Terms of Software Subscription
By using the TruVoice™ and TruSales™ and all enhancements and updates thereto” Software (hereafter referred to as “Software”), Client agrees to each of the terms set forth below which together constitute Client’s Software subscription, hereafter known as the “User Subscription.”
If Client does not agree with any term or condition set forth below, Client is not authorized to use the Software for any purpose.
Subject to Client purchasing the User Subscription in accordance with the Statement of Work and the other terms and conditions of this agreement. Service Provider grants to Client during the subscription term a nontransferable, nonexclusive worldwide right to permit those individuals authorized by Client or on Client’s behalf (“Users”) to use the Software and any materials provided or disclosed to Client by Service Provider or its third party suppliers (“Third Party Providers”), all solely for Client’s own internal business operations. Service Provider represents and warrants (a) it has the right, power and authority to enter into this Agreement and each Statement of Work and grants the rights set forth herein and therein; (b) it will perform the Services in a workmanlike manner and with diligence and skills consistent with industry standards and in accordance with applicable law; (c) the Software and any Work Product provided or disclosed to Client do not and will not infringe the intellectual property rights of any third party; and (d) the Software will conform in all material respects with any user documentation for such Software and will not transmit into Client’s system any: (1) ‘back door,’ ‘time bomb,’ ‘Trojan Horse,’ ‘worm,’ ‘drop dead device,’ ‘virus,’ ‘spyware,’ or ‘malware;’ or (2) any computer code or software routine, which (A) permits unauthorized access to or use of, Client’s system, or any component thereof or (B) disables, damages, erases, disrupts, or impairs the normal operation of Client’s system or any component thereof. The rights granted to Client in this Agreement are subject to all of the following agreements and restrictions: (i) Client shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Software available to any third party other than an authorized User; (ii) Client shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Software or access the Software in order to build a similar or competitive product or service; (iii) except as expressly stated herein, no part of the Software may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; (iv) Client agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Software; (v) Client acknowledges and agrees that Service Provider shall own all right, title and interest in and to all intellectual property rights (including all derivatives or improvements thereof) in the Software and any suggestions, enhancement requests, feedback, recommendations or other information provided by Client or any other party relating to the Software, and (vi) Client will have license to distribute login information and allow unlimited use to designated Users within the Client’s organization. Other specific rights and limitations may be defined within other written communications between Service Provider and Client.
Client warrants that Client will use the Software only for lawful purposes.
Client is prohibited from violating, or attempting to violate, the security of the Software. Any violations may result in criminal and civil liabilities to Client. Service Provider will investigate any alleged violations and will cooperate with law enforcement agencies if a criminal violation is suspected. Examples of violations of the security of the Software include, without limitation, intentionally accessing data not intended for Client, logging into a server or account that Client is not authorized to access, attempting to probe, scan, or test the vulnerability of a system or network, attempting to interfere with service to any user, host, or any attempt to obtain services or products to which Client is not entitled. Client warrants that during use of the Software, Client will not create, transmit, distribute, or store material that violates a trademark, copyright, trade secret, or other intellectual property rights of others; violates the privacy, publicity, or other personal rights of others; impair the privacy of communications; generate obscene, offensive, or inappropriate content; encourage conduct that would constitute a criminal offense or give rise to civil liability; cause technical disturbances to the Software, including, but not limited to, introduction of viruses, worms, or other destructive mechanisms; create a deceitful website to imply association with Service Provider or the Software; create or send verbal, physical, written or other abuse (including threats of abuse or retribution) to any Service Provider customer, employee, member, or officer. Any of these actions will result in immediate account termination and possible criminal or civil liabilities.
Licenses from Client
Client grants to Service Provider and its Third Party Providers the non-exclusive, non-transferrable, worldwide right to use, copy, transmit and display during the Term (a) any data, information or other materials, provided to Service Provider by Client in the course of using the Software solely to the extent necessary to provide the Software to Client, subject to the Confidentiality provisions below, and (b) any trademarks that Client provides Service Provider for the purpose of including them in Client’s user interface of the Software.
Service Provider agrees to promptly provide all reasonable assistance necessary to ensure that the Software performs in accordance with the terms of this Agreement, including the timely provision of corrections to the Software to cure any non-conformance of the Software.
Technical support requests may be submitted via email by the Client’s designated technical support representative. Service Provider shall provide technical support to Client’s technical support staff during normal business hours, Monday through Friday, 8:30 a.m. to 5:00 p.m. MST with the exception of national holidays. Client’s technical support staff shall be primarily responsible to provide customer service and technical support to Client’s users of the Software. Service Provider will use reasonable efforts to respond to technical support requests within 2 (two) business days of receipt of request.
The parties acknowledge and agree that in the use and provision of Software, the parties may disclose to each other certain confidential, proprietary trade secret information (hereinafter referred to as “the “Confidential Information”). Confidential Information may include, but is not limited to, Software, computer programs, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, Client data, marketing information, financial information, or business plans. During this Agreement and for a period of two years thereafter, each party agrees that it will not, without the express prior written consent of Primary Intelligence, disclose any Confidential Information or any part thereof to any third party, except to the extent that such Confidential Information:
- is or becomes generally available to the public through no fault of the other party;
- is rightfully received by either party from a third party without limitation as to its use; or
- is independently developed by the other party. At the expiration of this Agreement, each party will relinquish access to Confidential Information and return all other Confidential Information to the other party.
- Client also agrees that it shall not duplicate, translate, modify, copy, printout, disassemble, decompile or otherwise tamper with the Software or any software provided therewith.
- Primary Intelligence also agrees that it will not use Client data for any other reason, other than for the provision of the services hereunder, and it shall destroy any and all Client data within 30 days of expiration of this Agreement.
- The obligations in this Section shall survive the expiration of this Agreement
Any information provided by the Client that is identified as confidential or that, given the nature of the information or circumstances surrounding its disclosure reasonably should be understood as confidential, will be treated as such and will not be released to third parties without the express written consent of the Client.
- Service Provider agrees to maintain the same or better procedures regarding Client’s Confidential Information that it maintains with respect to its own Confidential Information. Without altering the foregoing standard, Service Provider shall not permit any of its personnel to remove any proprietary or other legend or restrictive notice contained or included in any material provided by the Client and Service Provider shall not permit its personnel to reproduce or copy any such material except as expressly authorized hereunder. Client’s Confidential Information may only be used by Service Provider in order to fulfill its obligations under this Agreement.
- This Agreement imposes no obligation with respect to Confidential information that becomes a matter of public knowledge through no fault of the revealing party.
- The parties acknowledge that any use or disclosure of the other’s proprietary and/or confidential information in any manner inconsistent with the provisions of this Agreement may cause irreparable damage for which remedies other than injunctive relief may be inadequate. Both parties acknowledge the other’s right to request injunctive or other equitable relief by which to restrain such use or disclosure.
- The terms and provisions of this section shall survive the lawful termination of this Agreement for as long as either party has or has access to the other party’s Confidential Information.
Service Provider (the “Indemnifying Party”) shall protect, defend, indemnify, and hold Client, its affiliates and each of their respective directors, officers, employees, and agents, and their respective successors and permitted assigns (collectively, the “Indemnified Parties” harmless from and against any and all claims, actions, causes of action, liabilities, losses, costs, expenses, or damages, including reasonable attorneys’ fees, incurred by the Indemnified Parties which directly or indirectly arise out of or relate to (i) the breach by the Indemnifying Party of any of its representations, warranties, covenants, agreements, or obligations set forth in this Agreement, or (ii) the negligence, recklessness, or willful misconduct of the Indemnifying Party in connection with its performance of its obligations set forth in this Agreement or any Statement of Work.
Except for a breach of the confidentiality clauses below, the obligation to indemnify set forth above and any express warranties set forth herein, the Client hereby agrees to receive all deliverables from the Service Provider on an “as is” basis, so long as all deliverables have been built in accordance with the terms and descriptions provided in the applicable Statement of Work, and the Service Provider hereby disclaims and the Client waives any and all warranties or other information of any kind being provided to Client pursuant to the terms hereof. The Service Provider will not be responsible for any incidental or consequential damages that may occur as a result of using the Service Provider’s deliverables or analysts’ opinions.