1. SERVICES. Subject to the terms of this Agreement, and the timely payment in full of all Fees (defined below), Company shall provide Customer a non-exclusive, non-assignable, and non-transferable right to access and permit Customer and Customer’s Authorized Users (defined below) the right to access and use the Company software, platform and any version of other additional software, applications, features, functionality, or services provided by Company that are used subscribed to by Customer as set forth in the Order Form (the “Services”). The Services include a real-time call coaching software (the “Software”). As soon as reasonably practicable following execution of this Agreement, Company shall provide Customer with the necessary access codes and protocols to access the Services.
“Authorized User” means any individual authorized, by virtue of his relationship to or permissions from Customer, to access the Services in accordance with Customer’s rights under this Agreement. An Authorized User can be a Customer’s employee, contractor, or agent. An Authorized User must have an email address on Customer’s business domain (for example, [email protected]).
2. TECHNICAL SUPPORT. Company will provide technical support for support issues directly to the Authorized Users during the defined process and business hours as set forth in the Terms of Service. Customer shall follow the process set forth in the Terms of Service for any support or system configuration requests.
3. UPDATES AND ADDITIONAL SERVICES. All Software Updates are included in the Fees. “Update” means a set of procedures or new program code implemented by Company at its sole discretion, incorporating only modifications, enhancements, and applicable maintenance releases only to improve the functionality of the Service. Any custom development, product features or enhancements may have additional costs. Customer may select additional services, including additional training and implementation services, as set forth on one or more statements of work executed between the parties hereto. Each scope of work shall set forth the fees for such additional services, which shall be payable as set forth therein. Company provides initial web-based training sessions to Customer through virtual, web based tools. Customized training and other professional services outside agreed upon Services as set forth in the Order Form will be charged at a Company’s standard rate, which shall not be less than $250 per hour.
4. RESTRICTIONS. Customer shall not (i) license, grant, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available the Services in any way to any third party, other than an Authorized User; (ii) modify or make derivative works based upon the Services, disassemble, reverse compile, or reverse engineer any part of the Service, including, without limitation, the Software or any associated documentation; or (iii) create Internet “links” to the Services or “frame” or “mirror” any part of the Service, including any content contained in the Service.
5. COMPANY’S RIGHTS AND OBLIGATIONS.
(a) Customer may elect to purchase additional features, functionality, or capabilities by entering into a mutually agreed upon and signed scope of work or amendment to this Agreement.
(b) For the avoidance of doubt, Company will not be obligated to provide the following in connection with the Services, unless provided for in a separate scope of work signed by the parties and payment of the applicable fees as set forth in such scope of work: (i) training, configuration, or implementation services in addition to those services set forth on Exhibit A of the Order Form; (ii) custom development or custom upgrades; or (iii) any new products or services.
(c) All Services will be performed remotely. If Company is required to travel to Customer site during this engagement, all travel and related expenses shall be fully reimbursed by Customer. Company will submit estimated costs for approval in writing prior to incurring such expense.
6. Customer’S RIGHTS AND OBLIGATIONS.
(a) Use of the Services. Customer is responsible for all activity occurring under Authorized User accounts for access to the Services and shall comply with all applicable local, state, national, and foreign laws related to data privacy and the transmission of technical or personal data, including personally identifiable information. Customer shall: (i) notify Company immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Company immediately, and use reasonable efforts to stop immediately, any copying or distribution of the Services of any of the content in the Services that is known or suspected by Customer; and (iii) not allow a user to impersonate another user or provide false identity information to gain access to or use the Services.
(b) Fees. Customer agrees to pay the Fees and any other costs as set forth in this Agreement and/or invoiced to Customer.
7. OWNERSHIP; DATA.
(a) Intellectual Property. Customer acknowledges and agrees that Company or its licensors shall own all right, title and interest in, to, and under all intellectual property rights in the Services and the Software, and any suggestions, enhancement requests, feedback, or recommendations provided by Customer or its Authorized Users relating to the Service or the Software (the “Feedback”), including all unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, know-how and other trade secret rights, and all other intellectual property rights, derivatives or improvements thereof. Customer shall assign and hereby assigns to Company all right, title, and interest in, to, and under, and Company is free to use, without any attribution of compensation to Customer, any ideas, know-how, concepts, techniques, and all applicable intellectual property rights relating to the Feedback for any purpose whatsoever. Customer does not acquire any rights in the Service or Software, express or implied, other than those expressly granted in this Agreement and all rights not expressly granted to Customer are reserved by Company. This Agreement is not a sale and does not convey any rights of ownership in or related to the Service or Software to Customer.
(b) Customer Data. Customer shall own all its data, information, and materials provided by Customer and its Authorized Users to Company (the “Customer Data”), and Customer shall be solely liable for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all such data, information, and materials. “Customer Data” includes any Customer-specific content created by Company for Customer using data, information, or materials provided by Customer and its Authorized Users to Company. Customer hereby licenses to Company the limited right to use or modify the Customer Data delivered by Customer to Company solely for the purpose of permitting Company to perform the Services requested by Customer hereunder including to compile statistical and performance information related to the provision and operation of the Services.
(c) Return of Data. In the event this Agreement expires or is terminated as set forth herein, upon Customer request, Company will make available to Customer a file of such Customer Data within thirty (30) days of expiration or termination of this Agreement. Customer agrees and acknowledges that Company has no obligation to retain such Customer Data, and may delete such Customer Data after thirty (30) post-termination or expiration of this Agreement.
(d) Aggregated Data. The parties agree that Company may compile Aggregated Data, and such Aggregated Data shall be proprietary to Company. “Aggregated Data” means any non-personally identifiable, technical, statistical, or analytical data, gathered or generated directly by the Software or by use of the Software, that Company collects, gathers, and aggregates periodically as part of its ordinary business operations. Aggregated Data is de-identified data that Company (and its affiliates, licensors, and agents) may use on a non-attributed basis to monitor and improve its products and services, for benchmarking purposes, or to provide customized services or technologies to its Customers. Company collects and uses this data in accordance with its privacy policies and in accordance with applicable data protection laws.
8. CONFIDENTIALITY. Each party acknowledges that it will have access to certain confidential information of the other party, including the terms and conditions of this Agreement. “Confidential Information” includes all information identified by a party as confidential. Each party’s Confidential Information shall (i) remain the sole property of that party and (ii) be used by the other party only as described herein and may not be disclosed, provided, or otherwise made available to any other third party except that such Confidential Information may be disclosed to the other party’s employees or agents who have a need to know in the scope of their work during the time they are performing services under this Agreement and are under the other party’s security and control. Confidential Information does not include (i) information that the recipient can establish was already known to the recipient at the time it was disclosed in connection with this Agreement, (ii) information that is developed independently by the recipient or received from another third party lawfully in possession of the information and having no duty to keep the information confidential, (iii) information that becomes publicly known other than by a breach of this Agreement, or (iv) information disclosed in accordance with a valid court order or other valid legal process. Each party agrees to hold the Confidential Information of the other party in strictest confidence and not to copy, reproduce, distribute, publish, or disclose such Confidential Information to any person except as expressly permitted by this Agreement.
(a) Fees. Payment terms are set forth in the Order Form. There are no refunds for any prepaid Services.
(b) Suspension. In the event of non-payment of any Fees or other costs payable hereunder, Company may, in addition to any other rights and remedies it may have, suspend Customer’s and its Authorized Users’ access to the Services upon thirty (30) calendar days’ notice.
(c)Fee Increase. Company may increase the Fees and other fees for the Services upon thirty (30) calendar days’ written notice to Customer prior to any Renewal Term.
(d) Taxes. Fees do not include taxes (including sales, use, and VAT) or customs, duties, excise taxes, or tariffs. Federal, state and local sales, use and excise taxes and all similar taxes and duties are the sole responsibility of the Customer.
10. TERM AND TERMINATION.
(a) Term. Unless otherwise set forth in the Order Form, this Agreement shall be valid as of the Effective Date for one year (“Initial Term”) and shall be automatically renewed for successive one-year periods (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either party gives written notice to the other party of non-renewal at least thirty (30) calendar days’ prior to termination of the Initial Term or the then-current Renewal Term, if applicable.
(b) Termination for Breach. Either party may terminate this Agreement for breach if the other party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice.
(c) Effect of Termination. Upon suspension or termination of this Agreement, Customer must pay all Fees and any other fees to the date of termination provided herein. Customer will have the time period set forth in Section 7(c) to request and/or remove any Customer Data that it or its Authorized Users provided through the Services. Following such a period, the Company may destroy such Customer Data.
(d) Survival. Following termination or expiration of this Agreement, the following sections shall survive: Restrictions, Ownership and Data, Confidentiality, Fees, Limited Warranty, Limitation of Liability, Indemnification, Dispute Resolution, and any other terms which by their nature extend beyond the effective date of such termination.
11. LIMITED WARRANTY. Company represents and warrants to Customer that the Services will be performed in a manner consistent with industry standards and in compliance with any specifications and requirements set forth in this Agreement. Customer’s exclusive remedy for breach of the foregoing limited warranty shall be for Company to update and correct such Services not in compliance with such specifications and requirements, at no cost to Customer. The foregoing limited warranty shall not apply to performance issues or defects in the Services that result from factors outside Company’s reasonable control, that resulted from any actions or inactions of Customer or its Authorized Users, or that resulted from Customer’s equipment or any third party equipment not within the control of Company.
Except as set forth in this Section 11, ALL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET Customer’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN Customer AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
12. LIMITATION OF LIABILITY. COMPANY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST BUSINESS AND LOST PROFITS, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 12, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR PUNITIVE DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. COMPANY’S MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER FORM OF LIABILITY) FOR DAMAGES OR LOSS, HOWSOEVER ARISING OR CAUSED, SHALL IN NO EVENT EXCEED THE AMOUNT ACTUALLY PAID TO COMPANY DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM UNDER THIS AGREEMENT. THE ALLOCATIONS OF LIABILITY IN THIS SECTION REPRESENT THE AGREED AND BARGAINED-FOR UNDERSTANDING OF THE PARTIES. THE LIMITED REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY NOTWITHSTANDING THE FAILURE OF THEIR ESSENTIAL PURPOSE.
13. INDEMNIFICATION. Customer shall indemnify, defend, and hold harmless Company and its affiliates, officers, managers, directors, employees, agents, successors, and assigns, for, from, and against all claims, demands, liabilities, damages, and costs including, without limitation, its reasonable attorneys’ fees, and other costs of defense, arising from or relating any claim related to the Customer Data or any other data provided by Customer to Company.
14. DISPUTE RESOLUTION AND MEDIATION. If any controversy or claim arises relating to this Agreement, the parties will first attempt in good faith to negotiate a solution to their differences. If negotiation does not result in a resolution within thirty (30) days of when one party first notifies the other of the controversy or claim, then prior to initiating any legal proceeding, the parties agree, understand, and acknowledge that (i) the parties must first participate in mediation with an experienced third-party mediator mutually agreeable to the parties; (ii) the party desiring to initiate such action or proceeding must put the other party on written notice of the dispute and the nature of such dispute; and (iii) the parties agree to share equally in the costs of the mediation. If mediation does not result in a resolution of the dispute, either party may elect to pursue other legal proceedings.
15. NON-SOLICITATION. Customer agrees that during the Term of this Agreement and any scope of work, and for a period of twelve (12) months thereafter, it shall not solicit for employment or retention as an independent contractor any employee, independent contractor, or former employee or independent contractor of Company, who provided any Services pursuant to this Agreement. “Solicit” shall not be deemed to include advertising in newspapers or trade publications available to the public.
16. ASSIGNMENT. Customer shall not assign this Agreement or its rights and obligations (including, without limitation, any assignment that occurs by operation of law) without the prior written consent of the Company. Notwithstanding the foregoing, the rights and obligations of either party may be assigned in connection with a reorganization, merger, consolidation, acquisition or other restructuring involving all or substantially all of the voting securities and/or assets of such party. Subject to the foregoing, this Agreement inures to the benefit of and shall be binding upon the parties and their respective successors and assigns.
17. GOVERNING LAW; SEVERABILITY. This Agreement is made under, and must be construed in accordance with, the laws of the state of Arizona, without giving effect to any choice or conflict of law provision of any jurisdiction. Parties agree to the exclusive jurisdiction and venue of the courts located in Maricopa County, Arizona for any dispute or claim relating to this Agreement. If any provision of this Agreement is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, and the remainder of such provision and this Agreement will be valid and enforceable to the fullest extent permitted by applicable law.
18. ENTIRE AGREEMENT; AMENDMENTS. This Agreement (a) represents the entire understanding between the parties hereto with respect to the subject matter set forth herein, (b) supersedes all negotiations, agreements, contracts, commitments and understandings, both verbal and written between Company and Customer, and (c) does not operate as an acceptance of any conflicting terms and conditions and shall prevail over any conflicting provisions of any purchase order or any other instrument of Customer. No modifications, additions, or amendments to this Agreement shall be effective unless made in writing as an amendment to this Agreement and signed by duly authorized representatives of the parties. The headings and captions of this Agreement are inserted for convenience and do not define, limit, or describe the scope and intent of this Agreement or any particular section, paragraph, or provision.
19. CONFLICTS. In the event of any discrepancies between these terms and conditions and any Order or scope of work, these terms and conditions shall prevail over the Order or a scope of work unless the Order or scope of work specifically states that it is intended to prevail over these terms and conditions.
20. WAIVER; NOTICES. Waiver of a breach of this Agreement shall not constitute waiver of another breach. Failure to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any notice, communication, or request required or permitted by this Agreement shall be given to the recipient in writing by both email and either certified mail, nationally recognized overnight courier, or hand delivery to the address set forth in the introductory paragraph. Any such notice shall be deemed to be received on the date received by the recipient.
21. RELATIONSHIP OF THE PARTIES. It is agreed that the relationship of the parties is that of independent contractors. Nothing herein shall be construed as creating a partnership, employment relationship, or agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party maintains its separate identity.