Privacy Policy Terms Of Service Managed Services And Reseller Agreement

Managed Services And Reseller Agreement

Last Updated December 27th, 2017.

TERMS OF SERVICE

BACKGROUND INFORMATION

TERMS OF AGREEMENT

This document, entitled “Managed Services and Reseller Agreement – Terms of Service” (the “Terms of Service”) together with its exhibits, the Service Levels attached hereto as Exhibit A and the Product Terms attached hereto as Exhibit B, contain certain terms and conditions of agreement (collectively, the “Agreement”) between Engagor NV, a limited liability company incorporated under the laws of Belgium, having its registered office at Grauwpoort 1, B-9000 Ghent, registered under company number 0834.080.135 (“Company”), and Reseller. Each of Company and Reseller may be referred to in this Agreement as a “Party.” Capitalized words used in this Agreement, if not otherwise defined in the body of the Agreement, shall have the meanings set forth in the Glossary of Defined Words in Section 13.

This Agreement shall become effective as of the date when authorized representatives of both Parties have executed an Order Form referencing these Terms of Service (the “Effective Date”). If those authorized representatives execute such Order Form on different dates, the Effective Date shall be the latter date. These Terms of Service shall be interpreted solely in the context of such Order Form and shall not bind either party unless and until an Order Form is executed by the parties, at which time these Terms of Service shall be automatically incorporated by reference into, and made a part of, that Order Form. In no event, however, shall this Agreement be construed as obligating the Company or Reseller to enter into any particular Order Form with the other.

1. Company Services.

1.1 Managed Services and Rights of Resale.

During the Term and subject to the terms and conditions herein and with respect to the Subscription Services only, Reseller shall be entitled to obtain Access Rights to the Subscription Services for use in providing managed services for the benefit of certain of its customer(s) that are identified in an applicable Order Form (“Managed Services Customers”) and Company hereby grants to Reseller the rights to use Subscription Services to provide managed services to its Managed Services Customers as further specified in the applicable Order Form (the “Managed Services”). Further, during the Term of this Agreement and subject to the terms and conditions herein and with respect to the Subscription Services only, Company hereby grants Reseller a personal, limited, non-exclusive, non-transferable, non-assignable, revocable right to distribute Subscription Services to certain of its customer(s) as identified in the applicable Order Form (“Direct Access Customers” and collectively with the Managed Services Customers, the “Authorized Customers”). All such rights are subject to the rights and limitations set forth in this Agreement and the applicable Order Form, including without limitation, the Access Term and the Authorized Customers for which the particular Access Rights are purchased. Reseller acknowledges and agrees that Managed Services Customers are not Authorized End Users and shall not be granted direct access to the Subscription Services and that Direct Access Customers will, subject to the terms and conditions of this Agreement, become Authorized End Users and will be granted direct access to the Subscription Services (the “Direct Access”). Reseller understands and agrees that Company, directly or through other resellers or sales agents, may also market and distribute the Subscription Services in the Territory and elsewhere. Reseller understands and agrees that any purchase and sale of Access Rights is subject to Company’s acceptance of an Order Form related thereto and shall not be final and binding until such time as, in accordance with the terms hereof, both parties execute such Order Form. Reseller agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Company regarding future functionality or features.

1.2 License Grant.

Subject to the terms and conditions of this Agreement, Company grants to Reseller a non-exclusive, non-transferable license, during the term of this Agreement, solely for the purposes of providing the Managed Services and the Direct Access to Managed Services Customers and Direct Access Customers, respectively, to use and reproduce a reasonable number of copies of the Documentation solely to support Reseller’s use (and the Direct Access Customers use) of the Subscription Services.

1.3 Standard Support.

Company will provide Reseller with training and support as set out in this Agreement, and the Service Level Agreement in Annex 1. Reseller is solely responsible for preparing its systems and facilities for accessing the Subscription Services.

1.4 Updates.

During the term of this Agreement, Company may, in its sole discretion, provide Reseller with Updates. In the event of a material Update, Company shall promptly inform Reseller by email of such Update. Updates (if any) will be deemed to be part of the Subscription Services under this Agreement. Company is not obligated to provide any Updates to the Subscription Services.

1.5 Responsibility for Software and Content Hosting.

Company shall, at its own expense, provide for the hosting of the Software which is accessible as part of the Subscription Services, provided that nothing herein shall be construed to require Company to provide for, or bear any responsibility with respect to any telecommunications or computer network hardware required by Reseller or any of its employees to provide access from the Internet to the Subscription Services.

1.6 Accounts.

To use certain features of the Subscription Services, Reseller will need to create an account with Company for each Authorized Customer (the “Accounts”), and provide certain information as prompted by the Website. Reseller represents and warrant that: (a) all required registration information Reseller submits on behalf of itself or Authorized Customers is truthful and accurate; and (b) Reseller will maintain the accuracy of such information. Company may suspend or terminate Reseller’s Account(s) in accordance with Section 10. Reseller is responsible for maintaining the confidentiality of each Account’s login information and is fully responsible for all activities that occur under its Accounts. Reseller agrees to immediately notify Company of any unauthorized use, or suspected unauthorized use of Reseller’s Accounts or any other breach of security. Company will not be liable for any loss or damage arising from Reseller’s failure to comply with the above requirements.

1.7 Users Subscriptions.

Unless otherwise specified in the applicable Order Form or registration Web page on the Website, Subscription Services are purchased as user subscriptions and may be accessed by no more than the number of Authorized End Users specified in the Order Form. User IDs may only be used by Authorized End Users and cannot be shared or used by more than one user at a time. If a Reseller wishes to add additional User IDs for additional Authorized End Users, Reseller may order such additional User IDs at any time by executing a new Order Form detailing the number of additional User IDs. Upon written acceptance by Company of the Order Form, Company shall make the Service(s) available to the additional Authorized End Users. Reseller shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Services, and shall notify Company promptly of any such unauthorized use known to Reseller.

1.8 Limitations.

The Company Property, including but not limited to all manuals, reports, records, programs, data (excluding the Reseller Data) and other materials, and all Intellectual Property Rights in each of the foregoing, are the exclusive property of Company and its suppliers. Reseller agrees that it will not, and will not permit any of its employees or other party to: (a) permit any party to access the Software or Documentation or use the Subscription Services, other than Authorized End Users under this Agreement; (b) modify, adapt, alter or translate the Company Property, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Software or Documentation to any third party (other than to Direct Access Customers pursuant to the terms and conditions hereof); (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 Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (e) use or copy the Software or Documentation except as expressly allowed under this subsection; (f) disclose or transmit any data contained in the Software to any individual other than a Reseller or Authorized Customer employee, except as expressly allowed herein, (g) use the Service to conduct or promote any illegal activities; (h) use the Service to generate unsolicited email advertisements or spam; (i) use the Subscription Services to stalk, harass or harm another individual; (j) use any high volume automatic, electronic or manual process to access, search or harvest information from the Subscription Services (including without limitation robots, spiders or scripts); (k) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; (l) use any trademark, tradename, or brand name of Company’s in metatags, keywords or hidden text; (m) use any portion of the Subscription Services or Website in any manner that may give a false or misleading impression, attribution, or statement as to the Company, or any third party; or (n) alter, remove, or obscure any copyright notice, digital watermarks, proprietary legends or other notice included in the Company Property. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Reseller regarding the Company Property or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Software.

1.9 Qualifying Customer Agreements for Direct Access Customers.

1.10 Enforcement; Notice of Breach.

Reseller agrees to exercise commercially reasonable efforts to enforce its rights under each Qualifying Customer Agreement contemplated by Section 1.9, and Reseller shall promptly notify Company in the event that Reseller determines or suspects that any Authorized Customer is or may be in breach of any such agreement, to the extent such breach relates to use of, or rights related to, the Subscription Services or any breach of the minimum terms required by Section 1.9.

1.11 Professional Standards.

Reseller acknowledges and agrees that the Subscription Services utilize Company’s valuable intellectual property, and that Company derives substantial value from the goodwill associated therewith. Reseller shall undertake all measures necessary to ensure that its conduct of business conforms to industry standards of professionalism and fair practices.

1.12 No Further Resellers or Distributors.

Reseller agrees that it may not resell Access Rights to any third party other than the applicable Authorized Customers identified in mutually executed Order Forms. Reseller acknowledges that it does not have the right, and it agrees not to, appoint any further tiers of resellers or distributors of the Access Rights purchased by Reseller under this Agreement.

1.13 Authorized End Users.

Reseller shall be responsible for its own compliance with this Agreement and the compliance of all Authorized Customers and their respective Authorized End Users with the obligations and restrictions set forth herein and in any Qualifying Customer Agreement regarding or related to the Subscription Services. Company will permit Reseller or Reseller’s Authorized Customers, as mutually agreed, to register the number of unique sets of login credentials (each consisting of a user name and password) set forth on the applicable Order Form for the Subscription Services. Unless otherwise approved in writing by Company in its sole discretion, Reseller will, and will cause its Authorized Customers to, ensure that no more than one Authorized End User will have access to or will use each set of login credentials. Reseller acknowledges and agrees that Company may, at any time and without any liability to Reseller or to any Authorized Customer or Authorized End User, suspend and/or terminate any end user’s access to the Subscription Services in the event Company reasonably believes that such end user has accessed or used the Subscription Services in any manner inconsistent with this Agreement. Reseller shall be fully responsible for the acts and omissions of all end users who access the Subscription Services, to the full extent as if such end users are Reseller’s employees or agents acting on Reseller’s behalf within the scope of their duties.

2. Fees and Expenses; payments

2.1 Fees.

In consideration for the access rights granted to Reseller and the services performed by Company under this Agreement, Reseller will pay to Company all fees set forth on an Order Form to Reseller’s Account set forth on the Order Form (the “Fees”). Company will invoice the Reseller periodically in accordance with the Order Form. Unless otherwise agreed pursuant to an Order Form, fees for Subscription Services shall be payable annually in advance and shall be due within 30 days after delivery by Company of an invoice for such Fees. The Company must ensure that any invoice rendered to the Reseller specifies the minimum details including the Reseller’s contact person, Agreement title, Service Order number, Fees payable, Dates Subscription Services are applicable. In the event that Reseller wishes to increase the number of user subscriptions beyond the maximum number of user subscriptions for which fees have been paid, Reseller shall be required to pay additional fees associated with the increased number of user subscriptions, prorated for the remainder of the term.

2.2 Payment Terms.

All payment obligations are non-cancellable and all amounts paid are non-refundable. 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. Company shall be entitled to withhold performance and discontinue service until all amounts due are paid in full. Company’s fees are exclusive of all taxes, value added tax, levies or duties imposed by taxing authorities, and Reseller shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Company’s income. Reseller agrees to provide Company with complete and accurate billing information and contact information. This information includes Reseller’s legal name, street address, email address and name and telephone number of an authorized billing contact and license administrator, as well as Reseller’s VAT number, if applicable. Reseller agrees to update this information within thirty (30) days of any change to it. If the contact information Reseller has provided is false or fraudulent, Company may terminate Reseller’s access to the Subscription Services in addition to other legal remedies.

2.3 Resale Pricing.

The pricing at which Company provides Services to Reseller shall be set forth in each mutually executed Order Form. Reseller shall have sole discretion to establish the prices that it will charge to each of its Authorized Customers for resale of Access Rights to the Subscription Services or Managed Services, provided that, notwithstanding the price that Reseller charges, Reseller shall nevertheless be obligated to pay to Company all applicable fees with respect to such Access Rights or Managed Services required by the applicable Order Form related thereto.

3. Resale of Access Rights and Sale of Managed Services.

3.1 Provision of Marketing Information.

As soon as commercially practicable after the Effective Date, Company shall provide Reseller with information describing the Subscription Services in reasonable detail, as well as sales and marketing materials related to the Subscription Services. Reseller acknowledges that Company may, in its sole discretion, amend or modify any of the foregoing from time to time, and Company will, on an ongoing basis throughout the Term, notify Reseller of any such amendments or modifications as soon as commercially practicable after implementation thereof.

3.2 General Marketing Obligations.

Reseller shall, at its own expense, use reasonable efforts to resell and market the Subscription Services to potential customers. Without limiting the foregoing, in no event will Reseller purport to make representations or warranties on Company’s behalf, or purport to act as an agent of Company for any purpose, and all marketing and promotional information provided or distributed by Reseller to any third party or through any media shall conform to such information as Company may have provided to Reseller pursuant to Section 3.1.

3.3 Branding Obligations; Limited Brand License.

3.4 Non-Competition.

Throughout the Term, Reseller shall refrain from developing any product or service directly competitive to the Subscription Services, and, until termination or expiration of this Agreement, Reseller shall refrain entirely from engaging in negotiations or discussions with third parties regarding development or acquisition of competing products or services. Reseller shall in any event continue to abide by the surviving confidentiality restrictions set forth in Section 7 should Reseller desire to engage in any competitive activities following the termination of this Agreement.

4. Ownership; Licenses

4.1 Ownership.

As between Company and Reseller, the Company Property and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Company and its suppliers. All rights in and to the Company Property not expressly granted to Reseller in this Agreement are reserved by Company and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Reseller regarding the Company Property or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Software.

4.2 License by Reseller.

5. Warranties and Disclaimers

5.1 By Reseller.

Reseller represents and warrant to Company that (a) Reseller has the authority to enter into this agreement personally (if Reseller is a natural person), or on behalf of the entity entering into this agreement, and to bind that entity, and (b) that any Reseller Content provided to Company for hosting by Company as part of the Subscription Services, shall not (i) infringe any copyright, trademark, or patent; (ii) misappropriate any trade secret; (iii) be deceptive, defamatory, obscene, pornographic or unlawful; (iv) contain any viruses, worms or other malicious computer programming codes intended to damage Company’s system or data; or (v) otherwise violate the rights of a third party. Company is not obligated to back up any Reseller Content; the Reseller is solely responsible for creating backup copies of any Reseller Content at Reseller’s sole cost and expense. Reseller agrees that any use of the Subscription Services contrary to or in violation of the representations and warranties of Reseller in this section constitutes unauthorized and improper use of the Subscription Services.

5.2 Third Party Services.

Reseller acknowledges and agrees that certain content or service provided by third parties may be made available to Reseller through the Subscription Services. For instance, Reseller may be able to manage and post content to their social networking accounts. Reseller’s use of any third party service is governed by the terms of the applicable service provider, not this Agreement. By accessing the third party service, Reseller agrees to comply with the applicable terms and acknowledges, that Reseller, not Company, is a party to such terms. Company is not responsible for the accuracy, suitability, or quality of the services, content, products, materials, or practices (including privacy practices) of such third parties, including social networking sites. Further, Reseller understands that by using the Subscription Services, Reseller may be exposed to third-party websites, content or applications that Reseller finds offensive, indecent or otherwise objectionable. Additionally, Reseller acknowledges and agrees that the outputs and deliverables provided to Reseller via the Subscription Services are wholly dependent upon the actions and inputs taken or provided by Reseller on the Subscription Services. Company makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility for, the quality, content, nature or reliability of the third party websites, products, services or applications accessible by hyperlink or otherwise from the Subscription Services. Company provides these links for Reseller’s convenience only and Company does not control such websites or applications. Company’s use of the third party services to power the Subscription Services, and its inclusion of links to such websites, does not imply any endorsement of the services or materials on such third party websites or any association with their operators. Company assumes no responsibility for unintended, objectionable, inaccurate, misleading or unlawful content made available by other users, advertisers and other third parties or violation of any third party rights related to such content. RESELLER AGREES THAT IN NO EVENT WILL COMPANY BE LIABLE TO RESELLER IN CONNECTION WITH ANY WEBSITES OR SERVICES OF ANY THIRD PARTY.

5.3 Disclaimer.

EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE Software, Documentation, AND SERVICES ARE PROVIDED “AS IS,” AND COMPANY 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 Software, Documentation, OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO RESELLER BY COMPANY. COMPANY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE software AND SERVICES SHALL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO RESELLER.

6. Exclusions and Limitations of Liability.

6.1 Exclusions of Remedies.

Nothing in this Agreement shall exclude or limit either Party's liability (i) for death or personal injury caused by its (or its agent's or sub contractor's) negligence, (ii) for fraud, fraudulent misrepresentation or willful misconduct, or (iii) to the extent such liability cannot, as a matter of law, be limited or excluded.

6.2 Customer Exclusions of Remedies.

Nothing in this Agreement shall exclude or limit Reseller's obligation and liability to pay any fees when due under any Order Form.

6.3 No Liability.

Save as provided for in Sections 6.1 and 6.2:

6.4 Limitation of Liability.

Save as provided for in Sections 6.1, 6.2 and 6.3, the total aggregate liability of each Party to the other Party, arising out of or relating to this Agreement, whether in contract, extracontractually or otherwise, will not exceed the total amount of all fees paid to Company by the Reseller during the twelve (12)-month period prior to the first act, omission or occurrence giving rise to such liability.

6.5 Essential Basis of the Agreement.

Reseller acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 6 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.

7. Confidentiality

7.1 Confidential Information.

During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, all information that would reasonably be considered confidential to Disclosing Party, will be considered Confidential Information of the Disclosing Party. The Software, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Company.

7.2 Protection of Confidential Information.

The Receiving Party agrees that it will not use or disclose to any third party (other, in the case of Reseller, to Authorized Customers) 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 those employees of the Receiving Party (or, in the case of Reseller, of the Authorized Customer) 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. Reseller shall be fully responsible for the acts and omissions of its Authorized Customers in protecting Company’s Confidential Information, to the full extent as if such end users are Reseller’s employees or agents acting on Reseller’s behalf within the scope of their duties. 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 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 provide to the Disclosing Party a written affidavit certifying compliance with this sentence.

7.3 Exceptions.

The confidentiality obligations set forth in this section will not apply to any information that (a) 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; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors 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 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.

7.4 System Use Information.

Company may use and disclose, in its discretion, any aggregated and de-identified information regarding Reseller’s use or Authorized Customers’ use of the Subscription Services or included in Reseller’s accounts, including Reseller Data. Any disclosure of such information will not identify Reseller (or the Authorized Customer) or any specific use by Reseller (or the Authorized Customer). Such information will include, for example, failure rates for a specific type of equipment across all Company subscribers.

8. Security; Protection of Customer Content; Privacy

Company will use commercially reasonable efforts to maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Content and other Reseller Confidential Information, as described in Company’s security documentation at: http://cxsocial.clarabridge.com/security, which is incorporated into this Agreement by this reference. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Content by Company personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.3 (Compliance with Legal Duties) below, or (c) as Customer expressly permits in writing. All personal data that Company collects from Reseller will be processed in accordance with Company’s Privacy Policy, which is incorporated into this Agreement by this reference https://app.engagor.com/privacy-policy. Reseller consents to personal data being used and processed in accordance with Company’s Privacy Policy. Company shall remove the data of a specified individual upon the request of Reseller (or that individual, to the extent required under applicable law) at Company’s standard professional services rates.

9. Indemnification

9.1 Indemnification of Reseller.

9.2 Reseller’s Indemnity Obligations.

Reseller agrees to defend or settle any claim brought against Company by any third party arising from (i) Reseller’s gross negligence or willful misconduct; (ii) claims that the Reseller Content, or Reseller’s or an Authorized Customer’s use of the Subscription Services in breach of this Agreement or any Qualifying Customer Agreement, as applicable, or pursuant to the Assumed Risks, infringes or misappropriates such third party’s Intellectual Property Rights, rights of privacy or rights of publicity or violates applicable laws, (iii) claims based upon a breach of Section 3, Section 4, Section 8.1 and Section 8.3; or (iv) claims by any Authorized Customer allegedly arising under any Qualifying Customer Agreement or under any other contract between Reseller and a third party. Reseller shall pay all amounts that are finally awarded against Company based on any such claims by a court of competent jurisdiction or any amounts that Reseller has agreed to pay in settlement of the relevant third-party claim.

9.3 Indemnification Procedures.

With respect to any claim, demand or action for which an indemnity is provided under this section, the party to be indemnified (the “Indemnified Party”) shall: (i) give prompt written notice to the indemnifying party (the “Indemnifying Party”) of the claim, demand or action for which an indemnity is sought (provided, however, that failure of Indemnified Party to provide such notice will not release the Indemnifying Party from any of its indemnity obligations except to the extent that the Indemnifying Party’s ability to defend such claim is prejudiced thereby), (ii) reasonably cooperate in the defense or settlement of any such claim, demand or action, at the expense of the Indemnifying Party; and (iii) give the Indemnifying Party sole control over the defense or settlement of any such claim; provided, however, the Indemnifying Party shall not enter into any settlement without the Indemnified Party’s express consent that (1) assigns, imparts or imputes fault or responsibility to the Indemnified Party or its affiliates, (2) includes a consent to an injunction or similar relief binding upon the Indemnified Party or its affiliates, (3) fails to contain reasonable confidentiality obligations protecting the confidentiality of the settlement, or (4) provides for relief other than monetary damages that the Indemnifying Party solely bears.

10. Term And Termination

10.1 Duration of Agreement.

The Parties intend for this Agreement to become legally enforceable starting on the Effective Date. This Agreement will remain in effect for so long as any Access Term remains in effect and for thirty (30) days thereafter, unless it is terminated by one of the Parties in one of the situations permitting termination as set forth below in this Section 10 (the “Term”). This Agreement will expire as of the date that is five (5) business days following the date when all Access Terms have expired.

10.2 Termination for Breach.

Either Party may terminate this Agreement and any Order Form immediately by providing a notice to the other Party and without court intervention if the notified Party has failed to perform any material obligation and has not fully cured the failure within thirty (30) days after it has been given an initial notice specifying the breach.

10.3 Termination for Convenience.

Either Party may terminate this Agreement upon 30 days notice, by providing a notice in writing to the other Party setting forth the date such termination will be effective, which date shall be not less than 30 days from the date of delivery of such notice. Such termination will terminate and cancel the Parties rights to thereafter buy and sell, respectively, the Subscription Services in accordance with Section 1 of this Agreement, but will not cancel or terminate any obligations of either party under any outstanding Order Form or Statement of Work, including any outstanding payment or performance obligations. All payment obligations are non-cancellable and all fees paid are non-refundable.

10.4 Termination Upon Bankruptcy or Insolvency.

To the maximum extent permitted by applicable law, either Party may also have the right to terminate this Agreement in the event the other Party (i) becomes insolvent, (ii) becomes subject to a petition in bankruptcy filed by or against it that is not dismissed within thirty days of the filing of such petition, (iii) is placed under the control of a receiver, liquidator or committee of creditors, or (iv) dissolves, ceases to function as a going concern or to conduct its business in the normal course.

10.5 General consequences of termination.

Effective immediately upon expiration or termination of this Agreement, (i) Reseller shall cease, and shall direct its users to cease, use of the Subscription Services, (ii) all licenses granted under this Agreement will become void, and (iii) neither Party will have continuing rights to use any Confidential Information of the other Party or to exercise any Intellectual Property Rights having been licensed under this Agreement. As soon as can reasonably be accomplished after this Agreement expires or is terminated, each Party will discontinue its use and will return the Confidential Information and proprietary materials of the other Party. If a Party has payment obligations that have accrued but remain unpaid at the time of expiration or termination, the Party will make payment in full within ten (10) days after the expiration or termination. Following expiration or termination Company will have no obligation to retain Content and may, unless legally prohibited, elect at its sole option to delete all such Content from its systems.

10.6 Continuing Force of Certain Provisions.

Even if this Agreement expires or is terminated, the Parties agree to remain bound by the provisions of Section 1.6, 1.8, 1.10-1.13, 2, 4, 5.3, 6-13. The rights and duties created by those provisions will not expire or terminate, but will remain in effect for so long as the provisions themselves expressly state, or, if not stated, indefinitely. Each Party will retain any claims accrued prior to expiration or termination, such as accrued rights to receive payments from the other Party.

11. Anti-Corruption

12. Miscellaneous

12.1 Governing Law and Venue.

This Agreement shall be governed by and construed solely and exclusively in accordance with the laws of Belgium, without giving effect to any law that would result in the application of the law of another jurisdiction or to the United Nations Convention on the International Sale Of Goods. Any dispute arising out of or in connection with this Agreement that shall not be amicably settled by the parties through good faith negotiations within three (3) months after notification in writing by any of the parties, shall be finally settled under the CEPANI Rules of Arbitration by three (3) arbitrators appointed in accordance with those Rules. The seat of the arbitration shall be Ghent, and the arbitration shall be conducted in the English language. Notwithstanding the foregoing, any party may seek immediate injunctive or other interim relief from any court of competent jurisdiction with respect to any matter for which monetary damages would not adequately protect such party’s interests or otherwise to enforce and protect Intellectual Property Rights owned by or licensed to such Party.

12.2 Export.

Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Subscription Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Reseller shall not permit Users to access or use Subscription Services in violation of any U.S. export embargo, prohibition or restriction.

12.3 Notices.

Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the first page of the Agreement and addressed to the Chief Financial Officer, by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.

12.4 General.

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. To the extent any mutually agreed upon Order Form conflicts with the terms of this Agreement, the terms of the Order Form shall supersede and control. 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. Reseller acknowledges that the Subscription Services, Software, and Documentation contain valuable trade secrets and proprietary information of Company, that any actual or threatened breach of the section titled Confidentiality or any other breach by Reseller of its obligations with respect to Intellectual Property Rights of Company may constitute immediate, irreparable harm to Company for which monetary damages would be an inadequate remedy. In such case, Company may be entitled to immediate injunctive relief without the requirement of posting bond, including an order that any Software, Documentation, or any portions thereof, that Reseller attempts to import into any country or territory be seized, impounded and destroyed by customs officials. Reseller shall not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of Company, 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. Any delay in the performance of any duties or obligations of either party (except the payment of money 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. Reseller’s relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. Reseller will not have, and will not represent to any third party that it has, any authority to act on behalf of Company. This Agreement (including any exhibits, schedules, annexures and/or attachments) is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Reseller and the Company.

12.5 Counterparts.

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.

13. Glossary of defined words.

Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.

“Access Rights”
are contractual rights to access and receive Subscription Services according to the technical procedures and protocols established according to this Agreement. The scope of any particular Access Rights may be defined by the terms the applicable Order Form pursuant to which such Access Rights are purchased, including the Access Term, number of streams, number and type of Authorized End Users, or other use restrictions applicable to such Access Rights.
“Access Term”
means the period of time during which particular Access Rights remain valid, as stated in the applicable Order Form pursuant to which such Access Rights are purchased. For avoidance of doubt, particular sets of Access Rights purchased under separate Order Forms may have differing Access Terms.
“Authorized End Users”
are individual persons for whom Reseller has purchased Access Rights, and may include only employees or agents of Reseller who are acting on Reseller’s behalf in the internal operation of Reseller’s business, or in the case of Direct Access Customers, only employees or agents of such Direct Access Customer who are acting on such Direct Access Customer’s behalf in the internal operation of the Direct Access Customer’s business.
“Company Property”
means the Subscription Services, Software, Documentation, Website, and all systems, networks, APIs, websites or other materials that are either owned or operated by Company, or provided to Reseller in connection with this Agreement.
“Documentation”
means the technical materials provided by Company to Reseller in hard copy or electronic form describing the use and operation of the Software.
“Error”
means a reproducible failure of the Software to substantially conform to the Documentation.
“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.
“Order Form”
means a document, either physical or electronic, signed by both parties identifying a Service to be made available by Company pursuant to this Agreement.
“Reports”
means the content of any reports, summaries, analyses, data, information or other items of output, whether in textual or graphical form, produced by the Services that are comprised of reports on or representations of Content or other Customer Confidential Information after processing or transformation in any manner by or pursuant to the Services; but excluding for the purposes of clarity the format, design, method, algorithms and all intellectual property and technology and any Intellectual Property Rights therein used in or underlying the preparation and presentation of the Reports.
“Reseller Content”
means any content submitted to Company by Reseller or Authorized Customers via the Service or Website.
“Reseller Data”
means the data collected by Company in connection with the Subscription Services.
“Subscription Services”
means the online, Web-based applications and platform to which Access Rights are ordered by Reseller under an Order Form, to be performed by means of Company’s proprietary methodologies and systems and to which access is provided by Company via the Website. Reseller acknowledges that the Subscription Services may include access to particular functional modules of Company’s system, but not to other modules, as may be indicated in the applicable mutually executed Order Form.
“Software”
means the software programs and any associated user interfaces and related technology that Company makes available pursuant to this Agreement.
“Website”
means the Company website located at cxsocial.clarabridge.com.
“Update”
means an update, upgrade, enhancement or any other improvement to the Subscription Services that, in its discretion, Company makes generally available to other subscribers as part of the standard Subscription Services.

[End of Terms of Service]

Exhibit A

Premium Service Levels

Exhibit B

Product Terms

Product Name Product Code Product Terms
CX Social Stream 10-pack SaaS-ENGR-Stream10 CX Social Stream 10-pack: Each stream includes one (1) search and up to three hundred thousand (300,000) annual mentions per stream.  To the extent a search exceeds three hundred thousand (300,000) annual mentions, an additional stream or additional streams (as necessary) will be counted toward such search.  Each individual search will also be counted as a stream.  Streams will be counted in this manner until all purchased streams applicable to the subscription term have been utilized.  Streams that are not utilized during the applicable annual (or otherwise specified) term will be forfeit.
Named CX Social Enterprise User(s) SaaS-ENGR-ENT-User Named CX Social Enterprise User(s): Subscription for access to CX Social Enterprise Edition by one (1) Authorized End User for each subscription purchased. CX Social Enterprise Edition includes multiple inboxes and tailored smart-folders, real-time engagement dashboard, analytics and reporting, built-in chat, tasks and assignments, specialized reports and dashboards, advanced email alerts, workflow automation and approval flows, team performance dashboard, specialized user roles, unlimited free analytics users and CRM Integration. CX Social Subscription Services are purchased as user subscriptions and may be accessed by no more than the specified number of users. Free analytics users are Authorized End Users that are provided with view only access to the standard analytics and specialized dashboards.  Customer acknowledges and agrees that in order to provide certain features of the Services, Engagor may need to access and collect certain information from certain blogs, forums and other social media accounts on Customer's behalf ("Social Media Accounts").  As such, Customer agrees to and hereby appoints Engagor as Customer's agent with regards to Social Media Accounts, solely to the extent necessary to provide the Services, and Customer hereby grants Engagor a non-exclusive license to (i) access Customer's Social Media Accounts on behalf of Customer, and to use any usernames, passwords and/or other identifiers necessary to access such Social Media Accounts, in connection with the Service solely to the extent necessary to perform the actions requested by Customer, and (ii) scrape, crawl and otherwise collect certain information from Customer's Social Media Accounts on Customer's behalf and as Customer's agent to the extent necessary to provide the Services.  Customer acknowledges and agrees that certain content or service provided by third parties may be made available to Customer through the Services.  For instance, Customer may be able to manage and post content to their social networking accounts.  Customer's use of any third party service is governed by the terms of the applicable service provider, not this Agreement.  By accessing the third party service, Customer agrees to comply with the applicable terms and acknowledges that Customer, not Engagor, is a party to such terms. Engagor is not responsible for the accuracy, suitability, or quality of the services, content, products, materials, or practices (including privacy practices) of such third parties, including social networking sites.  Further, Customer acknowledges and agrees that the outputs and deliverables provided to Customer via the Services are wholly dependent upon the actions and inputs taken or provided by Customer on the Services. Engagor makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility for, the quality, content, nature or reliability of the third party websites, products, services or applications accessible by hyperlink or otherwise from the Services. Engagor provides these links for Customer's convenience only and Engagor does not control such websites or applications. Engagor use of the third party services to power the Services, and its inclusion of links to such websites, does not imply any endorsement of the services or materials on such third party websites or any association with their operators. Engagor assumes no responsibility for unintended, objectionable, inaccurate, misleading or unlawful content made available by other users, advertisers and other third parties or violation of any third party rights related to such content.  CUSTOMER AGREES THAT IN NO EVENT WILL Engagor BE LIABLE TO CUSTOMER IN CONNECTION WITH ANY WEBSITES OR SERVICES OF ANY THIRD PARTY.
Named CX Social Team User(s) SaaS-ENGR-Team-User Named CX Social Team User(s): Subscription for access to CX Social Team Edition by one (1) Authorized End User for each subscription purchased. CX Social Team Edition access includes up to 20 inboxes and tailored smart-folders, real-time engagement dashboard, analytics and reporting, built-in chat, tasks and assignments, specialized reports and dashboards, advanced email alerts, workflow automation and approval flows, team performance dashboard.  Engagor Subscription Services are purchased as user subscriptions and may be accessed by no more than the specified number of users. Customer acknowledges and agrees that in order to provide certain features of the Services, Engagor may need to access and collect certain information from certain blogs, forums and other social media accounts on Customer's behalf (“Social Media Accounts”).  As such, Customer agrees to and hereby appoints Engagor as Customer's agent with regards to Social Media Accounts, solely to the extent necessary to provide the Services, and Customer hereby grants Engagor a non-exclusive license to (i) access Customer's Social Media Accounts on behalf of Customer, and to use any usernames, passwords and/or other identifiers necessary to access such Social Media Accounts, in connection with the Service solely to the extent necessary to perform the actions requested by Customer, and (ii) scrape, crawl and otherwise collect certain information from Customer's Social Media Accounts on Customer's behalf and as Customer's agent to the extent necessary to provide the Services.  Customer acknowledges and agrees that certain content or service provided by third parties may be made available to Customer through the Services.  For instance, Customer may be able to manage and post content to their social networking accounts.  Customer's use of any third party service is governed by the terms of the applicable service provider, not this Agreement.  By accessing the third party service, Customer agrees to comply with the applicable terms and acknowledges that Customer, not Engagor, is a party to such terms. Engagor is not responsible for the accuracy, suitability, or quality of the services, content, products, materials, or practices (including privacy practices) of such third parties, including social networking sites.  Further, Customer acknowledges and agrees that the outputs and deliverables provided to Customer via the Services are wholly dependent upon the actions and inputs taken or provided by Customer on the Services. Engagor makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility for, the quality, content, nature or reliability of the third party websites, products, services or applications accessible by hyperlink or otherwise from the Services. Engagor provides these links for Customer's convenience only and Engagor does not control such websites or applications.  Engagor’s use of the third party services to power the Services, and its inclusion of links to such websites, does not imply any endorsement of the services or materials on such third party websites or any association with their operators. Engagor assumes no responsibility for unintended, objectionable, inaccurate, misleading or unlawful content made available by other users, advertisers and other third parties or violation of any third party rights related to such content.  CUSTOMER AGREES THAT IN NO EVENT WILL Engagor BE LIABLE TO CUSTOMER IN CONNECTION WITH ANY WEBSITES OR SERVICES OF ANY THIRD PARTY.
Named CX Social Professional User(s) SaaS-ENGR-Pro-User Named CX Social Professional User(s):  Subscription for access to CX Social Professional Edition by one (1) Authorized End User for each subscription purchased.CX Social Pro Edition includes, real-time engagement dashboard, analytics and reporting, built-in chat, tasks and assignments, specialized reports and dashboards, advanced email alerts. Engagor Subscription Services are purchased as user subscriptions and may be accessed by no more than the specified number of users. Customer acknowledges and agrees that in order to provide certain features of the Services, Engagor may need to access and collect certain information from certain blogs, forums and other social media accounts on Customer's behalf ("Social Media Accounts").  As such, Customer agrees to and hereby appoints Engagor as Customer's agent with regards to Social Media Accounts, solely to the extent necessary to provide the Services, and Customer hereby grants Engagor a non-exclusive license to (i) access Customer's Social Media Accounts on behalf of Customer, and to use any usernames, passwords and/or other identifiers necessary to access such Social Media Accounts, in connection with the Service solely to the extent necessary to perform the actions requested by Customer, and (ii) scrape, crawl and otherwise collect certain information from Customer's Social Media Accounts on Customer's behalf and as Customer's agent to the extent necessary to provide the Services.  Customer acknowledges and agrees that certain content or service provided by third parties may be made available to Customer through the Services.  For instance, Customer may be able to manage and post content to their social networking accounts.  Customer's use of any third party service is governed by the terms of the applicable service provider, not this Agreement.  By accessing the third party service, Customer agrees to comply with the applicable terms and acknowledges that Customer, not Engagor, is a party to such terms. Engagor is not responsible for the accuracy, suitability, or quality of the services, content, products, materials, or practices (including privacy practices) of such third parties, including social networking sites.  Further, Customer acknowledges and agrees that the outputs and deliverables provided to Customer via the Services are wholly dependent upon the actions and inputs taken or provided by Customer on the Services. Engagor makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility for, the quality, content, nature or reliability of the third party websites, products, services or applications accessible by hyperlink or otherwise from the Services. Engagor provides these links for Customer's convenience only and Engagor does not control such websites or applications. Engagor’s use of the third party services to power the Services, and its inclusion of links to such websites, does not imply any endorsement of the services or materials on such third party websites or any association with their operators. Engagor assumes no responsibility for unintended, objectionable, inaccurate, misleading or unlawful content made available by other users, advertisers and other third parties or violation of any third party rights related to such content.  CUSTOMER AGREES THAT IN NO EVENT WILL Engagor BE LIABLE TO CUSTOMER IN CONNECTION WITH ANY WEBSITES OR SERVICES OF ANY THIRD PARTY.
Standard Managed Services Package SV-MSP-Standard
  • Deliver two (2) training sessions that are designed to enable the customer team to use the platform according to best practices
  • Socialize and highlight new features of the licensed products on a quarterly call. The deliverable is focused on identifying use cases to leverage new feature/functionality/product to drive interest and adoption across the user base
Advanced Managed Services Package - CX Social SV-MSP-AdvancedCXS
  • Deliver four (4) training sessions that are designed to enable the customer team to use the platform according to best practices
  • Socialize and highlight new features of the licensed products on a quarterly call. The deliverable is focused on identifying use cases to leverage new feature/functionality/product to drive interest and adoption across the user base
  • Conduct one (1) annual solution performance evaluation including platform and user usage report. Provide recommendations quarterly for optimizations against current configuration that are designed to ensure optimum set-up in accordance with CX Social best practices
  • Configure/reconfigure (2) dashboards based on requirements gathered from customer, aligned with CX Social best practices
  • Provide account management and conduct a bi-weekly status call
Premium Managed Services Package - CX Social SV-MSP-PremiumCXS
  • Deliver six (6) training sessions that are designed to enable the customer team to use the platform according to best practices
  • Socialize and highlight new features of the licensed products on a quarterly call. The deliverable is focused on identifying use cases to leverage new feature/functionality/product to drive interest and adoption across the user base
  • Conduct one (1) annual solution performance evaluation including platform and user usage report. Provide recommendations quarterly for optimizations against current configuration to ensure optimum set-up in accordance with CX Social best practices
  • Configure/reconfigure two (2) dashboards based on requirements gathered from customer, aligned with CX Social best practices
  • Conduct one (1) Sentiment audit and associated tuning identified in the audit
  • Deliver a monthly analysis leveraging an Engagor pre-defined reporting framework that is designed to identify key trends in Social customer feedback as well as areas of improvement relative to the customer or employee experience
  • Provide account management and conduct a bi-weekly status call