CXi360 User Terms and Conditions Agreement
This Master Software as a Service Agreement (“Agreement”) is entered into, to be effective immediately, by and between:
1) The CXi360 User, and
2) Homeshare Tours doing business as CXi360 , a company located in Needham, MA.
When appropriate herein after referred individually to as “Party” or collectively as “Parties”.
CXi360 provides hosted “software as a service” (the “Services,” as further described herein) to User, as set forth herein.
In consideration of the mutual covenants and representations set forth in this Agreement, the Parties hereby agree as follows:
1 SERVICES 1.1 This Agreement sets forth the terms and conditions under which User agrees to subscribe to CXi360's Services as further set forth in Exhibit A. The Agreement shall remain in effect unless terminated as provided for herein.
1.2 Authorized Users; Authorized Uses. Unless otherwise limited in Exhibit A, CXi360 grants User a renewable, revocable, nonexclusive right for any qualified User, including their employees, contractors, agents, or any other individual or entity authorized by such User, (each, an “Authorized User”).
2 SUPPORT; MAINTENANCE; ADDITIONAL SERVICES
2.1 User Representative. User shall provide a representative to serve as the initial point of contact for Technical Support described in Exhibit A.
2.2 Technical Support. CXi360 shall provide the Technical Support described in Exhibit A. The Service Fees described in Exhibit A shall be inclusive of the fees for the Technical Support.
2.3 Maintenance. CXi360 shall provide bug fixes, corrections, modifications, enhancements, upgrades, and new releases to the Services to ensure: (a) the functionality of the Services, as described herein, is available to Authorized Users; and (b) the Services work with the then current version and the most recent prior version of Internet Explorer, Mozilla Firefox, and Google Chrome Internet browsers. The Service Fees shall be inclusive of the fees for Maintenance.
3 TERM AND TERMINATION; RENEWALS
3.1 Term. This Agreement is legally binding as of the Effective Date and shall continue until terminated as provided for herein. Unless this Agreement or Exhibit A is terminated earlier in accordance with the terms set forth herein, the term of Exhibit A (the “Initial Term“) shall be for the term specified in Exhibit A, Sec. A-1 (Term of Agreement).
3.2 Termination for Cause. If either Party materially breaches any of its duties or obligations hereunder and such breach is not cured, or the breaching Party is not diligently pursuing a cure to the non-breaching Party’s sole satisfaction, within fifteen (15) calendar days after written notice of the breach, the non-breaching Party may terminate this Agreement or Exhibit A for cause as of a date specified in such notice.
3.3 Payments upon Termination. Upon the termination of this Agreement and/or Exhibit A, User shall pay to CXi360 all undisputed amounts due and payable hereunder, if any, and CXi360 shall return to User any unused funds left in the User Service Account (see Sec. A-6 (Service Fee Prepayment Schedule and Process).
3.4 Removal of User’s Access to User Data Upon Termination; Return of User Data. Upon the termination of this Agreement and/or Exhibit A, User shall, within thirty (30) days pull from the CXi360 Platform (see below, Exhibit A, Sec. A-3 (Services Description)) any of User’s call recordings or other User Data (see below, Sec. 6.1) that it would like to preserve. After ten (10) business days following termination, CXi360 will disable User’s login access to the CXi360 Dashboard and remove User’s access to the User Data, initiate the removal of and destruction of all User Data from the CXi360 Platform, and certify to User the destruction of any User Data within the possession or control of CXi360 is in process. This Section shall survive the termination of this Agreement.
3.5 User’s Phone Number. After termination of this Agreement and/or Exhibit A, CXi360 will maintain the availability of User’s phone number for thirty (30) days for User to port its phone number out to itself as necessary (namely, if User’s phone number was ported into the CXi360 Platform as part of the set-up for CXi360’s services; see below, Exhibit A, Sec. A-4 (Set-up Fee)). It is User’s responsibility to port out User’s phone number to its carrier within these thirty (30) days, after which the ability for any such porting may become impossible.
4 FEES; BILLING
4.1 User shall be responsible for and shall pay to CXi360 the fees as further described in Exhibit A, subject to the terms and conditions contained in this Agreement and such Exhibit A.
4.2 Billing Procedures. Unless otherwise provided for under Exhibit A, User pays CXi360 upon selection, and before CXi360 services begin.
4.3 Non-binding Terms. Any terms and conditions included in a User purchase order or a CXi360 invoice, as the case may be, shall be deemed to be solely for the convenience of the respective Party, and no such term or condition shall be binding upon the Parties.
4.4 Auditable Records. CXi360 shall maintain accurate records of all fees billable to, and payments made by, User in a format that will permit audit for a period of no less than three (3) years from when a fee was incurred or a payment was made. The foregoing obligation of CXi360 shall survive the termination of this Agreement.
5 REPRESENTATIONS AND WARRANTIES
5.1 Mutual. Each of User and CXi360 represent and warrant that:
5.1.1 it is a business duly incorporated, validly existing, and in good standing under the laws of its state of incorporation;
5.1.2 it has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement;
5.1.3 the execution, delivery, and performance of this Agreement has been duly authorized by it and this Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizations, moratoriums, and similar laws affecting creditors’ rights generally and by general equitable principles;
5.1.4 it shall comply with all applicable federal, state, local, or other laws and regulations applicable to the performance by it of its obligations under this Agreement; and,
5.1.5 there is no outstanding litigation, arbitrated matter or other dispute to which it is a party which, if decided unfavorably to it, would reasonably be expected to have a potential or actual material adverse effect on its ability to fulfill its obligations under this Agreement.
5.2 Limited Warranty. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS.” EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION. CXi360 AND OUR AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, FOR THE SERVICES PROVIDED HEREUNDER. CXi360 AND OUR AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES (I) THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR COMPLETELY SECURE; (II) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES; OR (III) AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION PROVIDED THROUGH THE SERVICES. CXi360 AND OUR AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS ARE NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM USERS OR STORED BY USERS ON OR THROUGH THE SERVICES. THE TERMS OF THIS SECTION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
6 USER DATA
6.1 Ownership. User Data shall include: (a) User’s data collected, used, processed, stored, or generated as the result of the use of the Services; and, (b) personally identifiable information (“PII“) collected, used, processed, stored, or generated as the result of the use of the Services, including, without limitation, any information that identifies an individual, such as an individual’s social security number or other government-issued identification number, date of birth, address, telephone number, biometric data, mother’s maiden name, email address, credit card information, or an individual’s name in combination with any other of the elements listed herein. User Data is and shall remain the sole and exclusive property of User and all right, title, and interest in the same is reserved by User. This Section shall survive the termination of this Agreement.
6.2 CXi360 Use of User Data. CXi360 is provided a limited license to User Data for the sole and exclusive purpose of providing the Services, including a license to collect, process, store, generate, and display User Data only to the extent necessary in the providing of the Services. CXi360 shall: (a) keep and maintain User Data in strict confidence, using such degree of care as is appropriate and consistent with its obligations as further described in this Agreement and applicable law to avoid unauthorized access, use, disclosure, or loss; (b) use and disclose User Data solely and exclusively for the purpose of providing the Services, such use and disclosure being in accordance with this Agreement, the applicable Exhibit A, and applicable law; and, (c) not use, sell, rent, transfer, distribute, or otherwise disclose or make available User Data for CXi360’s own purposes or for the benefit of anyone other than User without User’s prior written consent. This Section shall survive the termination of this Agreement.
7 NON-DISCLOSURE OF CONFIDENTIAL INFORMATION 7.1 The Parties acknowledge that each Party may be exposed to or acquire communication or data of the other Party that is confidential, privileged communication not intended to be disclosed to third parties. The provisions of this Section shall survive the termination of this Agreement.
7.2 Meaning of Confidential Information. For the purposes of this Agreement, the term “Confidential Information” shall mean all information and documentation of a Party that: (a) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such Party; (b) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing Party and marked “confidential” or with words of similar meaning; and, (c) should reasonably be recognized as confidential information of the disclosing Party. The term “Confidential Information” does not include any information or documentation that was: (a) already in the possession of the receiving Party without an obligation of confidentiality; (b) developed independently by the receiving Party, as demonstrated by the receiving Party, without violating the disclosing Party’s proprietary rights; (c) obtained from a source other than the disclosing Party without an obligation of confidentiality; or, (d) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of, the receiving Party). For purposes of this Agreement, in all cases and for all matters, User Data shall be deemed to be Confidential Information.
7.3 Obligation of Confidentiality. The Parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a Party who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement. The Parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential.
7.4 Cooperation to Prevent Disclosure of Confidential Information. Each Party shall use its best efforts to assist the other Party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the foregoing, each Party shall advise the other Party immediately in the event either Party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and each Party will cooperate with the other Party in seeking injunctive or other equitable relief against any such person.
7.5 Remedies for Breach of Obligation of Confidentiality. Each Party acknowledges that breach of its obligation of confidentiality may give rise to irreparable injury to the other Party, which damage may be inadequately compensable in the form of monetary damages. Accordingly, a Party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available.
7.6 Surrender of Confidential Information upon Termination. Upon termination of this Agreement or Exhibit A, in whole or in part, each Party shall, within five (5) calendar days from the date of termination, return to the other Party any and all Confidential Information received from the other Party, or created or received by a Party on behalf of the other Party, which are in such Party’s possession, custody, or control; provided, however, that CXi360 shall remove any access to any User Data following the timeframe and procedure described in Sec. 3.4 of this Agreement.
8 DATA PRIVACY AND INFORMATION SECURITY
8.1 Undertaking by CXi360 . Without limiting CXi360’s obligation of confidentiality as further described herein, CXi360 shall be responsible for establishing and maintaining a data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that is designed to: (a) ensure the security and confidentiality of the User Data; (b) protect against any anticipated threats or hazards to the security or integrity of the User Data; (c) protect against unauthorized disclosure, access to, or use of the User Data; (d) ensure the proper disposal of User Data; and, (e) ensure that all employees, agents, and subcontractors of CXi360 , if any, comply with all of the foregoing.
9 PROPRIETARY RIGHTS
9.1 Pre-existing Materials. User acknowledges that, in the course of performing the Services, CXi360 may use software and related processes, instructions, methods, and techniques that have been previously developed by CXi360 (collectively, the “Pre-existing Materials,” which shall include the Services) and that the same shall remain the sole and exclusive property of CXi360 .
9.2 No License. Except as expressly set forth herein, no license is granted by either Party to the other with respect to the Confidential Information or Pre-existing Materials. Nothing in this Agreement shall be construed to grant to either Party any ownership or other interest, in the Confidential Information or Pre-existing Materials, except as may be provided under a license specifically applicable to such Confidential Information or Pre-existing Materials.
9.3 Modifications by User. User hereby assigns to CXi360 , User’s entire right, title and interest (including, without limitation, all patent rights, design rights, copyrights and trade secrets) in any modifications or improvements to the CXi360 Platform which User may propose in connection with the Services as set forth in Exhibit A.
9.4 The provisions of this Section shall survive the termination of this Agreement.
10 LIMITATION OF LIABILITY
10.1 Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, AND / OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE FOREGOING EXCULPATION OF LIABILITY SHALL NOT APPLY WITH RESPECT TO DAMAGES INCURRED AS A RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY. A PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE LIABILITY OF A PARTY, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR OMISSIONS UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES.
PAID OR PAYABLE UNDER THIS AGREEMENT, AND PROVIDED, FURTHER, THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO: (A) DAMAGES CAUSED BY A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR, (B) A PARTY’S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY, AS FURTHER DESCRIBED IN THIS AGREEMENT. THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
11.1 Relationship between User and CXi360 . CXi360 represents and warrants that it is an independent contractor with no authority to contract for User or in any way to bind or to commit User to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of User. Under no circumstances shall CXi360, or any of its staff, if any, hold itself out as or be considered an agent, employee, joint venture, or partner of User. In recognition of CXi360’s status as an independent contractor, User shall carry no Workers’ Compensation insurance or any health or accident insurance to cover CXi360 or CXi360’s agents or staff, if any. User shall not pay any contributions to Social Security, unemployment insurance, federal or state withholding taxes, any other applicable taxes whether federal, state, or local, nor provide any other contributions or benefits which might be expected in an employer-employee relationship. Neither CXi360 nor its staff, if any, shall be eligible for, participate in, or accrue any direct or indirect benefit under any other compensation, benefit, or pension plan of User.
11.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts and the federal laws of the United States of America.
11.3 Arbitration. The Parties hereby submit to the exclusive jurisdiction of the American Arbitration Association (“AAA”) in connection with any dispute relating to, concerning or arising out of this Agreement. The arbitration will be conducted before a single arbitrator and will be held at the AAA Boston, Massachusetts location. Payment of all filing, administrative and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this paragraph. The arbitration before the AAA shall proceed solely on an individual basis without the right for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of others. The Federal Arbitration Act, and not any state arbitration law, governs all arbitration under this paragraph. All decisions rendered by the arbitrator will be binding and final. The arbitrator's award is final and binding on all Parties. The arbitrator's authority to resolve and make written awards is limited to claims between User and CXi360 alone. Claims may not be joined or consolidated unless agreed to in writing by all Parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. If User initiates litigation or any other proceeding against CXi360 in violation of this paragraph, User agrees to pay CXi360's reasonable costs and attorneys' fees incurred in connection with enforcement of this paragraph.
11.4 Compliance with Laws; User Policies and Procedures. Both Parties agree to comply with all applicable federal, state, and local laws, executive orders and regulations issued, where applicable.
11.5 Cooperation. Where agreement, approval, acceptance, consent, or similar action by either Party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld. Each Party will cooperate with the other by, among other things, making available, as reasonably requested by the other, management decisions, information, approvals, and acceptances in order that each Party may properly accomplish its obligations and responsibilities hereunder.
11.6 Force Majeure; Excused Performance. Neither Party shall be liable for delays or any failure to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, and CarrierControlled events or limitations (those that are within the control of the Carriers and are outside of the control of CXi360 ), or Vendor-Controlled events or limitations (those that are within the control of some underlying services provided by vendors that are used in the CXi360 Platform and are outside of the control of CXi360), to the extent not occasioned by the fault or negligence of the delayed Party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed Party. However, the delayed Party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. The delayed Party must notify the other Party promptly upon the occurrence of any such event, or performance by the delayed Party will not be considered excused pursuant to this Section, and inform the other Party of its plans to resume performance.
11.7 Assignment and Successors. User shall not assign, in any manner, its right, obligation, or interest in or under this Agreement without the prior written consent of CXi360. This Agreement shall bind and inure to the benefit of the successors and permitted assigns of the Parties.
11.8 No Waiver. The failure of either Party at any time to require performance by the other Party of any provision of this Agreement shall in no way affect that Party’s right to enforce such provisions, nor shall the waiver by either Party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.
11.9 Notices. Any notice given pursuant to this Agreement shall be in writing and can be given by e-mail to the Parties’ respective Business Points of Contacts as listed in Exhibit A, Sec. A-2 (Parties’ Points of Contact).
11.10 Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. The Parties agree that a facsimile signature may substitute for and have the same legal effect as the original signature.
11.11 Entire Agreement. This Agreement and its attached exhibits constitute the entire agreement between the Parties and supersede any and all previous representations, understandings, or agreements between User and CXi360 as to the subject matter hereof. This Agreement may only be amended by an instrument in writing signed by the Parties. This Agreement shall be construed without regard to the Party that drafted it. Any ambiguity shall not be interpreted against either Party and shall, instead, be resolved in accordance with other applicable rules concerning the interpretation of contracts. 11.12 Cumulative Remedies. All rights and remedies of User herein shall be in addition to all other rights and remedies available at law or in equity, including, without limitation, specific performance against CXi360 for the enforcement of this Agreement, and temporary and permanent injunctive relief.
EXHIBIT A - CXi360’s Software as a Service Statement of Services
This Exhibit A - CXi360’s Software as a Service Statement of Services shall be incorporated in and governed by the terms of that certain Master Software as a Service Agreement by and between User and CXi360. (“CXi360”), as amended (the “Agreement”). Unless expressly provided for in this Exhibit A, in the event of a conflict between the provisions contained in the Agreement and those contained in this Exhibit A, the provisions contained in this Exhibit A shall prevail.
A-1 Term of Agreement
The agreed upon term of this Agreement by the Parties is for a specified quantity of CXi360 users per account as stated by the CXi360 Collections. The term of this Agreement shall commence upon purchase.
A-2 Parties’ Points of Contact. CXi360’s Business Point of Contact with User is: John Feddersen,
CXi360’s Technical Support Point of Contact (see Sec. A-7 below) with User is: John Feddersen,
Tom Gehman Chief Technology Officer,
Should a Party’s designated Point of Contact change, it is that Party’s responsibility to notify the other Party of the change immediately.
A-3 Services Description.
CXi360 records telephone calls between User and User’s customers and generates and/or identifies telephone conversation keywords to analyze telephone conversation sentiment between User and User’s customers. CXi360 provides an online dashboard with sentiment analysis metrics for each inbound call connected to the CXi360 Platform.
To provide the above-referenced service, CXi360 inserts itself inline within User’s inbound calls prior to them going through to the User’s building. CXi360 coordinates the routing of traffic from the Carrier to the CXi360 Platform and then routes the traffic to User. There are a variety of ways that CXi360 may implement this, depending on the technological systems of the User and the User’s Carrier.
A-5 Authorized Users. CXi360 will issue (1) login credential for accessing the CXi360 Platform to User. User may relay to anyone within its organization the Service Provider Platform login credential, on an “as-needed” basis. User may not provide or relay the login credential to any individual outside of its organization.
User will provide the information necessary to set up its one (1) login credential, consisting of an email address, and the name and cell phone number of the User’s representative.
For each User account, up to nine (9) more individuals may be designated to receive notifications and access the call records. Each such individual needs to provide a cell phone number and email address in order to access these CXi360 services.
A-6 Technical Support Description. User shall provide a representative (User’s Technical Support Point of Contact) to serve as the initial point of contact for technical support. CXi360 will provide to User telephone and email support (“Technical Support”), with twenty-four (24) hour response time.
Executed on the dates set forth below by the undersigned authorized representative of User and CXi360 to be effective as of the Start Date.
Until or unless the User notifies CXi360 as described above, I consent to receive from exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to me by CXi360 during the course of my relationship with you.