Encompass-CX Software Agreement
Terms of Service
This Terms of Services Agreement (the Agreement), is effective upon signing of any Services Agreement and is between CUSTOMER, and Encompass-CX, a C corporation with a place of business at 221 Crescent Street, Suite 102B, Waltham, MA 02453 (Company). The parties agree as follows:
Deliverable means any work product resulting from the Services that is specifically identified in a Statement of Work and delivered to Customer by Company.
Services means the services defined in the applicable Services Agreement.
Statement of Work means any written work statement executed by the parties and containing such information as generally illustrated in Exhibit A attached hereto.
2.1 Engagement. This Agreement will be implemented through one or more Statements of Work executed by the parties from time to time, and provides the terms and conditions applicable to all Statements of Work. Any modification of these terms and conditions within a Statement of Work will apply only to that Statement of Work in which the modification is set forth.
2.2 Services. Company agrees to undertake the Services and to use commercially reasonable efforts to complete the Services in accordance with the descriptions and schedules specified therein.
2.3 Cooperation. Customer acknowledges that the Services will be performed in cooperation with Customer personnel. In addition, Customer will furnish to Company such (a) descriptions, specifications, materials, data and other information, including without limitation, individual subscriber information (such as, for example, name, address, telephone number and porting authorization) (collectively, Customer Information), (b) cooperation, technical assistance, resources and support, and (c) access to Customer’s equipment, systems and networks, as reasonably necessary or appropriate to perform the Services. Customer hereby grants Company a nonexclusive and royalty-free right and license to use the Customer Information solely for the purpose of performing the Services. Customer agrees that in performing the Services Company (i) will use and rely primarily on the Customer Information and (ii) does not assume any responsibility for the accuracy or completeness of any Customer Information, and will not undertake to verify its accuracy or completeness.
2.4 Problems. If Customer (or its third party licensors or vendors) fails to fulfill any of its responsibilities in a timely manner under Section 2.3 for any reason (including without limitation, changes, errors or omissions in Customer Information), which delays provision of the Services or results in additional costs, then Company may act as it deems prudent to mitigate such effects. In such event, Customer agrees (a) to pay Company its reasonable additional costs and (b) that any delivery dates, milestones or other time limits specified for Company’ performance shall be appropriately extended.
3. Proprietary rights.
3.1 Customer Information. Customer represents and warrants that it owns all right title and interest, or possesses sufficient license rights, in and to the Customer Information as may be necessary to authorize the use thereof contemplated by this Agreement. Customer agrees, as between the parties, Customer bears all responsibility and liability for the accuracy, completeness, possession and use of Customer Information in connection with the Services. Except for the limited rights and licenses expressly granted hereunder concerning the Customer Information, no other license is granted, no other use is permitted and Customer shall retain all right, title and interest in and to all Customer Information (including all intellectual property and proprietary rights therein).
3.2 Deliverables. Unless otherwise agreed by the parties in writing, Company shall own all right, title and interest (including all intellectual property and other proprietary rights) in and to the Deliverables. Upon payment in full therefor, Company agrees to grant Customer a nonexclusive, nontransferable right and license (without right to sublicense) to use such Deliverable internally, subject to any other rights or restrictions set forth in the Statement of Work. Except for the limited rights and licenses expressly granted hereunder concerning the Deliverables, no other license is granted, no other use is permitted and Company (and its licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights therein) in and to all Deliverables and all information, ideas, know-how, methods, processes, software (such as, for example, computer programs and other libraries, routines, utilities, functions or components), APIs, systems, platforms, gateways and other technologies that are used in performing any Service.
3.3 General Learning. Customer agrees that Company is free to reuse all generalized knowledge, experience, know-how and technologies (including ideas, concepts, processes and techniques) related to the Deliverables or acquired during performance of the Services (including without limitation, that which it could have acquired performing the same or similar services for another customer).
3.4 Restrictions. Except as expressly permitted in this Agreement, Customer shall not directly or indirectly (a) use any Company Confidential Information to create any software or documentation that is similar to any Deliverable, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code or underlying ideas, algorithms or organization of any Deliverable (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (c) encumber, sublicense, transfer or distribute any Deliverable, (d) copy, create derivative works of or otherwise modify any Deliverable or (e) permit any third party to do so. Customer will promptly notify Company in writing of any unauthorized use, reproduction or distribution of any Deliverable.
4.1 Scope. The term Confidential Information means all trade secrets, know-how, inventions, developments, software and other financial, business or technical information that are disclosed by or for a party in relation to this Agreement (including all copies, analyses and derivatives thereof) and which are marked or otherwise identified as proprietary or confidential at the time of disclosure, or which by their nature would be understood by a reasonable person to be proprietary or confidential. Confidential Information shall not include any information that the receiving party can demonstrate is (a) rightfully furnished to it without restriction by a third party without breach of any obligation to the disclosing party, (b) generally available to the public without breach of this Agreement or (c) independently developed by it without reliance on such information. All Deliverables and pricing information are deemed to be Company’ Confidential Information.
4.2 Confidentiality. Except for the specific rights granted by this Agreement, the receiving party shall not possess, access, use or disclose any of the other’s Confidential Information without its written consent, and shall use reasonable care to protect the other’s Confidential Information. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Promptly after any termination of this Agreement (or at the disclosing party’s request at any other time), the receiving party shall return all of the other’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any financing transaction or due diligence inquiry or legal or regulatory requirement.
5.1 Fees and Expenses. Customer agrees to pay Company fees in the amounts and at the times specified in the applicable Statement of Work. Subject to reasonable documentation, Customer agrees to reimburse Company for its costs and expenses reasonably incurred in providing the Services; provided, that individual expenses in excess of $1,000 must be approved in advance by Customer.
5.2 Payment Terms. Unless specified otherwise, all amounts due hereunder shall be paid within 30 days after invoice in US dollars at Company’ address (or, at its option, to an account specified by Company). Any amount not paid when due shall bear a late payment charge, until paid, at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less. Customer agrees to reimburse Company for all costs (including attorneys’ fees) incurred in collecting late payments.
5.3 Taxes. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Company’ net income.
6.0 Warranty And Disclaimers.
6.1 Services. Company warrants that the Services will be performed in a professional and workmanlike manner. Any warranty claim under this Section 6.1 must be made in writing within 30 days after performance of the nonconforming Service. Company’ sole obligation and Customer’s exclusive remedy in respect thereof is to reperform the nonconforming Service or, at Company’ sole discretion, to terminate this Agreement in respect of the nonconforming Service and refund to Customer the fees paid therefor.
6.2 Deliverables. Company warrants that, as delivered, the Deliverables will substantially comply with the specification therefor described in the applicable Statement of Work. Any warranty claim under this Section 6.2 must be made in writing within 30 days after delivery of the Deliverable. Company’ sole obligation and Customer’s exclusive remedy in respect thereof is to use reasonable efforts to revise, repair or replace the nonconforming Deliverable or, at Company’ sole discretion, to accept return of the nonconforming Deliverable and refund to Customer the fees paid for such Deliverable.
6.3 Disclaimers. EXCEPT AS SPECIFICALLY STATED HEREIN, THE DELIVERABLES AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. COMPANY DOES NOT WARRANT THAT: THE DELIVERABLES WILL MEET CUSTOMER’S REQUIREMENTS; OPERATION OF THE DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE; OR ANY ERRORS WHICH MAY BE CONTAINED IN THE DELIVERABLES CAN OR WILL BE FIXED. TO THE FULLEST EXTENT PERMITTED BY LAW, Company HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE DELIVERABLES AND SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
Infringement. Except as provided below, Company agrees to (i) defend Customer against any claim by a third party that any Deliverable infringes a valid US patent (issued as of the Effective Date), or any copyright or trade secret, of such third party and (ii) indemnify Customer for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) finally awarded and arising out of such claim. If any Deliverable becomes or, in Company’ opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Company may, at its option (1) obtain for Customer the right to continue using such Deliverable or (2) replace or modify such Deliverable so that it becomes non-infringing without substantially compromising its principal functions. If (1) and (2) are not reasonably available to Company, then it may (3) terminate this Agreement upon written notice to Customer and, after return of the Deliverable, refund to Customer the depreciated value of such Deliverable (calculated as the fees paid therefor, amortized on a straight-line basis over a 3 year period from delivery).
Exclusions.Company shall have no liability or obligation to Customer hereunder with respect to any claim based upon (i) any use of the Deliverable not strictly in accordance with this Agreement, (ii) use of any Deliverable in an application or environment or on a platform or with devices for which it was not designed or contemplated, (iii) alterations, combinations or enhancements of the Deliverable not created by Company, (iv) that portion of any Deliverable which implements Customer’s requirements, (v) Customer’s continuing allegedly infringing activity after being notified thereof or its continuing use of any version of the Deliverable after being provided modifications that would have avoided the alleged infringement or (vi) any intellectual property right in which Customer or any of its affiliates has an interest.
Entire Liability. The foregoing states the entire liability of Company, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by any Deliverable or any part thereof or by its use or operation.
7.2 Customer. Customer agrees to (i) defend Company against any claim by a third party that results from or arises out of any Customer Information or any claim excluded under Section 7.1(b) and (ii) indemnify Company for settlement amounts and damages, liabilities, penalties, costs and expenses (including reasonable attorneys’ fees) finally awarded and arising out of such claim.
7.3 Conditions. The indemnifying party’s obligations hereunder are conditioned on (a) the party seeking indemnification providing prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith and (b) it having sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not be responsible for any settlement it does not approve in writing.
8.0 Limitation of Liability.
EXCEPT IN THE CASE OF DEATH, BODILY INJURY OR FRAUD OR TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, In no event shall Company BE LIABLE CONCERNING THE SUBJECT MATTER OF this agreement, regardless of the form of any claim or action (whether in CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERwise), for any (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS of data, loss or interruption OF USE OF the Deliverable OR SERVICE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS or SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL or (D) AGGREGATE damages in excess of the amountS PAID TO COMPANY BY CUSTOMER HEREUNDER WITH RESPECT TO THE SERVICE OR Deliverable THAT GAVE RISE TO THE CLAIM DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
9.0 Term and Termination.
9.1 Term. This Agreement shall commence on the Effective Date and continue in effect until the expiration or termination of all Services Agreements
9.2 Convenience. Subject to any other requirements set forth in the applicable Statement of Work, Customer may terminate any Statement of Work at any time for its convenience upon at least 90 days prior written notice to Company; provided, that together with such notice, Customer pays Company any amount then payable or past due. After receipt of such notice and payment, Company shall commence winding down its performance of Services under the applicable Statement of Work in an orderly manner, and Customer shall remain liable to pay for Company’ efforts and non-cancelable expenses incurred prior to the effective date of termination.
9.3 Cause. This Agreement may be earlier terminated (in whole, or in respect of any Statement of Work) by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 90 days (10 days in the case of any non-payment) after receiving written notice of such breach from the non-breaching party or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
9.4 Effects of Termination. Upon expiration or termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except that (a) Customer’s liability to pay for Services performed (and non-cancelable expenses incurred) prior to the termination date shall not be extinguished, and shall become due and payable on the termination date, (b) all other obligations that accrued prior to the effective date of termination and remedies for breach of this Agreement shall survive any termination and (c) the provisions of Sections 3 (Proprietary Rights), 4 (Confidentiality), 5 (Payments), 6 (Warranty and Disclaimers), 7 (Indemnification), 8 (Limitation of Liability), 10 (General Provisions) and this Section 9 shall survive.
10.0 General Provisions.
10.1 Entire Agreement. This Agreement (including any applicable Statements of Work) constitutes the entire agreement between the parties with regard to, and supersedes all prior negotiations, understandings or agreements (oral or written) between the parties relating to, the subject matter of this Agreement (and all past dealing or industry custom). Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties after the date hereof, shall have no force or effect under this Agreement. This Agreement may be executed in one or more counterparts, each of which is an original, but together constituting one and the same instrument. Execution of a facsimile copy shall have the same force and effect as execution of an original, and a facsimile signature shall be deemed an original and valid signature. No changes, modifications or waivers may be made to this Agreement unless in writing and signed by both parties. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.2 Publicity. Customer hereby consents to Company’ inclusion of its name in customer listings that may be published as part of Company’ marketing efforts.
10.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflicts of law provisions. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Pennsylvania having jurisdiction over Company’ facility, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover the costs and expenses (including reasonable attorneys’ fees) that it incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
10.4 Relief. Each party agrees that, in the event of any breach or threatened breach of Section 3 or 4, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain, temporarily or permanently, such breach or threatened breach, without the necessity of posting any bond or surety. Such remedies shall be in addition to any other remedy that the non-breaching party may have at law or in equity.
10.5 Notices. All notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses first stated above or at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
10.6 Assignment. This Agreement and the rights and obligations hereunder may not be assigned or otherwise transferred by either party without the prior written consent of the other, except that either party (without consent) may assign its rights and obligations hereunder to any of its affiliates or to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of stock or assets, merger, consolidation or otherwise). Any attempted transfer in violation hereof will be void and of no effect. Company may also subcontract performance of any Service. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties.
10.7 Independent Contractors. The parties shall be independent contractors in their performance under this Agreement, and nothing contained herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
10.8 No Interference. During the term of this Agreement and for 1 year thereafter, neither party will directly or indirectly recruit, employ or retain any employee of the other party, or otherwise solicit, induce or influence any employee to leave their employment with the other party, or attempt to do so.