1.1 Overview. As noted above, this Agreement consists of these Terms of Service, the Policies, and each Order signed by authorized representatives of Voicegain and Customer (each a “party” and collectively the “parties”). Each party may sign this Master Subscription Agreement and each Order online with a digital signature, or in hard copy with an ink signature. No oral agreement or partially signed document will be enforceable.
1.2 Edge Subscription Products, SaaS Services and Professional Services. Voicegain provides a suite of Edge Subscription Products, SaaS Services and Professional Services (each as defined in this Agreement collectively herein called Services) built on Voicegain’s deep-learning-based Speech-to-text and NLU platform. Upon both parties signing one or more Orders, Customer may order new, additional, or different Services.
1.3 Orders. Each Order may contain additional contractual provisions; but this Agreement and each Order may only be modified by a written document signed by both parties that expressly amends one or more provisions of the Terms of Service or the Order provisions. No Order may be used to amend the Terms of Service. In the event of any conflict or ambiguity, the provisions of each Order will control all Services provided pursuant to that Order, and an Order will take priority over an ambiguous term in these Terms of Service. Any terms and conditions included in a Customer’s purchase order or a Voicegain Invoice, or any other document not signed by both parties, shall not bind either party, unless expressly referenced in this Agreement (e.g., the Policies).
1.4 Locations. The method and means of providing a SaaS Service (e.g., location of the datacenter) shall be under the exclusive control, management, and supervision of Voicegain, giving due consideration to the requests of Customer. Except as otherwise specified in an Order, a SaaS Service shall be provided solely from within the United States and, where applicable, on computing and data storage devices physically located within the United States. For Edge Subscription Product, Customer shall provide Compatible Computing Environment at its requested location in its Datacenter or VPC (Virtual Private Cloud). Professional Services may be provided from within or outside of the United States or a combination of both.
1.5 Definitions. In addition to the terms defined elsewhere in the Agreement, the following terms shall have the following meanings:
“Acoustic Model” is a component of Voicegain Software in the deep neural network that processes input speech audio into sequences of token probabilities which in turn get processed by other components of Voicegain Software. There are several related definitions:
“Base Acoustic Model” refers to the configuration data of the out-of-the-box Acoustic Model provided as part of Voicegain Software. Base Acoustic model is Voicegain Software (as defined below) trained on Voicegain owned audio datasets or audio datasets provided by Customer to Voicegain with specific purpose of training this out-of-the-box Acoustic model for use by all customers of Voicegain.
“Custom Acoustic Model” refers to the configuration data of the Acoustic Model that is obtained (a) by training the Base Acoustic Model with additional Customer Data as part of Customization (“Extended Acoustic Model”) or (b) by training solely with Customer Data without the use of the Base Acoustic Model (“Customer Owned Acoustic Model”).
“Compatible Computing Environment” means the minimum hardware requirements including but not limited to specifications of GPUs, CPUs, memory and storage and software requirements including but not limited compatible OS (e.g. Ubuntu LTS 20.04) and container software versions (e.g Kubernetes) outlined by Voicegain required to operate Edge Subscription Product.
“Confidential Information” means all information of whatsoever kind or nature belonging to or in the possession or control of a party (“Discloser”) which is of a confidential, proprietary or trade secret nature that is furnished or disclosed to the other party (“Recipient”) under this Agreement, either orally, in writing or in electronic formats, and which has been marked “Confidential” or with a similar term indicating confidential or proprietary status.
“Customer Solution” means an application or any set of applications that uses the SaaS Service or Edge Subscription Product but adds primary and significant functionality to the SaaS Service or Edge Subscription Product and is not primarily a substitute for the SaaS Service or Edge Subscription Product.
“Customization” shall mean a Service provided by Voicegain where it modifies SaaS Service or Edge Subscription Product for Customer pursuant to an Order in return for a Fee. Customization shall not be considered as work-for-hire.
“Data” means information. There are several different types of Data:
“Customer Data” means any Data owned or provided by Customer directly or indirectly to Voicegain, whether or not it is hosted by Customer or Voicegain.
“Cloud Data” means Customer Data that Voicegain stores on its servers, compute instances or other computers/compute instances owned or controlled by Voicegain.
“Edge Data” means Customer Data that Customer stores on services or other computers owned or controlled by Customer.
“Voicegain Data” means any Data provided or sourced by Voicegain, whether or not it is hosted by Voicegain.
“Edge Subscription Product” means a Service provided by Voicegain to Customer where Voicegain Software is downloaded, installed and used as Edge Software. Customer shall purchase Edge Subscription Product pursuant to an Order and shall be eligible to use it through Evaluation Period and Live Period mentioned in the Order. All data and information consumed, used, generated by Edge Subscription Product is owned, located and managed by Customer on servers or compute instances controlled by Customer. Through Live Period (as mentioned in an Order) of the Edge Subscription Product, Customer shall be eligible for all new releases, patches and updates for no additional Fees.
“Error” means a reproducible failure of a Service to perform in substantial conformity with the applicable written specifications as set forth in Voicegain’s current documentation or an applicable Order.
“Fees” means any amounts payable by Customer to Voicegain for Services provided pursuant to this Agreement. Services may be purchased with a Revenue Commitment for a lower fee. Fees may be based on number of users or consumption (e.g. based on minutes of usage of APIs, number of concurrent sessions or ports).
“License Metrics” means the business and technical requirements or limitations stated on each Order for a Service (e.g., expected maximum concurrent API requests or maximum throughput for speech processing during a specific time period).
“Mark” means a trademark, service mark or other brand associated with a Product or Service, in accordance with applicable law.
“Open-Source Software” means computer programs that are subject to the Open Source Definition at opensource.org/osd, including any computer programs that are (1) not public domain, (2) subject to some form of intellectual property ownership such as copyright or patent protection, (3) are made freely available at no charge to the general public by their owner, and (4) are licensed pursuant to a written document that may list one or more limitations on how licensees may use, modify and share the programs and derivative works (new versions) of the programs. A list of Open-Source Software is maintained here.
“Personal Data” means information that identifies an individual person.
“Policies” means Voicegain’s current written policies on technical and administrative matters, including the Voicegain Privacy Policy and Voicegain Information Security Policy.
“Privacy Policy” means either Voicegain’s or Customer’s statement of data privacy practices. The current version of Voicegain’s Privacy Policy is maintained here.
“Professional Service” means professional services provided by Voicegain for Customer and specifically identified in an Order as Professional Service. Examples of Professional Service include (i) creation of Customer Solution using a work-for-hire model (ii) Storage (iii) Training (iv) Setup (v) Support (vi) maintenance of Customer Solution.
“Product” means any Voicegain Software licensed to Customer.
“Revenue Commitment” in an Order means a commitment to purchase a minimum monetary value of SaaS Service or Edge Subscription Product during a specified portion of the Live Period. Revenue Commitment shall be indicated in an Order as a monthly, quarterly or an annual dollar value.
“SaaS Service” means a Service provided by Voicegain to Customer where Voicegain Software is hosted on servers or compute instances controlled by Voicegain and can be accessed by Customers and used as Cloud Software. Customer shall purchase SaaS Service pursuant to an Order under this Agreement and shall be eligible to use such SaaS Service through the Evaluation Period and Live Period in the Order in return for timely payment of Fees.
“Service” means a service provided by Voicegain to Customer. Among other things, Voicegain provides Edge Subscription Products, SaaS Services and Professional Services, each of which is a Service.
“Setup” means a Professional Service provided by Voicegain for the setting up and configuration of a SaaS Service or the installation support provided by Voicegain to Customer for Edge Subscription Product
“Site” means a website.
“Voicegain Site” means Voicegain’s current website for Voicegain at https://www.voicegain.ai.
“Software” means computer programs. There are several different types of Software:
“Customer Software” means any Software that is owned, licensed or used by Customer other than Voicegain Software.
“Voicegain Software” means any Software owned by Voicegain and provided to Customer pursuant to an Order under this Agreeement. Voicegain Software include Speech-to-Text/STT APIs, Speech Analytics APIs, Telephony Bot APIs and MRCP ASR. An up-to-date list of Voicegain Software is maintained here. Customer may purchase a subscription to Voicegain Software as Cloud Software (i.e a SaaS Service) or as Edge Software (i.e a Edge Subscription Product).
“Cloud Software” means the Voicegain Software in executable or object form hosted by Voicegain on servers or compute instances controlled by Voicegain (whether such servers are owned by Voicegain or rented as compute instances from a cloud provider) to process Customer’s Data. Cloud Software is set of containerized services installed on a Voicegain managed Kubernetes cluster.
“Edge Software” means the Voicegain Software in executable or object form that is installed and run on one or more servers controlled by Customer (whether such servers are owned by Customer or rented as compute instances from a cloud provider) to process Customer’s Data. Edge Software is set of containerized services installed on a Customer managed Kubernetes cluster. Edge Software is designed to connect to a Voicegain licensing and billing endpoint in the cloud or a license server that may be deployed on servers controlled by Customer.
“Third Party Software” means Software owned, distributed or operated by third parties.
“Specifications” means a detailed statement of key attributes or metrics of a Service (whether SaaS or Edge Subscritpion) established in writing and provided by Voicegain to Customer.
“Storage” means a Professional Service provided by Voicegain for the hosting of Customer’s Data by Voicegain.
“Support” means a Professional Service provided by Voicegain to assist Customer and its Users regarding the use of Services.
“Subscription Period” means the period or term that the Customer is eligible to access a SaaS Service or an Edge Subscription Product purchased pursuant to an Order. There are two phases to a Subscription Period:
“Evaluation Period” means a limited period during which Customer may use a SaaS Service or an Edge Subscription Product without incurring any Fees (unless indicated otherwise in such Order) for evaluation purposes
“Live Period” means the period during which Customer may use a SaaS Service or Edge Subscription Product in exchange for Fees stated in an Order.
“Total Contract Value” means the minimum expected dollar spend that the Customer commits to spend on an Order for Service during the Live Period.
“Training” means a Service provided by Voicegain in the form of individual and group instruction regarding the use of the Services.
“User” means each person who Customer authorizes to access or use any Customer accounts with Voicegain.
2.1 General. Voicegain provides Customer access to Voicegain Software through multiple options, including Edge Software and Cloud Software. An Evaluation License may also be made available for a limited duration.
2.2 Right to use. Pursuant to an Order, and upon Voicegain’s timely receipt of Fees, Voicegain grants Customer right to access and use SaaS Services through Live Period. Pursuant to an Order and subject to timely receipt of Fees, Customer may also install and use Edge Subcription Product through the Live Period. Each Service is subject to License Metrics stated on the Applicable Order, including any limitations on time, number of users, the number of concurrent sessions, and the amount of Customer Data that may be processed.
2.3 Additional Terms for Edge Software. Should Customer order Edge Subscription Product, such Edge Subscription Product is also subject to the terms in this Agreement. Customer is responsible for provisioning and maintaining a working and secure Compatible Computing environment, as specified in the Order and any Specifications. Customer shall not block, disable, tamper with or otherwise attempt to circumvent any billing mechanism. Customer shall configure its firewalls and routers to maintain constant internet connectivity on specified ports from Edge Subscription Product to Voicegain’s servers so that Voicegain is able to (i) observe the health of Voicegain Software (ii) provide new releases, patches and updates and (iii) should it be necessary, meter the use of the Edge Subscription Product.
2.4 Evaluation Period. The parties may agree in an Order to provide Customer with a limited right to use a Service, whether it is a SaaS Service or an Edge Subscription Product, solely for evaluation of Service (“Evaluation License”). Unless the applicable Order states otherwise: (a) during the Evaluation Period the Service shall be provided by Voicegain for no Fees; (b) the Evaluation Period shall be for a period of one (1) month from the Start Date of the Service; (c) the Evaluation Period may only be extended by another Order signed by the parties; (d) during the Evaluation Period the Service Levels and Voicegain warranties do not apply; and (e) the Voicegain Software provided may be limited in functionality.
2.5 Customization Services. Voicegain shall provide Customization (e.g creation of Extended Acoustic Model) as described in an Order. Fees for Customization are stated separately in each Order. Voicegain shall retain the sole right, title and property to Customization.
2.6 Ownership of Custom Acoustic Models: a) Extended Acoustic Model: Unless otherwise specified in an Order, Voicegain shall own the sole right, title and interest to any Extended Acoustic Model that maybe developed pursuant to an Order. However, Voicegain shall exclusively license Extended Acoustic Model to Customer through the Live Period of the Order and shall not license Extended Acoustic Model to any other third party without the written approval of Customer. This provision shall survive the termination of the Agreement.
b) Customer Owned Acoustic Model: Customer shall own the sole right, title and interest to Customer Owned Acoustic Model. Customer may order a Customer Owned Acoustic Model pursuant to an Order for Professional Services. Customer hereby grants Voicegain right to access and use Customer Owned Acoustic Model as part of providing a Service solely to Customer. Customer acknowledges that Customer Owned Acoustic Model may be used solely in conjunction with Voicegain Software.
2.7 Ownership. All Voicegain Software, SaaS Service and Edge Subscription Product are and shall remain the property of Voicegain and will be protected as Voicegain’s Confidential Information. All Customizations shall be owned by Voicegain and are licensed by Voicegain to Customer for the duration of the Live Period solely for use with Services. Customer shall own the deliverables of a Professional Services Order that is specifically identified as work-for-hire.
2.8 Acceptable Use: Customer agrees to use Service only in accordance with this Agreement. Customer shall not reverse engineer, decompile, disassemble or attempt to learn the source code, data structures, or any other non-public information in or regarding any Voicegain Software that is part of Service at any time. Customer shall not and will not allow third parties to use Service or data from Service to create, train, or improve (directly or indirectly) a similar or competing product or service. Customer may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters the use of Service. Customer may not rent, lease, lend, resell, transfer, or host the Service or Voicegain Software, or any portion thereof, to or for third parties except as expressly permitted in this Agreement in Section 2.9. Customer’s development and marketing of a Customer Solution, as defined below in 2.9, is hereby permitted and shall not be considered as a reselling or hosting of SaaS Service. This Section shall survive any termination of this Agreement.
2.9 Creation of Customer Solution. Customer may create and maintain a Customer Solution and, despite anything to the contrary in this Agreement, combine Service with Customer Data or Customer Software owned by Customer or licensed by Customer from a third party, to create a Customer Solution using the Service, Customer Software and the Customer Data together. Customer shall retain sole right, title and ownership to Customer Solution. Customer may permit third parties to access and use the Services in connection with the use of that Customer Solution. Customer is responsible for that use and for ensuring that these terms and the terms and conditions of this Agreement are met by that use.
2.10 Open-Source Software. Voicegain may use Open-Source Software as part of Voicegain Software to provide Service. The Open-Source Software currently used by Voicegain is listed on the Voicegain Site. Voicegain’s use of Open-Source Software does not affect either Voicegain’s ownership of Voicegain Software or Customer’s ownership of the Customer Data.
3.1 Ownership. Customer Data shall be treated by Voicegain as Customer’s Confidential Information. Customer Data shall include: (a) Customer’s data collected, used, processed, stored, or generated as the result of the use of SaaS Service; and (b) Personal Data collected, used, processed, stored, or generated as the result of the use of SaaS Service, including without limitation any information that identifies an individual. Customer Data is and shall remain the sole and exclusive property of Customer and all right, title, and interest in the same is reserved by Customer. This Section shall survive the termination of this Agreement.
3.2 Voicegain Use of Customer Data. Customer shall secure and maintain all rights in Customer Data necessary for Voicegain to provide Service without violating the rights of any third party or otherwise obligating Voicegain to Customer or to any third party. Customer grants Voicegain a limited license to receive, store, process, create derivative works and display Customer Data for the sole and exclusive purpose of providing Services, as further stated in the applicable Orders. Voicegain shall keep and maintain Customer 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, and in no event less than a reasonable standard of care. Voicegain shall not use, sell, rent, transfer, distribute, or otherwise disclose or make available Customer Data for Voicegain’s own purposes or for the benefit of anyone other than Customer without Customer’s prior written consent. This Section shall survive the termination of this Agreement.
3.3 Extraction of Cloud Data. Voicegain shall, within ten (10) business days of Customer’s request, provide Customer, without charge and without any conditions or contingencies whatsoever (including but not limited to the payment of any fees due to Voicegain), an extract of the Cloud Data in a format reasonably specified by Customer and supported by Voicegain.
3.4 Backup and Recovery. Voicegain shall be responsible for maintaining a backup of any Cloud Data should it be necessary for an orderly and timely recovery of Cloud Data in the event that any SaaS Service may be interrupted.
3.5 Loss of Data. In the event of any act, error or omission, negligence, or breach that compromises or is suspected to compromise the security, confidentiality, or integrity of the Cloud Data, or the physical, technical, administrative, or organizational safeguards put in place by Voicegain for the protection, security, confidentiality, or integrity of Cloud Data, unless prohibited by applicable law Voicegain shall: (a) notify Customer as soon as practicable but no later than forty-eight (48) hours of becoming aware of such occurrence; (b) cooperate with Customer in investigating the occurrence, including making available all relevant records, logs, files, data reporting, and other materials required to comply with applicable law or as otherwise required by applicable Orders; (c) in the case of Personal Data, at Customer’s sole election, (i) notify the affected individuals whose Personal Data was compromised as soon as practicable but no later than is required to comply with applicable law, or, in the absence of any legally-required notification period, within five (5) business days of the occurrence; or, (ii) reimburse Customer for any costs in notifying the affected individuals
3.6 Training Services. Voicegain shall provide the Training Services, if any, described in an Order. Training Services Fees are stated separately in each Order.
3.7 Support Services. Voicegain shall provide Support Services as stated in each Order. Fees for Support Services are stated in each Order.
3.8 Default Support Services. By default, the Support Services identified below shall be provided to Buyer during the first twelve (12) months after installation of Edge Software and for the term of service for Cloud Software:
Email support: 9:00 a.m. to 5:00 p.m. Central time, Monday to Friday, except for holidays recognized by Voicegain (“Business Hours”). Email received outside of Business Hours will be collected and responded to during Business Hours.
Self-Service Knowledgebase: Customers shall have 24/7 access to Voicegain’s self-service knowledgebase throught Voicegain’s web console or application.
3.9 Service Levels. For SaaS Service during the Live Period, Voicegain agrees to meet service levels as described here.
3.10 Service Level Credits. In any given calendar month, if Voicegain fails to meet a Service Level for a SaaS Service, then Voicegain will grant a credit of 2.5% off the following month’s Fees for that service. Service Level Credits may only be applied to subsequent Voicegain invoices. Service Level Credits have no monetary value.
3.11 Security. Voicegain shall use reasonable efforts to ensure that the Voicegain Software is developed, deployed, and maintained to security standards Voicegain sets and maintains internally. Each party will use reasonable efforts to ensure that: (a) all Third Party Software is updated and maintained and is in its most current stable version; (b) all security patches are applied within one week of receipt depending on the severity of the threat and the reliability of the patch; and (c) monthly vulnerability scans are performed on all externally-facing computer systems and networks. Customer is responsible for security of Compatible Computing Environment that Customer provides for Edge Subscription Products.
4. Fees
4.1 Orders. Customer shall be responsible for and shall pay to Voicegain the Fees stated in each Order, subject to the terms and conditions contained in this Agreement and such Order.
4.2 Invoices. Unless otherwise stated on an applicable Order, any sum due Voicegain shall be due and payable thirty (30) calendar days after Voicegain’s invoice.
4.3 Taxes. Voicegain will add to each invoice any sales or other taxes assessed or required by applicable taxing authorities. Customer will provide Voicegain any exemption certificates or other documentation regarding the amount or applicability of particular taxes. Customer and Voicegain will consult over any disagreement regarding taxes, but Voicegain will have sole discretion to invoice and collect applicable taxes from Customer.
5. Confidential Information
5.1 Prior NDA. If the parties have entered into an agreement that protects the confidentiality of information exchanged pursuant to this Agreement (“Prior NDA”), then the Prior NDA shall apply to all confidential information exchanged by the parties pursuant to this Agreement. Otherwise, the confidentiality provisions of this Agreement shall apply to all confidential information exchanged by the parties pursuant to this Agreement.
5.2 Definitions. The term “Confidential Information” is defined above, but will be deemed to exclude any particular information that: (i) is already known to the Recipient without restrictions at the time of its disclosure by the Discloser; (ii) after its disclosure by the Discloser, is made known to the Recipient without restrictions by a third party having the right to do so; (iii) is or becomes publicly known without violation of this Agreement; or (iv) is independently developed by the Recipient without reference to the Discloser’s Confidential Information.
5.3 Ownership. Confidential Information will remain the property of the Discloser (or the entities who provide their confidential information to the Discloser), and the Recipient will not be deemed by virtue of this Agreement or any access to the Discloser’s Confidential Information to have acquired any right or interest in or to any such Confidential Information. The Recipient agrees: (i) to limit disclosure of the Discloser’s Confidential Information to those employees and consultants of the Recipient who have a need to know the information for the purposes of this Agreement; (ii) not to disclose any such Confidential Information to any third party, without the Discloser’s prior written consent; (iii) to use the Discloser’s Confidential Information solely and exclusively in accordance with the terms of this Agreement in order to carry out its obligations and exercise its rights under this Agreement; (iv) to afford the Discloser’s Confidential Information at least the same level of protection against unauthorized disclosure or use as the Recipient normally uses to protect its own information of a similar character, but in no event less than reasonable care; and (v) to notify the Discloser promptly of any unauthorized use or disclosure of the Discloser’s Confidential Information and cooperate with and assist the Discloser in every reasonable way to stop or minimize such unauthorized use or disclosure.
5.4 Compelled Disclosure. If the Recipient receives a subpoena or other validly issued administrative or judicial notice requiring the disclosure of the Discloser’s Confidential Information, unless prohibited by law the Recipient will promptly notify the Discloser and, if so requested, will provide reasonable cooperation to the Discloser in resisting the disclosure. Subject to its obligations stated in the preceding sentence, the Recipient will be entitled to comply with any binding subpoena or other process to the extent required by law, but will in doing so make every reasonable effort to secure confidential treatment of any materials it is compelled to disclose.
5.5 Return of Confidential Information. Upon termination or expiration of this Agreement and any applicable Orders, the Recipient, at the Discloser’s option, will return or destroy all Confidential Information of the Discloser that the Recipient does not possess under a valid license; provided that each party may retain one (1) electronic copy of all of its work products (including deliverables, presentations, working papers, but excluding software and documentation) produced under this Agreement for archival purposes. The party’s obligations hereunder will continue to apply to such archival copies.
5.6 Injunctive Relief. The Recipient agrees that if an arbitration panel, court or tribunal of competent jurisdiction determines that the Recipient has breached, or attempted or threatened to breach, its confidentiality obligations to the Discloser or the Discloser’s proprietary rights, the Discloser will be entitled to seek appropriate injunctive relief and other measures restraining further, attempted or threatened breaches of such obligations. Such relief or measures will be in addition to, and not in lieu of, any other rights and remedies available to the Discloser.
6.1 Each party warrants to the other party that it: (i) does not have any obligation that restricts their ability to enter into this Agreement and to perform their obligations set forth in this Agreement; (ii) has all rights necessary and appropriate to grant the licenses and other rights stated in this Agreement and perform its obligations under this Agreement; (iii) has complied with their duties to all applicable governing authorities; and (iv) will be solely responsible for complying with all laws, regulations and rules applicable to its respective performance under this Agreement, including without limitation complying with the laws, regulations and rules of any foreign countries in which it (or, where applicable, its employees) reside or perform their obligations or performance under this Agreement.
6.2 Voicegain represents and warrants that it is an independent contractor for purposes of federal, state, and local taxes. Voicegain agrees that Customer is not responsible to collect or withhold any such taxes, including income tax withholding and social security contributions, for Voicegain.
7.1 EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, INCLUDING IN ANY ORDERS, NEITHER VOICEGAIN NOR ITS AFFILIATES NOR ITS LICENSORS MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING PRODUCTS OR SERVICES, AND VOICEGAIN AND ITS AFFILIATES AND LICENSORS DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
7.2 IN NO EVENT SHALL VOICEGAIN, ITS AFFILIATES OR ITS LICENSORS BE LIABLE HEREUNDER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST INCOME, OR LOST SAVINGS, OR ANY OTHER FORM OR MEASURE OF DAMAGES OTHER THAN DIRECT DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR ANY ORDER FORM TO THE CONTRARY, THE MAXIMUM LIABILITY OF VOICEGAIN, ITS AFFILIATES AND ITS LICENSORS UNDER ANY THEORY OF RECOVERY SHALL BE LIMITED TO THE AMOUNT OF THE PAYMENTS WHICH VOICEGAIN HAS RECEIVED FOR THE PRODUCTS AND SERVICES PROVIDED PURSUANT TO THE ORDER FORM UNDER WHICH THE LIABILITY AROSE. VOICEGAIN’S PRICING FOR THE PRODUCTS AND SERVICES REFLECTS THE DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITIES, EACH OF WHICH FORMS THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
8.1 Voicegain will indemnify Customer against any claim or loss (including reasonable attorney’s fees and costs) arising out of allegations brought by an unrelated third party in a court in the United States that any SaaS Service provided by Voicegain to Customer pursuant to this Agreement infringes or misappropriates the third party’s patent, trademark, copyright, trade secret, or other intellectual property right.
8.2 Customer will indemnify Voicegain against any claim or loss (including reasonable attorney’s fees and costs) arising out of allegations brought by an unrelated third party in a court in the United States that any Data or Software provided by Customer to Voicegain pursuant to this Agreement infringes or misappropriates the third party’s patent, trademark, copyright, trade secret, or other intellectual property right.
8.3 Voicegain will have no obligation to Customer for any Claim that arises from (a) any modification to Voicegain Software or Service by anyone other than Voicegain; (b) modifications made by Voicegain based on Customer provided designs or data; (c) use of Service or Voicegain Software other than as specified in this Agreement or in applicable Documentation; (d) use of the Service or Voicegain Software in combination with Third Party Software, hardware or data other than as provided in this Agreement.
8.4 The indemnified party (“Indemnitee”) will promptly notify the indemnifying party (“Indemnitor”) of any claim, liability or allegation (“Claim”), and provide the Indemnitor with all reasonable information and assistance. The Indemnitor shall have the right and authority to defend or settle the Claim using counsel chosen by the Indemnitor, provided that the Indemnitor may not settle or defend any Claim by alleging or assessing liability on behalf of the Indemnitee without the Indemnitee’s prior written permission. An Indemnitee may choose to have its counsel participate in an advisory capacity at the Indemnitee’s sole expense.
9.1 Term of Agreement. Unless sooner terminated by either party in accordance with the provisions of this Article, this Agreement shall begin on the Agreement Effective Date and will end thirty-six (36) months from the commencement of the Live Period of the first Order. Thereafter upon Customer placing additional Orders, this Agreement shall automatically extend to the end date of the Live Period of a subsequent Order if the end date of the Live Period is beyond the existing end date of the Agreement. (“Initial Term”). The Agreement shall also renew automatically for additional periods of two years each (each, a “Renewal Term”).
9.2 Termination for Convenience. Either party may terminate this Agreement for convenience by providing a written notice to the other party that is at least thirty (30) days prior to the effective date of termination if and only if there is no Order with a Live Period that is active as of the date of such notice. As long as there is at least one Order with a Live Period that is active, then either party may not terminate for convenience until the end of Live Period of such Order.
9.3 Termination of Services. Either party may terminate this Agreement on no less than ninety (90) days’ prior written notice effective at the end of the Initial Term or a Renewal Term as long as there is no Order with a Live Period beyond the effective date of termination.
9.4 Termination for Cause. If either party materially breaches any of its material duties or obligations hereunder, and such breach is not cured within thirty (30) calendar days after written notice of the breach, the non breaching party may terminate this Agreement or an Order for cause. Either party may terminate this Agreement immediately if the other party hereto is declared insolvent, or ceases doing business in the ordinary course, or liquidates all or a substantial portion of its business that relates to this Agreement.
10. General Provisions
10.1 Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State of Texas and the federal law of the United States of America, without reference to conflicts of laws policies or provisions. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
10.2 Notices. All communications concerning this Agreement, including payments, notices, demands or requests required or permitted hereunder shall be given in writing. The addresses to be used for all payments, notices, demands or requests shall be the address for each of the parties stated above or in the applicable Order, unless and until changed by either party by providing written notice to the other party pursuant to this Section. In the case of Voicegain, all notices shall be sent to Voicegain at the address stated above to the attention of the CEO.
10.3 Assignment. This Agreement shall inure to the benefit of and is binding upon each of the parties hereto and their respective successors and permitted assigns. It may not be assigned in whole or in part by the Customer without the prior written consent of Voicegain, except upon the merger, consolidation, sale or other transfer of all or substantially all of the assets of Customer, which consent will not be unreasonably withheld. Voicegain may assign its rights under this Agreement effective on sending written notice to Customer.
10.4 Force Majeure; Excused Performance. Neither party shall be liable for delays or any failure to perform its rights or responsibilities pursuant to this Agreement due to causes beyond its reasonable control (a “force majeure event”). 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, 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 commercially reasonable efforts to minimize the delays caused by any such event beyond its reasonable control. The delayed party must notify the other party in writing 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.
10.5 Export. The parties recognize that portions of the Software may be subject to the export regulations of the United States of America and the services, assistance, technical data, information, documents and materials provided by Voicegain to the Customer (collectively, the “controlled items") may constitute defense services, technical data, or commercial or dual-use items or information controlled under the U.S. export control laws and regulations, including but not limited to the U.S. Arms Export Control Act, the International Traffic in Arms Regulations, and the Export Administration Regulations. The Customer shall not either directly or indirectly use, sell or re-sell, transfer, transship, disclose, export or re-export, or otherwise dispose of any such controlled items to any foreign person (as defined under the International Traffic in Arms Regulations), either in original form or after being incorporated through an intermediate process into other end-items, without prior authorization from the U.S. Government.
10.6 Non-Solicitation. Customer agrees, to the extent permitted by law, to refrain from soliciting for employment, directly or indirectly, any employee of Voicegain during the Term of this Agreement and for 6 months after termination. Solicitation shall not include responses to any general advertisements. This provision shall not apply to any person hired by Customer three months or more after the person ceases to be an employee of Voicegain.
10.7 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.
10.8 Dispute Resolution. Any claim or dispute between the parties, whether or not arising out of this Agreement or its performance, including any request for injunctive relief, shall be determined by one arbitrator in binding arbitration administered by the American Arbitration Association pursuant to its Commercial Arbitration Rules. To accommodate the parties’ geographic locations, the parties and their counsel will participate, and witnesses will testify, by telephone and videoconference technology. The arbitrator’s award will be final and binding on the parties, and may be entered and enforced in any court or tribunal of competent jurisdiction.
10.9 Counterparts; Facsimile. This Agreement may be executed in 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.
10.10 Entire Agreement. This Agreement, including the Orders and any attached exhibits, constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between the parties as to the subject matter hereof. There are no third-party beneficiaries to this Agreement. 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.
For any questions regarding this terms of service or the Privacy Policy please send an email to support@voicegain.ai