MASTER PLATFORM TERMS & CONDITIONS
WHEREAS, Reseller provides a communications platform as a service (CPaaS) technology platform known as the “Compass Automation Platform”, which provides interactive voice response, automated payments by voice and text, text (SMS) messaging, and related functionality for Customer and other functionality listed on Schedule A.
WHEREAS, Customer desires to use the “Compass Automation Platform” (the “Hosted Platform”), and to engage Reseller to provide access to the Hosted Platform;
Now, therefore, in consideration of the mutual benefits to be provided, both parties agree as follows:
1. For and in consideration for the payment of all fees and charges paid to Reseller, Reseller hereby licenses to Customer, non-exclusive access to its proprietary Hosted Platform for Customer’s internal use only, within the limitations set forth in Schedule A of the Reseller Agreement. Customer hereby agrees and acknowledges the Reseller efforts pursuant to this Agreement are limited to the provision of access to the Hosted Platform, customer support and technical support. Any implementation support shall be provided to the extent listed in Schedule A of the Reseller Agreement. Any additional development time, setup fees, professional voice recording and/or Hosted Platform enhancements will be quoted and invoiced to Customer upon mutual Agreement. In the event initial development and/or voice time exceeds the hours estimated by Reseller in SCHEDULE A of the Reseller Agreement, Customer and Reseller must mutually agree upon any excess time prior to invoicing by Reseller. Additional development time will be invoiced at an hourly rate of $150.
2. These terms and conditions shall be for three (3) years beginning from the date of acceptance, renewable in one (1) year increments. Should the Agreement be terminated before the term expires, all remaining recurring charges and any and all accrued and unpaid fees and expenses due and payable to Reseller as of the date of termination will become immediately due and payable to Reseller. In the event of termination of this agreement, Reseller agrees to provide all information owned by Customer to the Customer within twenty (20) business days.
3. Each Party agrees not to disclose any Confidential Information (as hereinafter defined) obtained from the other Party (or any licensor of Reseller) to any other person or entity. As used herein, "Confidential Information" means information that is Identified (orally or in writing) as confidential or of such a nature a reasonable person would understand such information to be confidential. Confidential Information shall not include information (i) generally known to the public, (ii) already known, through legal means, to the Party receiving the information or (iii) legally obtained from a third party. Customer shall not disclose the financial terms of this Agreement, including Reseller’s fees, without Reseller’s prior written consent or as may be required by law. The restrictions in this Section 3 shall apply for the term of this Agreement and the longer of five (5) years or for as long as such Confidential Information remains a trade secret under applicable law.
4. A monthly statement will be e-mailed to Reseller detailing daily call records, number of calls to Hosted Platform, number of completed calls and breakdown of minutes invoiced. The monthly statement will be issued within five (5) business days of the close of each month.
5. Customer agrees to pay Reseller any Recurring Monthly Maintenance Fee and per-call/minute charges and any other fees in accordance with the agreement by and between Reseller and Customer.
6. Information captured on behalf of Customer shall be made available via the Internet in accordance with the request of Customer. A daily file can/will be generated and posted to an FTP, Web Portal or email address. Customer is responsible for all advertisement of Reseller’s telephone number(s) utilizing Customer’s Applications.
7. In the event Customer fails to remit the entire invoiced amount in accordance with Sections 5 and 6, Reseller or IVR Technology Group, LLC, (“Licensor”) reserves the right to terminate service, with written notice of fifteen (15) days after the invoice due date, on the Hosted Platforms made available for the use of Customer.
8. Reseller shall not be considered in default due to any failure in performance of this Agreement in accordance with its terms, to the extent such failures arise out of causes beyond its control and without its fault or gross negligence. Such causes may include, but are not limited to, acts of God or a public enemy, acts of the government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, technological impossibility, or unusually severe weather conditions.
9. Hold Harmless and Indemnity. Customer agrees it will not use the Hosted Platform in any manner, shape or form that violates any local, state or federal law or regulation (including without limitation violations of Section 10 and Fair Debt Collection Practices Act 15 U.S.C. § 1692 –1692p ) and will defend and hold Reseller and Licensor harmless from any and all claims and will indemnify Reseller and Licensor against any and all costs, fines, penalties, causes of action and claims, including reasonable attorney’s fees as a result of any act by Customer. Likewise, Reseller agrees it will not use the design or establish service in any manner, shape or form that results in an intellectual property rights infringement claim by any third party and will hold Customer harmless from any and all claims and will indemnify Customer against any and all costs and claims, including reasonable attorney's fees as a result of any third party intellectual property rights infringement claim against Reseller or Licensor.
10. Legal Compliance. Customer shall comply with all applicable laws, regulations, or other requirements of any governmental authority which affect this Agreement and the Customer’s performance hereunder. Customer shall be responsible for compliance with all applicable law as it relates to the call flows, content, prompts, and data flows and the Customer’s benefits and uses of the Hosted Platform, and the instructions and directions in the use of the Hosted Platform that it has provided. Though neither Reseller nor Licensor provides no legal advice to Customer, Customer understands the existence of, for example, Federal Trade Commission rules and regulations regarding do not call lists, legal calling times, and dialing cellular numbers, and shall abide by those and all other laws while using any goods or services provided by IVR Technology Group.
11. Warranties. Reseller represents and warrants that: (i) it has the authority to enter into this Agreement; (ii) the Hosted Platform will perform in material compliance with the Service Description. Except as set forth in this Section 11, NEITHER RESELLER NOR LICENSOR MAKES ANY WARRANTY NOR ANY REPRESENTATION, EXPRESS OR IMPLIED WRITTEN OR ORAL, RELATING TO THE HOSTED PLATFORM UNDER THIS AGREEMENT OR OTHERWISE INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY THAT THE SERVICES ARE FIT FOR ANY PARTICULAR PURPOSES OR OF MERCHANTABILITY, AND CUSTOMER AGREES THAT NEITHER RESELLER NOR LICENSOR WARRANTS THE HOSTED PLATFORM OR ITS SERVICES WILL BE ERROR FREE OR OPERATED UNINTERRUPTED, AND THAT NEITHER RESELLER NOR LICENSOR WILL BE HELD RESPONSIBLE IN ANY MANNER, SHAPE OR FORM FOR ANY FAILURE OF THE HOSTED PLATFORM OR ITS SERVICES TO PERFORM ANY PARTICULAR FUNCTION. In the event of a breach of this warranty by Reseller or Licensor, Reseller will use reasonable efforts to attempt to resume provision of the Hosted Platform with no additional charges to Customer over those listed in Schedule A. Customer acknowledges Hosted Platform or its services is provided through telephone and electronic devices and agrees not to hold Reseller or Licensor responsible for any failure due to technical or electronic failures. Further, neither Reseller nor Licensors is responsible for any poor result as a result of judgments and choices made by Customer in using said service.
12. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all proposals (oral and written), all negotiations, past dealings, and/or conversations or discussions between or among the Parties related to the subject matter of Schedule A. Each paragraph and provision of this Agreement is severed from each other paragraph and provision and if any one provision or part thereof is declared invalid, the remaining provisions shall nevertheless remain in full force and effect. Sections 3, 9, 10, and 12 through 18 survive termination of this Agreement.
13. EXCEPT IN CONNECTION WITH EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREIN AND OBLIGATIONS UNDER SECTION 3 (CONFIDENTIALITY) AND THE AMOUNT DUE PURSUANT TO INVOICES AND SCHEDULE A HEREUNDER, EACH PARTY'S AND LICENSORS LIABILITY FOR ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT, UNDER ANY LEGAL THEORY, SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE CLAIM. IN NO EVENT SHALL RESELLER OR LICENSOR BE LIABLE FOR ANY LOSS OF DATA, LOST PROFITS, BUSINESS INTERRUPTION, OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, INDIRECT, OR SPECULATIVE DAMAGES.
14. This Agreement may not be changed or terminated orally, but only in writing signed by the parties or by the party against whom such claimed termination is sought to be enforced, and no waiver shall be effective unless similarly acknowledged in writing by a duly authorized representative of the party. No delay or failure by either Party to exercise any right under the Agreement, and no partial or single exercise of thereof, shall constitute a waiver of that or any other right, unless expressly provided for herein. A waiver or default shall not be a waiver of any other or subsequent default. Any waiver by a Party must be in writing signed by an Executive representative of the waiving Party in order to be effective.
15. The duties and obligations of the parties hereto may not be assigned by either party to any other third party without the prior written consent of the other. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators and assignees of the parties hereto.
16. The relationship of the Parties shall be of an independent contractor and nothing contained herein shall be construed as creating any joint venture, partnership, employer/employee, franchise/franchisee, or agency relationship of any kind. Neither Party nor any of its employees, directors, members, successors, assigns or agents will have the power or right to bind the other Party or to incur any obligation on its behalf.
17. Either Party may terminate this Agreement if the other Party materially defaults in performing any of its obligations under this Agreement and the default remains uncured for at least thirty (30) days following receipt of written notice from the non-defaulting Party. Upon written notice from the other Party, this Agreement shall also terminate upon any of the following events: (i) the institution of receivership or bankruptcy proceedings against or by a Party, which has not been dismissed within 60 days; (ii) the making of an assignment for the benefit of creditors by a Party, or (iii) the dissolution of a Party.
18. This Agreement shall be governed by and construed in accordance with the laws of New York State. Notwithstanding anything to the contrary, for any dispute or claim arising out of or relating to this Agreement, including the determination of the scope or applicability of this Agreement to arbitrate, either Party may submit such matter to be determined by binding arbitration in Erie County, New York, before a single arbitrator, administered by, and in accordance with, the then-applicable Commercial Arbitration Rules of the American Arbitration Association (AAA) or the then-applicable Streamlined Arbitration Rules & Procedures of JAMS. In any such arbitration, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees it reasonably incurs in connection with the arbitration. Judgment on the award may be entered in any court having jurisdiction, and either Party may seek provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Notwithstanding any provision with respect to governing law, such arbitration shall be subject to and governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.