Terms of Service
Effective Date/Last Revised: July 9, 2018
DialogTech, Inc. (“DialogTech”, “we”, “our”, “us”), a Delaware corporation, offers and provides to commercial clients (“Client”, “you”, “your”) marketing analytics through a marketing automation platform that manages, measures and automates interactions between you and your customers during the marketing process. These Terms of Service (“Terms”) apply to your use of DialogTech’s services, as described herein, and your use of DialogTech’s website, https://www.dialogtech.com, and its affiliated websites, http://www.mongoosemetrics.com/ and https://www.swydo.com/ (collectively, “Websites”). When necessary, Client and DialogTech may be referred to individually as a “party” and collectively as the “parties”. Client and DialogTech hereby agree as follows:
- 1. Definitions.
- “Account” means the account under which Client and Client’s User has access to and uses the Service.
- “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the Client entity signing this Agreement. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
- “Agent” means a group or individual who is appointed by and is the exclusive representative of Client and has complete authority to represent Client in the matter of securing Service and entering into agreements for Client.
- “Agreement” means collectively, (i) these Terms, and (ii) any (a) Order Forms, (b) Statement of Work (c) addenda, (d) exhibits, or (e) supplemental policies, which may be found at http://www.dialogtech.com/about/terms and are incorporated herein by reference.
- “Client Data” means all electronic data submitted by or on behalf of Client during the use of Services.
- “Order Form” an ordering document that specifies the Service(s), Support Service(s), and/or Professional Services purchased by Client under this Agreement that is entered into by Client (or any Affiliate) and DialogTech (or any Affiliate). Order Forms shall be subject solely to and incorporate by reference the terms of this Agreement. By entering into an Order form hereunder, an Affiliate agrees to be bound by the terms of this Agreement.
- “Personal Data” means information relating to an identified or identifiable natural person, including but not limited to, payment card information (“PCI”), protected health information (“PHI”) and any other information deemed protected information by domestic or international Data Protection Legislation.
- “Professional Services” means implementation and configuration services provided by DialogTech in connection with the Service, as described more fully in a Statement of Work.
- “Services” means the products and services purchased by Client and provided by DialogTech, as specified on an Order Form and as described in the Documentation. “Service” excludes the Professional Services and Free Trial Service.
- “Statement of Work” or “SOW” means a document that describes certain Professional Services purchased by Client under this Agreement. Each Statement of Work shall incorporate this Agreement by reference.
- “Users” means individuals who are authorized by Client to use the Service. Users may include, for example, Client’s and Client’s Affiliates’ employees, consultants, contractors, agents, and third parties with which Client does business.
- 2. Use of Services.
- 2.1. Client Affiliates. Client and its Affiliates may use the Services and Professional Services subject to the terms of this Agreement and by the execution of related Order Forms or Statements of Work that incorporate by reference these Terms, and in each such case, all references in these Terms shall be deemed to refer to such Client and its Affiliates for purposes of any such Order Forms or Statements of Work.
- 2.2. Agency Representation. If Client is being represented by an agent (“Agent”), who Client has represented to DialogTech has the legal authority to represent and bind Client in procuring Services, then Agent will be deemed to be the legal representative of Client. If Client terminates its relationship with Agent, DialogTech will not be liable to Agent. Client hereby agrees to defend, indemnify and hold DialogTech harmless from any liability arising out of Client’s appointment or termination of an Agent.
- 2.3. Proof of Concept. “Proof of Concept” (“POC”) means any DialogTech Service or functionality that may be made available by DialogTech to Client to try at Client’s option, where Service Fees may or may not apply, and which is clearly designated as “Proof of Concept”, “POC”, “P/pilot”, “trial”, “free trial” or by a similar designation. All POCs are offered “AS-IS”, “AS-AVAILABLE” and without any warranties. If Client chooses to engage in a Proof of Concept, DialogTech will make such Services available to Client on a trial basis only, until the earlier of: (a) the end of the trial period for applicable POC, or (b) the start date of any Order Form enter into by the parties for the POC Services. Upon the provision of POC Services and where no Order Form has been executed, Client and/or its Users will not be able to further access POC Services and the data may be deleted after a certain period of time and thereafter may not be recoverable.
- 2.4. Professional Services. Client and DialogTech may enter into Statements of Work that describe specific Professional Services to be performed by DialogTech including but not limited to any supplementary information or terms. If applicable, while on Client’s premises for the provision of Professional Services, DialogTech shall comply with Client’s reasonable requests regarding safety, security, and conduct made known to DialogTech and will, at Client’s request, promptly remove from the Professional Service project any DialogTech personnel not following such rules and regulations.
- 2.5. DialogTech’s Obligations. DialogTech shall make the Services available to Client pursuant to these Terms and related Order Forms during the Service Term, as defined in Section 10.1 Service Term and Renewals. During the Service Term, DialogTech will grant to Client a limited, non-sublicensable, non-exclusive, runtime right during the Service Term to allow its Users to access and use the Services in accordance with the Terms. “Runtime” is defined as the time frame during which DialogTech makes its Services available to Client, while inhibiting a Client’s access to the software DialogTech created to enable the provision of the Services. During the Service Term, the functionality of the Services will not materially decrease in accordance with the Service Level Agreement. Client agrees that its use of the Services or the Professional Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by DialogTech with respect to future functionality or features of the Services.
- 2.6. Client’s Obligations. Client is responsible for all activities conducted under its control, including but not limited to, Client’s provision of any personally identifying information about consumers provided to DialogTech to effectuate DialogTech’s provision of Services. Client and its Users shall not: (i) copy, distribute, or otherwise transfer rights to the Services or any part thereof, or make the Services available to anyone other than its Users; (ii) transmit, capture or store any personal health data, credit card data, personal financial data or other such sensitive data which may, without limitation, be subject to the Health Insurance Portability and Accountability Act, Gramm- Leach-Bliley Act, or the Payment Card Industry Data Security Standards, without providing prior notification to DialogTech; (iii) transmit, capture or store infringing or unlawful material in connection with the Services; (iv) send, upload or otherwise transmit any content or material that is unlawful, threatening, tortious, defamatory, libelous, invasive of another’s privacy, or otherwise objectionable or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code or programs to the Services; (v) attempt to gain unauthorized access to, or disrupt the integrity or performance of the Services or the data contained therein; (vi) modify, copy or create derivative works based on the Services, or any portion thereof; (vii) access the Services for the purpose of building a competitive product or service or copying its features or user interface; or (viii) delete, alter, add to or fail to reproduce in and on Services the name of DialogTech and any copyright or other notices appearing in or on Services or which may be required by DialogTech at any time. Client will select its own password(s) for Account access to the Services and is responsible for the privacy and security of its password(s) for use of Services. Client is responsible for all Account activity under its passwords (including any resulting civil or criminal liability). If Client becomes aware of a breach in security related to its passwords or use of Services, Client agrees to immediately change its passwords and promptly notify DialogTech. DialogTech is not liable for any loss or damage arising from Client’s failure to comply with these Terms or for any other unauthorized Account usage. Client is responsible for providing the equipment necessary for the provision of Services to ensure connectivity, including but not limited to, telephones, computers, and any software necessary for the proper use of Services. DialogTech is not responsible for any telephone or internet connection charges, surcharges, taxes, or other amounts incurred by Client as a result of accessing Services. If DialogTech notified Client of any necessary changes to system requirements or hardware for use of Services, Client agrees to comply with such specifications. Client must at all times submit and maintain accurate Account and contact information, including a contact name and their working e-mail address and telephone number.
- 3. Privacy and Security.
- 3.1. Acceptable Use and Compliance with Law. Client shall use the Services in compliance with these Terms, DialogTech’s Acceptable Use Policy (“AUP”) and comply with all applicable state, federal, and international laws. In the event that DialogTech becomes aware of any activity associated with the Account that violates the AUP, DialogTech reserves the right to suspend and/or terminate Client’s use of any phone number associated with the violation in our provision of the Services. DialogTech may immediately terminate this Agreement for cause if it, in its sole discretion, determines that Client has committed any material breach of the Terms.
- 3.3. Confidentiality. The Parties, during the course of DialogTech’s provision of Services and Client’s use thereof, may have access to, and acquire knowledge from discussions with the other Party that may not be accessible or known to the general public, including but not limited to, technical and business information concerning hardware, software, designs, specifications, techniques, processes, procedures, research, development, projects, products or services, business plans or opportunities, business strategies, finances, costs, vendors, penetration test results and other security information; defect and support information and metrics; and first and third party audit reports and attestations (collectively, “Confidential Information”). Confidential Information does not include information or materials that: (a) were generally known to the public on the Effective Date; (b) have become generally known to the public after the Agreement is entered into, other than as a result of the act or omission of the a Party; (c) were rightfully known to a Party prior to its receipt thereof from the other Party; (d) are or were disclosed by a Party generally without restriction on disclosure; (e) a Party lawfully received from a third party without that third party’s breach of agreement or obligation of trust owed to the other Party; or (f) are independently developed by a Party as shown by documents and other competent evidence in a Party’s possession. Neither Party shall: (i) use any Confidential Information of the other Party for any purpose outside the scope of these Terms, except with the non-disclosing Party’s prior written permission, or (ii) disclose or make Confidential Information available to either Party, except as on a “need to know basis” in order to carry out the provision of Services under these Terms. Each party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either Party exercise less than reasonable care in protecting such Confidential Information. If a Party is compelled by law to disclose Confidential Information of the other Party, it shall provide the other Party with prior notice of such compelled disclosure (to the extent legally permitted and required) to provide the other Party the opportunity to contest the disclosure.
- 4. Ownership, Feedback, and Aggregated Data.
- 4.1. Client Data. As between DialogTech and Client, Client owns its Client Data. Client grants to DialogTech, its Affiliates and applicable contractors a worldwide, non-exclusive, transferable, royalty free license to use, host, copy, transmit, distribute and display Client Data, as reasonably necessary for DialogTech to provide and enhance its provision of Services. Subject to the limited rights granted herein, DialogTech acquires no right, title or interest from Client or Client’s Agents and/or Users under this Agreement in or to any Client Data. Client shall be responsible for the accuracy, quality and legality of Client Data and the means by which Client acquired Client Data including all necessary domestic and foreign consent obligations under Data Protection Legislation.
- 4.2. DialogTech’s Ownership of Technology and Usage Data. Except for the rights expressly granted under this Agreement, DialogTech and its licensors retain all right, title, and interest in and to the Services, the Professional Services the supplementary information materials, including all related intellectual property rights in DialogTech Technologies. “DialogTech Technologies” means and includes but is not limited to the software, hardware, private application programming interfaces (“APIs”) features, functionalities and other similar technologies which DialogTech uses to develop and deliver Services and all derivatives thereof (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are and shall remain DialogTech’s or its licensors’. DialogTech in no way conveys any right or interest in the DialogTech Technologies other than a limited license to Client for use of the Services in accordance with these Terms. Client may not modify, create derivative works or, redistribute, sell, decompile, reverse engineer, or disassemble the DialogTech Technologies or otherwise attempt to deduce the source code, design, or data transmission characteristics of the DialogTech Technologies. No rights are granted to Client hereunder other than as expressly set forth in these Terms. Notwithstanding Section 4.1, DialogTech owns all anonymized data, aggregate data, anonymized and/or statistical usage data collected during and derived from the operation of the Services, including data regarding web applications utilized in connection with the Service, configurations, log data, and the performance results for the Service (“Usage Data”). Nothing herein shall be construed as prohibiting DialogTech from utilizing the Usage Data to optimize and improve Services or otherwise operate DialogTech’s business; provided that if DialogTech provides Usage Data to third parties, such Usage Data shall be de-identified and presented in the aggregate so that it will not disclose the identity of Client or any User(s) to any third party.
- 4.3. Feedback. DialogTech shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into Services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or its Users relating to the features, functionality or operation of Services, Professional Services, or supplementary information (“Feedback”). Subject to Section 3: Confidentiality and unless otherwise agreed to by the parties, DialogTech has the right to use Feedback (i) to make, use, copy, modify, sell, distribute, sublicense, and create derivative works of, the Feedback as part of any DialogTech Technologies (ii) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Feedback (and derivative works thereof) as part of any DialogTech Product; (iii) solely with respect to Client’s copyright and trade secret rights, to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties; and (iv) sublicense to third parties any claims of any patents owned or licensable by Client’s that are necessarily infringed by a third party product, technology or service that uses, interfaces, interoperates or communicates with the feedback or portion thereof incorporated into a DialogTech Product, technology or service. Further, Client warrants that Client’s Feedback is not subject to any license terms that would purport to require DialogTech to comply with any additional obligations with respect to any Confidential Information or Personal Data that may be incorporated into Client’s Feedback. DialogTech shall have no obligation to use Feedback.
- 5. Service Fees and Taxes.
- 5.1. Service Fees. Client agrees to pay all fees, usage charges, domestic and international calling surcharges, porting fees, per-minute and/or per-call calling rates, regulatory cost recovery fees, administrative fees and other service charges (“Service Fees”) applied to the Account in accordance with this Agreement. Service Fees will be due within thirty (30) days of date of invoice. Except as otherwise specifically provided in this Agreement, all Service Fees paid and payable to DialogTech hereunder are non-cancelable and non-refundable. If Client fails to pay any amounts due under this Agreement by the due date, in addition to any other rights or remedies it may have under this Agreement or by matter of law, (i) DialogTech reserves the right to, upon written notice, immediately suspend Services until such amounts are paid in full, and (ii) DialogTech will have the right to charge interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law until Client pays all amounts due; provided that DialogTech will not exercise its right to charge interest if the applicable charges are under reasonable and good faith dispute and Client is cooperating diligently to resolve the issue. All disputes shall be in writing and sent to AR@DialogTech.com. Absent such notice, all invoiced amounts shall be deemed to be undisputed. Client is responsible for any costs or expenses (including legal or collection agent fees and expenses) related to collecting any past due amounts from Client. DialogTech reserves the right, in its sole discretion, to increase Client’s Service Fees on annual cycles, irrespective of a then current Order Form, but no increase shall be more than ten percent (10%).
- 5.2. International Fees. In the event Client engages in International Services, as defined in Section 6: International Service, Client acknowledges that additional international usage rates, charges, surcharges, or fees may be identified after an initial charge or bill is issued. Accordingly, DialogTech specifically reserves the right to reissue corrected charges or invoices for Client’s use of International Services. DialogTech does not guarantee all inbound international calls will be accepted or completed on the DialogTech Platform. DialogTech may, in its sole discretion, but has no obligation to, block calls to or from certain countries, regions, country codes, territories or disable International Services in order to reduce the incidence of prohibited activity. Client acknowledges that DialogTech may not be able to secure phone numbers in all countries and/or territories, and that some locales require a local address, or other information to obtain a phone number.
- 5.3. Taxes. Fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Client is responsible for paying all Taxes associated with its purchases hereunder (excluding taxes based on DialogTech’s net income or property) unless Client provides DialogTech with a valid tax exemption certificate authorized by the appropriate taxing authority. The limitations set forth in Section 8 Limitation of Liability shall not apply to Client’s payment obligations under this Section 5.
- 5.4. Prepayments and Payment Authorization. Monthly or annually prepaid amounts are valid for the billing cycle for which they are prepaid and expire, whether used or not. If Client agrees to payment card billing, Client hereby authorizes regular billing from time to time (monthly or by payment increment), including that charges will be applied to the payment card, according to such plan(s) until termination as provided herein.
- 6. International Service.
- 6.1. International Services & Transfer of Personal Data. International Services are enabled by default. “International Services” means your use of international phone numbers and/or your request for DialogTech to process any form of data originating outside of the United States. If Client fails to inform DialogTech, in writing, of Client’s desire to disable International Services, Client will be responsible for all international activity and Service Fees under Client’s Account, regardless of any third-party activity (malicious, fraudulent or otherwise), hacking, denial of service attacks, or other activity or circumstance, which generates such usage. Client shall comply with all applicable foreign and domestic laws, regulations and orders including Data Protection Laws. “Data Protection Laws” (“DPL”) means any legislation set forth by a country as it relates to gathering, storing, transmitting and protection Personal Data. It is your sole obligation to determine if you are subject to and comply with applicable DPLs. Client agrees DialogTech is not liable in part or in whole for Client’s failure to comply with applicable DPLs. Client represents and warrants that data subjects have given all necessary consents to Client’s transfer and DialogTech’s processing of their Personal Data. A Client’s breach of this Section 6 shall be deemed a material breach of the Agreement.
- 6.2. General Data Protection Regulation & EU-U.S. Privacy Shield Framework. DialogTech certifies that it complies with the EU-U.S. Privacy Shield Framework and our statement is available at EU-U.S. Privacy Shield Framework. Furthermore, DialogTech complies with the General Data Protection Regulation. With respect to Client and DialogTech, Client is the Data Controller and DialogTech is the Data Processor, as defined in the terms of our Data Processing Addendum (“DPA”), incorporated herein by reference. To the extent you utilize DialogTech for processing any data of European Union data subjects, the terms of our DPA apply and you agree to comply with your obligations as the Data Controller as described in the Addendum.
- 7. Warranties, Disclaimers and Insurance.
- 7.1. Warranties.
- a) Service. DialogTech represents and warrants that during the Service Term the Services will conform, in all material respects, with the specifications set forth on the Websites, and applicable service descriptions provided by DialogTech to Client in writing, under normal use and circumstances. Furthermore, DialogTech (i) shall perform the Services in accordance with the (ii) DialogTech shall make commercially reasonable efforts to make the Services available to Client 24 hours a day, 7 days a week, every day of each year (except for any unavailability caused by a Force Majeure event); (iii) will employ current, industry- standard measures to test the Services to detect and remediate viruses, Trojan horses, worms, logic bombs, or other harmful code or programs designed to negatively impact the operation or performance of the Services, and (iv) owns or otherwise has sufficient rights in the Services to grant to Client the rights to use the Services granted herein. DialogTech shall use commercially reasonable efforts to correct any Services it deems to be materially conform under these Terms at no additional charge to Client. In the event DialogTech does not correct non-conforming Services within a reasonable time of receipt of written notice from Client detailing the breach, then Client shall be entitled to terminate the applicable Service and receive an immediate refund of any prepaid, unused Fees for the non-conforming Service. The remedies set forth in this subsection shall be Client’s sole remedy and DialogTech’s sole liability for breach of these warranties. The warranties set forth in this subsection shall apply only if the applicable Services have been utilized in accordance with the Services, Professional Services, these Terms and applicable law. DialogTech expressly reserves the right to: (i) reject any traffic or campaign that it deems, in its reasonable discretion, inappropriate or non-compliant with this Agreement for any reason, effective upon notice to Client; (ii) monitor and review calls to ensure the integrity of the Services provided and compliance with this Agreement; (iii) take any action deemed necessary, including, but not limited to, disabling individual phone numbers, accounts, or terminating access to the Services, in the event DialogTech reasonably suspects a violation of this Agreement; and (iv) disclose any Client or account information in a manner consistent with applicable laws.
- b) Professional Services. DialogTech warrants that the Professional Services will be performed in a good and workmanlike manner consistent with applicable industry standards. As Client’s sole and exclusive remedy and DialogTech’s entire liability for any breach of the foregoing warranty, DialogTech will, at its sole option and expense, promptly re-perform any Professional Services that fail to meet this limited warranty or refund to Client the fees paid for the non-conforming Professional Services in accordance with those terms stated in the applicable Statement of Work.
- 7.2. Disclaimer.
- a) EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH UNDER SECTION 7.1: WARRANTIES, DIALOGTECH, ON BEHALF OF ITSELF AND ITS SUPPLIERS HEREBY DISCLAIMS ALL WARRANTIES RELATING TO THE SERVICE, OR OTHER SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. TO THE EXTENT THAT DATA IS BEING TRANSMITTED OVER THE INTERNET HEREUNDER, DIALOGTECH MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE PERFORMANCE OF THE INTERNET. THE PARTIES ARE NOT RELYING AND HAVE NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, EXCEPT FOR THE WARRANTIES SET FORTH UNDER SECTION 7.1. DIALOGTECH MAKES NO WARRANTY REGARDING ANY NON-DIALOGTECH APPLICATION WITH WHICH THE SERVICE MAY INTEROPERATE. “NON-DIALOGTECH APPLICATION” MEANS A WEB-BASED, OFFLINE, MOBILE, OR OTHER SOFTWARE APPLICATION FUNCTIONALITY THAT IS PROVIDED BY CLIENT OR A THIRD PARTY AND INTEROPERATES WITH A SERVICE.
- b) Third-Party Services. In order to provide high quality services, DialogTech may utilize third party providers who provide industry leading capabilities. DialogTech may disclose Client Data to third party providers and/or include or incorporate third-party technologies (all together, “Third Party Components”) while providing Client services. Where Third Party Components are utilized by DialogTech, the third-party service provider’s terms and conditions (“Third Party Terms”) as applicable to the Third-Party Component will be incorporated into this Agreement. In the event there is a conflict between this Agreement and the Third-Party Terms, the Third-Party Terms shall govern. DialogTech disclaims all responsibility for the privacy practices of a third-party service provider. DialogTech is not liable for the acts and omissions of a third-party service provider in their handling and processing of Client Data.
- 7.3. Insurance. DialogTech represents, warrants, and undertakes to maintain and keep in effect, for the duration of this Agreement, insurance as outlined below, with reputable insurers having an AM Best Rating of A-VII or better. DialogTech agrees to provide, upon Client’s written request, a certificate of insurance evidencing the required coverage upon execution of this Agreement and at any time during the Service Term of this Agreement. DialogTech shall maintain the following insurance coverage:
|Coverage||Minimum Limits of Liability|
|Workers’ Compensation & Employers Liability Insurance:||Statutory Limits|
|Automobile Liability Insurance:||$1,000,000 per occurrence|
|Commercial General Liability Insurance:||$1,000,000 per occurrence; $2,000,000 aggregate|
|Umbrella/Excess Liability Insurance:||$5,000,000 as minimum limits of liability|
|Professional Liability Insurance:||$10,000,000 aggregate liability|
|Cyber Security Insurance:||$10,000,000 aggregate liability|
- 8. Limitation of Liability.
- 8.1. IN NO EVENT WILL EITHER PARTY (OR DIALOGTECH’S THIRD PARTY LICENSORS) BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, (B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, (C) FOR ANY LOST PROFITS OR REVENUES, OR (D) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
- 8.2. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT HEREUNDER FOR THE SERVICE GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION SHALL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CLIENT’S AND CLIENT’S AFFILIATES’ PAYMENT OBLIGATIONS UNDER SECTION 5: SERVICE FEES AND TAXES.
- 9. Indemnification.
- 9.1. DialogTech Indemnification Obligation. Subject to Section 9.3: Indemnity Requirements, DialogTech will defend Client from any and all claims, demands, suits or proceedings brought against Client by a third party alleging that the Service, as provided by DialogTech to Client under this Agreement infringe any patent, copyright, or trademark or misappropriate any trade secret of any third party (each, an “Infringement Claim”). DialogTech will indemnify Client for all damages, costs, and reasonable attorneys’ fees finally awarded by a court of competent jurisdiction or paid to a third party in accordance with a settlement agreement signed by DialogTech, in connection with an Infringement Claim. In the event of any such Infringement Claim, DialogTech may, at its option: (i) obtain the right to permit Client to continue using the Service, (ii) modify or replace the relevant portion(s) of the Service with a non-infringing alternative having substantially equivalent performance within a reasonable period of time, or (iii) terminate this Agreement as to the infringing Service and refund to Client any prepaid, unused Fees for such infringing Service hereunder. Notwithstanding the foregoing, DialogTech will have no liability for any Infringement Claim of any kind to the extent that it results from: (1) modifications to the Service made by a party other than DialogTech, (2) the combination of the Service with other products, processes or technologies (where the infringement would have been avoided but for such combination), or (3) Client’s use of the Service other than in accordance with the Documentation and this Agreement. The indemnification obligations set forth in this Section 9.1 are DialogTech’s sole and exclusive obligations, and Client’s sole and exclusive remedies, with respect to infringement or misappropriation of third party intellectual property rights of any kind.
- 9.2. Client Indemnification Obligation. Subject to Section 9.3: Indemnity Requirements, Client will defend DialogTech from any and all claims, demands, suits or proceedings brought against DialogTech by a third party alleging a violation of a third party’s rights arising from Client’s provision of the Client Data or other material breaches of this Agreement. Client will indemnify DialogTech for all damages, costs, reasonable attorneys’ fees finally awarded by a court of competent jurisdiction or paid to a third party in accordance with a settlement agreement signed by Client.
- 9.3. Indemnity Requirements. The party seeking indemnity under Section 9 (“Indemnitee“) must give the other party (“Indemnitor“) the following: (a) prompt written notice of any claim for which the Indemnitee intends to seek indemnity, (b) all cooperation and assistance reasonably requested by the Indemnitor in the defense of the claim, at the Indemnitor’s sole expense, and (c) sole control over the defense and settlement of the claim, provided that the Indemnitee may participate in the defense of the claim at its sole expense.
- 10. Term, Termination, and Effect of Termination.
- 10.1. Service Term and Renewals. The term of this Agreement commences on the Effective Date and continues until the stated term in all Order Forms and/or SOWs have expired or have otherwise been terminated. Access to the Service commences on the date set forth on an applicable Order Form, and is for a period, as set forth therein (“Service Term”). Upon expiration of the Service Term, unless otherwise stated on an applicable Order Form, the Service will automatically renew for additional terms equal in duration to the initial Service Term (each a “Renewal Service Term”), unless and until either party gives the other notice of non-renewal at least sixty (60) days prior to the end of the then-current Service Term or Renewal Service Term. For Clients who access DialogTech’s services without an Order Form, Client’s Service Term shall be on a month to month basis, terminable with at least sixty (60) days prior notice and shall be subject any price increase on each anniversary of the date on which Client could first access the Service. To terminate this Agreement or an individual SOW or Order Form, email our Customer Support team at firstname.lastname@example.org or 1-877-295-5100 ext. 2, or send written notice to DialogTech, Inc., Attn: Legal Department, 300 West Adams Street, Suite 900, Chicago, Illinois 60606.
- 10.2. Termination for Cause. Either party may terminate this Agreement by written notice to the other party in the event that (i) the other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice, or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors (“Termination for Cause”). Upon any Termination for Cause by Client pursuant to this Section 10.2, DialogTech will refund Client a pro-rata portion of any prepaid Service Fees that cover the remainder of the applicable Order Form Service Term or Renewal Service Term after the effective date of termination and a pro-rata portion of any prepaid Professional Services Fees that cover Professional Services that have not been delivered as of the effective date of termination.
- 10.3. Retrieval of Client Data. Upon written request by Client, made prior to the effective date of termination of this Agreement, DialogTech will grant Client access to Client’s terminated Account(s) to allow Client to retrieve any remaining Client Data, at no cost, for thirty (30) days following the end of the Service Term. After such 30-day period, DialogTech shall have no obligation to maintain or provide any Client Data and shall thereafter, unless legally prohibited, be entitled to delete all Client Data by deletion of Client’s unique instance of the Service; provided, however, that DialogTech will not be required to remove copies of the Client Data from its backup media and servers until such time as the backup copies are scheduled to be deleted in the normal course of business; provided further that in all cases DialogTech will continue to protect the Client Data in accordance with this Agreement.
- 10.4. Effect of Termination. Termination shall be effective upon the later of (i) sixty (60) days from the first day of the next billing cycle after proper notice of termination was received or (ii) the completion of the then current Service Term or Renewal Service Term unless otherwise agreed to by the parties. Upon the effective date of termination of this Agreement all rights and access granted to Client including all Order Forms will immediately terminate and Client will cease using the Service (except as otherwise permitted under Section 10.3: Retrieval of Client Data. Termination for any reason other than Termination for Cause by Client pursuant to Section 10.2(i): Termination for Cause, shall not relieve Client of the obligation to pay all future amounts due under all Order Forms. The sections that by their nature should survive the termination or expiration of this Agreement shall survive. Client may at any time prior to termination or within thirty (30) days following termination, and at their own expense, port out telephone numbers associated with their Account at that time.
- 11. General.
- 11.1. Assignment. The right to use the Service and access the Account is not transferable, sub-licensable, and may not be sold, rented, or timeshared, unless expressly permitted in another agreement with DialogTech. Notwithstanding the foregoing, either party may assign this Agreement, in whole or in part, in the case of a merger, acquisition, or sale of substantially all of its assets upon written notice to the other party.
- 11.2. Party Mention. Each party’s brand names, slogans, insignia, symbol, trademarks, service marks, designs, and logos used on the DialogTech Website or in conjunction with the Service, (collectively, the “Marks”) are the trademarks of the originating party and its licensors. Neither party may alter, copy, display or use the Marks in any manner except as may be permitted in accordance with the originating party’s branding guidelines. DialogTech may use Client’s name and/or logo to identify Client as a DialogTech Client of the Service, including on DialogTech’s public website. DialogTech agrees that any such use shall be subject to DialogTech complying with any written guidelines that Client may deliver to DialogTech regarding the use of its name and shall not be deemed Client’s endorsement of the Service. Upon request by Client, DialogTech will cease any use of Client’s name and logo, subject to allowing a reasonable time to comply (including use of any already-printed materials).
- 11.3. Controlling Law, Attorneys’ Fees and Severability. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of Illinois, without giving effect to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. With respect to all disputes arising out of or related to this Agreement, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in Cook County, Illinois. In any action to enforce this Agreement the prevailing party will be entitled to costs and reasonable attorneys’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
- 11.4. Notices. All legal notices hereunder shall be in writing and delivered (i) personally, (ii) by overnight express delivery services, (iii) prepaid certified first-class mail, or (iv) by e-mail if its receipt is confirmed by the recipient, or an original copy follows in a timely manner. Notice shall be deemed given (a) one (1) business day after deposit with a recognized courier for U.S. deliveries (or three (3) business days for international deliveries) or (b) seventy-two (72) hours from the time of mailing, if mailed. Notice to DialogTech shall be sent to DialogTech, Inc., Attn: Legal Department, 300 West Adams Street, Suite 900, Chicago, Illinois 60606. Notice to Client shall be sent to the billing address provided by Client or, if by email, to the most recent Client’s representative, unless Client provides DialogTech with an alternative.
- 11.5. Force Majeure. If the performance of this Agreement or any obligation hereunder (other than obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a party including but not limited to computer related attacks, hacking, acts of terrorism, acts of God, fire, flood, governmental acts or orders or restrictions or failure of suppliers (a “Force Majeure Event”), the party so affected shall be excused from such performance and liability to the extent of such prevention or restriction.
- 11.6. Equitable Relief. Due to the unique nature of the parties’ Confidential Information disclosed hereunder, there can be no adequate remedy at law for a party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching party. Therefore, upon any such breach or threat thereof, the party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it, without the requirement of posting a bond.
- 11.7. Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint ventures or partners for any purpose. There are no third-party beneficiaries under this Agreement.
- 11.8. Anti-Corruption. DialogTech believes in conducting its business according to ethical business practices. Client agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of DialogTech employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Client learns of any violation of the above restriction, Client will use reasonable efforts to promptly notify DialogTech.
- 11.9. Entire Agreement. These Terms together with the Order Form(s) and any applicable exhibits, attachments, statements of work or similar documents, constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all prior or contemporaneous written or oral agreements existing between the parties hereto (including any non-disclosure agreement(s)), and related to the subject matter hereof are expressly void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) the Terms, and (3) the Documentation. No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties hereto. Notwithstanding the prior statement, DialogTech reserves the right to reasonably modify the Terms at any time by publication on the Websites, by notice through email, or by transmission through the Service. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may be executed in one or more counterparts with an original signature or with electronic signature, each of which shall be deemed an original and all of which shall constitute the same instrument.