THESE TERMS OF SERVICE (“TERMS”) CONSTITUTE A CONTRACT BETWEEN YOU AND PLAYVOX AND GOVERN USE OF AND ACCESS TO THE SERVICE AND SITE BY YOU AND AGENTS WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION TO THE SERVICE OR A FREE TRIAL OF THE SERVICE
These standard terms and conditions (including any Addenda or other attachments, the “Terms”), together with any applicable Subscription Order Form, if any (the “Order Form”), constitute a binding agreement (the “Agreement”) by and between Arcaris, Inc., d/b/a Playvox (“Playvox,” “We,” or “Us”) and the entity or person signing the Order Form or otherwise accessing any Service (“Customer,”“Subscriber” or “You”). Each party to this Agreement is a “Party” and together, they are the “Parties.”
By accessing or using any Service or the Site, or authorizing or permitting any User to access or use any Service or Site, You are accepting and agreeing to be bound by these Terms, whether in connection with a paid subscription to any Service or any trial of any Service. If You are entering into these Terms on behalf of a company, organization or other legal entity (an “Entity”), You are agreeing to these Terms for such Entity and representing to Playvox that You have the authority to bind such Entity to these Terms, in which case the terms “Subscriber,” “You,” “Your” or related capitalized terms herein shall refer to such Entity. If You do not have such authority, or if You do not agree with these Terms, You shall not use any of the Services.
1. ACCESS TO AND USE OF THE SERVICES.
1.1 Services. During the Subscription Term and subject to compliance by You and Your Users with these Terms, any applicable Documentation and the Order Form, You have, for your internal business purposes only, the limited right to access and use the Services listed in the applicable, fully executed Order Form in accordance with Your Service Plan. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by Playvox from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in writing.
1.2 Extension of Rights to Affiliates. You may extend Your rights, benefits and protections provided herein to Your Affiliates and to contractors or service providers acting on Your or Your Affiliates’ behalf, provided that You remain responsible for Your and their compliance hereunder.
1.3 Modifications. You acknowledge that the Playvox Provider Parties may modify the features and functionality of the applicable Service(s) during the Subscription Term. Playvox shall provide You with commercially reasonable advance notice of any deprecation of any material feature or functionality.
1.4 Connections. Playvox is not responsible for interruptions, service or performance failures, delays or other problems in connection with use of the internet, third-party platforms and other services, or other Force Majeure Events. We are not responsible for notifying You or Users of any upgrades, fixes, or enhancements to any such software or services or for any compromise of data, including, without limitation, Your Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated, or controlled by Playvox.
1.5 Prohibited Activities. You shall not: (a) license, sublicense, sell, resell, outsource, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make any of the Services available to any third party, other than authorized Users in furtherance of Your internal business purposes as expressly permitted by these Terms; (b) use any Service to provide services to any third party as a service bureau; (c) circumvent or disable any security or other technological features or measures of any Service, or attempt to probe, scan or test the vulnerability of a network or system or to breach security or authentication measures; (d) modify, adapt, or hack any of the Services or otherwise attempt to gain unauthorized access to any of the Services or related systems or networks; (e) falsely imply any sponsorship or association with Playvox; (f) use any of the Services in any unlawful manner, including but not limited to violation of any person’s privacy rights; (g) use any of the Services to send unsolicited or unauthorized junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (h) use any of the Services to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (i) attempt to bypass or break any security or rate limiting mechanism on any of the Services or use any of the Services in any manner that interferes with or disrupts the integrity, security or performance of the Services and its components, including, without limitation, uploading any code or content into any of the Services that causes a disruption in the integrity or performance of the Services; (j) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up any of the Services; (k) use any of the Services to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, defamatory, libelous, obscene, or discriminatory; (l) unless expressly agreed to otherwise in writing by Playvox, use any of the Services to collect, store, process or transmit any Sensitive Personal Information (and Playvox expressly disclaims any liability under this Agreement for such Sensitive Personal Information notwithstanding anything to the contrary herein); (m) use any of the Services to knowingly post, transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (n) access any of the Services for competitive purposes and/or if You (or a User) are a competitor of Playvox; (o) use or launch any automated system that accesses a Service (i.e., a bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser; (p) launch or facilitate, whether intentionally or unintentionally, a denial of service attack on any of the Services or any other conduct that materially and adversely impacts the availability, reliability, or stability of the Services; or (q) try to use, or use any of the Services in violation of these Terms.
1.6 Account Activity. You are solely responsible for the content, accuracy and legality of all of Your Data, and Playvox has no obligation to review Your Data for the foregoing. You shall ensure that any use of the Services by Users is for Your sole benefit. You also maintain all responsibility for determining whether the Services and the information generated thereby are accurate or sufficient for Your purposes. Access to and use of the Services is restricted to the specified number of individual Users permitted under Your subscription to the applicable Service. You acknowledge and agree that each User will be identified by a unique username and password (“User Login”) and that a User Login cannot be shared or used by more than one individual. You are responsible for maintaining the confidentiality of all User Login information for Your Account, including, without limitation, all User Login information for all Users. If any User who has access to a User Login is no longer an employee or Contractor of Subscriber, then You will immediately delete such User Login and otherwise terminate such access to the Services.
1.7 Compliance. As between You and Playvox, You are responsible for compliance with the provisions of this Agreement by You, Users and End-Users and for any and all activities that occur under Your Account, which Playvox may verify from time to time. Without limiting the foregoing, You are solely responsible for ensuring that Your (and Your Users’) use of the Services is compliant with all Applicable Laws as well as any and all terms, privacy policies, agreements or other obligations You may maintain or enter into with Users or End-Users.
1.8 Management of Services. In addition to any other rights Playvox has under this Agreement, Playvox reserves the right, in Playvox’s sole discretion, to temporarily suspend Your access to and use of any of the Services: (a) during planned downtime for upgrades and maintenance to such Service(s) (of which Playvox will use commercially reasonable efforts to notify You in advance both through Our forum page and a notice to Your Account owner and Users) (“Planned Downtime”); or (b) during any unavailability caused by Force Majeure Events. We will use commercially reasonable efforts to schedule Planned Downtime for weekends (Pacific time zone) and other off-peak hours.
2.1 Your Data. You represent and warrant that You have all necessary rights, title and permissions for You and Playvox to access, collect, share and use Your Data as contemplated by this Agreement and that Your Data does not and will not violate or infringe (a) any intellectual property, publicity, privacy or other rights, (b) any Applicable Laws, and/or (c) any terms of service, privacy policies or other agreements governing Your Properties or Your accounts with any Non-Playvox Services. You shall be fully responsible for any of Your Data submitted to the Services by any User or accessed by Playvox through any Non-Playvox Services on Your behalf as if it were submitted by You.
2.2 Subscriber as Data Controller. To the extent Your Data constitutes Personal Data, the Parties agree that You shall be deemed to be the Data Controller and Playvox shall be deemed to be the Data Processor, as those terms are understood under the Applicable Data Protection Law. You acknowledge and agree that Playvox may use subprocessors, who may access Your Data and Usage Data, to provide, secure and improve the Services. If applicable, Playvox’s Data Processing Addendum can be executed by the Parties and, if executed, will be attached hereto as Addendum A (the “DPA”). Upon execution by the Parties, if applicable, the DPA is hereby incorporated by reference into the terms of this Agreement.
2.3 Safeguards. In operating the Playvox Services, Playvox will maintain commercially reasonable administrative, physical, and technical safeguards (“Safeguards”) designed to protect the security, confidentiality, and integrity of Your Data. These safeguards include encryption of Your Data in transmission (using SSL or similar technologies). Playvox is not responsible for any Safeguards relating to Non-Playvox Services, which You may link to through the Services at Your election. Our compliance with the provisions of this Section 2.3 (Safeguards) shall be deemed compliance with all of Our obligations to protect Your Data.
2.4 Disclosure. In addition to any other provision herein, Playvox may also access or disclose information about You, Your Account, Users, including Your Data and Usage Data, in order to: (a) comply with Applicable Law or respond to lawful requests or legal process, including, without limitation, subpoenas or court orders; (b) protect Playvox’s or its customers’ or partners’ rights or property, including enforcement of these Terms or other policies associated with the Services; or (c) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation of Applicable Law.
2.5 Aggregated Anonymized Data. We collect certain information about You and Users as well as Your and their respective devices, computers and use of the Services. Notwithstanding anything herein to the contrary, You acknowledge and agree that the Playvox Parties may access, collect, aggregate, analyze and use technical and other data in connection with Your use of the Services that does not contain any personally identifiable information about You, Your Users or Your customers (“Aggregated Anonymized Data”), and the Playvox Parties may use the Aggregated Anonymized Data to support, analyze, improve and operate the Services, to develop industry standard benchmarks, or otherwise for any business purpose in accordance with Applicable Laws during and after the Term, including, without limitation, to develop best practice guidelines, recommendations, or other reports for distribution to customers.
Each Party will protect the other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each Party protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use the other Party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any Applicable Law.
4. IP INDEMNIFICATION.
Subject to your compliance with this Agreement, Playvox will defend You from and against any third party claim alleging that Playvox’s Services infringe a third party’s valid U.S. patent, U.S. copyright, or U.S. trademark (an “IP Claim”) and will indemnify and hold You harmless from and against any damages and costs finally awarded against You or agreed in settlement by Playvox (including reasonable attorneys’ fees engaged by Playvox for such defense) resulting from such third party claim, provided that (a) You promptly notify Playvox in writing of the threat or notice of such IP Claim (but in any event with sufficient notice for Playvox to respond without prejudice), (b) Playvox will have sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim (however, We shall not settle or compromise any claim that results in liability or admission of any liability by You without Your prior written consent), and (c) You fully cooperate with Playvox in connection therewith. If use of Playvox’s Services by You or Users has become, or in Playvox’s opinion is likely to become, the subject of any such IP Claim, Playvox may at its option and expense: (a) procure for You the right to continue using Playvox’s Services as set forth hereunder; (b) replace or modify Playvox’s Services to make it non-infringing; or (c) if options (a) or (b) are not commercially reasonable or practicable as determined by Playvox, terminate Your subscription to Playvox’s Services and refund You, on a pro-rated basis, any pre-paid Fees corresponding to the unused portion of Your Subscription Term for Playvox’s Services after such termination. Playvox will have no liability or obligation under this Section 4 (IP Indemnification) with respect to any IP Claim if such claim is caused in whole or in part by (i) unauthorized use of Playvox’s Services; (ii) any action arising as a result of breach by You and/or Your Users or Your Personnel of this Agreement; (iii) or Your Data not being in compliance with this Agreement; (iv) compliance with designs, data, instructions or specifications provided by You; (v) modification of Playvox’s Services by anyone other than Playvox; or (vi) the combination, operation or use of Playvox’s Services with other hardware or software where Playvox’s Services would not by itself be infringing. This Section states the sole, exclusive and entire liability of the Playvox Parties to You and Your sole remedy with respect to an IP Claim in connection with this Agreement.
5. INTELLECTUAL PROPERTY RIGHTS.
5.1 Each Party shall retain all rights, title and interest in any Intellectual Property Rights. The rights granted to You, Users and End-Users to use the applicable Service(s) under this Agreement do not convey any additional rights in the Service(s) or in any Intellectual Property Rights of Playvox associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all Documentation, hardware, software and other components of or used to provide the Services and any derivative works, modifications or improvements of any of the foregoing, including all related Intellectual Property Rights, will remain with the applicable Playvox Party and belong exclusively to such Playvox Party.
5.2 Playvox shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Users, End-Users, or other third parties acting on Your behalf. Playvox also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by suggestions, enhancement requests, recommendations or other feedback We receive from You, Users, End-Users, or other third parties acting on Your behalf.
5.3 Playvox®, and Playvox’s other product and service names, and logos used or displayed on the Services are registered or unregistered trademarks of Playvox (collectively, “Marks”). You shall not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Playvox or its Services.
6. FEES, PLAN MODIFICATIONS, AND PAYMENTS.
6.1 Payment and Billing. Unless otherwise indicated on an Order Form referencing these Terms and subject to the rest of this Section, all fees and charges under this Agreement (“Fees”) will be invoiced in full up front at the time of commencement of the applicable Service and are non-refundable. Unless otherwise indicated in the Order Form, You shall pay all invoices within 30 days of issuance of each invoice without set-off, counterclaim or deduction. Playvox reserves the right to charge interest on any late Fees in an amount equal to 1.5% per month of the overdue amount or the maximum amount allowed by Applicable Law, whichever is less. You are responsible for providing valid and current payment information and You agree to promptly update your Account information, including payment information, with any changes that may occur (for example, a change in Your billing address or credit card expiration date). If You fail to pay Your Fees or other charges indicated on any Order Form within five (5) business days of Our notice to You that payment is delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of such Service by You, Users and End-Users.
6.2 Upgrades. If You choose to upgrade Your Service Plan or increase the number of Users authorized to access and use a Service during Your Subscription Term, any incremental Fees associated with such upgrade will be charged in accordance with the remaining Subscription Term. In any future Subscription Term, Your Fees will reflect any such upgrades.
6.3 Downgrades. You may not downgrade Your Service Plan or reduce the number of Users during Your Subscription Term. If You desire to downgrade Your Service Plan or reduce the number of Users under any Service Plan for a subsequent Subscription Term, You must provide Playvox with at least thirty (30) days advance written notice prior to the end of Your then-current Subscription Term. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and Playvox does not accept any liability for such loss.
6.4 Taxes. Unless otherwise stated, Our Fees do not include any Taxes. You are responsible for paying Taxes except those assessable against Playvox measured by its net income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
6.5 Payment Agent. If You pay by credit card or certain other payment instruments, the Services provide an interface for the Account owner to change credit card information (e.g. upon card renewal). Payments made by credit card, debit card or certain other payment instruments for the Services are billed and processed by Playvox’s Payment Agent. You hereby authorize the Payment Agent to bill Your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Service Plan for the Services, and for periodic Fees applicable to You until Your subscription to the Services terminates, and You further agree to pay any Fees so incurred. If applicable, You hereby authorize Playvox and the Payment Agent to charge Your credit card or other payment instrument to establish prepaid credit (“Prepaid Credit”) of a certain amount which will be drawn down based upon usage by You and Your Users. When the Prepaid Credit falls below the established Prepaid Credit amount, You hereby authorize Playvox and the Payment Agent to replenish such Prepaid Credit by charging Your credit card or other payment instrument. The Account owner will receive a receipt upon each acceptance of payment by the Payment Agent, or they may obtain a receipt from within the Services to track subscription status. To the extent the Payment Agent is not Playvox, the Payment Agent is acting solely as a billing and processing agent for and on behalf of Playvox and shall not be construed to be providing the applicable Service. The Payment Agent uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for the Payment Agent.
6.6 Payment Portals. If You mandate Playvox use a vendor payment portal or compliance portal which charges Playvox a subscription fee or a percentage of any uploaded invoice as a required cost of doing business, You shall be invoiced by Playvox for, and You are obligated to pay, the cost of this fee.
7. TERM AND TERMINATION.
7.1 Term. Unless earlier terminated in accordance with its terms, this Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Trial Periods and Subscription Terms, including any Renewal Terms (together, the “Term”).
7.2 Renewal. Either You or Playvox may elect to terminate this Agreement as of the end of your then-current Subscription Term and not renew for an additional Subscription Term by providing written notice, in accordance with these Terms, on or prior to the date that is thirty (30) days before the end of the then-current Subscription Term. Unless You provide such timely notice, Your subscription to the Services will automatically renew for a Subscription Term equivalent in length to the then-expiring Subscription Term (the “Renewal Term”). Unless otherwise provided for in any Order Form, Playvox has the right to automatically increase the Fees applicable to Your subscription to the Services for any such Renewal Term by an amount not to exceed 10% per year for each User for the same Service(s) (the “Auto Renew Fee Increase Cap”); provided, however, that if Playvox determines, in its reasonable discretion, that material product or feature enhancements to the Services require that the increase in Fees exceed the Auto Renew Fee Increase Cap for a Renewal Term, Playvox will first obtain Your prior email consent before applying such new Fees to such Renewal Term.
7.3 No Refunds or Credits. No refunds or credits for Fees or other charges or payments will be provided to You if You terminate Your subscription to the Services or cancel Your Account in accordance with this Agreement prior to the end of Your then-effective Subscription Term.
7.4 Termination. In addition to any other rights or remedies in this Agreement, either Party may terminate this Agreement (including any related Order Form) if the other Party (i) materially breaches this Agreement (including failure to pay Fees in a timely manner) and fails to cure such breach within 30 days following of receipt of notice of breach or (ii) becomes the subject of a petition in bankruptcy or any other proceedings relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
7.5 Unpaid Fees. Except as expressly set forth below, upon termination of this Agreement for any reason, in addition to any other amounts You may owe Playvox, You must immediately pay any then-unpaid Fees associated with the remainder of such Subscription Term pursuant to all applicable Order Forms. This amount will not be payable by You in the event You terminate this Agreement as a result of an uncured material breach by Playvox in accordance with this Section 7.4(i) (Term and Termination – Termination).
7.6 Exporting Your Data. During the Term and up to expiration or termination of this Agreement, You will have the ability to export or download Your Data. After such expiration or termination, We will have no obligation to maintain or provide any of Your Data, and We will, unless prohibited by law or legal order, delete Your Data in Playvox’s Services in accordance with Playvox’s then-current deletion policy.
7.7 Suspension. Without limiting any other right, We reserve the right to restrict functionalities or suspend the Services (or any part thereof), Your Account or Your and/or Users’ or End-Users’ rights to access and use the Services and remove, disable or quarantine any of Your Data if (a) We reasonably believe that You, Users or End-Users have violated this Agreement; or (b) We suspect or detect any Malicious Software connected to Your Account or use of a Service by You, Users or End-Users. This right includes the removal or disablement of Your Data. Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You, Users, End-Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by You, Users or End-Users may be referred to law enforcement authorities at Our sole discretion.
8. TRIAL SUBSCRIPTIONS.
If You register for a trial of the Services (a “Trial Subscription”), We will make such Services available to You on a trial basis in accordance with an Order Form until the earliest of: (a) the end of the trial period for which You registered to use the applicable Service(s); (b) the start date of any subscription to such Service(s) purchased by You for such Service(s); or (c) termination of the Trial Subscription by Us in Our sole discretion (the “Trial Period”). ANY DATA YOU ENTER INTO A SERVICE, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO A SERVICE BY OR FOR YOU, DURING YOUR TRIAL SUBSCRIPTION WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS COVERED BY THE TRIAL, OR EXPORT SUCH DATA, BEFORE THE END OF SUCH TRIAL PERIOD. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, PLAYVOX WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, LIABILITY, OR OTHER OBLIGATIONS IN CONNECTION WITH TRIAL SUBSCRIPTIONS AND/OR BETA SERVICES (DESCRIBED BELOW).
9. BETA SERVICES.
From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to supplemental terms that will be presented to You. Beta Services are not considered “Services” under this Agreement; however, all restrictions, Our reservation of rights and Your obligations concerning the Service, and use of any Non-Playvox Services shall apply equally to Your use of Beta Services. Unless otherwise stated or communicated to You, any Beta Services trial period will expire upon the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
10. NON-PLAYVOX SERVICES.
You and Your Users decide whether to enable, access or use Non-Playvox Services. If You do decide to enable, access or use Non-Playvox Services, Your access and use of such Non-Playvox Services shall be governed solely by the terms and conditions of such Non-Playvox Services. Playvox does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Non-Playvox Services, including, without limitation, their content or the manner in which they handle, protect, manage or Process data (including Your Data), or any interaction between You and the provider of such Non-Playvox Services. We cannot guarantee the continued availability of such Non-Playvox Service features, and may cease enabling access to them without entitling You to any refund, credit or other compensation, if, for example and without limitation, the provider of a Non-Playvox Service ceases to make the Non-Playvox Service available for interoperation with the corresponding Service in a manner acceptable to Us. You irrevocably waive any claim against Playvox with respect to such Non-Playvox Services. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Non-Playvox Services, or Your reliance on the privacy practices, data security processes or other policies of such Non-Playvox Services. You may be required to register for or log into such Non-Playvox Services on their respective websites. By enabling any Non-Playvox Services, You are expressly permitting Playvox to disclose Your User Logins and Your Data as necessary to facilitate the use or enablement of such Non-Playvox Services.
THE SITE AND ALL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND PLAYVOX EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT PLAYVOX DOES NOT WARRANT THAT SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM PLAYVOX OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, PLAYVOX DISCLAIMS ANY OBLIGATIONS WITH RESPECT TO STORAGE OF YOUR DATA, INCLUDING, WITHOUT LIMITATION, FOR ANY LOSS OR CORRUPTION OF YOUR DATA. IN ADDITION, PLAYVOX DISCLAIMS ANY LIABILITY IN CONNECTION WITH (I) SUBSCRIBER’S CHOICE TO DOWNGRADE THE SERVICES, INCLUDING, WITHOUT LIMITATION, LOSS OF CONTENT, FEATURES, OR CAPACITY OF SERVICES; AND (II) SUBSCRIBER’S USE OF OR CONNECTION TO ANY NON-PLAYVOX SERVICES.
12. LIMITATION OF LIABILITY.
12.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AFFILIATE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA YOUR SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF PLAYVOX), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY AFFILIATE IN CONNECTION WITH THIS AGREEMENT, OR THE SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.12.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, PLAYVOX’S AGGREGATE LIABILITY TO YOU, ANY AFFILIATE, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR THE SERVICES, SHALL IN NO EVENT EXCEED THE FEES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION
12.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE SERVICES IN THIS AGREEMENT. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN WILL APPLY IN AGGREGATE TO SUBSCRIBER AND ITS AFFILIATES AND SHALL NOT BE CUMULATIVE.
12.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or for personal injury or death, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, PLAYVOX’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. Any claims or damages that You may have against Playvox shall only be enforceable against Playvox and not any other entity or its officers, directors, representatives or agents.
13. SUBSCRIBER INDEMNIFICATION.
13. 1 Subscriber Indemnification. You will indemnify, defend and hold harmless the Playvox Parties from and against any and all claims, allegations, costs, damages, losses, liabilities, settlements and expenses (including, without limitation, reasonable attorneys’ fees and costs) arising out of, related to or in connection with: (a) Your Data; (b) use by You, Users or End-Users in breach or alleged breach of this Agreement; or (c) any allegation that Your use of any Service or Your Data infringes or misappropriates a third party’s Intellectual Property Rights. The relevant Playvox Parties will promptly notify You in writing of any such claim (but in any event with sufficient notice for You to respond without prejudice) and will reasonably cooperate with You, at Your expense, in connection with the defense or settlement of such claim. The Playvox Parties may participate in the defense of any claim by counsel of its own choosing, at its cost and expense, and Subscriber will not settle any claim without Playvox’s prior written consent, unless the settlement fully and unconditionally releases all Playvox Parties and does not require any Playvox Party to pay any amount, take any action, or admit any liability.
14. THIRD-PARTY SERVICE PROVIDERS.
If You are using any Enhanced Product, You agree that Playvox and the third-party service providers that are utilized in connection with the applicable Enhanced Product(s) shall have the right to access Your Account, Your Data and Usage Data and to use, modify, reproduce, distribute, display and disclose Your Data and/or Usage Data to the extent necessary to provide, secure or improve the applicable Service(s) and perform Playvox’s obligations hereunder. Any third-party service providers utilized by Playvox will only be given access to Your Account as is reasonably necessary to provide the applicable Enhanced Product(s) and will be subject to confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in this Agreement.
15.1 No Assignment. Neither Party may assign this Agreement without the other Party’s prior written consent, which consent will not be unreasonably withheld; provided, however, that either Party may, without the other Party’s consent, assign this Agreement to an Affiliate or in connection with any merger or change of control of such Party or the sale of all or substantially all of its assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement and such successor is not a competitor of the non-assigning Party. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.
15.2 Supplemental Terms. If You have subscribed to any Enhanced Product(s) as set forth in the applicable Order Form, certain supplemental terms (“Supplemental Terms”) may apply to Your use of such Enhanced Product(s). You agree to and will comply with all applicable Supplemental Terms for any relevant Enhanced Products as set forth in Exhibit I. If Playvox is required to provide additional or different Supplemental Terms relating to any Enhanced Product(s) that you have subscribed to, Playvox will promptly notify You. The activation or continued use of any Enhanced Product(s) by You or Your Users in Your Account will be considered acceptance of and agreement to the applicable Supplemental Terms.
15.3. Entire Agreement & No Waiver. These Terms, together with any Addenda, Exhibits, other attachments, and Order Form(s) signed by the Parties, constitute the entire agreement, and supersede any and all prior agreements between You and Playvox with regard to the subject matter hereof. This Agreement may not be amended except in a written agreement signed by both Parties. Unless either Party objects, the Parties agree to use the form of new Order Form substantially similar to the one attached hereto as Exhibit II (the “Order Form Template”). The Parties may mutually agree to make such changes to or not to use such Order Form Template as the Parties deem appropriate. A Party’s failure to enforce at any time any provision of the Agreement does not constitute a waiver of that provision or of any other provision of the Terms.
15.4 Headers & Severability. The headings contained in this Agreement are for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement Terms shall remain in effect.
15.5 Media. You hereby grant Playvox and its Affiliates the right and license to use Your name, trademark, service mark and logos in Playvox’s sales and marketing materials and public statements, and to recognize You as a Playvox customer in all media, including, without limitation, in print and online/digital. You expressly agree to provide reasonable cooperation in a Playvox case study.
15.6 Governing Law & Arbitration. This Agreement will be construed, governed and enforced in all respects in accordance with the laws of the State of California, U.S.A., without reference to conflict of laws principles. Any dispute, controversy or claim arising under, out of or relating to this Agreement, will be finally determined by arbitration conducted by JAMS (or, if unavailable, then such other similar group that can provide former judges as arbiters) in accordance with the Rules of Arbitration of the International Chamber of Commerce applicable to commercial disputes by a single arbiter who is (a) fluent in written and spoken English, the language governing this Agreement, and (b) skilled and experienced with software-as-a-service or internet services. The place of such arbitration will be in Santa Clara County, California, U.S.A. The judgment of the arbitrator will be final, non-appealable (to the extent not inconsistent with Applicable Laws) and binding upon the Parties, and may be entered in any court of competent jurisdiction. The foregoing does not limit or restrict either Party from seeking injunctive or other equitable relief from a court of competent jurisdiction.
15.7 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Nothing herein shall prevent Playvox from entering into any further agreements or business relationships, nor prevent Playvox from conducting similar business with others as long as Playvox observes its obligations under this Agreement.
15.8 Survival. The following provisions shall survive any expiration or termination of this Agreement: 2.1 (Your Data), 2.4 (Disclosure), 2.5 (Aggregated Anonymized Data), 3 (Confidentiality), 5 (Intellectual Property Rights), 6.1 (Fees), 6.4 (Taxes), 7 (Term and Termination), 10 (Non-Playvox Services), 11 (Disclaimer), 12 (Limitation of Liability), 13 (Subscriber Indemnification), 15 (Miscellaneous) and 16 (Definitions). Termination of this Agreement shall not limit either Party’s liability for obligations accrued as of or prior to such termination or for breach of this Agreement.
15.9 Notice. All notices to be provided by Playvox to You under this Agreement may be delivered in writing by (i) nationally recognized expedited delivery service (“Courier”) or U.S. mail to the contact mailing address provided by You on the applicable Order Form; or (ii) electronic mail to the electronic mail address provided by You on the applicable Order Form. You must give notice to Playvox in writing by Courier or U.S. mail to the mailing address below (and, in addition, with a copy to the email below):
Arcaris, Inc. (dba Playvox)
530 Lawrence Expy, #905
Sunnyvale, CA 94085, U.S.A
With a copy to firstname.lastname@example.org
All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.
15.10 Export Compliance and Use Restrictions. The Services or components of the Services that Playvox may provide or make available to You or Users may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Services, and such other components by You and Users. You shall not access or use the Services if You are located in any jurisdiction in which the provision of the Services, or other components is prohibited under U.S. or other Applicable Laws (a “Prohibited Jurisdiction”) and You shall not provide access to the Services to any government, entity, or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (i) You are not named on any U.S. government list of persons or entities prohibited or restricted from receiving U.S. exports, or transacting with any U.S. person, (ii) You are not a national of, or a company registered in, any Prohibited Jurisdiction, (iii) You shall not permit Users to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions, and (iv) You shall comply with all Applicable Laws regarding the transmission of technical data exported from the United States and the country in which You and Users are located.
“Account” means any accounts or instances created by or on behalf of Subscriber or its Affiliates within the Services.
“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
“API” means the application programming interfaces developed, made available and enabled by Playvox that permit Subscribers to access certain functionality provided by the Services, including without limitation, any interface that enables the interaction with the Service(s) automatically through HTTP requests and the Playvox application development API that enables the integration of the Service(s) with other web applications.
“Applicable Data Protection Law” means the laws and regulations of the United States (including the California Consumer Privacy Act (the “CCPA”), the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom (including the General Data Protection Regulation or GDPR and any applicable national laws made under it where You are established in the European Economic Area), the Swiss Federal Act of 19 June 1992 on Data Protection and the Brazilian General Data Protection Law (LGPD), all as may be amended or superseded.
“Applicable Laws” means all applicable local, state, federal and international laws, rules and regulations, including, without limitation, those related to data privacy and data transfer.
“Beta Services” means a product, service or functionality provided by Playvox that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.
“Confidential Information” means all information disclosed by one Party to the other Party which is marked confidential or which a reasonable person would understand to be confidential or proprietary given the nature of the information and circumstances of disclosure. For purposes of these Terms, Your Data shall be deemed Confidential Information. Playvox’s Confidential Information shall include, without limitation, any non-public information regarding Playvox’s business, products and services (including, without limitation, the discovery, invention, research, improvement, development, marketing or sale thereof as well as templates, scorecards, modules, coaching cards, rubrics and the like), pricing, financial data, models and information, business and marketing plans, customer information, business opportunities, plans for development of future products, unreleased versions of products, know-how, technology, the Services and the API. Notwithstanding the foregoing, Confidential Information shall not include information that: (a) was already known to the receiving Party at the time of disclosure by the disclosing party without an obligation of confidentiality; (b) was or is obtained by the receiving Party from a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.
“Contractor” means an independent contractor or consultant of a Party.
“Documentation” means any written or electronic documentation, images, video, text, or sounds specifying the functionalities of the Services provided or made available by Playvox to You or Users through the Site or otherwise.
“Effective Date” means the date which is the earlier of (i) the start of the Service(s) (Trial Subscription or otherwise) or (ii) the effective date of the relevant Order Form referencing these Terms.
“End-User” means any person or entity other than Subscriber or Users with whom Subscriber, its Users, or its End-Users interact while using a Service.
“Enhanced Product(s)” means the additional product(s) set forth in an applicable Order Form that are provided in connection with Playvox’s Services under this Agreement but that do not form part of Playvox’s Services.
“Force Majeure Event” means any circumstances beyond Our reasonable control, including, but not limited to, an act of God, act of government, flood, fire, earthquake, epidemic or pandemic, civil unrest, act of terror, strike or other labor problem, failure or delay of any Internet service(s), Non-Playvox Service(s), Enhanced Product(s), or acts undertaken by third parties, including without limitation, a denial of service attack.
“Intellectual Property Rights” means any and all respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights.
“Non-Playvox Services” means third party products, applications, services, software, networks, systems, directories, websites, databases and information which a Service links to, or which You may connect to or enable in conjunction with a Service, including, without limitation, Non-Playvox Services which may be integrated directly into Your Account by You or at Your direction.
“Order Form” means any Playvox generated subscription order form executed or approved by each Party with respect to Your subscription to a Service, which form may detail, among other things, the number of Users authorized to use such Service under Your subscription to that Service and the Service Plan applicable to Your subscription to that Service.
“Payment Agent” means Arcaris, Inc. or a payment agent designated by Playvox.
“Personal Data” means any information relating to an identified or identifiable natural person (‘data subject’) where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.
“Playvox Parties” (each, a “Playvox Party”) means Playvox and any of its Aﬃliates, oﬃcers, directors, employees, Contractors, agents, service providers, suppliers, licensors and permitted assigns.
“Playvox Provider Parties” (each a “Playvox Provider Party”) means Playvox and any of its Affiliates, service providers, suppliers or licensors.
“Playvox’s Service(s)”/“Playvox Service(s)” means Playvox’s software-as-a-service products relating to quality, coaching, learning, performance, recognition and social application, including the API and any Documentation, as such may be developed, updated, modified and improved from time to time, as well as other related products, solutions, tools and services. Any new or modified features added to or augmenting the Playvox Services or updates or enhancements to the Playvox Services (“Updates”) are also subject to these Terms and We reserve the right to deploy Updates at any time.
“Sensitive Personal Information” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”); or (iii) any other personal data of an EU citizen deemed to be a “special category” (as identified in the EU General Data Protection Regulation or any successor directive or regulation).
“Service(s)” means, as applicable, Playvox’s Service(s) and/or Enhanced Product(s) that You order via an Order Form referencing this Agreement. “Service(s)” specifically exclude Non-Playvox Services.
“Service Plan” means the services plan and the functionality and services associated therewith (as detailed in the Order Form or on the Site) for the Services to which You subscribe.
“Site” means www.playvox.com (and all other successor URLs, mobile or localized versions and related domains and subdomains owned or operated by Playvox or its subsidiaries).
“Subscription Term” means the period during which You have agreed to subscribe to a Service with respect to any individual User starting on the Subscription Start Date and continuing for the term as designated in an Order Form with respect to any individual User.
“Taxes” means taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes accessible by any local, state, provincial or foreign jurisdiction.
“Usage Data” means metrics and information regarding Your use of the applicable Service(s), including evaluating how Users and End-Users use the Service(s).
“User” means an individual authorized to use the Service(s) through Your Account as an agent, manager, team leader, administrator or any other role as identified through a unique login.
“Your Data” means all electronic data, text, messages, communications or other materials submitted to and stored within a Service by You, Users and End-Users in connection with Your use of such Service.
“Your Personnel” means employees and Contractors of Customer, including customer support personnel.
“Your Properties” means Your websites, services, apps, or other offering owned and operated by (or for the benefit of) You through which You interact with Your customers.
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