CUSTOMER DYNAMICS SAAS AGREEMENT
(“Terms of Service”)
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THIS SERVICE. BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, OR SUBMITTING A SERVICES AGREEMENT, YOU SIGNIFY YOUR ASSENT TO AND ACCEPTANCE OF THIS AGREEMENT WHICH GOVERNS YOUR ONGOING USE OF THE SERVICE AND YOU ACKNOLWEDGE THAT YOU HAVE READ AND UNDERSTAND ITS TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE ITY TO ACT ON BEHALF OF AND BIND SUCH ENTITY TO THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, OR DO NOT HAVE SUCH ITY, THEN YOU MUST NOT USE THIS SERVICE.
This Agreement, including these Terms of Service and all referenced appendices and documents (the “Agreement”) is between Motion Dynamics dba, Customer Dynamics, a Utah company (“Company”) and the purchaser or user of the Services who accepts the terms of this Agreement (“You” or “Your”). The effective date of this Agreement (the “Effective Date”) is the earlier of the date that You accept this Agreement by clicking your acceptance or the date that You first use the Services and may be amended only as set forth herein.
These Terms of Service were last updated on January 2, 2017.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.
“Documentation” means Company’s user manuals or other documentation regarding the Services, accessible via Your account within the Services, as may be updated by Company from time to time.
“Fees” has the meaning set forth in Section 3 below.
“Intellectual Property Rights” means any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
“Services” means the Company’s hosted software and/or services that are described on and ordered by You under a Service Agreement. Additionally, the Service includes a hosted software for integration of NICE inContact (www.niceincontact.com) and Microsoft (http://www.microsoft.com) for use as Call Center solution. The Services generally include:
Unlimited email support
Customer portal & help videos
Standard service releases & bug fixes
Product updates & new functionality
Updates to Service to support new versions of NICE inContact Services
Updates to Service to support new versions of Microsoft Services
“Service Agreement” means a request to access the Services either (i) a written request; (ii) an electronic order form; or (iii) a purchased subscription to the Services, as indicated by Your acceptance of an invoice or billing statement, including addenda thereto, each of which may be signed or electronically delivered by You and accepted by Company from time to time. Service Agreements shall be deemed incorporated herein by reference.
“Site” means the Company’s website where the Services may be accessed.
“Support Services” means technical support services provided by the Company for the Services ordered by You under a Service Agreement.
“Support Term” means the subscription period for Support Services specified on a Service Agreement for which you have paid the applicable Support Services Fees.
“Users” means Your ized users identified by You on a Service Agreement for whom You have purchased subscriptions to the Services. Users may only be Your employees or contractors ized by You to access the Services for Your benefit.
“Your Data” means any of Your information or data that You upload to the Site or into Your Software through the Services.
“Your Software” means any software that You access via the Services or that are customized by You or for You via the Services.
2. Licenses and Restrictions.
2.1 Licenses. Subject to all terms and conditions of this Agreement, Company hereby grants You the applicable license to the Services offered at the Site.
2.2 Use. During the term of this Agreement, and subject to Your payment of the applicable Fees (defined in Section 3.1), You are granted a nonexclusive, nontransferable, nonsublicensable, revocable and limited license to: (a) access and use the Services by the number of Users licensed under an applicable Service Agreement; and (b) reproduce and use internally the Documentation.
2.3 Users. Unless otherwise specified in the applicable Service Agreement: (a) the licenses are granted and the Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users in a Service Agreement; and (b) additional User subscriptions may be added by You pursuant to the terms of, and at the Fees specified in (as applicable), the Service Agreement. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned by You via the Services to new Users replacing former Users who no longer require ongoing use of the Services. All Users must be under Your direction and control and use the Services only for Your benefit and you shall be responsible for all actions of all Users under this Agreement.
2.4 Restrictions. You acknowledge that the Services constitute valuable property and trade secrets of Company and You agree not to do nor allow any of the following, and that no User shall do nor allow any of the following, without the express written ization of Company: (a) make the Services available to any third party other than You and Your designated Users; (b) sell, resell, rent, lease, modify, translate or create derivative works of any part of the Services; (c) decompile, reverse engineer or reverse assemble any portion of the Services, or attempt to discover any source code or underlying ideas or algorithms of the Services; (d) access the Services in order to build a competitive product or service, or copy any features, functions or graphics of the Services; (e) use the Services to store or transmit material in violation of third party privacy rights; (g) transmit unsolicited commercial or non-commercial email via the Services; (f) use the Services to store or transmit malicious code; (g) interfere with or disrupt the integrity or performance of the Services or third party data contained therein; (h) attempt to gain unized access to the Services or related systems or networks; (i) remove or alter any trademark, logo, copyright or other proprietary notices associated with the Services; or (j) upload onto the Services any data or software in violation of any Intellectual Property Rights of any third party. In addition, the Services shall not be used by You or any User as (i) a computational or CPU resource (ii) a data storage resource, (iii) a device for sending or receiving communication or network traffic other than that required for Your use of the Service, or (iv) for any unlawful purpose. Documentation associated with the Services may include additional restrictions or limitations on the use of the Services, including, without limitation, limitations on storage space in the Services, and You and each other User agree to comply with any such restrictions or limitations. Company has the right, but not the obligation, to monitor Your use of the Services to determine compliance with the terms of this Agreement. Company reserves the right, without limiting any other right or remedy available at law, in equity, or under this Agreement, to immediately suspend Your access (and therefore, all Users access) to and use of the Services and/or immediately terminate this Agreement if Company determines, in its sole discretion, that You are engaging (or have engaged) in any of the prohibited activities set forth in this Section 2.4.
3. Fees and Payment.
3.1 Subscription Fees. During the term, You will be charged the fees for Users specified in an applicable Service Agreement (“Subscription Fees”). Except as otherwise specified herein or in a Service Agreement: (a) Subscription Fees are quoted and payable in United States dollars; (b) Subscription Fees are based on the Service Agreement and not actual usage; and (c) payment obligations are non-cancelable and Fees paid are non-refundable.
3.2 Fees. Standard fees may include a setup fee and an individual user fee in the amount as outlined by the applicable Service Agreement. All other fees set forth on a Service Agreement that apply to the Services (including but not limited to Support Services fees and Subscription Fees) shall be paid by You as set forth in this Section 3 (together, the “Fees”).
3.3 Fee Changes. Company, in its discretion, reserves the right to change Fees for Services at any time. You acknowledge that Company may, from time to time, add additional features or functionality to the Services, and that Your access to and use of such additional features and functionality may require payment by You of additional Fees. Any Fee changes shall only be applied in Your next Subscription Term provided You continue to subscribe to the Services; You shall pay your current Fees until the new Fees take effect in Your next Subscription Term.
3.4 Payments. You will pay Fees via credit card or by other means specified by Company in an applicable Service Agreement. If You are making payments for Fees via credit card, You will provide accurate payment information, and You hereby ize Company to charge such credit card for all Fees in an applicable Service Agreement for the initial term and any renewal thereof. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Service Agreement. For payment of Fees by any other method, Company will invoice You in advance of the provision of applicable Services and otherwise in accordance with the relevant Service Agreement. All payments for which invoices are delivered are due within thirty (30) days of the date of the invoice. If Company has not received payment of Fees by the applicable due date on an invoice, then Company may: (a) assess a late fee of one and one-half percent (1.5%) per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and/or (b) condition future Services and Service Agreements on payment terms shorter than those specified herein. If You have elected to pay Fees via credit card and the credit card is charged back to Company or if any Fees invoiced to You are not paid within thirty (30) days of invoice, Company may: (i) with respect to chargebacks, cease charging Your credit card and invoice You for the amount charged back and any future Fees; (ii) accelerate the payment of any Fees payable; (iii) immediately suspend Your Services until payment is made; and/or (iv) immediately terminate the applicable Service Agreement for which Fees were due and/or terminate this Agreement.
3.5 Taxes. Unless otherwise stated, the Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes (except those based on Company’s income) associated with the Services purchased hereunder, and will pay, indemnify and hold Company harmless from any Taxes and any costs associated with the collection or withholding thereof, including penalties and interest.
4. Feedback and Intellectual Property Rights.
4.1 Feedback. In consideration of Your access to the Services, (i) You agree to notify Company of any problems, bugs, usability or performance or other issues You discover with respect to the Services; and (ii) You may share with the Company suggestions, improvements, ideas for enhancements or other feedback regarding the Services(together, (i) and (ii) are “Feedback”). All such Feedback shall be owned exclusively by the Company and You hereby assign to Company all right, title and interest in and to such Feedback and all Intellectual Property Rights therein.
4.2 Company Ownership. As between the parties, Company owns: a) all right, title and interest in and to the Services, all Company software and systems accessed through the Services, all documentation, usernames or storage or other resources that may be assigned to You; b) all modifications, improvements and derivatives of any of the foregoing, and including without limitation any invention or discovery related to the Services that may be made as a consequence of Your using the Services; c) all Feedback described in clause 4.1 above; and d) any and all Intellectual Property Rights embodied in all of the foregoing, and you hereby assign all such rights therein to Company. You also acknowledge that the trademarks, logos and service marks (“Marks”) displayed by Company in connection with the Services are the property of Company or other third parties. You are not permitted to use these Marks without the prior written consent of Company or such third party which may own the Mark.
4.4 Reservation of Rights. Company reserves all rights not expressly granted in this Agreement, and no licenses are granted by Company to You under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.
5. Support Services. Company will provide to You the Support Services You have ordered on your Service Agreement during the Support Term paid for by You.
6.1 Company Warranties. Company warrants that it is a corporation, limited liability company or limited partnership validly existing and in good standing under the laws of the state of its organization, and has full power and ity to enter into this Agreement and to carry out the transactions contemplated herein; (ii) this Agreement has been duly and validly executed and delivered by Company and, once executed and delivered by Customer, constitutes the legal, valid and binding obligation of Company; (iii) the terms and conditions of this Agreement and the execution of this Agreement by Company do not violate, conflict with or result in a breach of any agreement, contract, license or instrument to which Company is a party or which would affect Company’s obligations or the rights of Customer under this Agreement.
6.2. WARANTY DISCLAIMER. EXCEPT AS PROVIDED IN SECTION 6.1 ABOVE, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT OR WARRANTIES THAT MAY ARISE BY OPERATION OF LAW. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT MAKE ANY WARRANTIES THAT ITS SOFTWARE OR SERVICES ARE FREE FROM ANY BUGS, ERRORS OR OMISSIONS AND YOU ACCEPT THE ENTIRE RISK ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE SERVICES. THE FOREGOING DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6.3. Your Warranties. You warrant that: (a) You have the legal power to enter into this Agreement, and doing so will not violate any other agreement to which You are a party; (b) You have the right and ity and has obtained all necessary consents required to use Your Data and/or Your Software and any other of Your content or data used in connection with the Services; (c) use of Your Data and Your Software in connection with Your use of the Service shall not infringe the Intellectual Property Rights of any third party; and (d) You will comply with all applicable Laws in Your performance of this Agreement.
7.1 Indemnity Claims. You agree to defend, indemnify and hold Company and its directors, officers, employees, suppliers, consultants, contractors and agents harmless from and against any and all actual or threatened claims, suits, actions or proceedings, including all related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including but not limited to reasonable attorneys’ fees) (collectively, “Claims”) arising out of or relating to: (a) You, or Your Affiliates’ or its or their or Your Users’ breach of this Agreement; (b) You or Your Affiliates’ or its or their or Your Users’ negligence or willful misconduct; and (c) Your Data or Your Software.
7.2 Procedure. With respect to Your indemnity obligations arising pursuant to Section 7.1, Company shall promptly notify You when it becomes aware of any Claim, provided that any delay in providing such notice shall not relieve You of Your indemnity obligations under this Agreement unless, and only to the extent, You were prejudiced by the delay. Company shall reasonably cooperate with You in the defense of such Claim at Company’s expense. Company may participate in the defense at its option and expense; provided that You shall have the right to control the defense and all negotiations relative to the settlement of any such Claim, including without limitation selection of counsel, and provided further that no settlement imposing any affirmative or negative obligations on the part of Company, including any settlement that includes (i) admission of liability or wrongdoing by Company; (ii) payment of any amounts not covered by Your indemnity obligations; (iii) actions that affect Company’s Intellectual Property Rights, may be made without the express written consent of Company, which may be withheld in the sole discretion of Company; and provided further that in conducting such defense or settling such claim or action, You shall not disclose or use in an improper or manner not ized under this Agreement the confidential information of Company without Company’s prior written consent.
8. Limitations of Liability.
8.1 Exclusion of Consequential and Related Damages. IN NO EVENT WILL COMPANY BE LIABLE TO YOU, YOUR AFFILIATES, USERS OR ANY OTHER THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF YOUR DATA OR YOUR SOFTWARE (OR ANY DATA RELATED THERETO) OR ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF YOU HAVE BEEN ADVISED OR ARE OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.2 Limitation of Liability. IN NO EVENT WILL COMPANY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED IN THE AGGREGATE THE GREATER OF $100.00 OR THE AMOUNTS PAID BY YOU TO COMPANY DURING THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.3. Time Limit on Claims. REGARDLESS OF ANY STATUTE OR LAW THAT CONTAINS A LONGER STATUTE OF LIMITATIONS, ANY CLAIM OR CAUSE OF ACTION AGAINST COMPANY ARISING OUT OF OR RELATED TO USE OF THE SERVICES OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES OR BE FOREVER BARRED.
9. Term and Termination.
9.1 Term of Agreement. The term of this Agreement commences on the Effective Date and, unless earlier terminated, continues for the duration as determined by Your selected payment plan (“Subscription Term”) in a Service Agreement. Except as otherwise specified herein, and provided You timely pay any Fees due to renew the Services (as set forth herein or in Company’s notice of renewal to you), each Subscription Term shall automatically renew for additional periods equal in duration to the then-expiring Subscription Term, unless either party gives the other notice of non-renewal at least thirty (30) days prior to the end of the expiring Subscription Term for annual subscriptions, and seven (7) days for monthly subscriptions.
9.2 Termination. Either party may terminate this Agreement as follows: (a) for cause if the other party breaches this Agreement or a Service Agreement and does not remedy such breach within thirty (30) days after its receipt of written notice of such breach; (b) immediately if the other party: (i) terminates its business activities or becomes insolvent; (ii) admits in writing to the inability to pay its debts as they mature; (iii) makes an assignment for the benefit of creditors; or (iv) becomes subject to direct control of a trustee, receiver or similar ity; or (c) in the case of Company, immediately if You do not pay the Fees when due as described in Section 4 or for any other material breach by You of this Agreement.
9.3 Transition of Your Data and Software. For a period of thirty (30) days following termination or expiration of this Agreement, You may retrieve Your Data and Software from the Services. If after such thirty (30)-day period you have not downloaded or retrieved Your Data and Your Software from the Service, then unless prohibited by applicable laws, Company may delete or erase any and all of Your Data and Your Software stored by You or maintained by Company in connection with the Services. Except as provided in this Section 9.3, Company shall have no obligation to continue to store or permit You to retrieve any of Your Data following termination of this Agreement.
9.4 Effect of Termination. Upon any expiration or termination of this Agreement: (a) Your right to use the Services shall cease, and Company shall have no further obligation to make the Services available to You; (b) all rights and licenses granted to You under this Agreement will immediately cease; (c) except as provided in Section 9.3, Company will have no obligation with respect to any of Your Data or Software; and (d) You will pay any unpaid Fees payable for the remainder of the term under any applicable Service Agreement in effect prior to the termination date.
9.5 Survival. The following provisions will survive any expiration or termination of this Agreement: Sections 1 (Definitions), 2.3 (Restrictions), 3 (Fees and Payment), 4.2 (Ownership), 7 (Indemnity), 8 (Limitations of Liability), 9.3 (Transition of Your Data and Software), 9.5 (Survival) and 10 (Miscellaneous).
10.1 Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing: (a) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and (b) You shall not permit access to or use of the Services in violation of any U.S. export embargo, prohibition or restriction. If You access the Services from outside the United States, you do so at your own risk and are responsible for compliance with the laws of Your jurisdiction.
10.2 Choice of Law. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Utah, without regard to its conflict of laws provisions. The parties irrevocably consent to the exclusive jurisdiction of the state and federal courts in Salt Lake County, Utah for the resolution of any disputes or conflicts arising out of or related to this Agreement.
10.3 Notices. Any notice or communication required or permitted to be given hereunder must be in writing, signed or ized by the party giving notice, and may be: (a) delivered by hand, deposited with an overnight courier; (b) sent by email or facsimile; or (c) mailed by registered or certified mail, return receipt requested, postage prepaid, to the following:
Notices to You: to the address or email contact information set forth within Your account. Notices to the Company: firstname.lastname@example.org.
10.4 Relationship of Parties. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchisee, employee, representative, owner or partner of the other party, and the relationship between the parties will solely be that of independent contractors.
10.5 Publicity. Subject to your prior review and approval, Company may reference You and Your use of the Services in its marketing materials and Site, including but not limited to: 1) the right to display Your logo, 2) obtaining quotes regarding the Services, 3) producing case studies and customer reference videos, 4) arranging media interviews and speaking opportunities at industry events, and 5) other normal promotional activities agreed to between Company and You.
10.6 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by You by operation of law or otherwise, without the prior written consent of Company. This Agreement may be assigned or transferred by Company without Your consent. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
10.7 Waiver, Severability. Failure of Company to enforce a right under this Agreement shall not act as a waiver of that right or the ability to later assert that right relative to the particular claim involved, nor shall any course of conduct between Company and You or any other party be deemed to modify any provision of this Agreement. If any provision of this Agreement shall be found by a court to be void, invalid or unenforceable, the same shall be reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or enforceability of this Agreement.
10.8 Entire Agreement; Amendment. This Agreement is the entire agreement of the parties regarding the subject matter hereof, superseding all other agreements between them, whether oral or written. Company will not accept any counter-offers to these Terms of Service and all such offers are hereby categorically rejected. Company may update or change these Terms of Service from time to time in its sole discretion without notice to You, and it is Your responsibility to check back often so You are aware of Your current rights and responsibilities. The most current version will be posted by Company on its Site. Your continued use of the Services after any update or change to these Terms of Service constitutes Your binding acceptance of the updated Terms of Service. If at any time the Terms of Service are no longer acceptable to You, You should immediately cease use of the Service. All headings contained in this Agreement are inserted for identification and convenience and will not be deemed part of this Agreement for purposes of interpretation. All remedies set forth in this Agreement are cumulative.