Terms & Conditions

1. ACCEPTANCE OF TERMS.

By using the TalVista (FORMERLY TALENT SONAR) website (the “Site”) in any way, including using, transmitting, downloading, or uploading any of the services or functionality (the “Service”) made available or enabled via the Site by TalVista, or merely browsing the Site, you agree to these Terms of Service (“Terms”) and the TalVista Privacy Policy, which is incorporated herein by reference. You may not use the Service, or accept these Terms, if (a) you are not of legal age to form a binding contract with TalVista (i.e., you are not 18 or more); or (b) you are prohibited by law from receiving or using the Service. If you are entering into these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these Terms, in which case “you” or “your” shall refer to such entity. TalVista makes the Service available only if you have created a TalVista log-in ID and password (“Log-In Information”). TalVista may change the Terms from time to time at its sole discretion, and if TalVista makes any substantial changes, we will notify you by sending an email to the last email address you provided to us and/or by posting notice of the change on the Site. Any material changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an email notice to you or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or Service. TalVista may require you to provide consent to the updated Terms in a specified manner before further use of the Service is permitted. Otherwise, your continued use of the Site or the Service constitutes your acceptance of the changes. Please regularly check the Site to view the then-current Terms. In the event of a conflict between these Terms and the Software as a Service Agreement, SOW or any other related agreement between the parties, these Terms shall govern and control for all purposes.

2. DEFINITIONS.

Capitalized terms shall have the meanings set forth in this section or in the section where they are first used.

2.1 “COMPANY” means a company or other legal entity that registers with TalVista to use the Service and authorizes and enables its employees, independent contractors and agents to use the Service in furtherance of Company’s internal business hiring needs.

2.2 “COMPANY USER” means any Company employee, independent contractor or agent who registers to use the Service and has a Company email address.

2.3 “CONTENT” means, without limitation, any and all information, data, results, ideas, plans, sketches, texts, files, links, images, photos, video, sound, inventions (whether or not patentable), notes, works of authorship, articles, feedback, or other materials.

2.4 “CUSTOMER” means you.

2.5 “CUSTOMER CONTENT” means any Content provided, imported or uploaded to, or otherwise used by you or on your behalf with the Services.

2.6 “DOCUMENTATION” means all specifications, user manuals, and other technical materials relating to the Services.

2.7 “INDIVIDUAL USER” means any individual who registers to use the Service using a personal or non-Company email address (e.g., sally@gmail.com).

2.8 “INTELLECTUAL PROPERTY RIGHTS” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.

2.9 “SUBSCRIPTION TERM” means the date on which the percentage of a Company’s employees who have registered for the Service is five percent (5%) or more and ending one (1) year thereafter.

2.10 “THIRD PARTY CONTENT” means any Content provided, imported or uploaded to the Service by a party other than the parties to these Terms.

2.11 “USERS” means both Company Users and Individual Users.

  1. LICENSE GRANT AND RESTRICTIONS.

3.1 LICENSE GRANT. Subject to the terms and conditions of these Terms, TalVista grants you a non-exclusive, non-assignable (except as provided in Section 13.5), revocable and limited license to use the Service solely for your internal business purposes during the Term.

3.2 LIMITATIONS. You agree that you will not: (a) permit any party to access and/or use the Service, other than the Users authorized under these Terms; (b) rent, lease, loan, or sell access to the Service, Documentation or any other items related to the Service to any third party; (c) interfere with, disrupt, alter, translate, or modify the Service or any part thereof, or create an undue burden on the Service or the networks or services connected to the Service, including without limitation, any external websites that contain Third Party Content and that are linked to via the Service; (d) reverse engineer, decompile, disassemble or access the Service in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Service, (iii) modify, improve, copy or create derivative works of any ideas, features, functions or graphics of the Service, (iv) or otherwise attempt to derive or gain access to the source code of any software embodied in the Service, in whole or in part; (e) without TalVista’s express written permission, introduce software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip or mine data from the Service; (f) perform or publish any performance or benchmark tests or analyses relating to the Service or the use thereof; (g) bypass or breach any security device or protection used by the Service, Documentation and any other items related to the Service or otherwise gain unauthorized access to the Service, Documentation, or any other items related to the Service; (h) input, upload, transmit or otherwise provide to or through the Service or any other manner, any information or materials that are unlawful or injurious, or contain, transmit or activate any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (1) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any computer, software, firmware, hardware, system or network or any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby, or (2) prevent any User or other person from accessing or using the Service as intended by these Terms; (j) access or use the Service, Documentation or any other items related to the Service in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of TalVista or any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other TalVista customer), or that violates any applicable law; (k) permit direct or indirect access to use the Service, Documentation or any other items related to the Service in a way that circumvents the maximum total number of authorized Users; (l) cover, modify, alter, remove, delete, obscure or otherewise change any page or part of the Service or any item related to the Service via HTML/CSS, scripting, or any other means, if any. Except as expressly set forth herein, no express or implied license or right of any kind is granted to you regarding the Service or any part thereof. At TalVista’s discretion, all Users’ content will be public to all other Users (Company and Individual); or (m) otherwise access or use the Service, Documentation or any other items related to the Service beyond the scope of the authorization granted under this Terms. Any information that specifies a company name or association will be removed from any content that is made public.

3.3 CUSTOMER OBLIGATIONS. You shall at all times: (i) set up, maintain and operate in good repair, and in accordance with the requirements of the Documentation, all of your systems on or through which the Service is accessed or used and (ii) provide such cooperation and assistance as TalVista may reasonably request to enable TalVista (and its vendors and consultants supporting the Service) to exercise its rights and perform its obligations under and in connection with these Terms including, without limitation, maintaining an up to date list of all of your authorized Users to confirm your compliance with the authorized use requirements specified herein.  TalVista is not responsible or liable for any delay in or failure to provide Service caused in whole or in part by your delay in performing, or failure to perform, any of its obligations under these Terms. If you become aware of any actual or threatened activity prohibited by Section 3.2 herein, you shall, and shall cause your authorized Users to, immediately: (i) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to Service, Documentation or any other items related to the Service and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (ii) notify TalVista of any such actual or threatened activity.  You shall be responsible for obtaining and maintaining all computer hardware, software, and communications equipment needed to internally access the Service, and paying all third-party access charges incurred while using the Service.  You agree and understand that native Google Chrome browser is required for the Service and that Chrome must be set as the default browser for email notifications to function properly or usability of the features available may be limited in TalVista’s Service. Use of non-certified browsers will not be supported and results will vary and thus are not guaranteed.  You agree and understand that the TalVista platform is 1:1 for domains to tenants, (i.e. www.COMPANY.com to one TalVista tenant).

3.4 LICENSE TO TALVISTA CONTENT. TalVista hereby grants you a license to view, download and print Content provided by TalVista (“TalVista Content”) and any Content provided by other users (“Other User Content”), subject to the following conditions: (a) you may access and use the TalVista Content and Other User Content solely for personal, informational, non-commercial and internal purposes, in accordance with these Terms; (b) you may not distribute or sell, rent, lease, license or otherwise make the TalVista Content or Other User Content available to others; (c) you may not remove any copyright or other proprietary notices contained in the TalVista Content or Other User Content; and (d) you may not copy or distribute any photos, graphics, audio or video in the TalVista Content or Other User Content apart from their accompanying text. TalVista reserves the right to revoke the authorization to view, download and print the TalVista Content and Other User Content at any time, and any such use shall be discontinued immediately upon notice from TalVista. The rights specified above are not applicable to the design, layout or look and feel of the Site. Such elements of the Site are protected by Intellectual Property Rights and may not be copied or imitated in whole or in part. No mark, graphic, sound or image from the Site may be copied or retransmitted unless expressly permitted by TalVista.

3.5 USERNAMES AND PASSWORDS. User will provide a unique email address (which TalVista will provision as a username) and password to enable such User to access the Service pursuant to these Terms. TalVista reserves the right to change or update these usernames and passwords in TalVista’s sole discretion from time to time. Each username and password may only be used to access the Service during one (1) concurrent login session. You acknowledge and agree that only Users are entitled to access the Service with the username and password provided by TalVista. You agree (a) not to allow a third party to use your account, usernames or passwords at any time; and (b) to notify TalVista promptly of any actual or suspected unauthorized use of your account, usernames or passwords, or any other breach or suspected breach of these Terms. TalVista reserves the right to terminate any username and password, which TalVista reasonably determines may have been used by an unauthorized third party or to misuse the Service in any way. User accounts cannot be shared or used by more than one individual User. It will not be possible to transition an account from one email address to another.

3.6 IP OWNERSHIP. The Service and all Intellectual Property Rights in the Service, the Content and any of TalVista’s proprietary technology, including software, hardware, products, processes, algorithms, user interfaces, know-how, technologies, designs and other tangible or intangible technical material or information made available to you by TalVista in providing the Service, along with any work product, service enhancements, derivative works, software programs or tools, interfaces, utilities, technology, devices, specifications, documentation, ideas, concepts, know-how, processes, methodologies, techniques, and materials of any kind used or developed by TalVista or its personnel in connection with its performance of the Service (the “TalVista Technology”). TalVista Technology is the exclusive property of TalVista or its suppliers. You hereby assign to TalVista any suggestions, ideas, enhancement requests, feedback, customizations, recommendations, or other information provided by you related to the Service, the Content or the TalVista Technology. Except as expressly set forth herein, no express or implied license or right of any kind is granted to you regarding the Service, the Content or the TalVista Technology, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the TalVista Technology. All rights not expressly granted to you are reserved to TalVista.

3.7 CHANGES.  TalVista reserves the right, in its sole discretion, to make any changes to the Service, Documentation or any other materials that it deems necessary or useful to maintain or enhance: (a) the scope, quality or delivery of the Service; (b) the competitive strength of or market for the Service; (c) the Service’s cost efficiency or performance; (d) or to comply with applicable law.

3.8 SUSPENSION OR TERMINATION OF SERVICES.  TalVista may, by use of a disabling device or any other lawful means, immediately suspend, terminate or otherwise deny you or any other User’s access to or use of all or any part of the Service, without thereby incurring any obligation or liability to you or any other User, if: (a) You fail to timely pay Service fees;  (b) TalVista believes, in its reasonable discretion, that: (i) You or any User has failed to comply with any of the terms of these Terms, or accessed or used the Service beyond the scope of the rights granted or for a purpose not expressly authorized under these Terms;  (ii) You or any User has accessed or used the Service in any manner that does not comply with any instruction or requirement of the applicable Documentation; (iii) You or any User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities using or involving the Service; (iv) a security breach has occurred, whether or not such breach originates from your systems; or (v) this Terms expires or is terminated; or (c) TalVista receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires TalVista to do so. TalVista’s rights under this Section to suspend or terminate your right and any other User’s right to access and use the Services does not limit any of TalVista’s other rights or remedies, whether at law, in equity or under this Terms.

3.9 SUBCONTRACTORS. TalVista may from time to time in its discretion engage third parties to perform or deliver any part of the Service.

  1. PAYMENT.

4.3 CHARGES. You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charge will be based on your estimated number of annual job descriptions processed or requisitions processed depending on the modules in use during your term of service. Payments must be made annually in advance unless otherwise mutually agreed upon. All payment obligations are non-cancelable and all amounts paid are nonrefundable. You are responsible for paying for all subscription services ordered for the Subscription Term. An authorized License Administrator may add licenses by using the Online Admin Center. TalVista reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice to you, which notice may be provided by email.

4.4 BILLING AND RENEWAL. In the case of a User being charged for the service, TalVista charges and collects in advance for use of the Service. TalVista will automatically renew and bill invoice you each year on the subsequent anniversary or as otherwise mutually agreed. The renewal charge will be equal to the then-current number subscription level in effect during the prior term. Fees for other services will be charged on an as-quoted basis. Any amounts not paid when due shall bear interest at the rate of one and one-half percent (1.5%) per month, or the maximum legal rate, if less. TalVista shall be entitled to withhold performance and discontinue service until all amounts due are paid in full. TalVista’s fees are exclusive of all taxes, levies or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States taxes based solely on TalVista’s income. You agree to provide TalVista with complete and accurate billing and contact information. This information includes your legal name, street address, email address and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within thirty (30) days of any change to it. If the contact information you have provided is false or fraudulent, TalVista may terminate your access to the Service in addition to any other legal remedies.

  1. CUSTOMER CONTENT AND CONDUCT.

5.1 CUSTOMER CONTENT. You grant TalVista a non-exclusive, worldwide, royalty-free and fully-paid license (a) to use the Customer Content, as necessary, for purposes of providing the Service, perform analytics and assist in product development; and (b) to use your Company name, trademarks, service marks, and logos as required to provide the Service and to identify Company as a customer on TalVista’s website and marketing materials. All rights in and to the Customer Content not expressly granted to TalVista in these Terms are reserved by you. In addition, TalVista may use Customer Content and information about a Company’s use of the Service, provided TalVista anonymizes such information before disclosing it or publishing it (e.g., TalVista may published an article on trends in hiring such as types of skills a certain category of employer is looking for in a certain geography for a given position).  You shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (c) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (d) control the content and use of Customer Content, including the uploading or other provision of Customer Content for processing by the Services.

5.2 CONTENT AND CONDUCT. You represent and warrant that any Customer Content shall not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (d) contain any viruses, worms or other malicious computer programming codes able to damage the Service, any Third Party Content, or other data of the Service; or (e) otherwise violate the rights of a third party. In addition, you agree not to use, or encourage or permit others to use, the Site or Service to (r) stalk and/or harass another; (s) harm minors in any way; (t) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; (u) forge headers or otherwise manipulate identifiers to disguise the origin of any Content posted on or transmitted through the Service; (v) use the Site, Service or Content such that it will mislead a third party into believing that he or she is interacting directly with TalVista or the Service; (w) engage in any chain letters contests, junk email, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise); (x) use any TalVista domain name as a pseudonymous return email address; (y) access or use the Site or Service in any manner that could damage, disable, overburden or impair any TalVista server or the networks connected to any TalVista server; or (z) market any goods or services for any business purposes (including advertising and making offers to buy or sell goods or services), unless specifically allowed to do so by TalVista.

5.3 SECURITY AND BACKUPS. TalVista reserves the right to establish or modify its general practices and limits relating to the storage of Customer Content. TalVista shall provide logical and physical security to ensure the logical and physical security of its equipment and Customer Content. The logical and physical security provided by TalVista will include, but not be limited to (a) a defined security administration practice and process including account and password administration; and (b) ensuring that only authorized TalVista personnel who have a need for physical access to provide the Service will have such access to the equipment and Customer Content. During the Term, TalVista shall use commercially reasonable efforts to protect Customer Content behind a secure firewall system, to conduct daily data backups, and to store weekly full-system backups in a separate, fire-resistant facility.

5.4 CONTENT LOSS. You represent and warrant that you shall keep and maintain your own copy of all Customer Content that is provided to the Service and TalVista. TalVista is not obligated to back up any Customer Content that is posted on the Service. TalVista, therefore, recommends that you create backup copies of any Customer Content posted on the Service at your sole cost and expense. You agree that any use of the Service contrary to or in violation of your representations and warranties in this Section 5 constitutes improper and unauthorized use of the Service. You agree that TalVista may (but has no obligation to), in TalVista’s sole discretion, remove or modify any Customer Content which it deems to violate your representations and warranties in this section. In the event of a loss of Customer Content caused by TalVista, TalVista will use commercially reasonable efforts to recover such Customer Content within ninety-six (96) hours of notification of loss. If TalVista performs recovery services for a loss of Customer Content not caused by TalVista, you agree to pay TalVista’s then-current time and materials rate to recover the Customer Content. The foregoing constitutes TalVista’s sole liability and your exclusive remedy for any loss of Customer Content.

5.5 ACCESS TO CUSTOMER CONTENT ON TERMINATION. In the event your access to the Service is terminated (other than by reason of your breach), TalVista will make available to you a file of the Customer Content if requested in writing by you within thirty (30) days after such termination. You agree and acknowledge that TalVista has no obligation to retain the Customer Content, and may delete such Customer Content, at any time on or after the thirty-first (31st) day following termination or expiration of these Terms. TalVista reserves the right to withhold, remove and/or discard Customer Content, without notice, for any breach, including, without limitation, your non-payment, if applicable. Upon termination for cause, your right to access or use Customer Content shall immediately cease, and TalVista will have no obligation to maintain or provide any Customer Content.

6. THIRD-PARTY CONTENT. You represent and warrant that any Third Party Content that you use or have access to shall not (a) be copied, altered, or redistributed by you without the prior written consent of the owner of such Third Party Content; or (b) be used in any documents, reports, presentations or publications by you without the prior written consent and without attribution to the owner and/or author of such Third Party Content or to any other sources of such Third Party Content as may be appropriate.

7. TALVISTA USE OF INFORMATION; PRIVACY.

TalVista collects information and data on how the Service is used by customers and reserves the right to disclose to and share such information and data with third parties in an anonymous and/or aggregated form at its discretion. The terms of TalVista’s Privacy Policy, available at http://talentsonar.com/privacy/, are hereby incorporated by reference into these Terms. In the event of a conflict between the terms of the Privacy Policy and these Terms, these Terms will govern.

8. COPYRIGHT POLICY.

TalVista reserves the right to terminate these Terms with any customer who repeatedly infringes third-party copyright rights upon prompt notification to TalVista by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that a copyrighted work has been copied and posted via the Service in a way that constitutes copyright infringement, you shall provide TalVista with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification and location in connection with the Service of the copyrighted work that you claim has been infringed; (c) a written statement by you that you have a good faith belief that the disputed use is not authorized by the owner, its agent, or the law; (d) your name and contact information, such as telephone number and email address; and (e) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for TalVista’s Copyright Agent for notice of claims of copyright infringement is as follows:

TalVista, Inc.

Attn: Copyright Agent

11251 Rancho Carmel Drive #501608

San Diego, CA 92150

info@talvista.com

  1. LIMITED WARRANTY AND DISCLAIMER.

9.1 LIMITED WARRANTY. TalVista warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will materially conform to TalVista’s then current Documentation for the Service under normal use and circumstances. If you notify TalVista of a breach of warranty, TalVista will reperform the nonconforming service. The foregoing constitutes your sole and exclusive remedy for any breach of warranty.

9.2 DISCLAIMER. THE LIMITED WARRANTY SET FORTH IN THESE TERMS IS MADE FOR YOUR BENEFIT ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED “AS IS,” AND TALVISTA MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SERVICE (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY TALVISTA.  TALVISTA DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE.

9.3 INTERNET DELAYS. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. TALVISTA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.

  1. LIMITATION OF LIABILITY.

10.1 TYPES OF DAMAGES. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL TALVISTA, OR ITS SUPPLIERS, BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, USE OR GOODWILL, PERSONAL OR PROPERTY DAMAGE RESULTING FROM OR IN CONNECTION WITH TALVISTA’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE SERVICE OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF TALVISTA HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT SHALL TALVISTA BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.

10.2 AMOUNT OF DAMAGES. THE MAXIMUM TOTAL CUMULATIVE LIABILITY OF TALVISTA ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE TERMS SHALL NOT EXCEED THE GREATER OF (A) $500 OR (B) THE SUM OF ALL FEES PAID AND PAYABLE BY CUSTOMER TO TALVISTA DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS WILL NOT INCREASE TALVISTA’S LIABILITY. IN NO EVENT SHALL TALVISTA’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE TERMS. THE FOREGOING LIMITATION ON LIABILITY SHALL NOT APPLY TO DAMAGES ARISING UNDER EITHER PARTY’S INDEMNIFICATION OBLIGATIONS CONTAINED IN THIS AGREEMENT, OR EITHER PARTY’S GROSS NEGLIGENCE, BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, WILLFUL MISCONDUCT, OR VIOLATION OF APPLICABLE LAW.

10.3 BASIS OF THE BARGAIN. The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge and agree that these Terms were entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.

10.4 ADDITIONAL RIGHTS. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

11. INDEMNIFICATION.

11.1 BY TALVISTA. TalVista will defend at its expense any suit brought against you, and will pay any settlement TalVista makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Service misappropriates any trade secret recognized under the Uniform Trade Secrets Act or infringes any United States copyright. If any portion of the Service becomes, or in TalVista’s opinion is likely to become, the subject of a claim of infringement, TalVista may, at TalVista’s option: (a) procure for you the right to continue using the Service; (b) replace the Service with non-infringing services which do not materially impair the functionality of the Service; (c) modify the Service so that it becomes non-infringing; or (d) terminate the Service and refund any fees actually paid by you to TalVista for the remainder of the Subscription Term then in effect, and upon such termination, you will immediately cease all use of the Service. Notwithstanding the foregoing, TalVista shall have no obligation under this section or otherwise with respect to any infringement claim based upon (e) any use of the Service not in accordance with these Terms or the Documentation; (f) use of the Service after TalVista’s notice to you of such alleged or actual infringement, misappropriation or other violation of a third party’s rights (g) TalVista’s conformance to your specifications; (h) events or circumstances outside of TalVista’s reasonable control (including any of your systems, third party hardware, software or system bugs, defects or malfunctions); (h) any use of the Service in combination with other products, equipment, software or Content not supplied by TalVista; or (i) any modification of the Service by any person other than TalVista or its authorized agents. This subsection states your sole and exclusive remedy for infringement claims and actions.

11.2 BY YOU. You will defend at your expense any suit brought against TalVista and will pay any settlement you make or approve or any damages finally awarded in such suit insofar as such suit is based on a claim by any third party based upon, resulting from or related to any improper or unauthorized use of the Service by you or your Users.

11.3 PROCEDURE. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the following: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.

12. TERMINATION.

12.1 TERM. These Terms will commence on the date you register for the Service continue for the longer the Free License Term or the Subscription Term (if applicable), unless terminated earlier by either you or TalVista as set forth below (the “Term”).

12.2 TERMINATION BY TALVISTA. TalVista may at any time terminate these Terms with you if (a) you have breached any provision of these Terms (or have acted in a manner that clearly shows you do not intend to, or are unable to, comply with these Terms); (b) TalVista is required to do so by law (for example, where the provision of the Site or Service to you is, or becomes, unlawful); (c) the provision of the Service to you by TalVista is, in TalVista’s opinion, no longer commercially viable; or (d) TalVista has elected to discontinue the Site or the Service (or any part thereof). Notwithstanding the foregoing, at any time during the Free License Term, TalVista may, in its sole discretion and without cause or notice, restrict, limit or block any User or Company from accessing or using the Site or Service.

12.3 EFFECT OF TERMINATION. Termination of your account includes: (a) removal of access to all offerings within the Service; (b) deletion of your password and all related information; and (c) barring of further use of the Service. Upon expiration or termination, you shall promptly discontinue use of the Site and the Service. However, the sections titled IP Ownership, Payment, Customer Content License, Content Loss, Third Party Content, Limited Warranty and Disclaimer, Limitation of Liability, Indemnification, Termination and Miscellaneous of these Terms will survive any termination or expiration of these Terms.

13. MISCELLANEOUS.

13.1 GOVERNING LAW AND VENUE. These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of NEVADA, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. You hereby expressly consent to the personal jurisdiction and venue in the state and federal courts for the county in which TalVista’s principal place of business is located for any lawsuit filed there against you by TalVista arising from or related to these Terms. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.

13.2 COMPLIANCE WITH LAW. TalVista and its suppliers make no representation that the Service is appropriate or available for use in locations other than the United States. If you use the Service from outside the United States, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited. You shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Service hereunder.

13.3 SEVERABILITY; WAIVER. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Without limiting the generality of the foregoing, you agree that the section titled Limitation of Liability will remain in effect notwithstanding the unenforceability of any provision in the section titled Limited Warranty and Disclaimer. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

13.4 REMEDIES. The parties acknowledge that any actual or threatened breach of the section titled License Grant and Restrictions will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce these Terms, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

13.5 NO ASSIGNMENT. Neither party shall assign or otherwise transfer these Terms, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign these Terms in connection with a merger, acquisition, change of control, or similar such transaction, or reorganization or sale of all or substantially all of its assets, or other operation of law (each, a “Change of Control”), without any consent of the other party. These Terms shall be binding upon the parties and their respective successors and permitted assigns. In the event of your Change of Control, within thirty (30) days of the Change of Control, you shall paid to TalVista a transfer fee as specified in the applicable Software a as Service Agreement, SOW or other related agreement between the parties (the “Transfer Fee”).  These Terms shall be binding upon the parties and their respective successors and permitted assigns.

13.6 FORCE MAJEURE. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of these Terms if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.

13.7 INDEPENDENT CONTRACTORS. Your relationship to TalVista is that of an independent contractor, and neither party is an agent or partner of the other. You will not have, and will not represent to any third party that it has, any authority to act on behalf of TalVista.

13.8 NOTICES. You are responsible for updating your contact information to provide TalVista with your most current email address. In the event that the last email address you have provided to TalVista is not valid, or for any reason is not capable of delivering to you any notices required by these Terms, TalVista’s dispatch of the email containing such notice will nonetheless constitute effective notice of the changes described on the notice. Any notice provided to TalVista pursuant to these Terms should be sent to TalVista, Inc., 11251 Rancho Carmel Drive #501608, San Diego, CA 92150.  Any notice given under these Terms shall be in writing and shall be effective (i) upon receipt if (a) delivered by hand or (b) sent via overnight mail by a nationally recognized express delivery service; or (ii) three (3) days after deposit in the U.S. mails, postage prepaid, certified mail return receipt requested, when addressed to the parties at the address set forth at the beginning of these Terms.  A copy of any notice to you shall also be sent to your address.

13.9 PUBLICITY.  Neither party shall use the name, logo, trademarks, trade names or any facsimile thereof of the other in publicity releases, promotional material, advertising, marketing or business generating efforts without first securing the written consent of the other party.

13.9 ENTIRE AGREEMENT. These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersede and merge all prior discussions between the parties with respect to such subject matters.

Last edited – 14 AUGUST 2020