sections of the Terms which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
SECTION 10: MISCELLANEOUS
10.1 Notice. All notices, requests, demands, approvals, requests for approvals, or other communications under the Terms shall be in writing. Notice will be sufficiently given for all purposes as follows: (i) upon delivery when personally delivered to the recipient, (ii) upon receipt when mailed by certified mail, return receipt requested if confirmed by return receipt, (iii) upon delivery when delivered by Federal Express or other recognized international overnight courier, and (iv) upon receipt when sent by fax with confirmation, provided, however, that it shall be deemed delivered the next business day if sent on a non-business day or after 5 pm Dallas, Texas time on a business day. For the purposes of convenience, notice will be sufficiently given for the purpose of approvals and requests for approvals, if provided by a Party’s authorized representative to the other Party’s authorized representative via email. Addresses for the purpose of giving notice may be set forth on the applicable form of invoice or subscription order.
10.2 Merger/Modification. Each Party acknowledges that it has read the Terms, it understands it, and agrees to be bound by its terms, and further agrees that this is the complete and exclusive statement of the Terms between the Parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the Parties relating to the Terms. These Terms may not be modified or altered except by written instrument duly executed by both Parties.
10.3 Governing Law. These Terms shall be governed by and interpreted in accordance with the laws of the State of Texas. Parties agree that any litigation arising out of or related to the Terms must be brought in a state or federal court located in Dallas, Texas as the exclusive and mandatory venue and jurisdiction for any litigation arising out of or related to the Terms. No action arising out of these Terms or your use of the Platform or the Websites, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose).
10.4 Severability. If any provision of the Terms is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted and all other terms and provisions of the Terms shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify the Terms so as to effectuate the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
10.5 Assignment by Client. Client may not assign the Terms in whole or in part to any party without the prior written consent of Company.
10.6 Waiver. A waiver by either Party of any terms or conditions of the Terms in any instance shall not be deemed or construed to be a waiver of such term or condition for the future or of any subsequent breach thereof. All remedies, rights, undertakings, obligations, and agreements contained in the Terms shall be cumulative, and none of them shall be in limitation of any other remedy, right, undertaking, obligation, or agreement of either Party.
10.7 Relationship of Parties. The Parties are not employees, agents, partners, or joint venturers of each other. Neither Party shall have the right to enter into any agreement on behalf of the other.
10.8 Headings and Titles. The headings and titles of the Terms are not part of the Terms, but are for convenience only and are not intended to define, limit or construe the contents of the various sections.
10.9 Entire Terms. The entire understanding between the Parties hereto relating to the subject matter hereof is contained herein and the Parties make no warranties, representations, or undertakings hereto except as expressly provided herein.
10.10 Survival. Notwithstanding any termination, cancellation, or expiration of the Terms, the provisions hereof that are intended to continue and survive, shall continue and survive, including, but not limited to, Sections 5, 6, 7, 9.5, 9.6, and 10.
10.11 Expenses. Except as otherwise specified in the Terms, all costs and expenses, including fees and disbursements of counsel, financial advisors, and accountants, incurred in connection with the Terms and the transactions contemplated in the Terms shall be paid by the Party incurring such costs and expenses.
10.12 Copyright Infringement. Those who believe that their copyrighted work has been infringed or are aware of other infringing material, should contact us on email@example.com and provide us with the following information:
- An electronic or physical signature of a person authorized to act on behalf of the owner of the copyrighted work that has allegedly been infringed.
- Identification of the copyrighted work claimed to have been infringed.
- Information describing where the allegedly infringing material is located on the Platform of Websites.
- Your address, telephone number, and email address.
- A written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
- A statement by you that the above information in your notification is accurate and that, under penalty of perjury, you are the copyright owner or authorized to act on the copyright owner’s behalf.
The foregoing information may be emailed to firstname.lastname@example.org.
Following receipt of the information listed above, we will remove or disable access to the infringing material and take reasonable steps to notify the user responsible for posting said material. The posting of infringing copyrighted material may result in the termination of user privileges of such users.
10.13 Force Majeure. No party shall be liable for a failure or delay in performing any of its obligations under the Terms if, but only to the extent that, such failure or delay is due to causes beyond the reasonable control of the affected party, including, but not limited to (1) acts of God; (2) fire or explosion (except to the extent caused by the negligence or willful misconduct of the affected party); (3) unusually severe weather; (4) war, invasion, riot, or other civil unrest; (5) governmental laws, orders, restrictions, actions, embargoes, or blockages; (6) national or regional emergency; and (7) injunctions, strikes, lockouts, labor trouble, or other industrial disturbances; provided that the party affected shall promptly notify the other of the force majeure condition and shall exert reasonable efforts to eliminate, cure, or overcome any such causes and to resume performance of its obligations as soon as practicable.