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Terms of Use

These terms govern how you may use the Platform provided by PurpleTalk, Inc. Updated January 2021.

THESE TERMS OF SERVICE (the "Terms") govern how you ("Client") may use the Platform (as defined below) 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 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 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, in which event the Terms and the Agreement will govern your use of the Platform. 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.

Section 1: Definitions

Capitalized terms used but not defined elsewhere in the Terms shall have the following definitions:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 1.5 "Websites" means any domain or website provided by the Company, whether or not used in conjunction with the Platform, such as www.upshot.ai.

Section 2: License

  1. 2.1 License Grant: In accordance with the terms herein, Company grants to Client a limited, non-exclusive, non-transferable license during the Term to use the Platform incorporated with Client Content.
  2. 2.2 Scope of Use: Except as reasonably required for Client to avail itself of the intended functionality of the Platform, Client will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code; modify, translate, or create derivative works based on the Platform; use the Platform for the benefit of a third party; or remove any proprietary notices or labels.
  3. 2.3 Company Policy: Client represents, covenants and warrants that Client will use the Platform only in compliance with Company's standard published policies then in effect, including without limitation the Company's Privacy Policy. Client additionally covenants and warrants that its use of the Platform will be in compliance with all applicable laws and regulations.

Section 3: Obligations

  1. 3.1 Onboarding: Company shall onboard Client to the Platform and provide the Platform per the feature specifications in the applicable form of invoice or subscription order form.
  2. 3.2 Cooperation: Both Company and Client acknowledge that a successful integration of Client Content and the Platform shall require their full and mutual good faith cooperation.
  3. 3.3 Service Level Terms: Subject to the Terms, Company will use commercially reasonable efforts to provide Client the Platform. The Company does not make any commitment that the Platform or the Websites will be available at all times or during any downtime caused by outages, maintenance, or events beyond the Company's control.
  4. 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. The Company shall have no obligation to provide any such Updates.
  5. 3.5 Client Content: All Client Content is your sole responsibility. 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.

Section 4: Use of the Platform and Websites

  1. 4.1 Account: You may be required to establish an account in order to use the Platform. If so, you agree to provide true, accurate, current, and complete information about yourself and maintain and promptly update such information. You are responsible for maintaining the confidentiality of your password and account.
  2. 4.2 Lawful Use: You agree to use the Platform and the Websites only for lawful purposes. You agree not to post or transmit any unlawful, infringing, threatening, harassing, defamatory, obscene, or otherwise objectionable material of any kind.
  3. 4.3 Access: You 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 prior authorization is prohibited.
  4. 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 jurisdictions outside the United States. Visitors who reside outside the United States do so on their own initiative and are responsible for compliance with all applicable law.
  5. 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. Upshot.ai does not control nor endorse any such third-party websites and will not be responsible or liable for any content, goods, or services provided by such third-party websites.

Section 5: Compensation

  1. 5.1 Compensation: Client will pay Company the amounts specified in each form of invoice or subscription order form. Payment must be received by Company thirty (30) days after the invoice date. 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.

Section 6: Intellectual Property Rights

  1. 6.1 Client Ownership: As between Client and Company, all right, title, and interest (including all Intellectual Property Rights) in and to Client Content shall be and remain the sole and complete property of Client.
  2. 6.2 Company Ownership: "Company Materials" means all materials created by Company prior to or under the scope of the Terms, including the Platform and its layout and flow. Company shall at all times be and remain the sole and exclusive owner of the Company Materials and all Intellectual Property Rights pertaining thereto.
  3. 6.3 Permitted Activity: Client acknowledges that Company may develop and distribute software and applications using Company Materials and that nothing in the Terms shall prevent the foregoing.
  4. 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.

Section 7: Confidentiality

  1. 7.1 Confidentiality: In connection with the services provided under the Terms, a Party may be furnished with certain confidential information relating to the other Party. During the term of the Terms and for a period of five (5) years thereafter, each Party shall keep such information confidential and not reveal or disclose it to any third party.
  2. 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 has the right to include a branding mark "Powered by Upshot.ai" in the message body of any supported notification channels for FREE/Unpaid tier clients.
  3. 7.3 Data Collection: Company will not access or collect any Personal Information except as strictly necessary to perform its obligations under the Terms. "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.

Section 8: Representations and Warranties; Indemnity; Limitation of Liability

  1. 8.1 Company Representations and Warranties: Company represents, warrants, and undertakes that: (1) Company is free to enter into and fully perform the Terms; (2) the entering into of the Terms does not violate any agreements, rights, or obligations existing between Company and any other person; (3) 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.
  2. 8.2 Client Representations and Warranties: Client represents, warrants, and undertakes that: (1) it is free to enter into and fully perform the Terms; (2) the entering into of the Terms does not violate any agreements, rights or obligations existing between Client and any other person; (3) it has and will have through the Term, the right to contract, and provide Client Content to Company.
  3. 8.3 Warranty 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. THE UPSHOT.AI PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED.
  4. 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.
  5. 8.5 Limitation of Liability: THE SOLE AND ENTIRE MAXIMUM LIABILITY OF THE UPSHOT.AI PARTIES FOR ANY REASON SHALL BE LIMITED TO THE CHARGES PAID BY YOU DIRECTLY TO THE COMPANY FOR SERVICES PROVIDED SOLELY AND DIRECTLY BY UPSHOT.AI TO YOU IN THE SIX MONTHS PRIOR TO SUCH CAUSE OR CLAIM.
  6. 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.

Section 9: Termination

  1. 9.1 Term of Terms: The Terms is for the term as specified in the applicable form of invoice or subscription order form, and if no term is specified, monthly, and shall be automatically renewed for additional periods of the same duration unless either party requests termination at least thirty (30) days prior to the end of the then-current Term.
  2. 9.2 Termination for Breach with a Cure Period: If either Party materially breaches the Terms, the non-breaching Party shall provide the other with written notice of such breach. If such breach is not cured within thirty (30) days of delivery of such notice, the non-breaching Party will have the right to immediately terminate the Terms.
  3. 9.3 Termination for Breach without a Cure Period: Either Party shall have the right to terminate the Terms immediately in the event of: (i) a material breach of the confidentiality provisions; (ii) the other Party makes an assignment of substantially all of its assets for the benefit of creditors; or (iii) the other Party files a voluntary petition in bankruptcy.
  4. 9.4 Termination for Convenience: Company may terminate the Terms for convenience, 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.
  5. 9.5 Effect of Termination: Upon expiration or earlier termination of the Terms, all rights granted to each Party herein shall forthwith revert to the granting Party. Any compensation accrued but not paid will become immediately due and payable.

Section 10: Miscellaneous

  1. 10.1 Notice: All notices, requests, demands, or other communications under the Terms shall be in writing. For convenience, notice will be sufficiently given for approvals and requests for approvals if provided by a Party's authorized representative via email.
  2. 10.2 Merger/Modification: Each Party acknowledges that it has read the Terms, understands it, and agrees to be bound by its terms. This is the complete and exclusive statement of the Terms between the Parties. These Terms may not be modified or altered except by written instrument duly executed by both Parties.
  3. 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 must be brought in a state or federal court located in Dallas, Texas.
  4. 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 shall remain in full force and effect.
  5. 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.
  6. 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.
  7. 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.
  8. 10.8 Entire Terms: The entire understanding between the Parties relating to the subject matter hereof is contained herein and the Parties make no warranties, representations, or undertakings except as expressly provided herein.
  9. 10.9 Copyright Infringement: Those who believe that their copyrighted work has been infringed should contact us at security@upshot.ai with: (1) an electronic or physical signature of a person authorized to act on behalf of the owner; (2) identification of the copyrighted work; (3) information describing where the allegedly infringing material is located; (4) your address, telephone number, and email address; (5) a written statement of good faith belief; and (6) a statement that the above information is accurate.
  10. 10.10 Force Majeure: No party shall be liable for a failure or delay in performing any of its obligations under the Terms if such failure or delay is due to causes beyond the reasonable control of the affected party, including acts of God, fire, unusually severe weather, war, governmental restrictions, national emergency, injunctions, strikes, or other industrial disturbances.