VoiceOps Service Subscription Agreement
This Service Subscription Agreement (“Agreement”) is a legal agreement between Clover Intelligence, Inc. d/b/a VoiceOps with a place of business at 680 8th Street, Suite 202 San Francisco, CA 94103 (“VoiceOps”) and the subscriber (“Customer”) identified in an Order Form signed by Customer and VoiceOps (each, an “Order Form”). This Agreement and any Order Forms issued hereunder shall govern Customer’s use of VoiceOps’ hosted services as identified in the Order Form (“Hosted Services”) and VoiceOps’ supporting services as identified in the Order Form (“Supporting Services”). The Hosted Services and Supporting Services may be referred to collectively herein as the “Services”. The parties agree as follows:
1. USE OF THE SERVICES
1.1 License: Use of Hosted Services. Subject to the terms and conditions of this Agreement, VoiceOps grants to Customer a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 9.2) right during the term of this Agreement to use the Hosted Services solely in connection with its internal business operations. Customer’s right to use the Hosted Services is subject to the scope limitations set forth in the Order Form (if any) and contingent upon Customer’s compliance with the scope limitations.
1.2 Supporting Services. Subject to the terms of this Agreement, VoiceOps will use commercially reasonable efforts to provide Customer the Supporting Services. As part of the registration process, Customer will identify an administrative user name and password for Customer’s VoiceOps account. VoiceOps reserves the right to refuse registration of, or cancel passwords it deems inappropriate. Subject to the terms hereof, VoiceOps will provide Customer with reasonable technical support services in accordance with the terms of the Order Form.
1.3 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties to use the Hosted Services and Supporting Services, as applicable; (b) use the Hosted Services and Supporting Services, as applicable, to provide services to third parties; nor (c) circumvent or disable any security or other technological features or measures of the Hosted Services. Customer will not access the Hosted Services if Customer is a direct competitor of VoiceOps, nor will Customer access or use the Hosted Services to monitor their availability, performance or functionality, or for any other benchmarking or competitive purposes. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by VoiceOps or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
1.4 Compliance with Laws. Customer will use the Hosted Services and Supporting Services, as applicable, in compliance with all applicable laws and regulations, and refrain from any unethical conduct or any other conduct that tends to damage the reputation of VoiceOps or the Hosted Services and Supporting Services, as applicable. Further, Customer will not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
1.5 Protection against Unauthorized Use. Customer will use its best efforts to prevent any unauthorized use of the Hosted Services and Supporting Services and documentation and immediately notify VoiceOps in writing of any unauthorized use that comes to Customer’s attention. If there is unauthorized use by anyone who obtained access to the Services directly or indirectly through Customer, Customer will take all steps reasonably necessary to terminate the unauthorized use. Customer will cooperate and assist with any actions taken by VoiceOps to prevent or terminate unauthorized use of the Services. Customer hereby agrees to indemnify and hold harmless VoiceOps against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any third party claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although VoiceOps has no obligation to monitor Customer’s use of the Services, VoiceOps may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing by providing Customer prior written notice of such violation.
1.6 Customer Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, passwords (including but not limited to administrative and user passwords) and files.
1.7 Reservation of Rights. VoiceOps grants to Customer a limited right to use the Hosted Services and Supporting Services under and in accordance with this Agreement. Customer will not have any rights to the Hosted Services and Supporting Services except as expressly granted in this Agreement. VoiceOps reserves to itself all rights to the Hosted Services and Supporting Services not expressly granted to Customer in accordance with this Agreement.
1.8 Account Information and Use. Customer is solely responsible for all activity occurring under Customer’s user accounts and will abide by all applicable local, state, national, and foreign laws, treaties and regulations in connection with Customer’s use of the Hosted Services and Supporting Services, including those related to data privacy, international communications and the transmission of technical or personal data. Customer will: (a) notify VoiceOps immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (b) not impersonate another VoiceOps user or provide false identity information to gain access to or use the Hosted Services and Supporting Services; and (c) be solely responsible for the right to use all data submitted by Customer in the course of receiving the Hosted Services and Supporting Services, as applicable.
2. FEES AND PAYMENT
2.1 Fees and Payment Terms
(a) Customer will pay VoiceOps the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, as specified in a VoiceOps Order Form. All amounts will be paid in United States dollars.
(b) Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by VoiceOps to collect any amount that is not paid when due. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason. All amounts payable under this Agreement are denominated in United States dollars, and Customer will pay all such amounts in United States dollars.
2.2 Taxes. Other than net income taxes imposed on VoiceOps, Customer will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Customer will pay any additional taxes as are necessary to ensure that the net amounts received by VoiceOps after all such taxes are paid are equal to the amounts that VoiceOps would have been entitled to in accordance with this Agreement as if the taxes did not exist.
3. TERM AND TERMINATION
3.1 Term. This Agreement will commence upon the effective date specified in the Order Form and continue for the initial term specified in the Order Form unless this Agreement is terminated earlier in accordance with the terms of this Agreement.
3.2 Notice of Material Breach or Default. If either party commits a material breach or default in the performance of any of its obligations under this Agreement, then the other party may give the defaulting party written notice of the material breach or default (including a statement of the facts relating to the material breach or default, the provisions of this Agreement that are in material breach or default, the action required to cure the material breach or default), and of the non-defaulting party’s intention to terminate the Agreement pursuant to Section 3.3 if the material breach or default is not cured within 30 days after the defaulting party’s receipt of such notice (or such later date as may be specified in such notice). Without limiting the foregoing, any failure by Customer to timely pay to VoiceOps any amounts owing under this Agreement will constitute a material breach of this Agreement.
3.3 Notice of Termination. If the defaulting party fails to cure a material breach or default specified in any notice under Section 3.2 within 30 days after receipt of such notice (or such later date as may be specified in such notice), then the non-defaulting party may terminate this Agreement by giving the defaulting party written notice of termination. If Customer fails to timely pay any fees, VoiceOps may, without limitation to any of its other rights or remedies, suspend performance of the Services until it receives all amounts due.
3.4 Post-Termination Obligations. If this Agreement or any licenses in this Agreement are terminated for any reason, (a) Customer will pay to VoiceOps any fees, reimbursable expenses, compensation, or other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued prior to the effective date of the termination will survive, and (c) upon request by VoiceOps, Customer will provide VoiceOps with a written certification signed by an authorized Customer representative certifying that all use by Customer of the Hosted Services and Supporting Services, as applicable, has been discontinued.
4.1 Restricted Use and Nondisclosure. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of VoiceOps includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes but is not limited to non-public data provided by Customer to VoiceOps to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use or divulge to any third person any such Proprietary Information except in the performance of the Services hereunder or as otherwise permitted herein (“Permitted Purpose”). The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. Customer grants to the VoiceOps a non-exclusive, worldwide, royalty free license to use the Customer Data for any Permitted Purpose set forth herein (including a license to store, record, transmit, maintain, and use, reproduce, modify, and adapt the Customer Data only to the extent necessary to carry out the VoiceOps’s obligations under this Agreement).
4.2 Ownership of Software. VoiceOps shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services, and (c) all intellectual property rights related to any of the foregoing.
4.3 Exceptions. Notwithstanding anything to the contrary, VoiceOps shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and VoiceOps will be free (during and after the term hereof) to (i) use such information and data solely to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other VoiceOps offerings, and (ii) disclose such data solely in aggregate and de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
5. WARRANTIES AND DISCLAIMER
5.1 VoiceOps shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by VoiceOps or by third-party providers, or because of other causes beyond VoiceOps’ reasonable control, but VoiceOps shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, EXCEPT AS PROVIDED IN AN ORDER FORM OR OTHER AGREEMENT SIGNED BY BOTH PARTIES, VOICEOPS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND VOICEOPS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.1 Infringement Defense. VoiceOps will defend Customer from any actual or threatened third party claim that the Hosted Services infringe or misappropriate any U.S. patent issued as of the effective date specified in the Order Form or any copyright or trade secret of any third party during the term of this Agreement if: (a) Customer gives VoiceOps prompt written notice of the claim; (b) VoiceOps has full and complete control over the defense and settlement of the claim; (c) Customer provides assistance in connection with the defense and settlement of the claim as VoiceOps may reasonably request; and (d) Customer complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).
6.2 Infringement Indemnification. VoiceOps will indemnify Customer against: (a) all damages, costs, and attorneys’ fees finally awarded against Customer in any proceeding under Section 7.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Customer in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without VoiceOps’ consent after VoiceOps has accepted defense of such claim); and (c) if any proceeding arising under Section 7.1 is settled, all amounts paid to any third party as agreed to by VoiceOps in settlement of any such claims.
6.3 Mitigation of Infringement Action. If Customer’s use of the Hosted Services and Supporting Services, as applicable, is, or in VoiceOps’ reasonable opinion is likely to become, enjoined or materially diminished as a result of a proceeding arising under Section 7.1, then VoiceOps will either: (a) procure the continuing right of Customer to use the Hosted Services and Supporting Services, as applicable; (b) replace or modify the Hosted Services and Supporting Services, as applicable, in a functionally equivalent manner so that it no longer infringes; or if, despite its commercially reasonable efforts, VoiceOps is unable to do either (a) or (b), VoiceOps will (c) terminate the licenses with respect to the Hosted Services and Supporting Services, as applicable, subject to the infringement claim and refund to Customer all unused subscription fees pre-paid by Customer.
6.4 Exclusions. VoiceOps will have no obligation under this Section 7 for any infringement to the extent that it arises out of or is based upon: (a) the combination, operation, or use of the Hosted Services and Supporting Services, as applicable, if such infringement would have been avoided but for such combination, operation, or use; (b) designs, requirements, or specifications for the Hosted Services and Supporting Services, as applicable, required by or provided by Customer, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (c) use of the Hosted Services and Supporting Services, as applicable, outside of the scope of the license granted to the Customer; (d) Customer’s failure to use the latest release of the Hosted Services and Supporting Services, as applicable, or to comply with instructions provided by VoiceOps, if the alleged infringement would not have occurred but for such failure; (e) any modification of the Hosted Services and Supporting Services, as applicable, not made by VoiceOps where such infringement would not have occurred absent such modification; or (f) unauthorized use of the Hosted Services and Supporting Services, as applicable. Customer will reimburse VoiceOps for any costs or damages that result from these actions.
6.5 Exclusive Remedy. This Section 7 states VoiceOps’ sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement of any third party intellectual property right by the Hosted Services and Supporting Services, as applicable.
7. LIMITATIONS OF LIABILITY
7.1 Disclaimer of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, VOICEOPS AND CUSTOMER WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
7.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO VOICEOPS DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM.
7.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY VOICEOPS TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 7 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
8.1 Relationship. VoiceOps will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement. This Agreement will not be interpreted or construed as: (a) creating or evidencing any association, joint venture, partnership, or franchise between the parties; (b) imposing any partnership or franchise obligation or liability on either party; or (c) prohibiting or restricting VoiceOps’ performance of any services for any third party or the provision of products to any third party.
8.2 Assignability. Neither party may assign its right, duties, or obligations under this Agreement without the other party’s prior written consent, which shall not be unreasonably withheld. If consent is given, this Agreement will bind such party’s successors and assigns. Any attempt by either party to transfer its rights, duties, or obligations under this Agreement except as expressly provided in this Agreement is void.
8.3 Publicity. VoiceOps may use Customer’s name and logo on VoiceOps’ web site and in marketing and advertising materials.
8.4 Non-solicitation. During the term of this Agreement and for a period of one year thereafter, Customer will not, directly or indirectly, employ or solicit the employment or services of a VoiceOps employee or independent contractor without the prior written consent of VoiceOps, except where such indirect solicitation is through a general advertisement not directed at VoiceOps’ employee or independent contractor.
8.5 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the Order Form and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
8.6 Force Majeure. VoiceOps will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond VoiceOps’s reasonable control, so long as VoiceOps uses all commercially reasonable efforts to avoid or remove such causes of non-performance.
8.7 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Delaware, without giving effect to its conflict of law provisions.
8.8 Commencing Legal Action. An action for breach of this Agreement or any other action otherwise arising out of this Agreement must be commenced within one year from the date the right, claim, demand, or cause of action first occurs or be barred forever.
8.9 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
8.10 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.
8.11 Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.
8.12 Entire Agreement. This Agreement, including all exhibits and Order Forms, is the final and complete expression of the agreement between these parties regarding the Hosted Services and Supporting Services, as applicable. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. No employee, agent, or other representative of VoiceOps or Customer has any authority to bind VoiceOps or Customer, respectively, with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. VoiceOps will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any receipt, acceptance, confirmation, correspondence, or otherwise, unless VoiceOps specifically agrees to such provision in writing and signed by an authorized agent of VoiceOps.