Software Subscription Agreement
VoiceFriend Software Services Agreement
Last updated December 22, 2021
This VoiceFriend Software Services Agreement is entered into between Customer and VoiceFriend, LLC, a Massachusetts limited liability company (“VoiceFriend”) as of the Effective Date.
If you are agreeing to these Terms and Conditions, not as an individual, but on behalf of your company, a government, or another entity for which you are acting, then Customer shall mean your entity, and you represent and warrant that you have the authority to bind such entity to these Terms and Conditions. These Terms and Conditions, together with all Order Forms entered into between Customer and VoiceFriend (or their respective Affiliates), constitute the “Agreement” between the parties. VoiceFriend may modify these Services Terms at any time, but modifications are not effective for Orders that are in place prior to the modification until the Order renews or you add new services to your account.
Capitalized terms shall have the meaning set forth below or otherwise in the body of these Terms and Conditions.
- (a) “Affiliate” means an entity that controls, is controlled by, or is under common control with a party, where “control” means the direct or indirect ownership of more than 50% of the voting securities or other ownership interest of an entity. Affiliates of either party may conduct business under these Terms and Conditions by signing an Order Form.
- (b) “API” means a set of routines, protocols, and tools for building software applications that defines interactions between multiple software intermediaries.
- (c) “Application Key” means a unique API token for use by Customer to access or interface with an environment (such as a browser-based or mobile application).
- (d) “Customer” means the entity that is a party to these Terms and Conditions.
- (e) “Customer Data” means any data, information or material that Customer provides or makes available in the course of using the Services.
- (f) “Documentation” means the official VoiceFriend documents and manuals for the Subscription Services as generally made accessible to VoiceFriend’s customers.
- (g) “Effective Date” means the earliest of (i) the date of the later signature of a party hereto, (ii) the date Customer accepts these Terms and Conditions (including by signing an Order Form) and (iii) the date Customer receives access to Services.
- (h) “Excessive Usage” means sending a high volume of messages during a short time span.
- (i) “Event” means a record of a single end-user interaction with a software application (such as a page load, click or hover).
- (j) “Order Form” means a VoiceFriend ordering document used to purchase Services.
- (k) “VoiceFriend” means VoiceFriend, LLC, a Massachusetts corporation.
- (l) “Professional Services” means consulting services provided by VoiceFriend outlined in the VoiceFriend Professional Services Addendum, if applicable.
- (m) “Services” means Professional Services, Subscription Services and other services (such as maintenance and support) offered by VoiceFriend.
- (n) “Software” means VoiceFriend’s commercially available downloadable software (including all Updates) included with Subscription Services.
- (o) “Subscription Services” means the online platform services (including all Updates) and Software that VoiceFriend provides, including one or more Application Keys and endpoints.
- (p) “Taxes” means any form of taxation of whatever nature and by whatever authority imposed, including any interest, surcharges or penalties, arising from or relating to the Agreement or any Services, other than taxes based on the net income of VoiceFriend.
- (q) “Terms and Conditions” means the terms and conditions set forth in Sections 1 through 11 of this VoiceFriend Software Services Agreement, together with the terms and conditions in any attachment or addendum hereto.
- (r) “Units” means the basis on which fees are established for Subscription Services.
- (s) “Updates” means, as applicable, bug fixes, enhancements, upgrades and new releases or versions that are made generally available to VoiceFriend customers.
- (t) “Usage”means the measure of the use of a particular Unit during a billing cycle according to the metric described in the Order Form, measured by VoiceFriend by means of the Services platform on the last day of the billing cycle.
- (a) “User” means a Customer employee or independent contractor who has a business need to use the Subscription Services pursuant to the Agreement.
2. ACCESS AND RESTRICTIONS
- (a) Access and Use of Subscription Services. VoiceFriend grants to the Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Subscription Services based on the number of Units specified in the applicable Order Form during the term of any such Subscription Services (as set forth in the applicable Order Form) for Customer’s internal business purposes (the “Permitted Purpose”) subject to the terms of this Agreement. Only Customer’s Users may access and use the Services ordered by Customer hereunder. Customer is responsible for maintaining the security of Customer’s account, passwords (including but not limited to administrative and user passwords) and files and for use of Customer’s account by Customer or any other person or entity who accesses Customer’s account via or as a result of Customer, with or without Customer’s knowledge or consent (unless such unauthorized access was caused by VoiceFriend), and if Customer becomes aware of any violation, Customer will immediately terminate the offending party’s access to the Services and notify VoiceFriend. Customer shall be responsible to VoiceFriend for its Users’ activity and any breach of the Agreement.
- (b) No Charge Access. If Subscription Services are provided to Customer for evaluation, beta, release candidate or free purposes, as identified in an Order Form, VoiceFriend hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use evaluation, beta, or release candidate features and functionality or free versions of the Subscription Services pursuant to the terms of the Agreement. Subscription Services provided for evaluation, beta, or release candidate purposes shall not be used for production use, and Customer’s access and use right shall terminate on the end date of the predetermined period set forth in the applicable Order Form or immediately upon notice from VoiceFriend in its sole discretion. Notwithstanding any other provision contained herein, the Subscription Services and Documentation provided pursuant to this Section are provided to Customer “AS IS” without indemnification, support, or warranty of any kind, express or implied. Except to the extent such terms conflict with this Section, all other terms of these Terms and Conditions shall apply to the Subscription Services provided for evaluation, beta, release candidate or free purposes.
- (c) Restrictions. Except as expressly authorized in the Agreement, Customer shall not, and shall ensure that Users do not, directly or indirectly: (i) license, sublicense, rent, lease, sell, resell, loan, transfer, distribute, translate, or otherwise transfer rights to the Services; (ii) reverse engineer, decompile, or disassemble or otherwise obtain or attempt to create, derive, or obtain the source code of the Services; (iii) modify, translate, enhance or otherwise change the Services or prepare derivative works of the Services, including creation and distribution of add-ons or enhancements or incorporation into another product unless expressly agreed between the parties; (iv) copy, reproduce, republish, upload, post, or transmit the Services or any other materials provided in connection therewith; (v) remove, obscure, or alter any notice of copyright, trademark or other proprietary right appearing in or on any item included with the Services; (vi) circumvent or attempt to circumvent any methods employed by VoiceFriend to control access to the components, features or functions of the Services or to prevent unauthorized use of the Services; or interfere with, impair, or disrupt the integrity or performance of the Services or any other party’s use of the Services; (vii) use or otherwise exploit the Services for any purpose, commercial or otherwise, other than the Permitted Purpose, including for purposes of benchmarking, competitive analysis or the development of a competing software product; or (viii) use the Services to violate third party rights or applicable laws or to store or transmit infringing, libelous, unlawful, or tortious material or store material in violation of third party rights or applicable laws.
3. THIRD PARTY SERVICES
- (a) Third party services include other services that you purchase from third parties and elect to integrate with your Subscription Service, such as, payroll, human resources management, and electronic medical record services. VoiceFriend does not endorse or recommend any third-party service, and you are responsible for investigating the quality and suitability of any third party services. For any third party service that you use or integrate with the Subscription Service, or that VoiceFriend integrates for you at your request, you represent and warrant to VoiceFriend that you have the necessary rights and licenses from the third party service provider to use their services as integrated with the VoiceFriend.
- (b) VoiceFriend makes no representation or warranty whatsoever regarding the third-party service and, as between you and VoiceFriend, the third-party service is provided AS IS. Your use of the third-party service is subject to the legal agreement between you and the third party. You should review the third party’s legal terms and privacy policies before using their services.
- (c) VoiceFriend may provide integration features for third-party services as part of the Subscription Service. You acknowledge that VoiceFriend’s integration features may be unavailable or may not work properly if the service provider’s API is unavailable or if the service provider modifies its API or services in a way that impacts the VoiceFriend integration feature. VoiceFriend will use commercially reasonable efforts to modify its integration features to maintain compatibility with service provider’s APIs and services, but may discontinue an integration feature without liability to you if there is a change in the service that creates an unreasonable cost or operational burden to VoiceFriend. Your obligations under the Agreement, for fees and otherwise, are not conditioned on the continued availability of any integration features.
4. TERM AND TERMINATION
- (a) Term. These Terms and Conditions will begin on the Effective Date and continue until terminated as set forth herein. Unless otherwise agreed, Subscription Services automatically renew for successive periods of the initial contract termspecified in the Order Form, unless either party gives the other party written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term, or the applicable Order Form is sooner terminated as provided herein.
- (b) Termination. Either party may terminate the Agreement (in whole or with respect to an applicable Order Form) upon written notice to the other party if such other party materially breaches any provision of the Agreement and fails to cure such breach within thirty (30) days following such notice thereof (except that a breach of Section 7 is not capable of cure) or immediately if Customer infringes upon or misappropriates VoiceFriend’s intellectual property or pursuant to the receipt of a subpoena, court order, request by a law enforcement agency, or as otherwise required by law. If you wish to terminate the Agreement for any other reason, VoiceFriend may, at is discretion, permit you to do so but you will be subject to an early termination fee equal to the recurring fee calculated monthly times the number of months remaining in the current term.
- (c) Effects of Termination and Survival. The expiration of an individual Order Form or any Services will not impact any other Order Form or Services or the remainder of the Agreement. If the Agreement is terminated in whole, the Agreement and all corresponding Order Forms will terminate. Customer will pay for all Services up to the effective date of termination. Upon expiration or termination of the Agreement (in whole or with respect to any Order Form), VoiceFriend will disable the applicable Services. Customer may download its Customer Data prior to such expiration or termination and may request a copy of its Customer Data for up to ninety (90) days thereafter. Such copy will be provided by VoiceFriend to Customer in an industry-standard format. Thereafter, VoiceFriend will delete the Customer Data within thirty (30) days unless otherwise legally prohibited.
- (d) Suspension. VoiceFriend may suspend your access to the Subscription Service and Customer Data during any period that you are in material breach of the Agreement, you create a material security vulnerability or VoiceFriend, in its sole discretion, identifies the Customer’s usage of the Subscription Service as Excessive Usage. VoiceFriend will give Customer at least two (2) business days’ advance notice of the suspension, unless the suspension is made under emergency circumstances or in relation to Excessive Usage. Customer will reinstate your access to the Services when the grounds for suspension are cured unless Customer has already terminated the Agreement as described in this Section.
- (e) Surviving Provisions: The following sections survive expiration or termination of the Agreement: Fees and Payment, Confidentiality, Indemnification, Disclaimer of Damages; Limitation of Liability, Term and Termination, Other Provisions, and any other terms that by their nature are intended to survive expiration or termination.
5. OBLIGATIONS OF THE PARTIES
- (a) Compliance with Laws. Both parties shall comply in all material respects with all laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any governmental authority, applicable to its performance hereunder.
- (b) Customer Obligations. Customer agrees and warrants that it (i) will install the latest version of the Software to access and use the Subscription Services; (ii) is legally able to provide Customer Data to VoiceFriend and its Affiliates, including obtaining appropriate consents for any processing by VoiceFriend; (iii) will comply with all applicable requirements of the Telephone Consumer Protection Act (“TCPA”) and the Health Insurance Portability and Accountability Act (“HIPAA”), including consent to contact each phone number to which you use the Software to contact and is made and honoring an individual’s request to opt-out of receiving such further messages; (iv) will establish a constant internet connection and electrical supply for the use of the Subscription Services; (v) will ensure that the Services are used only with public domain or properly licensed third party materials; and (vi) will keep its registration information, billing information, passwords and technical data accurate, complete, secure and current during the term of the Agreement.
5. FEES AND PAYMENT
- (a) Payment. Customer will pay VoiceFriend in accordance with the applicable Order Form(s). Fees for the Services shall be as set forth in an Order Form and do not include Taxes or any third-party provider fees. VoiceFriend may not increase the fees during the initial contract term, but may increase its fees for any renewal term by giving you notice of the increase at least thirty (30) days prior to the first day of your next billing cycle. Any discounts described in the Order Form are for the initial term of the Order only unless otherwise stated in the Order Form. Fees are stated and must be paid in United States Dollars. You must pay any base, minimum, or fixed fees associated stated in your Order Form even if you do not use the Services.
- (b) Method of Payment: Unless you have made other arrangements with VoiceFriend, you must authorize and maintain a current valid means for VoiceFriend to collect its fees for the Services via payment card, or ACH at all times during the Term. VoiceFriend may charge the fees on or after the following times: (i) for fixed monthly recurring fees, the first day of each billing cycle, (ii) for usage fees, and other variable fees, the last day of each billing cycle, or more often if Customer usage fees are unusually high for the Customer’s account type, (iii) for one-time fees (such as set up fees), the day Customer submits the Order that includes the fee, and (iv) for hourly fees, at the time stated in the Order, or if no time is stated, on completion of the hourly services described in the Order.
- (c) Scope of Usage. Usage-based fees are established by counting the Units associated with the ordered Services. For instance, fees for Services may be established based on the number of messages sent to recipients over a thirty (30)-day period (or the number of seats orders(or a combination thereof). If, during the term of an Order Form, Customer’s usage exceeds the quantity of Units in the Order Form, Customer’s fees will increase based on the applicable price per Unit. Unless otherwise agreed between the parties, the additional fees will commence on the date Customer first exceeded its quantity of Units and be prorated for the remainder of the applicable term.
- (d) Taxes. All fees are exclusive of Taxes, and Customer shall pay or reimburse VoiceFriend for all Taxes arising out of the Agreement. If Customer is required to withhold or deduct any Taxes from the payment of any fees, Customer will increase the amount payable to VoiceFriend by the amount of such Taxes so that VoiceFriend receives the full amount of all fees and expenses. If VoiceFriend has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by the Customer, unless Customer provides VoiceFriend with a valid tax exemption certificate authorized by the appropriate taxing authority. VoiceFriend’s failure to initially invoice Customer for any applicable Taxes does not relieve Customer from responsibility for such Taxes under the Agreement.
- (e) Late Payments. VoiceFriend may suspend or terminate your Subscription Service or the Agreement if your payment is overdue, including if VoiceFriend’s charge to your payment card or account is rejected. VoiceFriend may charge interest on overdue amounts at the lesser of 1.2% per month or the highest non-usurious amount permitted by applicable law. If VoiceFriend takes legal action to collect an overdue amount, you must also pay VoiceFriend’s reasonable costs of collection, such as attorney fees and court costs. If VoiceFriend suspends your account for late payment, you must pay VoiceFriend’s reasonable reinstatement fee.
- (f) General. Fees are non-refundable. If VoiceFriend discounts your fees in exchange for a commitment to a Term length of longer than one month and the Order is terminated prior to the end of the committed term then, unless the termination was by VoiceFriend for convenience, or by you for VoiceFriend’s breach, you must pay an early termination fee equal to the difference between the undiscounted and discounted fees for the period prior to the effective date of termination.
- (g) Plan Changes. Not currently permitted.
6. OWNERSHIP; FEEDBACK; CUSTOMER DATA; PROTECTION
- (a) Ownership. VoiceFriend (and/or its licensors) is the sole and exclusive owner of all rights, title and interest in and to the Services and VoiceFriend’s proprietary property (including intellectual property rights) and reserves all rights, title and interest in and to the Services not expressly granted under the Agreement. No ownership right is conveyed to Customer in the Services or VoiceFriend’s proprietary property, irrespective of the use of terms such as “purchase” or “sale” in any Order Form.
- (b) Feedback. From time to time, Customer or its Users may submit to VoiceFriend comments, questions, enhancement requests, suggestions, ideas, process descriptions or other information related to the Services (“Feedback”). Customer hereby grants to VoiceFriend a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate the Feedback for any purpose without restriction, attribution or payment to Customer.
- (c) Customer Data. Customer is the sole and exclusive owner of all rights, title and interest in and to the Customer Data (including intellectual property rights) and reserves all rights, title and interest in and to the Customer Data not expressly granted under the Agreement. Customer hereby grants VoiceFriend the right to use Customer Data for providing and improving the Services. Customer will be solely responsible for the procurement, accuracy, quality, and content of Customer Data.
- (d) Protection. During the term of any Services ordered hereunder, each party shall comply with its respective obligations under applicable data protection laws, and each party shall maintain a reasonable security program in accordance with industry standards that is designed to protect the security of, and prevent unauthorized access to, Confidential Information and Customer Data. Such security program shall include implementation of appropriate administrative, technical and physical safeguards.
- (a) Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential at the time of disclosure or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure, including, without limitation, the terms and conditions of the Agreement (including pricing), business and marketing plans, technology and technical information, product plans and designs, and business processes. “Confidential Information” does not include any information that (i) is or becomes publicly available without breach by the Receiving Party under the Agreement, (ii) at the time of disclosure was known to the Receiving Party without obligation of confidentiality, (iii) is received by the Receiving Party from a third party not under an obligation of confidentiality, or (iv) was independently developed by the Receiving Party without use of or reference to Confidential Information of the Disclosing Party.
- (b) Obligations. The Receiving Party will use the same degree of care to protect the Disclosing Party’s Confidential Information that it uses to protect its own confidential information of like-kind (but not less than reasonable care) including by, except as otherwise authorized by the Disclosing Party, limiting access to the Disclosing Party’s Confidential Information to Receiving Party’s employees, contractors, Affiliates and agents who have a need to know the Disclosing Party’s Confidential Information for purposes consistent with the Agreement and that are subject to confidentiality obligations to the Receiving Party containing protections not materially less protective than those contained herein. These obligations will continue for a period of two (2) years following initial disclosure of the particular Confidential Information (except for any Confidential Information constituting a trade secret under applicable law (as confirmed in good faith by counsel to the disclosing party), which shall be subject to these obligations for so long as it qualifies as a trade secret).
- (c) Compelled Disclosure. Nothing in the Agreement will prevent the Receiving Party from disclosing the Confidential Information pursuant to any judicial or governmental order or as otherwise required by law, provided that, where legally permissible, the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure.
8. LIMITED WARRANTY; DISCLAIMER
- (a) Limited Warranty. Subject to Section 8(b), VoiceFriend warrants to Customer that during the term of such Services (the “Warranty Period”) (i) the Subscription Services will not deviate in a material adverse manner from the Documentation for such Subscription Services then in effect; (ii) VoiceFriend will not inject any software traps, viruses, worms, trap doors, malicious code, disabling code, or other means or functions designed to damage or corrupt the Subscription Services or otherwise damage or destroy data or other property and (iii) the Services will be performed in a professional and workmanlike manner by qualified personnel.
- (b) Exceptions. The limited warranty set forth in Section 8(a) shall not apply to problems arising out of or relating to (i) Customer’s or its representatives’ modification of or damage to the Subscription Services unless such modification was made pursuant to the Documentation; (ii) any unauthorized third-party software or hardware that are operated with or incorporated into the Subscription Services by Customer; (iii) negligence, abuse, misapplication or misuse of the Services, including any use of the Subscription Services other than as specified in the Documentation; (iv) Customer’s failure to comply with any minimum system requirements specified in the Documentation; or (v) a deficiency in Customer’s systems or network used to access the Subscription Services.
- (c) Remedial Efforts. If VoiceFriend breaches any of the warranties set forth in Section 8(a)(i), VoiceFriend may, at its option and expense, take any of the following steps to remedy such breach (i) repair the Subscription Services or (ii) replace the Subscription Services with functionally equivalent products; provided that if VoiceFriend cannot remedy such breach in a commercially reasonable manner, Customer may terminate, as its sole and exclusive remedy and VoiceFriend’s entire liability, the affected Services and receive a pro rata refund of the fees paid by Customer for the Services for the remaining portion of the unused term. The limited warranty set forth in Section 8(a) shall only apply if Customer has met its payment obligations pursuant to Section 4 and notifies VoiceFriend in writing of the warranty breach before the expiration of the Warranty Period. For the avoidance of doubt, if payment for the Services is not yet due or invoices are being disputed in good faith, then Customer will not be considered to have unmet payment obligations.
- (c) Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 8(A), VOICEFRIEND MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS.” VOICEFRIEND HEREBY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY: (A) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; AND (B) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. VOICEFRIEND DOES NOT WARRANT THAT THE TRANSMISSIONS SENT THROUGH THE VOICEFRIEND SOFTWARE WILL CONCLUDE IN ANY ANTICIPATED RESULT. VOICEFRIEND DOES NOT WARRANT THAT OPERATION OF OR USE OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER ACKNOWLEDGES THAT VOICEFRIEND DOES NOT CONTROL THE TRANSFER OR TRANSMISSION OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. VOICEFRIEND IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. CUSTOMER ACKNOWLEDGES THAT ALL TELEPHONE CALLS, SMS TEXT MESSAGES AND EMAIL MESSAGES SENT USING THE VOICEFRIEND COMMUNITY MESSAGING SOFTWARE AND SERVICES SYSTEM UTILIZE STANDARD PUBLIC COMMUNICATIONS CHANNELS. THE VOICEFRIEND SKILLS ARE NOT A REPLACEMENT FOR 911 SERVICES OR EMERGENCY ALERT DEVICES AND DO NOT FUNCTION AS SUCH. SERVICE PROVIDER IS NOT RESPONSIBLE FOR UNSENT, BLOCKED OR OTHERWISE UNDELIVERED MESSAGES AND ALERTS IN THE VOICEFRIEND SKILLS. NOR IS SERVICE PROVIDER RESPONSIBLE FOR ANY FAILURE OF THE TECHNOLOGY OR THE RECIPIENT’S RESPONSE OR ACTION.
- (a) Customer agrees that if a third party asserts a legal claim against VoiceFriend or any of its officers, members, managers, employees, staff, personnel, agents, licensors or suppliers (the “VoiceFriend Defendants”) arising from Customer’s violation of these Services Agreement terms or any Order, including Cutomer’s breach of a representation or warranty, or if a customer of the Customer asserts a legal claim against any of the VoiceFriend Defendants on any basis other than VoiceFriend’s gross negligence or misconduct, Customer will pay all reasonable costs of defending the claim, including reasonable attorney fees, and any damages awarded to the third party or paid to the third party by VoiceFriend as a reasonable settlement. Customer agrees that VoiceFriend may control the defense of the claim at its option, or may require Customer to defend the claim directly. If VoiceFriend elects to control the defense of the claim, Customer will reimburse VoiceFriend for its reasonable defense costs and expenses as incurred.
10. Disclaimer of Damages; Limitation of Liability
- (a) Disclaimer of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL VOICEFRIEND (NOR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR (I) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THE AGREEMENT OR (II) LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF VOICEFRIEND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. VOICEFRIEND SHALL NOT BE LIABLE FOR ANY LOSS RESULTING FROM DELAYS OR INTERRUPTIONS IN ITS SERVICE DUE TO FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT, TELEPHONE OR DISCONNECT PROBLEMS, DEFECTS DUE TO TELEPHONE TRANSMISSION, STORMS OR OTHER PROBLEMS BEYOND THE SERVICE PROVIDER’S REASONABLE CONTROL.
- (b) Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL VOICEFRIEND’S (INCLUDING ITS AGENTS’, AFFILIATES’, LICENSORS’ AND SUPPLIERS’) TOTAL LIABILITY UNDER THE AGREEMENT (INCLUDING ALL ORDER FORMS), WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EXCEED, IN THE AGGREGATE, THE FEES PAID TO VOICEFRIEND HEREUNDER IN THE TWELVE (12) MONTH PERIOD ENDING ON THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY UNDER THE AGREEMENT.
11. Other Provisions
- (a) Export. The Services and technical information that VoiceFriend provides under the Agreement may be subject to export laws, rules and regulations of the United States and other jurisdictions (“Controlled Materials”). Customer will comply with all applicable export and import laws, rules and regulations, including any local laws in its jurisdiction, concerning its right to import, export or use Controlled Materials. In addition, Customer (including its Affiliates) is not named on any U.S. government denied-party list and will not permit any User to access or use any Subscription Services in a U.S.-embargoed country or region or in violation of any U.S. export law, rule or regulation.
- (b) Independent contractors. VoiceFriend and Customer are independent contractors and nothing in the Agreement creates an employment, partnership or agency relationship between the parties or any Affiliate. Each party is solely responsible for supervision, control and payment of its personnel.
- (c) Assignment. Neither party may assign, delegate, or otherwise transfer the Agreement or any of its rights, duties or and obligations hereunder without the prior written consent of the other party; provided, however, in the event of the sale or transfer of substantially all of its assets, or a sale, merger or change of control, either party may assign any or all rights and obligations contained herein without consent. Both parties shall use commercially reasonable efforts to provide notice to the relevant party upon such assignment. Any assignment in violation of the foregoing will be null and void. The Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties.
- (d) Severability. If any term or provision of the Agreement should be declared invalid by a court of competent jurisdiction or by operation of law, the remaining terms and provisions of the Agreement shall be unimpaired, and the invalid term or provisions shall be replaced by such valid term or provisions as comes closest to the intention underlying the invalid term or provision.
- (e) Notice. Any notice or other communications required or permitted in the Agreement shall be in English and in writing and shall be deemed to have been duly given to a party (i) upon receipt, if delivered by hand or sent by nationally recognized overnight delivery service, (ii) one (1) business day after sending by email or other electronic method that provides for confirmation of transmission (except that notices of termination or with respect to a dispute or indemnifiable claim may not be sent in this manner) or (iii) three (3) days after mailing by first class certified mail, postage prepaid, in each case, to the following address (or such other address as a party may designate in accordance with this Section):
177 Huntington Ave Ste 1703
Boston, Massachusetts 02115-3153 US
Attn: General Counsel
Customer Contact’s address set forth on the Order Form.
- (f) Integration. The Agreement (consisting of all Order Forms and these Terms and Conditions) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous proposals, negotiations, conversations, discussions and agreements between the parties concerning the subject matter hereof. Any terms contained in any other documentation that Customer delivers to VoiceFriend, including any purchase order or other order-related document (other than an Order Form), are void and will not become part of the Agreement or otherwise bind the parties. There are no representations, agreements, arrangements or understandings between the parties relating to the subject matter of the Agreement that are not fully expressed herein, and each party waives any rights and remedies that may otherwise be available to it based upon any such representations, agreements, arrangements or understandings.
- (g) Amendments. No amendment or modification or waiver of any provision of the Agreement shall be effective unless the same shall be in writing and, in the case of an amendment or modification, signed by both parties or, in the case of a waiver, signed by the party against which the waiver is sought to be enforced.
- (h) Applicable Law and Claims. The Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Massachusetts without reference to choice of law principles or rules. All claims or proceedings arising under, out of or in connection with the Agreement shall be submitted to the exclusive jurisdiction of the state or federal courts located in Boston, Massachusetts, and each party irrevocably submits to such venue and the personal jurisdiction of such courts. To the fullest extent permitted by applicable law, each party waives the right to trial by jury in any legal proceeding arising under, out of or in connection with the Agreement or the transactions contemplated hereby.
- (i) Force Majeure. Neither party shall be liable for any failure to perform, or delay in performing, an obligation under the Agreement (other than Customer’s payment obligations) or loss resulting from a cause over which it does not have direct control.
- (j) Dispute resolution. The parties will make a good faith effort to resolve the underlying dispute. Such good faith effort will include (i) elevating the issue to management personnel of each party who have the power to settle the dispute on behalf of that party and, if such management-level discussions fail after ten (10) business days, further elevating the matter to a vice president level executive for each party to continue good faith efforts to resolve the matter for an additional ten (10) business days and (ii) reasonably sharing relevant, non-privileged documents, books and records and other materials, as reasonably requested, in connection with the dispute. If the parties cannot resolve the underlying dispute after the second ten (10) business day period, each of you and VoiceFriend agree that any dispute related to the Services, an Order or these Services Terms shall be submitted to binding arbitration in Boston, Massachusetts. The arbitration shall be conducted by one arbitrator in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in person unless each of party agrees to a telephonic or written submissions procedure. The arbitrator shall issue a reasoned award with findings of fact and conclusions of law and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement, or to enforce or vacate an arbitration award. Each party waives any right to a trial by jury, and agrees that disputes will be resolved through arbitration. No claim subject to this provision may be brought as a class or collective action, nor may you assert such a claim as a member of a class or collective action that is brought by another claimant. Each party agrees not bring a claim related to the Services or the subject matter of an Order or these Services Terms more than two years after the time that the claim accrued. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.