Subscription Agreement

BY CLICKING “I AGREE” OR USING THE TALKIQ, INC. (“TALKIQ”) SERVICES (DEFINED BELOW) ACCOMPANYING THIS AGREEMENT, THE INDIVIDUAL OR ENTITY USING THE SERVICES (“CUSTOMER”) IS AGREEING TO BE BOUND BY AND BECOME A PARTY TO THIS SUSCRIPTION AGREEMENT (“AGREEMENT”). IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CUSTOMER MUST NOT USE OR ACCESS THE SERVICES. CUSTOMER REPRESENTS AND WARRANTS THAT CUSTOMER HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY (IF A NATURAL PERSON), OR ON BEHALF OF THE ENTITY ENTERING INTO THIS AGREEMENT, AND TO BIND THAT ENTITY. IF THE PARTIES HAVE ENTERED INTO A WRITTEN AND PEN-SIGNED AGREEMENT REGARDING THE SUBJECT MATTER HEREOF, THAT AGREEMENT WILL SUPERSEDE THIS AGREEMENT TO THE EXTENT OF ANY CONFLICT. THE DATE THAT CUSTOMER ACCEPTS THIS AGREEMENT (AS DESCRIBED IN THIS PREAMBLE) WILL BE DEEMED THE “EFFECTIVE DATE.”

  • 1. DEFINITIONS.

    Capitalized terms shall have the meanings set forth in this Section 1, or in the section where they are first used.
    • 1.1. “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Services.
    • 1.2. “Authorized User” means any individual who Customer invites to use and access the Services pursuant to Customer’s rights under this Agreement, including, without limitation, Customer’s employees, consultants or other personnel who are the inbound, outbound, or other participant of a Call.
    • 1.3. “Call” means any call in which one or more Customer Personnel and End User participate.
    • 1.4. “Customer Content” means, without limitation, (a) any and all information, data, texts, files, recordings, images and other materials that is provided, imported, or otherwise used by or on behalf of, or obtained from, Customer, its Authorized Users or End Users in connection with the Services and (b) Recordings.
    • 1.5. “Data” means any personal data, including, without limitation, an Authorized User's or End User’s personal data, that is collected, processed or stored by either party in connection with the provision and receipt of the Services;
    • 1.6. “Data Protection Legislation” means Directive 95/46/EC of the European Parliament, any successor legislation and any legislation and/or binding regulations by which it is implemented in the relevant jurisdiction and the terms “data processor”, “data controller” “processor”, “processing” and “personal data” shall each have the meaning ascribed to it in the Data Protection Legislation.
    • 1.7. “Documentation” means the technical materials provided by TalkIQ to Customer in hard copy or electronic form describing the use and operation of the Services.
    • 1.8. “End User” means any customer or potential customer of Customer who is the inbound, outbound, or other participant of a Call.
    • 1.9. “Error” means a reproducible failure of the Services to substantially conform to the Documentation.
    • 1.10. “Error Corrections” means bug fixes or workarounds intended to correct Errors in the Services.
    • 1.11. “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
    • 1.12. “Recordings” means the audio recordings of Call made or obtained by TalkIQ from or through Third Party Providers and all content, information, or data (including, without limitation all Data) contained therein.
    • 1.13. “Services” means the services provided by TalkIQ by means of access to certain content and use of the features and functionality of software applications made available to Customer as a service. The Services generally provide AI/machine learning for the review and analysis of Recordings to gain sales, support, and other insights.
    • 1.14. “Supported Environment” means the minimum hardware, software, and connectivity configuration specified from time to time by TalkIQ as required for use of the Services. The current requirements are described in the Documentation.
    • 1.15. “Third Party Providers” means those third party service providers from whom or through whom TalkIQ makes or obtains Recordings, including, but not limited to, salesforce, Google Voice, TalkDesk, SalesLoft, and conference call providers such as Zoom, GoToMeeting, Uberconference, and others
  • 2. PROVISION OF SERVICES

    • 2.1. Access. Subject to Customer’s payment of the fees set forth at [INSERT FEE URL ] (“Fees”), TalkIQ will provide Customer with access to the Services. On or as soon as reasonably practicable after the Effective Date, TalkIQ shall provide to Customer the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Customer and its Authorized Users to access the Services in accordance with the Access Protocols. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify TalkIQ promptly of any such unauthorized use of the Services known to Customer.
    • 2.2. Maintenance and Support. TalkIQ will provide certain maintenance and support services for the Services that include Error Corrections and updates to the Services.
    • 2.3. Security. TalkIQ will use commercially reasonable efforts to comply with the Data Security Policy located at: [INSERT URL ].
    • 2.4. Responsibility for Services and Content Hosting. TalkIQ shall, at its own expense, provide for the hosting of the Services which is accessible as part of the Services, provided that nothing herein shall be construed to require TalkIQ to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access the Services.
    • 2.5. Modification. TalkIQ may update or modify the Services from time to time. If, in TalkIQ’s sole and reasonable discretion, any such modification to the Services materially reduces the Services’ functionality, TalkIQ will notify Customer of such proposed modifications via email to the email address associated with Customer’s account no less than thirty (30) days prior to such change.
  • 3. INTELLECTUAL PROPERTY

    • 3.1. License Grant. Subject to the terms and conditions of this Agreement, TalkIQ grants to Customer a non-exclusive, non-transferable (except as permitted under Section 11.6) license during the Term (as defined below), pursuant to this Agreement, in accordance with the Documentation, (a) to access and use the Services and enable Customer’s Authorized Users to access and use the Services; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the Services.
    • 3.2. Restrictions. Customer will not, and will not permit any Authorized User, End User or other party to: (a) allow any third party to access the Services or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Services or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Services or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services, except as permitted by law; (e) interfere in any manner with the operation of the Services or the hardware and network used to operate the Services; (f) modify, copy or make derivative works based on any part of the Services or Documentation; (g) access or use the Services to build a similar or competitive product or service; (h) attempt to access the Services through any unapproved interface; or (i) otherwise use the Services in any manner that exceeds the scope of use permitted under Section 3.1 or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Customer acknowledges and agrees that the Services will not be used, and are not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions.
    • 3.3. Ownership. The Services, Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of TalkIQ, its affiliates and its suppliers. All rights in and to the Services and Documentation not expressly granted to Customer in this Agreement are reserved by TalkIQ, its affiliates and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Services, Documentation, or any part thereof.
    • 3.4. Open Source Software. Certain items of software may be provided to Customer with the Services and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.1 or 9. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, TalkIQ makes such Open Source Software, and TalkIQ’s modifications to that Open Source Software, available by written request.
    • 3.5. Feedback. Customer hereby grants to TalkIQ a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services. TalkIQ will not identify Customer or Authorized User as the source of any such feedback without Customer’s or Authorized User's prior written (email sufficient) consent.
    • 3.6. TalkIQ Customer List. TalkIQ may include Customer’s name and logo in a list of TalkIQ’s customers online and in print and electronic marketing materials. Subject to the terms and conditions of this Agreement, Customer hereby grants to TalkIQ a non-exclusive and limited license to use and publicly display Customer’s logo as set forth in this Section 3.6.
  • 4. FEES AND EXPENSES; PAYMENTS

    • 4.1. Fees. In consideration for the access rights granted to Customer and the services performed by TalkIQ under this Agreement, Customer will pay to TalkIQ the Fees. Fees are non-refundable except as required by law or as explicitly set forth herein. Customer will pay all applicable Fees when due and, if such Fees are being paid via credit card or other electronic means, Customer authorizes TalkIQ to charge such Fees using Customer’s selected payment method. By default, customer accounts are set to auto-renew and TalkIQ may automatically charge Customer for such renewal on or after the renewal date associated with Customer’s account unless Customer has cancelled the Services prior to its renewal date. TalkIQ may revise Fees charged hereunder from time to time and will provide Customer’s designated administrator(s) with email notice of any changes in Fees at least sixty (60) days prior to Customer’s renewal date. TalkIQ reserves the right (in addition to any other rights or remedies TalkIQ may have) to discontinue the Services and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times.
    • 4.2. Purchase Orders. If Customer requires the use of a purchase order or purchase order number, Customer (a) must provide the purchase order number at the time of purchase; and (b) agrees that, except for any amendments to this Agreement that are clearly marked as such on the face of the purchase order, any terms and conditions on a Customer purchase order that conflict with this Agreement will not apply and are null and void.
    • 4.3. Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on TalkIQ’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees, the delivery of the Services, or the license of the Services to Customer. Customer will make all payments of Fees to TalkIQ free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to TalkIQ will be Customer’s sole responsibility, and Customer will provide TalkIQ with official receipts issued by the appropriate taxing authority, or such other evidence as the TalkIQ may reasonably request, to establish that such taxes have been paid.
    • 4.4. Interest. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
    • 4.5. Records; Audit. For the Term and for three (3) years thereafter, Customer will permit TalkIQ or its representatives, no more than once per year, to review Customer’s relevant records and inspect Customer’s facilities to ensure compliance with this Agreement. TalkIQ will give Customer at least ten (10) days advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Customer’s normal operations. If any such audit should disclose any underpayment of Fees, Customer will promptly pay TalkIQ such underpaid amount, together with interest thereon at the rate specified in Section 4.4. If the amount of such underpayment exceeds five percent (5%) of Fees actually paid during the audited period, Customer will also pay TalkIQ for TalkIQ’s expenses associated with such audit.
  • 5. CUSTOMER CONTENT AND RESPONSIBILITIES

    • 5.1. License; Ownership. Customer grants TalkIQ and its affiliates and suppliers a non-exclusive, worldwide, royalty-free and fully paid license, (a) to use the Customer Content as necessary for purposes of providing, analyzing and improving the Services and making available the Customer Content to Authorized Users, (b) to use and disclose aggregated and anonymized data about the use of the Services by our Customers, and (c) disclose Customer Content to third party service providers in order to provide the Services. The Customer Content hosted by TalkIQ as part of the Services, and all worldwide Intellectual Property Rights therein, is the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to TalkIQ in this Agreement are reserved by Customer.
    • 5.2. Customer Warranty. Customer represents and warrants that any Customer Content hosted by TalkIQ as part of the Services shall not (a) infringe or misappropriate any intellectual property rights; (b) be deceptive, defamatory, obscene or unlawful; (c) contain any viruses, worms or other malicious computer programming codes intended to damage TalkIQ’s system or data; or (d) otherwise violate the rights of a third party. TalkIQ is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer agrees that any use of the Services contrary to or in violation of the representations and warranties of Customer in this Section 5.2 constitutes unauthorized and improper use of the Services.
    • 5.3. Recordings. Customer represents and warrants that it has obtained, and will maintain throughout the Term, all rights, authorizations, and consents, and will provide all notices, necessary to grant to TalkIQ the licenses in Section 5.1. Without limiting the foregoing, Customer represents and warrants that it has obtained, and will maintain throughout the Term, from each End User and Authorized User, all consents and authorizations necessary (a) for TalkIQ to make or obtain the Recordings, and (b) for TalkIQ to use and disclose such Recordings in accordance with its Privacy Policy located https://www.talkiq.com/privacy, including, without limitation, any such consents or authorizations required by applicable laws, rules and regulations.
    • 5.4. Third Party Providers. In order to enable certain functionality of the Services, Customer may be required to facilitate TalkIQ’s access to or ability to make Recordings via Third Party Providers by, for example: (a) enabling certain permissions via Customer’s account with such Third Party Providers, (b) providing TalkIQ with Customer’s Third Party Provider account login information, or (c) installing, downloading or integrating certain technology necessary to enable such functionality via such Third Party Providers. Customer represents and warrants that Customer is entitled to complete any and all actions necessary to enable such functionality, including, if necessary, to disclose Customer’s Third Party Provider account login information to TalkIQ and/or grant TalkIQ access to Customer’s Third Party Provider account in order to provide the Services, in each case without breach by Customer of any of the terms and conditions that govern Customer’s use of the applicable Third Party Provider services. Customer expressly consents to TalkIQ’s use of Customer’s Third Party Provider account login information on Customer’s behalf to provide the Services to Customer. Customer acknowledges and agrees that (i) Customer’s relationship with a Third Party Provider is governed solely by Customer’s agreement(s) with such Third Party Provider, and (ii) if a Third Party Provider’s service or Customer’s associated account becomes unavailable, certain functionality of the Services may become unavailable. Nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties hereto and their respective permitted successors and assigns, any rights, remedies, obligations or liabilities whatsoever.
    • 5.5. Customer Responsibility for Data and Security.
      • (a) Security. To the extent Customer and its Authorized Users have access to the Customer Content or request that TalkIQ make certain changes and/or deletions to Customer Content by emailing TalkIQ at [email protected], they shall be responsible for all changes to and/or deletions of Customer Content. Customer and its Authorized Users shall be responsible for the security of all passwords and other Access Protocols required in order the access the Services. Customer may have the ability to export Customer Content out of the Services and is encouraged to make its own back-ups of the Customer Content. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. Customer shall comply with all applicable laws, rules and regulations in connection with its use of any Customer Content and/or Data it receives from Authorized Users in connection with its use of the Services.
      • (b) Data Privacy. When Customer is based in the European Union and/or collects the personal data of data subjects, the following additional terms will apply:
        • (i) Roles of the Parties. With respect to the parties’ rights and obligations under this Agreement relating to the processing, collection or storage of Data, the parties agree that Customer is the data controller, and TalkIQ is the data processor, for the purposes of the Data Protection Legislation.
        • (ii) Purpose of Processing. The parties each agree that Data shall only be processed and transferred for the purposes described in, and for the parties’ to perform their respective obligations outlined in, this Agreement (including, without limitation, the receipt and provision of the Services).
        • (iii) Obligations of the Parties. Each party shall comply with its obligations under the Data Protection Legislation.
        • (iv) Warranties. Customer warrants, represents and undertakes to TalkIQ that: (A) it is not aware of any circumstances likely to give rise to breach of Data Protection Legislation in the future; and (B) it shall be responsible for ensuring that, for the purposes of compliance with Data Protection Legislation, all data subjects (including without limitation all Authorized Users and End Users) relating to the Data shall give or have given their valid, express consent to the processing, collection, transfer outside of the European Economic Area (“EEA”), transfer to Third Party Providers (in accordance with, but not limited to, Section 5.4), disclosure and storage of their Data by the parties as anticipated this Agreement.
        • (v) Information Security. Customer agrees that in the event it is responsible for a breach of this Section 5.5, it shall offer TalkIQ the opportunity to be involved in all discussions and decisions relating to the breach and its remedy. Customer agrees that in the event that it becomes aware of accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access of any Data it shall inform TalkIQ as soon as practicable and in any event within twenty-four (24) hours.
        • (vi) Subprocessors. Each party may only authorize a third party (“subprocessor”) to process the Data: (A) subject to the other party’s prior written consent and where the subcontracting party has supplied the other party with full details of such subprocessor; (B) provided any such subcontracting shall only be by way of written agreement and on terms which impose the necessary obligations to comply with the subcontracting party’s and the subprocessor’s respective duties under Data Protection Legislation; and (C) provided that the subprocessor’s contract terminates automatically on termination or expiry of this Agreement for any reason.
        • (vii) Liability for Subprocessors. To the extent that subprocessor breaches the written agreement outlined in Section 5.5(b)(vi), the subcontracting party shall remain fully liable to the other party for: (a) the performance of its obligations under this Agreement; and (b) the acts or omissions of such subprocessor, as though they were the subcontracting party’s own acts or omissions.
        • (viii) Data processing indemnity. Customer agrees to indemnify and keep indemnified and defend at its own expense TalkIQ against all costs, claims, damages or expenses incurred by TalkIQ or for which TalkIQ may become liable due to any failure by Customer, its subprocessors, its employees, consultants, or other personnel to comply with this Section 5.5.
    • 5.6. Compliance with Laws. Customer represents, covenants, and warrants that Customer will (a) use the Services only in compliance with all applicable laws and regulations, including export, privacy, data protection, and data security laws; (b) collect and use all Customer Content in accordance with all applicable laws, including privacy, data protection, and data security laws; and (c) make available a publicly-accessible privacy policy, in compliance with all applicable laws, that accurately describes Customer’s practices related to the collection, use, and sharing of Customer Content, including such sharing with and use by TalkIQ in connection with Customer’s use of the Services.
    • 5.7. Administration of Customer’s Account. Customer may specify one or more administrators (each an “Administrator”) to manage its account. TalkIQ will work with Administrators to access, monitor, use, and import Customer Content. Customer is responsible for: (a) the selection of its Administrator(s); (b) maintaining the confidentiality of passwords and Administrator accounts; (c) managing access to Administrator accounts; and (d) ensuring that each Administrator’s use of the Services complies with this Agreement. TalkIQ shall not be held liable for any actions on the part of Customer’s Administrator(s).
    • 5.8. Authorized User Conduct; Compliance. Customer is responsible for use of the Services by its Authorized Users. Customer is also responsible for providing any notice and obtaining any consents and authorizations necessary: (a) to allow the Administrator to access, monitor, use, and disclose the Customer Content of Authorized Users or End Users; and (b) to allow TalkIQ to provide the Administrator with access to such Customer Content. The Services are not authorized for use by persons under the age of 13 and Customer will ensure that it does not allow any person under 13 to use the Services.
  • 6. WARRANTIES AND DISCLAIMERS

    • 6.1. Limited Warranty. TalkIQ warrants to Customer that the Services will operate free from Errors during the Term pursuant to this Agreement. Provided that Customer notifies TalkIQ in writing of any breach of the foregoing warranty during the term hereof, TalkIQ shall, as Customer’s sole and exclusive remedy, provide the support and maintenance services described in Section 2.2. This warranty gives Customer specific legal rights, and Customer may also have other rights which vary from jurisdiction to jurisdiction.
    • 6.2. Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 6.1 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS,” AND TALKIQ MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SERVICES OR DOCUMENTATION (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY TALKIQ. TALKIQ DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
  • 7. LIMITATION OF LIABILITY

    • 7.1. Types of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN CONNECTION WITH THEIR RESPECTIVE INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES OR SUPPLIERS BE LIABLE UNDER THIS AGREEMENT FOR:
      • (a) ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE; OR
      • (b) ANY DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF TALKIQ HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
    • 7.2. Amount of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN CONNECTION WITH ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, THE MAXIMUM LIABILITY OF TALKIQ ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO TALKIQ DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL TALKIQ’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE TALKIQ’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF TALKIQ OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
    • 7.3. Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 7 shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
  • 8. CONFIDENTIALITY

    • 8.1. Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The terms of this Agreement, including the fees payable hereunder, the Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of TalkIQ.
    • 8.2. Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees, consultants or other personnel who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to TalkIQ). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall, upon request, provide to the Disclosing Party a written affidavit certifying compliance with this sentence.
    • 8.3. Exceptions. The confidentiality obligations set forth in Section 8.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees, consultants or other personnel of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
  • 9. INDEMNIFICATION

    • 9.1. By TalkIQ. TalkIQ will defend at its expense any suit brought against Customer, and will pay any settlement TalkIQ makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Services misappropriate any trade secret recognized under the Uniform Trade Secrets Act or infringes any copyright, trademark or United States patent issued as of the Effective Date. If any portion of the Services becomes, or in TalkIQ’s opinion is likely to become, the subject of a claim of infringement, TalkIQ may, at TalkIQ’s option: (a) procure for Customer the right to continue using the Services; (b) replace the Services with non-infringing software or services which do not materially impair the functionality of the Services; (c) modify the Services so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid fees, and upon such termination, Customer will immediately cease all use of the Services and Documentation. Notwithstanding the foregoing, TalkIQ shall have no obligation under this Section 9.1 or otherwise with respect to any infringement claim based upon (w) any use of or access to the Services by Customer or its Authorized Users not in accordance with this Agreement or as specified in the Documentation; (x) any use of the Services in combination with other products, equipment, software or data not supplied by TalkIQ; or (y) any modification of the Services by any person other than TalkIQ or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This Section 9.1 states the sole and exclusive remedy of Customer and the entire liability of TalkIQ, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
    • 9.2. By Customer. Customer will defend at its expense any suit brought against TalkIQ, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, or (b) Customer’s breach of any of its representations or warranties in Section 5. This Section 9.2 states the sole and exclusive remedy of TalkIQ and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
    • 9.3. Procedure. The party seeking indemnification will provide prompt notice concerning the existence of an indemnifiable claim and cooperate fully with the indemnifying party in defending the claim. Failure to give prompt notice shall not constitute a waiver of a party’s right to indemnification and shall affect the indemnifying party’s obligations hereunder only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay. The indemnifying party will have full control and authority over the defense of any claim; provided, however, that: (a) the indemnified party may join in the defense at its own expense using counsel of its choice; and (b) any settlement requiring the party seeking indemnification to admit liability or make any financial payment will require such party’s prior written consent, not to be unreasonably withheld or delayed.
  • 10. TERM AND TERMINATION

    • 10.1. Term. This Agreement commences on the earlier of the date Customer accepts this Agreement or first uses the Services, and continues for the Subscription Term unless earlier terminated in accordance with the Agreement. “Subscription Term” means period for which Customer has ordered and paid for access and use of the Services. Thereafter, the Subscription Term will automatically renew for additional terms of one (1) year unless either party gives written notice of non-renewal to the other party at least thirty (30) days prior to the expiration of the then-current term.
    • 10.2. Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
    • 10.3. Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted to Customer hereunder shall immediately terminate; (b) promptly after the effective date of termination or expiration, each party shall comply with the obligations to return all Confidential Information of the other party, as set forth in the Section 8; and (c) any amounts owed to TalkIQ under this Agreement will become immediately due and payable. Sections 1, 3.3, 3.4, 3.5, 4, 5, 6.2, 7, 8, 9, 10.4, and 11 will survive expiration or termination of this Agreement for any reason.
  • 11. MISCELLANEOUS

    • 11.1. Governing Law; Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer agrees that any and all causes of action between the parties arising from or relating to this Agreement will be brought exclusively in the state and federal courts located in San Francisco, California.
    • 11.2. Hosting of Services/Data Transfer. The Services are currently controlled and operated primarily from facilities in the United States. TalkIQ makes no representations that the Services are appropriate or available for use in other locations. Customers who access or use the Services from other jurisdictions (or who allow their Authorized Users to do so) do so of their own volition and are responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations, and data protection laws and regulations. If Customer is located outside of the United States, Customer agrees that TalkIQ may transfer, store and process Customer Content in locations other than Customer’s country, and it is Customer’s responsibility to ensure it obtains valid consent from End Users and authorizations under applicable laws, to give effect to this Section 11.2.
    • 11.3. Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from TalkIQ, or any products utilizing such data, in violation of the U.S. export laws or regulations.
    • 11.4. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
    • 11.5. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    • 11.6. No Assignment. Neither party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.
    • 11.7. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
    • 11.8. Independent Contractors. Customer’s relationship to TalkIQ is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of TalkIQ.
    • 11.9. Notices. All notices required or permitted under this agreement must be delivered in writing, if to TalkIQ by emailing [INSERT EMAIL] and if to Customer by emailing Customer’s email address associated with Customer’s account and will be deemed given upon receipt. Customer may change its email address for notice by updating its account.
    • 11.10. Entire Agreement. This Agreement, together with any Customer purchase order associated herewith (as limited by Section 4.2), is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior or contemporaneous understandings, agreements and discussions between the parties, whether oral or written, with respect to such subject matters.
    • 11.11. Modifications. TalkIQ may revise this Agreement from time to time by posting the modified version on its website at least thirty (30) business days prior to the effective date of the modifications being made. If, in TalkIQ’s sole and reasonable discretion, the modifications being proposed are material, TalkIQ will notify Customer of such proposed modifications via email to the email address associated with Customer’s account. By continuing to access or use the Services after the posted effective date of modifications to this Agreement, Customer agrees to be bound by such modifications.