Terms and Condition
Taalk Service and Licensing Agreement (the“Agreement”) between Taalk, LLC (“Taalk”) and “Customer” (each a “Party”, and, together, the “Parties”), Customer desires to subscribe to Taalk’s software-as-a-service applications (“Service”) as described herein this Agreement. The order form is incorporated into this Agreement. This Agreement is governed by the Taalk Master License Terms and Conditions at Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Terms and Conditions.
Payment and Wiring Information
Any payment not received from Customer by the due date will accrue late charges at the rate of one and a half percent (1.5%) per annum of the outstanding balance, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If Customer’s account is more than thirty (30) days past due, in addition to any other rights or remedies it may have under this Agreement or pursuant to applicable law, and Taalk, having notified the Customer in writing, has not received payment within a further five (5) days, Taalk reserves the right to suspend the Service without liability to Customer, until such amounts are paid in full.
Term of Contract
The initial term of the contract will be twelve (12) months. The Customer shall have the right to renew the contact twice (2), at a maximum annual pricing increase of three (3) percent. The increase will be calculated on the then current ending subscription fee.
Termination
Each Party shall have the right to terminate this Agreement for cause upon 30 days’ prior written notice. In the event of a material breach of this Agreement then on-breaching Party shall provide 30 days' prior written notice of the alleged breach and allow the breach to be remedied during that time; provided that each Party may terminate this Agreement immediately with no notice required in the event of any breach of Section 7 or theCustomer may terminate this Agreement following any violation by Taalk of the Customer’s privacy, security, or data protection policies as amended. Upon termination, all fees prepaid but not yet used shall be returned to Customer and Customer shall have no further payment obligations to Taalk. Up on termination, (a) each Party shall cease using the other Party’s Confidential Information, (b) each Party shall certify to the other Party within one (1) week of the termination that such Party has destroyed or returned to the other Party any of its software, third-party software, Confidential Information and all copies thereof, and (c) Customer shall cease using the Service. Upon Termination, for no additional cost, Taalk shall assist Customer with transition of Customer’s information to another platform or, if requested by the Customer, provide Customer’s information to Customer in a searchable useable format
Customer Obligations
Customer shall use the Service for any lawful purpose and in accordance with this Agreement. Customer is responsible for all its compliance with this Agreement and obligations set forth herein. Customer shall: (i) have sole responsibility for the accuracy, quality, and legality of all Customer Data; and (ii) take reasonable steps to prevent unauthorized access to, or use of, the Service, and notify Taalk promptly of any such unauthorized access or use. Customer shall not: (1) use the Service in violation of all applicable laws;(2) in connection with the Service, send or store material it knows to be infringing, obscene, threatening, or otherwise unlawful or tortious, including material that violates privacy rights; (3) knowingly send or store Malicious Code in connection with the Service; (4) knowingly interfere with or disrupt performance of the Service or the data contained therein; or (5) attempt to gain access to the Service or its related systems or networks in a manner not set forth in the Documentation. “Customer Data” means all electronic data or information submitted by Customer to the Service. “Malicious Code” means, without limitation, computer instructions, files, programs or program code, software routines, hardware components, devices or techniques, and combination of the foregoing (including any copy protection key, code clock, drop dead devices, time bomb, virus, Trojan horses, worm, trap door, back door and other harmful code) that can or were designed to affix themselves to, bury themselves within or send instructions to, other files, data, programs or program code codes or instructions, that are designed to (a) permit unauthorized access to software; or (b) disable, delete, modify, damage, erase, or otherwise harm software, hardware or data.
Taalk Obligations
Taalk will provide the Service in a timely, skillful, professional and workmanlike manner by qualified personnel exercising care, skill, and diligence consistent with industry standards, and will devote adequate resources to meet its obligations hereunder, in accordance with the terms and conditions of this Agreement. Taalk, unless data is outside of its control, shall ensure that it, and the Services comply with, all applicable laws (included but not limited to privacy and data protection laws applying to citizens of the EU and Singapore). Taalk will provide Customer with support and work to resolve any issues with the Service promptly. Taalk will routinely backup all theCustomer Data and use industry standard security measures to maintain Customer Data in confidence. All storage, backup, and archival media containing Customer Data shall be (a) physically stored in a secure area, (b) logically separated from any other customer’s data, and (c) protected by industry standard encryption methods. Taalk will take commercially reasonable security measures consistent with commercially available encryption technology and industry standards to protect against unauthorized access to Customer Data and to maintain the integrity of the Services and Customer Data.In the event that Taalk reasonably believes the Services have been compromised, then, as soon as reasonably possible, and in no event more than one day after discovery thereof, Taalk will provide Customer with notice of such potential compromise, information, and support to aid in correcting or curing such compromise, and information regarding any potential data breach resulting from such compromise, including logs, data accessed, and accounts impacted.
Mutual Representations and Warranties
Each Party represents and warrants to the other Party that (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization, (b) it has the full right, power, and authority to enter into and to perform its obligations and grant the rights and licenses it grants or is required to grant under this Agreement, (c) the execution of this Agreement by its representative whose signature is set forth at the end of thisAgreement has been duly authorized by all necessary corporate or organizational action of such Party, and (d)when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
Customer Restrictions
Customer shall not (i) modify, copy or create any derivative works based on the Service; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make theService available to any third party, whether in object code or source code form, other than as permitted herein (but the Customer shall be allowed to use the Service for the benefit of its clients); (iii) frame or mirror any content forming part of the Service, other than on Customer’s own intranets for its own internal business purposes; (iv) reverse engineer, decompile, dissemble, reconstruct or discover any portion of the Service, including but not limited to, any source code, algorithms or software utilized by Taalk in the provision of the Service; (v) access the Service in order to build any commercially available product or service that will directly compete with the Service; (vi) copy any features, functions, integrations, interfaces or graphics of the Service, except as permitted herein; (v) remove any proprietary notices or legends from the software; (vi) pledge the Service or Taalk’s software or third-party software as collateral or otherwise, or encumber such software with any Lien or security interest; or (vii) remove any product identification, confidentiality, copyright, trademark, or other notice from any of Taalk’s software or Service. Customer shall use any technical information delivered by Taalk only for purposes of ensuring “interoperability”and compatibility and shall treat such technical information as Confidential Information (defined below). Any reverse engineering of the Taalk software shall void any warranties or indemnification obligations of Taalk and shall automatically release Taalk from any obligation to provide support services under this or any separate agreement
Ownership and Reservation of Rights
Taalk hereby grants Customer a non-exclusive, non-transferable right and license to use the Service subject to the terms and conditions of this Agreement. The license will be fully paid up upon Customer’s payment of the Subscription Fee set forth in the Payment Fee Schedule above. Taalk and its licensors own and reserve all rights, titles and interest in and to the Service and its software, including all Derivative Works and related intellectual property and proprietary rights. No rights are granted or sold toCustomer hereunder.
Confidentiality
Except with the disclosing party’s prior written permission, a receiving party, one who receives Confidential Information and/or trade secrets from the disclosing party, shall not (i) use any Confidential Information and trade secrets of the disclosing party for any purpose other than as expressly permitted by this Agreement or (ii) disclose any Confidential Information to any third party other than the receiving party’s personnel and agents who (x) have a substantive need to know the Confidential Information for the permitted purpose under this Agreement, (y) have been advised of the confidential and proprietary nature of such Confidential Information, and (z) who are also bound (consistent with the restrictions in this Agreement) to protect the Confidential Information. Each receiving party agrees to protect the Confidential Information and trade secrets of the disclosing party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care. If a receiving party is compelled by law to disclose Confidential Information and/or trade secrets of the disclosing party, the receiving party shall promptly provide the disclosing party with prior notice of such compelled disclosure (to the extent legally permitted) and provide reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure. If the receiving party is nevertheless required to disclosethe disclosing party’s Confidential Information, it will furnish only the information legally required to be disclosed. If a receiving party discloses or uses (or threatens to disclose or use) any Confidential Information and/or trade secrets of the disclosing party in breach of confidentiality protections hereunder, the disclosing party shall have the right, in addition to any other remedies available to injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate.The receiving party shall promptly notify the disclosing party upon discovery of any suspected unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by the receiving party and cooperate with the disclosing party in every reasonable way to help the disclosing party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. Each Party shall be responsible for any breach of its confidentiality obligations by its respective employees and agents.“Confidential Information” means (a) any software utilized by Taalk in the provision of the Service and its respective source code; (b) Customer Data; (c)any analysis of Customer Data produced by use of the Service; (d) FeedbackMaterials, (e) each party’s confidential business or technical information, including but not limited to the training materials, any information relating to software plans, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how; (f) any other information that is designated by the disclosing party as “confidential”or “proprietary” or the receiving party knows or should reasonably know is confidential or proprietary; and (g) the terms, conditions and pricing of thisAgreement. Confidential Information (except for customer data and software utilized by Taalk in the provision of the Service) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the other party; (ii) was known to a receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party; (iii) was independently developed by the receiving party without breach of any obligation owed to the disclosing party; or (iv) is received from a third party without breach of any obligation owed to the disclosing party. Notwithstanding any other provision of this Agreement to the contrary, the Parties’ confidentiality obligations with respect to Confidential Information disclosed prior to termination will survive for a period of one (1)year after termination or expiry; provided that the receiving party’s obligations shall survive and continue in effect indefinitely with respect to any Confidential Information that is a trade secret under applicable law.
TCPA Representation and Indemnification
Customer shall be responsible for complying with all laws applicable to its emails, calls and other communication (“Communication”), including those related to acquiring consents to send Communication, the content of the Communications and its Communication deployment practices. Such applicable laws include but are not limited to those pertaining to intellectual property rights, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, anti-corruption or anti-bribery laws or other applicable laws, statutes, rules or regulations of the United States or of those of any jurisdiction into which any email addresses are collected or Communication sent. Customer acknowledges that CAN SPAM Act of 2003 prohibits the transmission of unsolicited messages to unknown individuals in bulk, or to individuals who have opted out of receiving such messages or content. Company may take remedial action should Customer violate CAN SPAM, the Telephone Consumer Protection Act, or other applicable law and such remedial action may include suspension of Services provided under this Agreement. Company shall have the right, but not the obligation, to monitor at any time, for any reason at its sole discretion, all material and content in the Communication in order to determine compliance with this Agreement or applicable law; however, Company shall not be responsible for nor shall it have any obligation to, monitor the Communication or any content in the Communication. The parties acknowledge and agree that Customer, not Company, is responsible for any TCPA compliance with respect to Leads and Content. Company does not represent or warrant that the Leads or Content will comply with the requirements of the TCPA, nor is it obligated to retain or store evidence of Consumer’s acceptance of any TCPA-related disclosure.
Remedies
Customer acknowledges that any use of the Taalk software and Services in a manner inconsistent with this Agreement could cause immediate irreparable harm to Taalk or its suppliers for which there is no adequate remedy at law.Customer agrees that Taalk or its suppliers shall be entitled to seek immediate and permanent injunctive relief from a court of competent jurisdiction in the event of any such misuse or threatened misuse byCustomer. The Parties agree and stipulate that Taalk shall be entitled to seek such injunctive relief without posting of a bond or other security; provided, however, that if the posting of a bond is a prerequisite to obtaining injunctive relief, then a bond in an amount equivalent to U.S. $500 shall be sufficient.Nothing contained herein shall limit Taalk’s right to pursue any remedies atlaw, including the recovery of damages from Customer for breach of thisLicense. Each Party agrees that any misuse of ConfidentialInformation or failure to abide by the confidentiality clauses in this agreement Data Agreements may cause immediate irreparable harm to the disclosing party for which there is no adequate remedy at law. Each Party agrees that the disclosing party shall be entitled to seek immediate and permanent injunctive relief from a court of competent jurisdiction in the event of anysuch misuse or threatened misuse by the receiving party. The Parties agree and stipulate that the disclosing party shall be entitled to seek such injunctive relief without posting of a bond or other security; provided, however, that if the posting of a bond is a prerequisite to obtaining injunctive relief, then a bond in an amount equivalent to U.S. $500 shall be sufficient. Nothing contained herein shall limit the disclosing party’s right to pursue any remedies at law, including the recovery of damages from the receiving party for breach of this Agreement.
Indemnification
Each Party shall indemnify the other Party from any claims made or brought by a third party: (i) arising from or based upon breach of this Agreement by such Party, its employees, agents and/or any authorized parties; or (ii)alleging that, in the case of Customer, the Customer Data, and in the case of Taalk, the Service, infringes, violations or misappropriates the rights of, or has caused harm to a third party; provided, however, that the indemnified party: (a) promptly gives written notice of the claim to the indemnifying party and (b) provides to the indemnifying party, at the indemnifying party’s cost, all reasonable assistance; (c) does not make any admission in respect of the claim without the indemnifying party’s prior written consent; and (d) allows the indemnifying party (at the indemnifying party’s option) to assume control of defending and/or setting such claim.
Disclaimer
EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE, CUSTOMER DATA, FEEDBACK MATERIALS, AND/OR RELATED DOCUMENTATION. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED IN CONNECTION WITH THE PROVISION AND USE OF THE SERVICE.
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FORANY INDIRECT, SPECIAL, INCIDENTAL,PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, WARRANTY, STRICT LIABILITY, INDEMNITY OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USEOR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
Force Majeure
Neither Party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Taalk orCustomer employees, respectively), computer attacks or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused. Nothing in this Section 15 shall excuse nonperformance or delay in performance caused by a Party’s gross negligence or willful misconduct or unreasonable delay in repairing any of the failures described above.
Governing Law and Waiver of a Jury Trial
This Agreement shall be governed exclusively by the laws of the state of Delaware, without regard to its conflicts of laws rules. Each Party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. The courts of Delaware shall have exclusive jurisdiction over any disputes arising under this Agreement.
Entire Agreement
This Agreement, the incorporated order form, any and all exhibits and addenda hereto, constitutes the entire agreement between theParties. This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
Miscellaneous
If any portion hereof is found to be void or unenforceable, the remaining portions of this Agreement shall remain in full force and effect. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns. Terms of this Agreement that by their nature are intended to survive termination (including indemnification obligations and limitations of liability) will survive termination of this Agreement. All notices require or contemplated by this Agreement shall be in writing. Notices shall be delivered to the addresses set forth below. Any notice to be given or served hereunder by either Party shall be deemed given and received here under when delivered personally, emailed, sent by nationally recognized overnight delivery service, or three days after being mailed certified mail, postage prepaid, to the applicable Party in accordance with this Section. Each party warrants and represents that its respective signatories whose signatures appear below are on the date of signature authorized to execute this Agreement.