Terms of Service
This is an Agreement between you (the Client) and EASYCHAT INC. (Doing Business As: Upbeat), a California corporation with its place of business at 3340 Walnut Ave, Suite 112, Fremont, CA 94538 (“Upbeat”). This Agreement describes the services we will provide to you, how we will work together, and other aspects of our business relationship.
We update these terms from time to time. If you are an active user of Upbeat Services, we will notify you of such an update via email.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR THE AVOIDANCE OF DOUBT, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
Definitions
"Agreement" means these Client Terms of Service, the Order, and all other documents, agreements or materials referred or linked to in this document.
“Client Properties” means Customer's websites, apps, or other offerings owned and operated by (or for the benefit of) Client through which Client uses the Services to communicate with Client Customers.
"Channels" shall refer to the various communication channels (i.e., TikTok, Facebook Messenger, WhatsApp, Line, WeChat, SMS, Viber, etc. And different channels may have additional channel fees.) through which the Chatbot Service will be made available.
"Customer Limit" means the total number of Client Customers that may interact with the Chatbot Service during the Chatbot Subscription Term.
"Chatbot Message" means any message that is sent to or from the Chatbot Service. For example, a Chatbot customer texting "How do I install a sprinkler system?" and receive a text response from the Chatbot Service in three separate message bubbles, in which case the total number of Chatbot Messages for that interaction would be four messages.
“Chatbot Messaging Limit” means the total number or dollar amount of Chatbot Messages that are sent or received during the Subscription Term.
"Chatbot Service” means all of our chatbot applications, tools and platforms that you have subscribed to by an Order or that we otherwise make available to you, and are developed, operated, and maintained by us, and any ancillary products and services that we provide to you.
“Chatbot Users” means any unique sender of a Chatbot Message to the Chatbot Service. Unique senders are identified by the Chatbot Service based upon the unique phone number, text messaging application identifier, or website IP address. Note that the same individual may send a Chatbot Message through both text and web messenger and would be identified by the Chatbot Service as two Chatbot Users.
“Chatbot User Limit” means the total number of Chabot Users that may interact with the Chatbot Service during the Subscription Term.
"Client Customer Data" means the name, email address, phone number(s), online user name(s), telephone number, and any other Client Customer information you provide to us or the Client Customer provides to us through interacting with the Chatbot Service.
"Client Customers" means the individual(s) intended by Client to interact with the Chatbot Service.
"Customer Limit" means the total number of Client Customers that may interact with the Chatbot Service during the Subscription Term.
"Client Data" means all Client Customer Data, Client User Data, Conversation Outline, text, and other materials that you or someone else on your behalf provide or post, upload, input or submit to us for display, design, or support of the Services. Client Data does not include Enhancement Data.
"Client Users" means your employees, representatives, consultants, contractors or agents who are authorized to access the Chatbot Service for your benefit and have unique user identifications for the Chatbot Service.
"Client Users Data" means the name, email address, phone number(s), online user name(s), telephone number, User IDs, passwords and any other information you provide to us or the Client User provides to us by accessing the Chatbot Service.
"Conversation Outline” shall refer to the general structure, flow, and communication abilities of the Chatbot Service provided to Client Customers.
“DPA” means the Upbeat Data Processing Agreement.
"Enhancement Data" means the data we make available to you as part of the Order. Enhancement Data also includes information about Client Customers, such as social media handles, avatars, and alternate email addresses, that we obtain from public or third-party sources.
The trademark “Upbeat” under the “EASYCHAT INC” entity name, "we", "us" or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section.
“Upbeat Code” means certain JavaScript code, software development kits (SDKs), application programming interfaces (APIs), other code or libraries provided by Upbeat for deployment on Customer Properties in accordance with the technical user documentation to be provided by Upbeat to the Client.
"Upbeat Reports" means the information that we supply to you on a periodic basis via the Upbeat Site or through other means resulting from the Services provided by Upbeat under this Agreement.
"Upbeat Site" means the software, content, web pages, reports, tracking and management tools and other text, data or programs available for your use, viewing or downloading and which are accessible only by User ID and password at a unique URL on the Upbeat client website (https://us-mgr.easychator.com/agents/#/), or such other web page as we may designate from time to time.
“Free Services” means the Chatbot Service or other products or features made available by us to you on an unpaid trial or no-charge basis.
“Subscription Fee” means the fee charged to create, deploy, and maintain the Chatbot Service and provide access to and use of the Services.
"Subscription Term" means the calendar time-period during which the Services is available to be accessed by the Client and Client Customers."Training Support" means the training support provided to you by us which may include training support, custom development, installation, integration or other training services.
"Training Support Period" means the calendar time period during which the Training Support will be provided.
"Order" means the Upbeat-approved form or online process by which you agree to subscribe to the Services, including, without limitation, an online registration or payment process completed through Upbeat Site. The Order may contain details about your order, the applicable service plan, contracted usage quantity (e.g., seats or other usage quantity metric identified in the Order) and Subscription Term. Upon execution by the parties (or, in the case of electronic orders, confirmation and placement of the order), each Order will be subject to the terms and conditions of this Agreement.
"Parties" means collectively Client and Upbeat.
"Party" means each individual Client and Upbeat.
“Product Specific Terms” means any additional terms that apply to your use of each of our product offerings.
"Sensitive Information" means (a) credit or debit card numbers; personal financial account information; Social Security Numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under EU data protection laws as ‘Sensitive Personal Data’.
"Services" means the services that Client has requested as specified in an Order and may include the Chatbot Service, Training Support, and/or the Upbeat Reports, and those additional services (if any) as described in the applicable Order.
"Third-Party Products" means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Services. These products and services include integrations and links to non-Upbeat provided applications, content and services.
"Third-Party Sites" means third-party websites linked to from within the Chatbot Service, including communications services.
"You", "your" or “Client” means the person or entity subscribing to the Services and identified in the applicable account record, billing statement, online subscription process, or Order as the Client.
1. General Commercial Terms
1.1 Access. During the Subscription Term, we will provide you access to use the Services as described in this Agreement and the applicable Order. You understand and agree that we may provide some or all elements of the Services through third party service providers.
1.2 Additional Features. You may subscribe to additional features of the Services by placing an additional Order or activating the additional features from within your Upbeat portal (if this option is made available by us). This Agreement will apply to all additional Order(s) and all additional features that you activate from within your Upbeat portal.
1.3 Availability. During the Subscription Term, we will try to make the Chatbot Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance, however we make no guarantee as to the availability of the Chatbot Service at any time.
1.4 Training Support. You may purchase Training Support by placing an Order with us. Training Support will be delivered in English. Fees for these Training Support are in addition to any other fees. If you purchase Training Support that recur, they will be considered part of your Services and will renew in accordance with your Services’ terms.
All Training Support will be rendered or performed remotely or virtually, unless you and we otherwise agree in a mutually executed agreement in advance.
For Training Support performed on-site, you shall also reimburse us for our reasonable costs and expenses incurred in connection with the Training Support. Any invoices or other requests for reimbursements will be due and payable within thirty (30) days of the date of the invoice.
If there are a specific number of hours included in the Training Support, those hours will expire as indicated in the applicable Order and the expiration period will commence upon purchase (the "Expiration Period"). If there are deliverables included in the Training Support purchased, it is estimated that those deliverables will be completed within the time period indicated as the delivery period in the applicable Order, the delivery period will commence upon purchase (the "Delivery Period"). If there is no Expiration Period or Delivery Period indicated, then it will be ninety (90) days from purchase. If the Training Support provided are not complete at the end of the Delivery Period due to your failure to make the necessary resources available to us or to perform your obligations, such Training Support will be deemed to be complete at the end of the Delivery Period. If the Training Support provided are not complete at the end of the Delivery Period due to our failure to make the necessary resources available to you or to perform our obligations, the Delivery Period will be extended to allow us to complete such Training Support.
You understand and agree that we may provide some or all elements of the Training Support through third party service providers. Training Support are non-cancellable and all fees for Training Support are non-refundable.
1.5 Performance Warranty. Notwithstanding anything contained in the ‘Disclaimer of Warranties’ section, we warrant that: (i) the Chatbot Service and Training Support will be provided in a manner consistent with generally accepted industry standards, and (ii) we will not knowingly introduce any viruses or other forms of malicious code into the Chatbot Service.
1.6 Fees and Payments.
1.6.1 Subscription Fees. Unless otherwise set out in the Product Specific Terms, the Subscription Fee will remain fixed during the Subscription Term unless you: (i) exceed your Chatbot User Limit, (ii) exceed your Chatbot Messaging Limit, (iii) subscribe to additional features or products, including increasing the Client Customers Limit or Client Users Limit, or (iv) as otherwise agreed to in the Order. You can find all the information about how your fees may be otherwise adjusted in Product Specific Terms.
1.6.2 Fee Adjustments at Renewal. Unless otherwise set out in the Product Specific Terms, upon renewal, we may increase your fees up to our then-current list price set out in our Product and Services List. If this increase applies to you, we will notify you at least thirty (30) days in advance of your renewal and the increased fees will apply at the start of the renewal term. If you do not agree to this increase, either Party can choose to terminate your subscription at the end or your then-current term. Unless otherwise specified in your contract, to prevent renewal of your subscription, you must notify us in writing or via email at billing@upbeat.chat.
1.6.3 Payment by credit card or bank account. If you are paying all or a portion of the subscription fees by credit card or bank account, you authorize us to charge your credit card or bank account for all fees payable under this Agreement and to charge a [3%] convenience fee for the use of a credit card. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
1.6.4 Payment against invoice. If you are paying by invoice, all amounts invoiced are due upon receipt, unless otherwise specified in the Order. Payments not received prior to the start of the project may result in additional fees for expedited services and/or launch delays.
1.6.5 Payment Information. You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made by contacting billing@upbeat.chat. All payment obligations are non-cancelable, and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees under this Agreement are due and payable in advance.
1.6.6 Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
1.6.7 Right to Change Pricing or Services. You acknowledge and agree that Upbeat shall have the right to change any and all prices, features and functionality at any time, excepting that, prices will remain fixed during the Subscription Term as specified in an Order. If Upbeat discontinues a key feature or service, Client shall have the right to terminate an Order and receive a full refund of any prepaid, but undelivered portion of the Services. Upbeat does not represent that it will continue to offer any particular item or type of service indefinitely or even for any specific period.
1.7 Access to the Services.
You shall identify and provide us a list of Client Users who will receive User IDs and passwords, and are authorized to access and use the Services and Upbeat Site for the purposes permitted by this Agreement. You shall provide periodic updates to the list as necessary. You will take such actions as necessary for you to maintain the confidentiality of, and prevent the unauthorized use of, each User ID and password, including entering into appropriate agreements with your Client Users. You warrant that we may rely upon any information and/or instructions set forth in any data transmission using the assigned User ID and password, without making further investigation or inquiry, and regardless of the actual identity of the individual transmitting the same. Use of the assigned User ID and password, whether or not authorized by you, shall be solely your risk and responsibility.
You shall immediately notify us of any unauthorized use of your User IDs and passwords or your account by notifying us via email at hello@upbeat.chat.
1.8 Use and Limitations of Use.
1.8.1 Free Trial. If you register for a free trial, we will make the applicable Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not terminated earlier) or (b) the start date of your paid subscription. Unless you purchase a subscription to the applicable Services before the end of the free trial, all of your data in the Services may be permanently deleted at the end of the trial, and we will not recover it. If we include additional terms and conditions on the trial registration web page, those will apply as well.
1.8.2 Prohibited and Unauthorized Use. You shall not (i) use or launch any automated system, including, "robots," "spiders," or "offline readers" that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using an SMS messaging system or conventional browser; (ii) use the Services in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party's use of the Chatbot Service; (iii) attempt to gain unauthorized access to the Services; (iv) access the Services other than through our interface and designed Channels; or (v) use the Services for any purpose or in any manner that is unlawful or prohibited by this Agreement.
You may not use the Services if you are legally prohibited from receiving or using the Services under the laws of the country in which you are resident or from which you access or use the Services. Unless specifically agreed to in an Order or in the Product Specific Terms, the Services are not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so you may not use the Services where your communications would be subject to such laws. You agree not to use data from the Services in legal proceedings or otherwise as evidence.
1.8.3 NO SENSITIVE INFORMATION. EXCEPT AS OTHERWISE AGREED TO IN AN ORDER OR THE PRODUCT SPECIFIC TERMS, YOU AGREE NOT TO USE THE SERVICES TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SERVICES TO COLLECT OR MANAGE SENSITIVE INFORMATION. YOU FURTHER AGREE NOT TO PROVIDE SENSITIVE INFORMATION TO US AND WE ARE NOT RESPONSIBLE FOR SUCH INFORMATION OR ANY ACTION THAT MAY ARISE FROM YOUR PROVIDING SENSITIVE INFORMATION.
1.8.4 COMPLIANCE WITH ALL TEXT MESSAGING REGULATIONS. YOU AGREE YOU ARE AUTHORIZED TO USE CLIENT DATA AND CLIENT USERS DATA YOU SHARE WITH US FOR THE PURPOSES OF COMMUNICATING OVER TEXT MESSAGE IN ACCORDANCE WITH ALL NATIONAL AND LOCAL LAWS AND REGULATIONS INCLUDING THE U.S.A. TELEPHONE CONSUMER PROTECTION ACT AND CAN-SPAM ACT (AS APPROPRIATE). IF YOUR ORDER INCLUDES THE ABILITY FOR CLIENT USERS TO SEND TEXT MESSAGES THROUGH OUR SYSTEM, YOU CONFIRM THAT ALL MESSAGES ADHERE TO THE ALL NATIONAL AND LOCAL LAWS AND REGULATIONS AND THAT FAILURE TO ADHERE TO THE SAME IS A VIOLATION OF THESE TERMS OF USE.
1.8.5 Third-Party Sites and Products. Third-Party Sites and Products are not under our control. Third-Party Sites and Products are provided to you only as a convenience, and the availability of any Third-Party Site or Product does not mean we endorse, support or warrant the Third-Party Site or Product.
1.9 Term, Termination, Suspension.
1.9.1 Term. The Term of this Agreement shall be as specified in the Order.
1.9.2 No Early Termination; No Refunds. Except as provided herein, early termination of the Services is prohibited. We do not provide refunds if you decide to stop using the Services during the Term.
1.9.3 Termination for Cause. Either Party may terminate this Agreement for cause, as to any or all Services: (i) upon thirty (30) days’ notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our clients. This Agreement may not otherwise be terminated prior to the end of the Term.
1.9.4 Effect of Termination. Upon termination or expiration of this Agreement, your access to the Services will be terminated and you will not be entitled to the delivery of future Upbeat Reports. You will immediately stop use of the Services, and if we request, you will provide us with written confirmation that you have discontinued all use of Enhancement Data (unless, you have a source other than the Services for such Enhancement Data). If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Services after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Term. Fees are otherwise non-refundable.
1.9.5 Suspension for Prohibited Acts. We may suspend any Client User’s or Client Customers’ access to any or all Services without notice for: (i) use of the Services in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) use of the Services notifications that results in excessive hard bounces, SPAM complaints via feedback loops, direct spam complaints (to our abuse desk), or requests for removal from a send list by recipients, or (iii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity. We may, without notice, review, edit and delete any Client Data that we determine in good faith violate these terms, however, we have no duty to prescreen, control, monitor or edit your Client Data.
1.9.6 Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due and you will be responsible for payment of such amount including all collection fees, including without limitation attorneys’ fees and interest at the maximum rate permitted by law. Unless the full amount has been paid or is otherwise set out in an Order or Product Specific Terms , we may suspend your access to any or all of the Services ten (10) days after the date of such notice. We will not suspend the Services while you are disputing the applicable charges reasonably and in good faith and are diligently cooperating with us to resolve the dispute.
1.9.7 Suspension for Present Harm. If your website or use of, the Services: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Chatbot Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Services. We will try to limit the suspension to the affected portion of the Services and promptly resolve the issues causing the suspension of the Services. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our clients.
2. License
2.1 Upbeat License to Client. Subject to the terms of this Agreement and your compliance with your payment obligations, we hereby grant to you a limited, non-transferable, non-sublicensable, non-exclusive license during the applicable Subscription Term (the “License”) to access to the Services for purposes consistent with this Agreement and to copy and implement the Upbeat Code in the form provided by Upbeat on Client Properties solely to support the use of the Services by the Client and Client Customers . We reserve all rights and licenses in and to the Services not expressly granted to you under this Agreement.
2.2 Upbeat Reports. Subject to the terms of this Agreement and your compliance with your payment obligations, you may print, copy or download information contained in your Upbeat Report(s); and all right, title and interest in and to the downloaded or printed copies of the Upbeat Report(s) created specifically for you shall be transferred entirely to and be owned by you, subject to Client’s continued treatment of the Upbeat Reports as Confidential Information.
2.3 Upbeat License Restrictions. Unless otherwise provided for in this Agreement, you may not, nor permit any third party to: (a) copy the Upbeat Reports; (b) modify, translate or otherwise create derivative works of the Upbeat Reports; (c) disassemble, decompile or reverse engineer the Upbeat Code; or (d) publish, or otherwise make available to any third party any Upbeat Code.
2.4 Client Data. You hereby grant us a non-exclusive, royalty-free, perpetual license to use Client Data as necessary to provide the Service. We may copy and backup such Client Data as necessary to perform the duties under this Agreement.
3. General Legal Terms
3.1 Client Data.
3.1.1 Limits on Upbeat. We will not use, or allow anyone else to use, Client Data to contact any individual or company except as you direct or otherwise permit. We will use Client Data only in order to provide the Services to you and only as permitted by applicable law, this Agreement, and our Privacy Policy. You acknowledge, that email and SMS are insecure mediums that are generally not encrypted in transit and security of information transmitted through the Internet can never be guaranteed and, accordingly, we are not responsible for any interception or interruption of any communications through the internet or for changes to or loss of Client Customer Data in connection with the Services. We will delete Client Data within 30 after termination of the Agreement. We will not use Client Data for our own marketing purposes.
3.1.2 Aggregate Data. We may monitor use of the Services by all of our Clients’ Users and Clients’ Customers, including you, and use the data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not identify you.
3.1.3 Safeguards. The terms of the DPA are hereby incorporated by reference and will apply to the extent any Client Data includes Personal Data (as defined in the DPA). The DPA sets out how we will process Personal Data on your behalf in connection with the Services provided to you under this Agreement. We will maintain commercially reasonable administrative, physical, and technical safeguards to protect Client Data and Personal Data. You consent to the processing of Client Data and Personal Data in the United States
3.2 Upbeat’s Proprietary Rights. This is a subscription agreement for access to and use of the Services. Client acknowledges that it is obtaining only a limited right to the Services and no ownership rights are being conveyed to Client or any Client Customer under this Agreement. Client agrees that Upbeat or its licensors or suppliers retain all right, title and interest (including all intellectual property rights) in and to the Services and all technical user documentation provided with the Services, and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing (collectively, “Upbeat Technology"). Except as expressly set forth in this Agreement, no rights in any Upbeat Technology are granted to the Client or any Client Customer. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Upbeat Technology in whole or in part, by any means, except as expressly authorized in writing by us. You may not use any of our trademarks without our prior written permission.
If we make Enhancement Data available to you, then you may only use that Enhancement Data in connection with your use of the Services (unless, you have a source other than the Chatbot Service for such Enhancement Data). Enhancement Data may be made available to you based on Client Data, but we will not use your Client Data to enhance data for other parties. The Enhancement Data we provide may be provided from or through third party service providers or public sources.
3.3 Feedback. Client, from time to time, may submit feedback of the Client and Client Customers (collectively, “Feedback”) to Upbeat. Upbeat may freely use or exploit Feedback in connection with the Services and Upbeat Technology. Client hereby grants to Upbeat a perpetual, non-exclusive, transferable, irrevocable, worldwide, royalty-free, perpetual license (with rights to sublicense) to make, use, sell, offer to sell, reproduce, modify, distribute, make available, publicly display and perform, disclose and otherwise commercially exploit the Feedback.
3.4 Client’s Proprietary Rights. As between the parties, you own and retain all rights to Client Data. This Agreement does not grant us any ownership rights to Client Data. You hereby grant us a non-exclusive, transferable, irrevocable, worldwide, royalty-free, perpetual license (with right to sublicense) to use Client Data as necessary to provide the Services to you and as permitted by this Agreement. If you are using the Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
3.5 Confidentiality. Each Party ("Recipient ") may be exposed to Confidential Information of the other Party ("Discloser"). "Confidential Information" means any information disclosed by either Party to the other Party in any form consisting of past, present and future business, financial, technical and commercial information, business concepts, prices and pricing methods, marketing and customer information, financial forecasts and projections, technical data, schematics, analyses, ideas, methods, trade secrets, processes, computer programs, prototypes, designs, specifications, techniques, and drawings. Confidential Information shall also include Client Data and Upbeat Reports.
The Recipient will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses to protect its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose other than as permitted by this Agreement, (iii) not disclose Confidential Information to any third party (except our third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents who have a need for such information and who are bound under a written agreement or legal obligation to keep such information confidential. Upon notice to the Discloser, the Recipient may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
The Recipient agrees to notify the Discloser of any unauthorized use or disclosure of Confidential Information. The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that, upon any actual or threatened breach of this Section by a Party, the other Party shall be entitled, without waiving any other rights or remedies, to seek such injunctive or other equitable relief as may be deemed proper by a court of competent jurisdiction without the need to post any bond or other security.
Recipient will not be required to protect or hold in confidence any information which: (a) becomes publicly known through no wrongful act or omission of Recipient; (b) becomes known to Recipient without confidential restriction from a third party unless Recipient had or should have had knowledge of its confidentiality; (c) is approved by Discloser for disclosure without restriction in a written document which is signed by a duly authorized officer of the Discloser; or (d) is independently developed by Recipient without use of Discloser’s Confidential Information.
All Confidential Information disclosed pursuant to this Agreement shall be deemed the property of the Discloser. Upon the termination or expiration of this Agreement, the Recipient shall, at the Discloser’s sole option, either return all Confidential Information in the form of documents and other tangible property provided pursuant to this Agreement, and all copies thereof, or provide the Disclosure with assurance that all such information has been destroyed. The confidentiality obligations of Recipient shall survive termination the expiration of this Agreement.
Notwithstanding the foregoing or anything to the contrary herein, the Recipient will not be required to destroy electronic or digital Confidential Information stored in back-up/archival storage in accordance with its policies, provided that any such systems are maintained in a secure and private manner and any such retained Confidential Information will continue to be subject to this Section until it is destroyed and the Recipient may retain Confidential Information to the extent required to comply with applicable legal and regulatory requirements, provided such Confidential Information shall remain subject to this Section. We may further retain Confidential Information to the extent that such information has been incorporated into or integrated with the Upbeat Reports. Any and all know-how gained by us from the use of the Client Data shall not be confidential.
3.6 Publicity. You grant us the right to use your name and company logo in our client list and website, and may refer to you as a user of the Services in our general advertising and marketing materials. To object to this use, please indicate so by sending an email to hello@upbeat.chat.
3.7 Indemnification.
3.7.1 Client Indemnification. You shall indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Services by you, (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of the Services by any other person using your Client User information. We will: promptly notify you in writing after our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by this indemnification or places restrictions on us without our prior written consent.
3.7.2 Upbeat Indemnification. We shall indemnify, defend and hold you harmless, at our expense, against any third-party claim, suit, action or proceeding (each, an "Action") brought against you by a third party not affiliated with you to the extent that such Action is based upon or arises out of a (1) claim that the Service, as provided by us to you under this Agreement and used by you within the scope of this Agreement, infringes any U.S. patent or copyright issued as of the Effective Date, or incorporates any misappropriated trade secrets (each an "Infringement Action"), or (2) our breach of our confidentiality obligations or our use of Client Data in violation of this Agreement. Our obligations to you under this Section shall only be valid provided that you: (a) promptly notify us in writing of the claim; (b) grant us sole control of the defense and settlement of the claim, provided that we will not settle a pending matter without first notifying you; and (c) provide us with all assistance, information and authority required for the defense and settlement of the claim. If the Services become or in our sole opinion is likely to become the subject of an Infringement Action, we may, in our sole discretion either: (a) procure for you the right to continue using such Services; (b) replace or modify the Services so that it is non-infringing and substantially equivalent in function to the enjoined Services; or (c) terminate your rights and our obligations hereunder with respect to such Services with no further liability.
3.7.3 Exclusion. We shall have no indemnification obligation for any Infringement Action to the extent that it results in whole or part from: (a) settlements and their related costs and expenses where Client settles an Infringement Action without our prior written consent; (b) your use of the Services in a manner not authorized by us, as set forth in the applicable Order or this Agreement; (c) modification to the Services made by a party other than us; (d) your failure to use updated or modified Services provided by us; (e) the use of the Services in combination with other systems, products, processes or materials not furnished by us, except as requested by us or performed by us; or (f) compliance by us with designs, plans or specifications furnished by or on behalf of you.
3.8 Warranties; Limitations of Liability.
3.8.1 Client Warranty. In addition to any warranties you have provided herein, you represent and warrant that you have the right to provide Upbeat the Client Data, and to authorize us to communicate with the Client Customers through the use of the chatbot, SMS messaging, email and other communication methods as required to provide the Services.
3.8.2 Upbeat Warranty. We will perform the Services hereunder in a manner consistent with generally accepted industry standards. The sole and exclusive remedy for breach of this warranty shall be refund of the Subscription Fee for the prepaid but unused Services or the re-performance of the Service at Upbeat’s sole discretion.
3.8.3 DISCLAIMER OF WARRANTIES. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WE FURTHER MAKE NO WARRANTY THAT THE SERVICES WILL WORK ON ALL PHONES, COMMUNICATION DEVICES, OR INTERNET WEB BROWSERS. UPBEAT WILL NOT BE LIABLE, AND WILL HAVE NO OBLIGATION TO INDEMNIFY YOU FOR SENSITIVE DATA SENT TO UPBEAT.
3.8.4 NO INDIRECT DAMAGES. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT THAT PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
3.8.5 LIMITATION OF LIABILITY. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE INDEMNIFICATION SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, EACH PARTY’S AGGREGATE LIABILITY SHALL BE LIMITED TO THE LESSER OF FIVE THOUSAND U.S. DOLLARS OR THE SUM OF THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SERVICES IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION WILL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.
3.8.6 THIRD PARTY PRODUCTS. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
3.8.7 AGREEMENT TO LIABILITY LIMIT. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICES TO YOU.
3.9 Miscellaneous.
3.9.1 Amendment; No Waiver. We may update and change any part or all of these Client Terms of Service, including the fees and charges associated with the use of the Services. If we update or change these Client Terms of Service, the updated Client Terms of Service will be posted and we will notify you via email. The updated Client Terms of Service will become effective and binding on the next business day after it is posted. When we change these Client Terms of Service, the "Last Modified" date above will be updated to reflect the date of the most recent version. We encourage you to review these Client Terms of Service periodically.
If you do not agree with a modification to the Client Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Client Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Client Terms of Service published by us on our website will automatically apply.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
3.9.2 Force Majeure. Except as otherwise agreed to in an Order or the Product Specific terms, should events beyond the reasonable control of Upbeat and Client, including (1) acts of God, (2) war, including armed conflict, (3) strikes or labor disputes or other civil disturbances affecting either Party’s business or event, (4) public health emergency due to the outbreak of communicable disease, (5) government regulation or advisory, or (6) acts of terrorism (collectively “Events of Force Majeure”), cause the cancellation of an event or events listed on an Order(s), neither Upbeat nor Client shall be considered in breach of this Agreement to the extent that performance of their respective obligations (excluding payment obligations) is prevented by an Event of Force Majeure that arises after the Order effective date.
The Party prevented from performing its obligations hereunder shall promptly give written notice to the other Party of the Event of Force Majeure.
If and to the extent that either Party triggers this clause, Client agrees to satisfy all outstanding invoices issued by Upbeat and to make payment for all work performed by Upbeat including all applicable fees and other work compensable at hourly rates as set forth in the Order(s) as of the date Event of Force Majeure notice. If there is a credit balance after the Client has paid all outstanding invoices, then Upbeat may, at its sole discretion, apply the credit to a future Order(s).
3.9.3 Actions Permitted. Except for actions for nonpayment or breach of a Party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either Party more than one (1) year after the cause of action has accrued.
3.9.4 Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
3.9.5 Compliance with Laws. We will comply with all U.S. state and federal laws (where applicable) in our provision of the Services and our processing of Client Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Services, including any applicable export laws. You must comply with all applicable laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Services or Training Support to prohibited countries or individuals or permit use of the Services or Training Support by prohibited countries or individuals.
3.9.6 Severability. If any part of this Agreement or an Order is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement or the Order will continue in effect.
3.9.7 Notices. Notice will be sent to the contact addresses of each Party as set forth herein, and will be deemed delivered as of the date of actual receipt.
To Upbeat, 3340 Walnut Ave, Suite 112, Fremont, CA 94538, U.S.A.
To you: The address you provide in your Upbeat account. We may give electronic notices by general notice via the Services and may give electronic notices specific to you by email to your e-mail address(es) on record in your account or through the notifications center of the Services. We may give notice to you by telephone at the telephone number(s) on record in your account. You must keep all of your account information current.
3.9.8 Entire Agreement. This Agreement (including each Order), along with our Privacy Policy, and all other documents, agreement or materials referred or linked to in this document, is the entire agreement between us for the Services, the Training Support, and other services under this Agreement and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those added by you in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Services or dependent on any oral or written public comments made by us regarding future functionality or features of the Services. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
3.9.9 Assignment. You may not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
3.9.10 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third-party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
3.9.11 Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the Parties under this Agreement.
3.9.12 Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
3.9.13 Survival. The following sections shall survive the expiration or termination of this Agreement: 'Definitions’, ‘Fees and Payments’, 'Prohibited and Unauthorized Use', ‘No Early Termination; No Refunds’, ‘Termination for Cause’, ‘Suspension for Prohibited Acts’, ‘Suspension for Non-Payment’, ‘Suspension for Present Harm’, ‘Effect of Termination or Expiration’, ‘Retrieval of Client Data’, ‘Upbeat’s Proprietary Rights’, ‘Feedback’, ‘Client’s Proprietary Rights’, 'Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Miscellaneous’ and ‘Contracting Entity and Applicable Law’.
3.9.14 Precedence. In the event of a conflict between the terms of this Agreement and an Order, the terms of the Order shall control, but only as to that Order.
4. Jurisdiction Specific Terms
4.1 Contracting Entity and Applicable Law. You are contracting with Upbeat and this Agreement is governed by the laws of the State of California, U.S.A. without reference to conflicts of law principles. For contracts with Upbeat, both Parties consent to the exclusive jurisdiction and venue of the courts in Alameda County, California, U.S.A. for all disputes arising out of or relating to the use of the Services.
4.2 Data Processing.
4.2.1 GDPR. To the extent that Upbeat processes any Client Data that is subject to the General Data Protection Regulation (the “GDPR”), on Client’s behalf, in the provision of the services hereunder, the terms of the DPA, which are hereby incorporated by reference, shall apply. For Clients that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission, attached to the Data Processing Agreement with Upbeat, which provide adequate safeguards with respect to the personal data processed by us under this Agreement and pursuant to the provisions of our Data Processing Agreement apply. You acknowledge in all cases that Upbeat acts as the data processor of Client Data and you are the data controller if you are subject to the applicable data protection regulations in the European Union and European Economic Area. Client will obtain and maintain any required consents necessary to permit the processing of Client Data under this Agreement. If you are subject to the GDPR you understand that if you give an integration provider access to your Upbeat account, you serve as the data controller of such information and the integration provider serves as the data processor for the purposes of those data laws and regulations that apply to you. In no case are such integration providers our sub-processors.
4.2.2 CALIFORNIA PRIVACY RIGHTS. This section applies only to Client Users that reside in California with rights defined by the California Consumer Privacy Act (“CCPA”). It describes how we collect, use, and share California user’s Personal Information in our role as a service provider on behalf of our Clients. You acknowledge in all cases that Upbeat acts as a service provider in the processing of Client Data. If you are subject to the applicable data protection regulations set forth by the California Consumer Privacy Act, then you will obtain and maintain any required consents necessary to permit the processing of Client Data under this Agreement and to provide the rights afforded consumers by the CCPA. If you are subject to the CCPA, you understand that if you give an integration provider access to your Upbeat account, you still serve as the responsible party of such information.