Resources
About
These terms and conditions were last revised on July 9th, 2021.
By signing an Order Form, or accessing or using the services provided by TalkMeUp, Inc., a Delaware corporation (“TalkMeUp”), you agree, on behalf of you and your company (“Client”), to be bound by and to comply with these terms and conditions (as they may be modified, supplemented or otherwise amended in accordance with their terms, the “Terms”) and the Order Form that applies to any products and services you receive (the Terms and the Order Form, collectively, the “Agreement”). For good and valuable consideration, the receipt of which is acknowledged by each party, the parties agree as follows:
"Affilate" means any entity controlling, controlled by, or under common control with a party, where “control” means the power to direct or cause the direction of the management and policies of an entity or person, whether through the ownership of voting securities, by contract, or otherwise
“Applicable Laws” means federal, state and local laws, rules and regulations, regulatory authority or quasi-governmental agency, and other privacy, confidentiality and/or information security laws.
“Client Content” means any information, data, video, and other content, in any form or medium, that is submitted by or collected from Client through the Services, including data pertaining to Client’s customers and End Users, including, but not limited to, technical information about any devices, systems, hardware, software, services, or peripherals associated with Client’s use of the Services such as certain personal information including, but not limited to, user names, login credentials, contact information and IP addresses, but excluding Usage Data.
“Documentation” means the documentation that TalkMeUp makes generally available to its customers in any form related to the Services.
“End Users” means those individuals who are recorded and whose video recordings are analyzed by TalkMeUp.
“Fees” means the fees set forth in an Order Form for the Services.
“Integration” means the integration that connects the Services via TalkMeUp’s applicable API to enable Client’s customers to fully utilize the integration.
“Marks” means a party’s name, logo, and trademarks.
“Order Form” means the initial order form for the Services, and any subsequent order forms, agreed to between the parties in writing (including via a web interface), specifying, among other things, the Services, Fees, and other relevant terms as agreed to between the parties.
“Services” means the products and services set forth in an executed Order Form that are made available by TalkMeUp to Client, including the TalkMeUp website, software and application programming interface (“API”).
“Services Period” means the period for which the specific Services are provided to Client, as set forth in an Order Form.
“Term” is defined in Section 11.1 below.
“Usage Data” means any anonymized and aggregated data that is derived from the processing of the Client Content or the access or use of the Services by or on behalf of Client, that in no way identifies or refers to Client or its customers, and any statistical or other analysis, information, or data based on or derived from the foregoing.
2.1 Provision of the Services.During the Services Period and subject to the terms and conditions of the Agreement: (i) Client may access and use the Services pursuant to the terms of the Agreement; and (ii) TalkMeUp grants to Client a limited, non-exclusive, non-transferable (except as set forth in Section 12), non-sublicensable license to use the Documentation as reasonably required for Client’s customers’ internal workforce training and development purposes. TalkMeUp will use commercially reasonable efforts to maintain the security of the Services and will maintain insurance coverage as commercially reasonable and appropriate for the applicable Services.
2.2 Modifications. TalkMeUp may revise features and functionality of the Services at any time, including without limitation by removing such features and functionality or reducing service levels, and TalkMeUp will notify Client of any material change to the Services.
2.3 Support. TalkMeUp offers ongoing support for the Services as set forth in the Service Level Agreement, which is incorporated by reference herein.
2.4 Privacy Policy. In connection with Client’s access to or use of the Services, TalkMeUp will obtain personal information and other data from or about Client. The retention period for such information is six years or upon termination of the Agreement. TalkMeUp will use such personal information as described in TalkMeUp’s Privacy Policy, which is incorporated herein by reference. TalkMeUp reserves the right to modify the Privacy Policy to comply with applicable legal or industry requirements and/or in its reasonable discretion from time to time.
3.1 Use of the Services.Client shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all the Client Content; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and notify TalkMeUp immediately of any such actual or threatened unauthorized access or use; (iii) make available all necessary personnel and other resources, as reasonably requested by TalkMeUp, to enable TalkMeUp to fulfill its obligations hereunder; and (iv) post a privacy notice to its End Users that complies with all Applicable Laws, and completely and accurately describes its information collection, use, and disclosure practices (including reflecting the use of Client Content by TalkMeUp as permitted under this Agreement) and obtain all rights, consents, and permissions required by or advisable under Applicable Law to collect, disclose, transfer, use, and otherwise exploit the Client Content as contemplated in the Agreement.
3.2 Restrictions. Client may use the Services solely as set forth in the Agreement and will not: (i) copy, modify, or create derivative works or improvements of the Services; (ii) reverse engineer, disassemble, decompile, modify, or alter the Services; (iii) remove, circumvent, disable, damage, or otherwise interfere with or disrupt the integrity or performance of the Services or any security-related features therein; (iv) input, upload, transmit, or otherwise provide to or through the Services, any information or materials that are unlawful or injurious, or contain, transmit, send, or store material containing harmful computer code, files, scripts, agents, or programs; (v) rent, lease, loan, resell, sublicense, distribute, or otherwise commercially exploit or make available the Services to any third party (except to Client’s customers if expressly provided for in the Order Form) or use the Services for service bureau or time-sharing purposes; or (vi) develop or have developed any products, services, or other materials that compete with the Services or otherwise compete with TalkMeUp or its business.
3.3 Integration. Client is responsible for installing, or causing the installation of any software and any and all components required for the Services on the Client’s server or its customers computers, laptops or other devices, in each case, in accordance with the Agreement and for obtaining and maintaining all computer hardware, software, servers and communications equipment and services needed to access the Services. Promptly as practicable after the execution of the Order Form, the parties will work in good faith to establish a timeline for the Integration setting forth in reasonable detail the task, the responsible party for each such task, the target completion date, purpose, dependencies and any additional information the parties deem necessary to effectuate the Integration consistent with the Order Form.
4.1 Client Content. Client agrees that, in connection with the Services, TalkMeUp may collect and use Client Content. Client hereby grants to TalkMeUp a limited, non-exclusive, non-transferable (except as set forth in Section 12) right and license during the applicable Services Period to download, receive, collect, access, modify, copy, store, retain, and otherwise use the Client Content for purposes of (a) performing the Services for Client, (b) authenticating and providing support and maintenance services to Client, (c) facilitating the delivery of any updates or modifications to the Services, (d) communicating with Client about the Services, (e) performing analytics and obtaining statistics on the use and performance of the Services, (f) detecting, preventing, and responding to fraud, intellectual property infringement, violations of the Agreement, or other misuse of the Services, (g) developing and improving the Services, including training and education about the Services and (h) any other internal purposes of TalkMeUp. Client shall be responsible for providing any required notices and obtaining any requisite consents of its End Users, as required by Applicable Law. TalkMeUp may retain copies of the Client Content following the Services Period for purposes of the foregoing clauses (f) through (h); provided, that upon the written request (email to suffice) of Client, TalkMeUp will delete, destroy or return all copies of the applicable Client Content in its possession and provide Client certification of such deletion upon written (email to suffice) request.
4.2 Aggregate Data. Client hereby grants to TalkMeUp a non-exclusive, worldwide, perpetual, irrevocable, fully paid, royalty-free right and license to collect, retain, store, use, modify, distribute, and disclose the Client Content in aggregated and anonymized form and any inferred insight relating to the Client Content for any purpose whatsoever, provided that any such disclosure does not identify Client or any individual who may appear in the Client Content.
5.1 Fees. Client will pay the Fees specified in the applicable Order Form. All Fees are quoted in United States Dollars. Fees are non-refundable except as otherwise specifically set forth in the Agreement. Fees will be invoiced in accordance with the applicable Order Form and will be payable ten (10) days from the invoice date. If Client’s account is five (5) days or more overdue, in addition to any of its other rights or remedies, TalkMeUp reserves the right to suspend Client’s access to the Services immediately, without prior notice or liability to Client, until such amounts are paid in full. Any payment not received from Client by the due date may accrue, at TalkMeUp’s discretion, late charges at the rate of one and a half percent (1.5%) of the outstanding balance per month, or at the maximum rate permitted by Applicable Law, whichever is lower, from the date such payment was due until the date fully paid.
5.2 Taxes. Fees are exclusive of all local, state, federal, and foreign taxes, levies, or duties of any nature (“Taxes”), and Client is responsible for payment of all Taxes, excluding taxes based on TalkMeUp’s income. If TalkMeUp has the legal obligation to pay or collect Taxes for which Client is responsible pursuant to this Section 5.2, the appropriate amount will be invoiced to and paid by Client, unless Client provides TalkMeUp with a valid tax exemption certificate authorized by the appropriate taxing authority. Client will indemnify, defend, and hold TalkMeUp, its officers, directors, consultants, employees, successors, and assigns harmless from all claims and liability arising from Client’s failure to report or pay any such Taxes.
5.3 Expenses. If TalkMeUp incurs costs for any additional products or services that are not expressly provided for in an Order Form (including any additional services required to comply with Applicable Law that are not otherwise specified in the Services set forth on either the Order Form(s)), or that were to be provided or paid for by Client, TalkMeUp shall include such costs for reimbursement on the invoice issued after the date on which such costs were incurred.
6.1 Client IP. As between Client and TalkMeUp, Client owns all right, title, and interest in and to: (i) the Client Content; (ii) Client’s Restricted and Private Information; and (iii) all intellectual property rights in the foregoing (collectively, the “Client IP”). Except as expressly set forth in this Agreement, no license or other rights to any of the Client IP are granted to TalkMeUp, and all such rights are hereby expressly reserved.
6.2 TalkMeUp IP. TalkMeUp owns all right, title, and interest in and to: (i) the Services and the Documentation and any and all enhancements, improvements, developments, derivative works, or other modifications made to or related to the Services or the Documentation; (ii) any other documents, user interfaces, technology, know-how, trade secrets, designs, inventions and other tangible and intangible technical material or information related to the Services or the Documentation; (iii) the Usage Data; (iv) TalkMeUp’s Restricted and Private Information; and (v) all intellectual property rights in the foregoing (collectively, the “TalkMeUp IP”). Except as expressly set forth in this Agreement, no license or other rights to any of the TalkMeUpIP are granted to Client, and all such rights are hereby expressly reserved.
6.3 Feedback. By submitting any Feedback, Client hereby assigns to TalkMeUp all right, title, and interest in and to the Feedback. For purposes of this Agreement, “Feedback” means any comments, feedback, potential errors and improvements, reports, and ideas about the Services that Client may provide to TalkMeUp concerning the functionality and performance of the Services. All results and findings relating to the performance of the Services will be deemed Restricted and Private Information of TalkMeUp, and upon TalkMeUp’s request, Client will provide the findings resulting from any evaluation or use of the Services to TalkMeUp.
7.1 Restricted and Private Information. As used herein, “Restricted and Private Information” means all non-public information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as “Confidential,” “Proprietary,” or the like and/or information that the Receiving Party should reasonably understand as being confidential or proprietary to the Disclosing Party given the nature of the information and the circumstances of the disclosure, including without limitation, these Terms and the terms set forth in the Order Form (which will be deemed Restricted and Private Information of both parties), intellectual property, business and marketing plans, financial information, technology and technical information, designs, and business processes. Restricted and Private Information will not include any information that: (i) is or becomes generally known to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (ii) was in the rightful possession or known by the Receiving Party prior to receipt from the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party who obtained such Confidential Information without any third party's breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without the Receiving Party's use of, or reference to, the Restricted and Private Information of the Disclosing Party or otherwise as a result of a breach of any obligation of confidentiality owed to the Disclosing Party hereunder.
7.2 Protection. Each party will not disclose the other party’s Restricted and Private Information, or use the other party’s Restricted and Private Information, for any purpose other than to perform its obligations or exercise its rights under this Agreement, and will protect the confidentiality of the Restricted and Private Information of the other party in the same manner that it protects the confidentiality of its own proprietary and Restricted and Private Information of like kind, but in no event will either party exercise less than reasonable care in protecting such Restricted and Private Information. The Receiving Party may disclose Restricted and Private Information to its employees, agents, contractors, Affiliates, and other representatives having a need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 7 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 7.
7.3 Compelled Disclosure. If the Receiving Party is compelled by law (pursuant to subpoena, court order, law or other governmental authority) to disclose Restricted and Private Information of the Disclosing Party, it will, to the extent legally permissible: (a) first give written notice to the Disclosing Party so that a protective order, if appropriate, may be sought; (b) use commercially reasonable efforts to cooperate (at the Disclosing Party’s cost) with the Disclosing Party in seeking such a protective order; and (c) furnish only such portion of the Restricted and Private Information as, in the written advice of legal counsel, it is legally compelled to disclose.
7.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Restricted and Private Information of the Disclosing Party in breach of this Section 7, the Disclosing Party will have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
8.1 Mutual Warranties. Each party represents and warrants that: (i) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation; (ii) it has full right, power, and authority to enter into and perform its obligations under the Agreement; and (iii) the Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.
8.2 By Client. Client represents and warrants that it has provided all notices and has all rights, consents (including for disclosures to service providers and transfers of data to the United States), and permissions required by or advisable under Applicable Law to collect, disclose, transfer, use, and otherwise exploit the Client Content as contemplated in the Agreement. Client also represents and warrants that it will use the Services and any and all Client Content obtained or accessed through the Services in compliance with Applicable Law.
8.3 By TalkMeUp. TalkMeUp represents and warrants that the Services will be provided in all material respects in accordance with the Documentation and otherwise be performed in a manner consistent with generally accepted industry standards. Client’s remedy and TalkMeUp’s obligation for any such failure will be for TalkMeUp to use commercially reasonable efforts to correct such non-compliance.
8.4 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, THE SERVICES, THE REPORTS, AND ALL RELATED DELIVERABLES AND SERVICES ARE PROVIDED “AS IS.” TALKMEUP MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. TALKMEUP EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. TALKMEUP DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR WILL BE SECURE OR UNINTERRUPTED. TALKMEUP EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON ANY RESULTS OF CLIENT’S USE OF THE SERVICES.
9.1 By TalkMeUp. Subject to the other provisions of this Section 9, TalkMeUp will defend, indemnify, and hold Client and its officers, directors, consultants, employees, successors, and assigns (“Client Indemnitees”) harmless against any and all losses, damages, liabilities, and costs, including reasonable attorneys’ fees (“Damages”) incurred by Client Indemnitees that arise out of or relate to any third-party claim, suit, action, or proceeding (“Claims”) that alleges that Client’s use of the Services in compliance with the Agreement infringes an intellectual property right (an “IP Claim”). The foregoing obligation does not apply to any IP Claim arising out of or related to: (a) modifications to the Services not authorized or made by TalkMeUp; (b) materials supplied by Client, including without limitation the Client Content; (c) combination of the Services with products or services not provided by TalkMeUp; (d) designs or instructions provided by Client to TalkMeUp; (e) Client’s continued use of the allegedly infringing material after being notified thereof or after being informed of modifications that would have avoided such alleged infringement; or (f) Client’s use of the Services not strictly in accordance with this Agreement.
9.2 Infringement Remedies. If TalkMeUp or a court or other body of competent jurisdiction determines that the Services is or may be infringing, TalkMeUp may, at its option and expense: (i) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality; (ii) obtain for Client a license to continue using the Services; or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement and Client’s rights hereunder and provide Client a refund or credit for any prepaid, unused fees. THE REMEDIES SET FORTH IN THIS SECTION 9 STATE THE SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY OF TALKMEUP TO CLIENT INDEMNITEES IN RELATION TO AN IP CLAIM, AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR AN IP CLAIM.
9.3 By Client. Subject to the other provisions of this Section 9, Client will defend, indemnify, and hold TalkMeUp and its officers, directors, consultants, employees, successors, and assigns (“TalkMeUp Indemnitees”) harmless against any and all Damages incurred by TalkMeUp Indemnitees that arise out of or relate to a Claim that: (i) Client’s or its customers’ use of the Services violates any Applicable Law; (ii) relates to the Client Content as used by or provided to TalkMeUp in accordance with the Agreement; or (iii) Client’s breach of the representations and warranties set forth in Section 8.2.
9.4 Procedure. Each indemnifying party’s obligations as set forth in this Section 9 are contingent on: (i) the indemnitee providing the indemnifying party with prompt written notice of the Claim (and any information that may reasonably give rise to a Claim), but only if the indemnifying party is materially adversely prejudiced by failure to receive such notice; (ii) the indemnifying party having the right to defend the Claim at its own expense and with counsel of its choosing; (iii) the indemnifying party having the right, in its sole discretion, to settle the Claim so long as such settlement does not impose any monetary or material non-monetary obligations on the indemnitee (other than indemnitee no longer using the Services, as the case may be), and provided that the indemnitee will be included in any release language as part of any such settlement; and (iv) the indemnitee providing (at the indemnifying party’s expense) such assistance and information as the indemnifying party may reasonably require to investigate, defend, or settle the Claim.
10.1 Consequential Damages Exclusion.EXCEPT FOR: (i) A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 7; (ii) A BREACH BY CLIENT OF SECTION 3.2; (iii) EACH PARTY’S RESPECTIVE INDEMNIFICATION OBLIGATIONS IN SECTION 9; OR (iii) EACH PARTY’S INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE (THE “EXCLUSIONS”), NEITHER PARTY MAY BE HELD LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF GOOD WILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, LOSS OF CONTENT OR DATA, COST OF COVER, OR INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT (THE FOREGOING, COLLECTIVELY, “CONSEQUENTIAL DAMAGES'').
10.2 Limitation of Liability.EXCEPT FOR THE EXCLUSIONS IN SECTION 10.1, TALKMEUP’S MAXIMUM CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, WILL NOT EXCEED THE AGGREGATE FEES PAID OR PAYABLE BY CLIENT TO TALKMEUP IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM.
11.1 Term. Either party may terminate the Agreement or any Order Form with immediate effect, in whole or in part, by giving the other party prior written notice, if the other party: (i) commits a material breach of any of its obligations under the Terms or an Order Form, which breach is not cured within thirty (30) days following receipt of written notice, or the parties agree cannot be cured within thirty (30) days; (ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (iii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; (v) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or (iv) has wound up or liquidated its business, voluntarily or otherwise.
11.2 Termination for Cause. Either party may terminate the Agreement or any Order Form with immediate effect, in whole or in part, by giving the other party prior written notice, if the other party: (i) commits a material breach of any of its obligations under the Terms or an Order Form, which breach is not cured within thirty (30) days following receipt of written notice, or the parties agree cannot be cured within thirty (30) days; (ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (iii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; (v) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or (iv) has wound up or liquidated its business, voluntarily or otherwise.
11.3 Termination or Suspension by TalkMeUp. TalkMeUp may terminate the Terms or the applicable Order Form upon Client’s failure to make any payments due hereunder, and not disputed in good faith, within five (5) business days following Client’s receipt of written notice regarding such failure to pay. In the event that TalkMeUp reasonably suspects any breach of Client’s obligations under Section 3.2, TalkMeUp may immediately suspend Client’s access to the Services without advanced notice, in addition to any other remedies as TalkMeUp may have.
11.4 Effects of Termination. Upon expiration or termination of the Agreement: (i) Client will cease all use of the applicable Services and delete, destroy, or return all copies of the applicable Documentation in its possession or control; (ii) Client will be responsible for payment of any monies (including any fees and expenses) due to TalkMeUp for any period prior to the effective date of such termination; (iii) TalkMeUp will provide Client with the Client Content in its possession in a mutually agreed upon format and upon a mutually agreed upon schedule at Client’s expense; and (iv) each party will return or destroy (and provide certification of such deletion upon request) any of the other party’s Restricted and Private Information then in its possession, provided that TalkMeUp may retain one copy of the Client Content and Client’s Restricted and Private Information solely for the purpose of compliance with any legal requirement in relation to the retention of records or in the event of litigation. Notwithstanding the foregoing, TalkMeUp has no obligation to retain the Client Content after termination of the Agreement.
11.5 Surviving Provisions. Sections 1, 4.2, 5, 6, 7, 8.4, 9, 10, 11.4, 11.5 and 12 (together with all other provisions, including without limitation, all Order Forms, that may be reasonably interpreted as surviving termination or expiration of the Agreement) will survive the termination or expiration of the Agreement.
TalkMeUp may include Client on its website, customer list in presentations or reports made to its customer, potential customers, and industry associations and representatives, or other marketing materials. Each party will submit to the other party for its approval all press releases that use such other party’s Marks at least five (5) days prior to the proposed use and all press releases shall be mutually approved by the parties in writing (email shall suffice and, which such approval will not be unreasonably withheld or delayed). Any other use of a party’s Marks is strictly prohibited. All use of a party’s Marks will be in accordance with its trademark guidelines, if provided. The Order Form may not be altered, amended, or modified in any way except by a writing signed by both parties. The failure of a party to enforce any provision of the Agreement will not be construed to be a waiver of the right of such party to thereafter enforce that provision or any other provision or right. In the event that any provision of the Agreement is determined to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the rest of the Agreement will remain in full force and effect. The Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Delaware, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. TalkMeUp and Client are independent contractors and the Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between TalkMeUp and Client. Neither party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other party, whether expressed or implied, or to bind the other party in any respect whatsoever. The Agreement does not confer any benefits on any third party unless expressly stated therein. Except for Client’s payment obligations, neither party will be liable for failure to perform or delay in performing any obligation under the Agreement if such failure or delay is due to an act of God, act of governmental authority, act of terrorism, war (whether or not declared), machinery breakdown despite ordinary maintenance, delays of carriers or suppliers, riot, flood, fires, civil commotion, insurrection, strikes, lockouts, embargoes, severe weather conditions, failures of public utilities or the Internet, software viruses, communicable disease outbreak, epidemic and pandemics or any other cause beyond the reasonable control of the party so delayed. Neither party may assign or delegate its rights, duties, and obligations under the Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign the Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees in writing to assume and fulfill all of the assigning party’s obligations under the Agreement, provided that in the event Client assigns the Agreement to a competitor of TalkMeUp (as reasonably determined by TalkMeUp), TalkMeUp may immediately terminate the Agreement. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. Any notice required or permitted by the Agreement will be in writing and will be sent by facsimile, email, overnight courier, or personal delivery, addressed to the other party at the address of such party’s principal place of business as set forth on the Order Form. Notice is effective when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email or facsimile; and upon receipt, if sent by overnight courier (return receipt requested and postage prepaid). Notices to TalkMeUp will be sent with attention to the President and CEO (jj@talkmeup.co). The Agreement constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof. In the event of a conflict between the terms of these Terms and the terms of any Order Form, such conflict will be resolved in the following order: (a) any Order Form; and (b) these Terms. With the exception of an Order Form, any purchase order, written terms or conditions, or other document that Client sends to TalkMeUp (whether prior to or after execution of the Agreement) that contains terms that are different from, in conflict with, or in addition to the terms of the Agreement are hereby rejected and will be void and of no effect.
If you have any questions, comments, or concerns about how we handle your Personal Data, then you may contact us at info@talkmeup.co or write to us at:
TalkMeUp, Inc.
160 N Craig ST, STE 204
Pittsburgh, PA 15213
(412) 228-0289
info@talkmeup.co
