TERMS OF SERVICE
The client identified in the Order Form (as defined herein) (together with its employees, agents and representatives, collectively referred to herein as “Client”) desires to obtain from Abstrakt Corp. (hereinafter “Abstrakt”), the right to access and use the proprietary software system and any other services provided by Abstrakt (the “Service”) pursuant to the attached Standard Terms of Service and any exhibits or schedules thereto. This Standard Terms of Service, any Order Form (defined below), and any exhibits or schedules attached hereto and other documents referenced herein shall constitute the entire agreement (“Agreement”) between Abstrakt and Client and replaces all prior oral or written communications between the parties relating to the Service. Client and Abstrakt Software may each be known as the “Party” or collectively as the “Parties”.
SECTION 1. DEFINITIONS
1.1 “Affiliate” means any parent, subsidiary, or other company or entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, or which operates, or is operated by, Client. The term “control” means the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
1.2 “Authorized Users” shall include: (a) all directors, officers, and employees of Client and any Affiliate; (b) any agent using the Service on behalf of Client.
1.3 “Client Data” shall have the meaning set forth in Section 8.
1.4 “Confidential Information” means (a) all nonpublic information concerning the business, technology, products, services, internal structure and strategies of the disclosing Party, specifically including, without limitation, end-user materials, work product, Intellectual Property, proposals, designs, concepts, methodologies, inventions, source or object code, developments, research, programs, databases, referral sources, customers, prospective customers, inventions, developments, “know-how,” procedures, financial information or licensing policies, (c) any other information clearly labeled by the disclosing Party in writing as “confidential” or “proprietary” prior to its disclosure, and (d) all such information that, by its nature, a reasonable party would consider to be confidential or proprietary. The following information will not be considered Confidential Information: (i) information which was generally known to the public prior to its disclosure; (ii) information which becomes generally known to the public by any means other than through violation of this Agreement; (iii) information independently developed by the receiving Party without reference to the disclosing Party’s Confidential Information; or (iv) information received from a third party not under any obligations of confidentiality.
1.5 “Fees” means those license and other fees set forth on the Order Form, attached hereto and incorporated herein by this reference.
1.6 “Intellectual Property” means all intangible legal rights or interests evidenced by or embodied in (a) any idea, design, concept, technique, invention, discovery or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; (b) any work of authorship, regardless of copyright-ability, but including copyrights and any moral rights recognized by law; (c) any trademark, trade name or service mark; and (d) any other intellectual property, proprietary or similar rights, in each case, including all goodwill pertaining thereto and on a worldwide basis.
SECTION 2. LICENSE TERMS
2.1 Grant of Access. Subject to the terms and conditions of this Agreement, Abstrakt grants to Client and its Authorized Users a limited, non-transferable, and non-sublicensable license to access and use the Service for Client’s internal business purposes during the Term (defined below) for the number of seats identified in the Order Form. This Agreement does not permit access by persons who are not Authorized Users. Client understands and acknowledges that the Service is hosted by Abstrakt’s trusted third-party hosting service provider and are made accessible by Abstrakt to Client via Internet connections pursuant to the terms and conditions of this Agreement. The Service may be used by Client only in the number of Authorized Users identified in the Order Form. Except as otherwise specified in this Agreement, nothing herein shall prevent Abstrakt or its licensors, if any, from promoting, providing, licensing, or sublicensing the Service or providing any services to other parties. Abstrakt does not guarantee, represent or warrant that access to the Service will be uninterrupted or error-free, and does not guarantee that Client will be able to access or use all of the Service’s features at all times. Abstrakt will make reasonable efforts to notify Client of significant system outages and scheduled downtime. Abstrakt may suspend access to the Services, in whole or in part, if (i) Client or its Authorized Users are using the Service in violation of this Agreement or applicable law, (ii) Client’s systems or account has been compromised or unlawfully accessed, (iii) suspension if required under the law, or (iv) Client fails to pay the applicable fees within ten (10) days of when due.
2.2 Prohibitions. Use of and access to the Service is permitted only by Authorized Users. Under no circumstances may Client modify, decompile, reverse compile, disassemble, reverse engineer, decrypt, or otherwise seek to recreate the source code of the Service, adapt the Service in any way, use the Service to create a derivative work, or grant any other person or entity the right or access to do so, without the advance written consent of Abstrakt. Except as expressly authorized by this Agreement, Client shall not modify, copy, duplicate, reproduce, unbundle, sublicense, hypothecate, sell, assign, transfer, display, distribute, lend, rent, or lease the Service or any portion thereof to any third party. All proprietary and/or other notices of Abstrakt or its licensors, if any, shall be provided and maintained on the Service at all times.
2.3.1 Access to the Service is licensed and not sold. Except as otherwise provided herein, Client shall not, by virtue of this Agreement or otherwise, acquire any ownership rights in the Service aside from the limited licenses granted herein. Abstrakt shall have and retain all right, title, and interest in and to the Service and all Intellectual Property comprising the Service, as well as any modifications or enhancements made thereto, with the sole exception of any Client Data or Confidential Information provided by Client. Client shall not allow any third party to use or view the Service without Abstrakt’s prior written consent. Further, Client and Abstrakt expressly agree that Abstrakt shall own and shall have the right to use, any and all suggestions, customization, modifications, enhancements, improvements, alterations, changes, or revisions to the Service made or suggested by Client or its Authorized Users.
2.3.2 All graphics, text, audio, photos, software, music, sounds, video or similar information or material provided or submitted by or on behalf of Client to Abstrakt or the Service in the course of utilizing the Service or in connection with this Agreement (“Customer-Supplied Content”) is and shall remain the property of Client or its applicable licensor. Client grants to Abstrakt a nonexclusive, worldwide, royalty-free license to use, reproduce, modify and prepare derivative works of the Customer-Supplied Content for the purpose of distributing the Customer-Supplied Materials on the Software at Customer’s direction, facilitating Customer’s communications with other users of the Service, for private back-end operations of the Software and for any other purpose that Customer instructs.
2.4 Notification. Client shall promptly notify Abstrakt of any determination, discovery, or notification that any person or entity is or may be misusing or infringing any Service. Client shall not take any legal action relating to the protection or defense of any Service without the prior written approval of Abstrakt.
2.5 Order Forms and Special Terms. Client shall order the Service pursuant to an order form (“Order Form”). Each Order Form shall include at a minimum a listing of the Service, any services, any Affiliates, the number of Authorized Users (if limited), and any equipment being leased pursuant to this Agreement. Except as otherwise provided on the Order Form, each Order Form shall be subject to the terms and conditions of this Agreement. To the extent any additional or special terms apply to the Service, such terms shall be set out in the Order Form.
SECTION 3. PROFESSIONAL SERVICES
3.1 Services. In the event that Customer requests software consulting and management services, information technology services, installation services, integration services, training services, or other stipulated services provided to Customer as identified in a separate Scope of Work (“Professional Services”) that Abstrakt desires to render, the Parties shall execute an Order Form and Scope of Work covering such Professional Services. These Services may include additional cost to Client.
3.2 Estimates. Unless stated otherwise in an applicable Order Form, any estimates of time provided in connection with deliverables or Professional Services, are good faith projections, but are not guarantees.
SECTION 4. FEES
4.1 Client Fees. Client shall pay to Abstrakt any Fees in the amount, at the times, and in the manner set forth in the Order Form. Such Fees do not include any applicable taxes or duties, including, without limitation, state and local use, sales and property taxes and duties. Client is responsible for all taxes and duties incurred as a result of its purchase, license, use of, or access to the Service.
SECTION 5. CLIENT OBLIGATIONS
5.1 Credential Security. Client shall be solely responsible for the security and confidentiality of any usernames or passwords granted to Client or its Authorized Users to access the Service, and shall limit disclosure of such usernames and passwords to its Authorized Users. Client shall be solely responsible for any authorized or unauthorized access to the Service using such usernames and passwords, and any actions taken thereunder.
5.2 Compliance with Laws. Client shall ensure that it and its Authorized Users use the Services only in accordance with applicable laws, including but not limited to all laws regarding conversation recordings.
5.3 Prohibited Content. Client shall ensure that Client and all Authorized Users shall not, nor permit any third party, to distribute, upload, transmit, store, make available or otherwise publish or process through the Service any Customer-Supplied Content that: (1) is unlawful or encourages another to engage in anything unlawful; (2) is untrue, inaccurate, outdated or not current, (3) contains a virus or any other similar programs or software which may damage the operation of Abstrakt’s or another’s computer; (3) violates the rights of any party or infringes upon the patent, trademark, trade secret, copyright, or other intellectual property right of any party; (4) is libelous, defamatory, obscene, invasive of privacy or publicity rights, abusing, harassing, fraudulent, misleading, illegal, threatening or bullying; or (5) contains code or programing or intent to automatically test/extend services or similar functionality designed to test through automated actions that may cause an interruption to the service. Client understands and agrees that Abstrakt reserves the right to edit, modify or remove content being hosted by Abstrakt, including for violations of the above standards. Client shall ensure that all Customer-Supplied Content is true and accurate at all times, and shall promptly update any such Customer- Supplied Content accordingly.
5.3 Prohibited Content. Client shall ensure that Client and its Authorized Users shall not (1) use the Service for any conduct or activity that violates applicable law or for any illegal or unlawful purpose; (2) resell, distribute, or sublicense the Service or use any of the foregoing for the benefit of anyone other than Client or the Authorized Users; (3) use the Service to build or research a competing product or service; (4) interfere with, impair or disrupt the Service and related Abstrakt; (5) introduce any virus or programming routine which is intended to or does disrupt or interrupt the use of the Service or Abstrakt; (6) automate testing or use any automatic programing to extend or test any functionality or (7) reverse engineer or otherwise conduct research into the internal operations of the Service. All rights in and to the Service not expressly granted herein are retained by Abstrakt.
SECTION 6. TERM & TERMINATION
6.1 Term. The initial term (the “Initial Term”) of this Agreement shall be as specified in the Order Form, unless terminated earlier pursuant to Section 6.2. After the Initial Term, the Agreement shall automatically be renewed annually until terminated. Should Client choose to terminate ahead of annual renewal, notice must be given 90 days prior to end of initial term date in writing to [email protected]
6.2 Termination. This Agreement may be terminated by either party: (a) if the other Party materially breaches the terms and conditions of this Agreement, and, upon notice of said breach, fails to cure the breach within thirty (30) days of the notice of breach; (b) if Abstrakt gives Client notice of material additional terms and conditions that will govern use of or access to the Service and Client does not accept the material additional terms and conditions; (c) if Abstrakt ceases providing access to the Service to its clients generally; or (d) if either Party is the subject of a voluntary or involuntary bankruptcy, reorganization or liquidation proceeding, is insolvent, makes an assignment for the benefit of creditors or admits in writing its inability to pay debts when due. In the event that Client terminates this Agreement due to Abstrakt’s material uncured breach, Client shall receive a refund of the Fees remaining unused as of the termination date.
SECTION 7. LIMITED WARRANTY, DISCLAIMER, LIMITATION OF LIABILITY
7.1 Disclaimer. THE SERVICE AND ANY SERVICES PROVIDED BY ABSTRAKT UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. ABSTRAKT EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SUITABILITY OR NON-INFRINGEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, ABSTRAKT DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE SERVICE WILL MEET CLIENT’S REQUIREMENTS, THAT ACCESS TO OR OPERATION OR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT RESULTS WILL BE TIMELY, ACCURATE, ADEQUATE OR COMPLETE. ABSTRAKT MAKES NO WARRANTY AND ASSUMES NO RESPONSIBILITY OR LIABILITY REGARDING ANY RELATIONAL DATABASE SERVICE OR SERVERS, OR ANY THIRD PARTY HARDWARE, EQUIPMENT OR SERVICE WITH WHICH THE SERVICE MAY BE REQUIRED TO COMMUNICATE OR OPERATE THE SERVICE.
7.2 Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL ABSTRAKT BE LIABLE TO CLIENT OR ANY THIRD PARTIES WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOST PROFITS, WORK STOPPAGE, COVER, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULL EXTENT ALLOWED UNDER APPLICABLE LAW, ABSTRAKT SHALL NOT BE LIABLE FOR DAMAGES UNDER THIS AGREEMENT BEYOND THE FEES PAID TOABSTRAKT HEREUNDER. THE PARTIES UNDERSTAND THAT THE FOREGOING DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY ARE MATERIAL TERMS OF THIS AGREEMENT AND A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN ORDER FOR ABSTRAKT TO PROVIDE AND CLIENT AND ITS AUTHORIZED USERS TO OBTAIN ACCESS TO THE SERVICE FOR THE SPECIFIED FEES.
SECTION 8. INDEMNIFICATION
8.1 By Abstrakt. Abstrakt will defend, indemnify, and hold Client (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising from any third party claim, suit, action, or proceeding arising from the actual or alleged infringement of any copyright, patent, trademark, or misappropriation of a trade secret by the Service as provided or made available to Client by Abstrakt (other than that due to Customer-Supplied Content, third-party content available on the Service (such as content originating from other users), Client Data or unauthorized use by Client). In case of such a claim, Abstrakt may, in its discretion, procure a license that will protect Client against such claim without cost to Client, replace the Service with a non- infringing Service, or if it deems such remedies not practicable, Abstrakt may terminate this Agreement without fault, provided that in case of such a termination, Client will receive a pro-rata refund of the license fees prepaid for use of the Service not yet furnished as of the termination date. THIS SECTION STATES CLIENT’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.
8.2 By Client. Client will defend, indemnify, and hold Abstrakt (and its officers, directors, employees and agents) harmless from and against all Losses arising out of or in connection with a claim, suit, action, or proceeding by a third party (i) alleging that the Client Data, Customer-Supplied Content or other data, content or information supplied by Client or Authorized Users infringes the intellectual property rights or other rights of a third party or has caused harm to a third party; (ii) arising out of claims relating to Client or Authorized Users’ use of the Service in violation of the law; or (iii) arising out of or related to any breach or alleged breach of this Agreement by Client or Authorized Users.
8.3 Procedure. In case of any claim that is subject to indemnification under this Agreement, the Party that is indemnified (“Indemnitee”) will provide the indemnifying Party (“Indemnitor”) reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under this Agreement. Each Party will cooperate in good faith with the other to facilitate the defense of any such claim and will tender the defense and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability.
SECTION 9. CONFIDENTIALITY
9.1 Confidentiality and Non-Use. Neither Party will use the other Party’s Confidential Information provided during the Term of the Agreement except as provided herein and as reasonably required for the performance of this Agreement. Each Party will hold in confidence the other Party’s Confidential Information by means that are no less restrictive than those used for its own confidential materials. Other than pursuant to the direction of a Party regarding its own Confidential Information, each Party agrees not to disclose the other Party’s Confidential Information to anyone other than its employees, confidential advisors, or subcontractors who are bound by confidentiality obligations at least as restrictive as herein and who need to know the same to perform such Party’s obligations hereunder or to assist a Party in meeting its legal obligations. The confidentiality obligations set forth in this Section will survive for as long as applicable information meets the definition of Confidential Information.
9.2 Permitted Disclosure. The receiving Party may disclose Confidential Information as required by law or in compliance with any court or administrative order; provided that the receiving Party gives the disclosing Party reasonable notice as permitted by law that such Confidential Information is being sought by a third party in order to afford the disclosing Party the opportunity to limit or prevent such disclosure.
9.3 Actions Upon Termination. Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each Party will, upon the request of the disclosing Party, either: (i) return all of such Confidential Information of the disclosing Party provided during the Term and all copies thereof in the receiving Party’s possession or control to the disclosing Party; or (ii) destroy all Confidential Information provided during the Term and all copies thereof in the receiving Party’s possession or control. Notwithstanding the foregoing, nothing herein shall require a Party to remove or delete the other Party’s Confidential Information from its long term backup storage, provided that any such retained information shall remain subject to the confidentiality obligations of this Agreement. Further notwithstanding the foregoing, upon any termination or expiration of this Agreement, Provider may retain any Confidential Information that consists of Client Data shared with or provided by Client to other users of the Service, and may continue to display and provide said Client Data to such other Service users.
SECTION 10. CLIENT DATA
10.1 Client Data. The Service involves the receipt, processing, and storage of data input by Client and its Authorized Users (the “Client Data”). Because Client Data is provided by Client and its Authorized Users, Abstrakt does not control such Client Data. In connection with Client Data, Client affirms, represents, and warrants that Client owns or has the necessary licenses, rights, consents, and permissions to use and authorize Abstrakt to use all Client Data in the manner contemplated hereunder and to transfer to and process such Client Data within the United States as may be required by applicable law. Client grants to Abstrakt a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicensable, and transferable license to use, reproduce, adapt, perform, compile, display, incorporate, modify, and create derivative and collective works utilizing Client Data, including any audio recordings of the Client’s phone calls processed by Abstrakt, (i) to perform the Services for Client, and (ii) in a de-identified format for the improvement of the Service and Abstrakt’s other products and services (as may exist now or in the future) and for such other lawful purposes at Abstrakt’s sole discretion.
10.2 Inaccurate Client Data; Backup. All Client Data originates from Client and its Authorized Users, and as such, is beyond the control of Abstrakt. Abstrakt neither initiates the uploading and/or input of such Client Data nor monitors the specific content or accuracy of the Client Data being uploaded and/or input. Without limiting the generality of any other provision of this Agreement, Abstrakt shall have no responsibility or liability related to the accuracy, content, currency, completeness, or delivery of the Client Data provided by Client or its Authorized Users. Client is responsible for the accuracy, content, currency, completeness, and delivery of the Client Data uploaded and/or input by its Authorized Users. The Service is a productivity tool, not a backup system. Client understands that it is Client’s responsibility to back up its Client Data in the manner and at intervals of its choosing, and that Abstrakt does not have the obligation to maintain copies or backups of Client Data.
SECTION 11. GENERAL PROVISIONS
11.1 Relationship of the Parties. The relationship of Abstrakt and Client established by this Agreement shall be solely that of independent contractors, and nothing herein shall create or imply any other relationship. Abstrakt does not grant Client or any of Client’s representatives the power or authority to make or give any agreement, statement, representation, warranty or other commitment on behalf of Abstrakt, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of Abstrakt, or to transfer, release or waive any right, title or interest of Abstrakt. Abstrakt shall have the right to determine the method, details, and means of performing any services pursuant to this Agreement.
11.2 Assignment. Except for an assignment to an Affiliate, this Agreement and any Order Form may not be assigned by either Party without the prior written approval of the non-assigning Party, provided that Abstrakt may assign this Agreement along with any Order Forms to (i) an acquirer of all or substantially all of Abstrakt’s assets involved in the operations relevant to this Agreement; or (ii) a successor by sale, merger, acquisition, recapitalization, reorganization or other combination. Any purported assignment in violation of this Section will be void. This Agreement and applicable or any Order Forms may be enforced by and are binding on permitted successors and assigns.
11.3 Entire Agreement; Modification. This Agreement, including any exhibits and schedules hereto and any separate support and maintenance agreement between the Parties, constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior agreements, both oral and written, with respect to the subject matter hereof. Except as otherwise provided herein, no amendment or modification of this Agreement or any exhibit or schedule shall be effective unless in writing and signed by the Party to be bound. In the event any provisions contained in a separate support and maintenance agreement, exhibit, or schedule hereto expressly conflict with any terms, conditions or clauses contained in this Agreement, the provisions of such separate agreement, exhibit, or schedule shall govern to the extent such provisions expressly conflict. No use of trade or other regular practice or method of dealing between the Parties shall be used to modify, interpret, supplement or alter in any manner the terms of this Agreement.
11.4 Attorneys’ Fees. In the event of a breach of this Agreement, the breaching Party will reimburse the non-breaching Party for all costs and expenses reasonably incurred by the non-breaching Party in connection with the breach, including, without limitation, attorneys’ fees. Additionally, in the event any suit or action is brought to enforce or interpret any of the terms of this Agreement, the prevailing Party will be entitled to recover from the other Party all reasonable attorneys’ fees incurred at trial, on appeal, and on any petition for review, together with such other expenses, costs, and disbursements as may be allowed by law.
11.5 Governing Law; Venue. This Agreement shall be governed by and construed, interpreted, and enforced in accordance with the laws of the State of Delaware, without reference to its conflicts or choice of law principles. The Parties agree that the sole and exclusive jurisdiction and venue for any and all disputes arising under this Agreement shall be in any court located in or having jurisdiction over Delaware. Each of the Parties hereby irrevocably submits and consents to the personal jurisdiction of such courts.
11.6 Force Majeure. Neither Party will be liable for any delay in performing its obligations (other than payment of money) if the delay is caused by any event beyond the reasonable control of the Party, including, without limitation, acts of nature, war or insurrection, civil commotion, destruction of production facilities or materials by earthquake, fire, storm or flood, material or products shortages, labor disturbances, epidemic, disruption or slow speed of the Internet, breakdowns of security or introduction of computer viruses (and the like) by third parties, any manufacturer or supplier delay in delivery or non-delivery, governmental action, terrorist attack or other similar event.
11.7 Compliance with Export Laws. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service. Without limiting the foregoing, Client warrants and represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and Client shall not use, export or re-export the Service in violation of any U.S. export embargo, prohibition or restriction. Client shall promptly provide notice to Abstrakt if this warranty and representation is no longer accurate.
11.8 Severability. If any term or provision of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining terms and provisions of this Agreement shall remain in full force and effect, and such invalid, illegal or unenforceable term or provision shall be deemed not to be part of this Agreement.
11.9 Publicity. Client grants Abstrakt the right to refer to the name of Client in Abstrakt’s customer listings, on its websites, and in marketing brochures, conversations, user profiles, or press releases.
11.10 Survival. The terms and provisions of Sections 1, 2.2, 2.3, 4 and 6 – 11 inclusive shall survive any termination or expiration of this Agreement.