This TalkLift User Agreement (the "Agreement") is a contract between you (the "User") and Biashara Viral Gains, a Kenyan incorporated corporation, referred hereafter as (“Biashara Viral Gains”, "we" or "us") with its principal place of business in Nairobi, Kenya. You must read, agree with and accept all of the terms and conditions contained in this Agreement in order to use our website located at www.talklift.com (the "Site") and related software and services (collectively with the Site, Service, the "TalkLift").
Biashara Viral Gains may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after Biashara Viral Gains provides notice of the Changes, whether such notice is provided through the Site user interface, is sent to the email address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first.
YOU UNDERSTAND THAT BY USING THE TALKLIFT SERVICE, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE TALKLIFT SERVICE. IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT. IN THAT EVENT, “USER”, "YOU" AND "YOUR" WILL REFER AND APPLY TO THAT ENTITY.
1.0 The TalkLift Service
1.1 Descriptions and Illustrations of the Service
Any descriptions or illustrations on the Site are published for the sole purpose of giving an approximate idea of the services described in them. They will not form part of the Contract or have any contractual force.
1.2 Account and Registration
You may be required to provide certain information (e.g. your contact details, description of your product or service, your company name, your credit card details, etc., collectively, “Account Information”) as part of the registration process to access the TalkLift Service, or as part of your continued use of the TalkLift Service. You agree that any registration information you give to TalkLift will always be accurate and up to date, and you agree to promptly notify TalkLift of any changes in your Account Information.
You may not transfer your account to anyone else without our prior written permission The TalkLift Service is available only to legal entities and persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
You will not share your account or password with anyone, and you must protect the security of your account and your password. You’re responsible for any activity associated with your account.
You represent, warrant, and agree that you will not contribute any Content or User Submission or use the Services in a manner that:
- Infringes or violates the intellectual property rights or any other rights of anyone else (including TalkLift);
- Violates any law or regulation, including any applicable export control laws;
- Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
- Jeopardizes the security of your TalkLift account or anyone else’s (such as allowing someone else to log in to the Services as you);
- Attempts, in any manner, to obtain the password, account, or other security information from any other user;
- Violates the security of any computer network, or cracks any passwords or security encryption codes;
- Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
- “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means); Copies or stores any significant portion of the Content;
- Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
- You will not use the TalkLift Service in connection with providing any adult entertainment oriented or otherwise pornographic services.
- You will not perform an action with the intent of introducing to the Website(s), or TalkLift Service or the applications or products of any third party, any viruses, worms, defects, Trojan horses, malware or any items of a destructive nature.
- You will not use the TalkLift Service, or access or control any customer accounts, products, devices, or applications in a manner that could cause harm, damage, or loss to any individual, or otherwise harm, defame, abuse, harass, stalk or threaten others or allow or encourage any third party to do so.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
3.0 Restrictions; Retained Rights
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including TalkLift’s) rights.
You understand that TalkLift owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services.
The Services may allow you to copy or download certain Content; please remember that just because this functionality exists, doesn’t mean that all the restrictions above don’t apply – they do!
In consideration of us providing the Services you must pay our charges (“Charges”) in accordance with this clause 4.
The Charges are the prices quoted on the Site at the time you submit your order or, where you have subscribed for a TalkLift Enterprise package, as quoted to you by the relevant member of our sales team.
If you wish to change the scope of the Services after we accept your order, and if we accept your changes, we will modify the Charges accordingly. If you choose to upgrade mid-payment cycle, the upgrade is applied immediately and the difference will be charged at the time of your next payment, along with the charges for the next cycle. If you choose to downgrade, the changes will be applied at the time of the next payment cycle.
We take all reasonable care to ensure that the prices stated for the Services are correct at the time when the relevant information was entered into the system.
We reserve the right to increase or decrease the Charges or usage levels at any time. Any such changes will only affect new customers or existing customers who choose to change their package.
Our Charges are exclusive of VAT and any other applicable sales tax. Where VAT, or other applicable sales tax, is payable in respect of some or all of the Services you must pay us such additional amounts in respect of VAT, or other applicable sales tax, at the applicable rate, at the same time as you pay the Charges.
5.0 Payment Processor
TalkLift uses a third-party payment processor (the “Payment Processor”) to allow for payments on the TalkLift Service. The processing of payments or credits, as applicable, in connection with your use of the TalkLift Service will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. TalkLift is not responsible for any errors by the Payment Processor.
Any information or content publicly posted or privately transmitted through the Services are the sole responsibility of the person from whom such content originated, and you access all such information and content at your own risk, and we aren’t liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it.
We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Services.
Biashara Viral Gains has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Services. In addition, Biashara Viral Gains will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third party website or service.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Biashara Viral Gains shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
We do not guarantee the accuracy of any TalkLift Content, including any output generated in connection with your use of the TalkLift Content or TalkLift Service. You acknowledge and agree that you use and rely on the TalkLift Content and the TalkLift Service at your own risk, and that Biashara Viral Gains will not be liable for any errors or inaccuracies of any TalkLift Content or the TalkLift Service.
Biashara Viral Gains may, but is under no obligation to, monitor the use of the TalkLift Content to ensure quality, improve TalkLift products and services, or verify your compliance with these Terms. You will not interfere with such monitoring.
9.0 Compliance with Law
You will use our APIs and other TalkLift Content and the TalkLift Service only as permitted by law (including without limitation laws regarding the import or export of data or software, privacy, or local laws). You will not use the APIs or other TalkLift Content to encourage or promote illegal or dangerous activity. You will also require any end users of your Devices or Applications ("End Users") to comply with any applicable law and these Terms. You will not knowingly enable your End Users to violate applicable law or these Terms.
Biashara Viral Gains is also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. Biashara Viral Gains has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account. We will try to provide advance notice to you prior to our terminating your account so that you are able to retrieve any important User Submissions you may have stored in your account (to the extent allowed by law and these Terms), but we may not do so if we determine it would be impractical, illegal, not in the interest of someone’s safety or security, or otherwise harmful to the rights or property of TalkLift
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.
11.0 Warranty Disclaimer
NOTWITHSTANDING ANYTHING ELSE STATED ON THE WEBSITE OR BY ANY OF TALKLIFT’S REPRESENTATIVES, BIASHARA VIRAL GAINS MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, SAFETY, ACCURACY OR COMPLETENESS OF THE SERVICES, WORK PRODUCT, TALKLIFT SERVICE OR ANY ITEMS OR ACTIVITIES RELATING TO THIS AGREEMENT (COLLECTIVELY THE “DISCLAIMED ITEMS”). BIASHARA VIRAL GAINS DOES NOT REPRESENT OR WARRANT THAT (I) THE USE OF THE TALKLIFT SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, APPLICATION, SYSTEM OR DATA, (II) THE DISCLAIMED ITEMS WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (III) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF THE DISCLOSED ITEMS, AS WELL AS ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE TALKLIFT SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (V) ERRORS OR DEFECTS IN THE DISCLAIMED ITEMS WILL BE CORRECTED, OR (VI) THE TALKLIFT SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE DISCLAIMED ITEMS ARE PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY AND MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY BIASHARA VIRAL GAINS. BIASHARA VIRAL GAINS MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, SAFETY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF THE DISCLAIMED ITEMS, AS WELL AS ANY SERVICES, PRODUCTS OR GOODS OBTAINED BY THIRD PARTIES THROUGH THE USE OF THE DISCLAIMED ITEMS. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF THE DISCLAIMED ITEMS REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
TALKLIFT’S PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. TALKLIFT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES OF WHATSOEVER NATURE RESULTING FROM SUCH PROBLEMS.
12.0 Limitation Of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TALKLIFT, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE TALKLIFT SERVICE. UNDER NO CIRCUMSTANCES WILL BIASHARA VIRAL GAINS BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE TALKLIFT SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BIASHARA VIRAL GAINS ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE TALKLIFT CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE TALKLIFT SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE TALKLIFT CONTENT OR TALKLIFT SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE TALKLIFT SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY TALKLIFT CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY TALKLIFT CONTENT OR OTHER CONTENT OR DATA TRANSMITTED OR OTHERWISE MADE AVAILABLE THROUGH THE TALKLIFT SERVICE; AND/OR (VII) CUSTOMER DATA OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF BIASHARA VIRAL GAINS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
In using the TalkLift Content and TalkLift Service, you must design and test your Devices and Applications to ensure that your Devices and Applications do not present risks of personal injury or death, property damage, or other losses. You must implement all reasonable security measures to ensure that no third party may gain unauthorized access to the TalkLift Service or TalkLift Content. If you choose to use the TalkLift Content or TalkLift Service in any way, you assume all risk that your use of the TalkLift Content or TalkLift Service causes any damage, harm, injury, or loss, including without limitation to any End Users or other individuals or property. You agree that you are solely responsible for any damage, harm, injury, or loss arising from or relating to your Device or Application or your use of any TalkLift Content or the TalkLift Service, and you agree to hold us harmless from all such damage, harm, injury, or loss.
You agree to defend, indemnify and hold harmless Biashara Viral Gains and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from or related to: (i) your use of and access to the TalkLift Content (including the APIs) or TalkLift Service, including any data or content transmitted or received by you; (ii) your violation or alleged violation of any term of these Terms, including without limitation your breach of any of the representations and warranties above; (iii) any violation of any third-party right, including without limitation any right of privacy or intellectual property rights, by you, your Customer Data, Device, or Application, or any use thereof; (iv) your violation of any applicable law, rule or regulation; (v) any of your Customer Data or any that is transmitted via your account; (vi) any personal injury or property damage arising from or relating to your use of the TalkLift Content or TalkLift Service or any authorized or unauthorized use of your Device or Application; or (vii) any other party’s access and use of the TalkLift Content or TalkLift Service with your unique username, password or other appropriate security code.
Extended Meaning. Any indemnity in favour of Biashara Viral Gains, and any release of Biashara Viral Gains, shall also be construed as being an indemnity or release, as the case may be, of the Indemnified Parties.
14.0 Privacy And Security
We care about the integrity and security of your Customer Data and personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you are solely responsible for any personal injury or property damage arising from or relating to your use of any TalkLift Content, the TalkLift Service, or any authorized or unauthorized use of your Device or Application.
15.0 Proprietary Rights
Biashara Viral Gains and its licensors reserve all Proprietary Rights in and to the TalkLift Service. User may not use the TalkLift Service except as necessary for the purposes of discharging its obligations under this Agreement and any Service Contract entered into pursuant to this Agreement and on the terms set out in the License Agreement. Biashara Viral Gains reserves the right to withdraw, expand and otherwise change the TalkLift Service at any time in Biashara Viral Gains's sole discretion. User shall not be entitled to create any "links" to the TalkLift Service, or "frame" or "mirror" any content contained on, or accessible through, the TalkLift Service, on any other server or internet-based device. Biashara Viral Gains alone (and its licensors, where applicable) shall own all right, title and interest, including all related Proprietary Rights, in and to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the TalkLift Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the TalkLift Service, or any Proprietary Rights owned by Biashara Viral Gains. TalkLift’s name, logo, and the product names associated with the TalkLift Service are trademarks of Biashara Viral Gains or third parties, and no right or license is granted to use them.
16.0 Term and Termination
The term of this Agreement commences on the Effective Date and continues in effect until terminated in accordance with Termination Clause.
17.1 Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications.
17.2 Notices: Consent to Electronic Notice. You consent to the use of (a) electronic means to complete this Agreement and to deliver any notices pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or your use of the TalkLift Service. Notices hereunder shall be invalid unless made in writing and given (a) by Biashara Viral Gains via email (in each case to the address that you provide), (b) a posting on the TalkLift Site or (c) by you via email to email@example.com or to such other addresses as Biashara Viral Gains may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
17.3 Modifications. No modification or amendment to this Agreement shall be binding upon Biashara Viral Gains unless in a written instrument signed by a duly authorized representative of Biashara Viral Gains. For the purposes of this Section 17.3, a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles.
17.4 No Waiver. The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and shall in no way affect that party's right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.
17.5 Assignability. User may not assign this Agreement, or any of its rights or obligations hereunder, without Biashara Viral Gains prior written consent in the form of a written instrument signed by a duly authorized representative of Biashara Viral Gains (and, for the purposes of this Section 19.5, a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles). Biashara Viral Gains may freely assign this Agreement without consent of User. Any attempted assignment or transfer in violation of this Section will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
17.6 Severability. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
17.7 Choice of Law. This Agreement and any action, dispute, controversy or claim related thereto will be governed by the laws of Kenya without regard to its conflict of laws provisions. The exclusive jurisdiction of any action in relation to this Agreement will be the Kenyan Court and each of the parties hereto waives any objection to jurisdiction. However, in the event of the actual or threatened infringement, misappropriation or violation of Biashara Viral Gains Proprietary Rights, Biashara Viral Gains may, at its discretion, institute legal proceedings in any jurisdiction (s) which is (are) deemed necessary or advisable.
17.8 Independent Legal Advice. You acknowledge that Biashara Viral Gains is not providing any legal advice, and that you have been afforded an opportunity to obtain independent legal advice with respect to this Agreement and the Service Contract, and that you understand the nature and the consequences of this Agreement and the Service Contract.
17.9 Language. The parties hereto acknowledge that they have requested and are satisfied that this Agreement be drawn up in English. The English language version of this Agreement shall be controlling in all respects and shall prevail in case of any inconsistencies with translated versions, if any.
Should you have any questions or comments concerning the Terms and Conditions, please do not hesitate to contact us at firstname.lastname@example.org.