Terms of Service

NOTE: This is v0.9, created on 2019-02-01, and it is the latest version. We reserve the right to update this document into a newer version.

These Terms Of Service (the "Agreement") govern the use of cloud-based contact center software-as-a-service and is made this in effect upon first registered interaction with the product and service (the "Effective Date"),

BY AND BETWEEN:

  1. Labotic OÜ, a company duly organized and existing under and by virtue of the laws of Estonia; and

  2. The Customer as described on an order form and on the Company records (hereinafter referred to as the "Customer"),

In this Agreement, each of the Company and the Customer is referred to individually as a "Party" and Company and the Customer are referred to collectively as the "Parties".

Recitals

WHEREAS, the Company offers a cloud-based contact centre solution called Maqsam (the "Software");

WHEREAS, the Customer wishes to have an account with the Company via the Internet to access the Software the purpose of practicing its business activities;

NOW THEREFORE, in consideration of the foregoing recitals and the terms, conditions and covenants contained herein, the Parties hereby agree as follows:

Definitions

Except to the extent expressly provided otherwise, in this Agreement:

"Account" means an account enabling a person to access and use the Services;

"Confidential Information" means any information disclosed by or on behalf of either Party to the other Party during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure: 1. was marked or described as "confidential"; or 2. should have been reasonably understood by the Party receiving the information to be confidential; and

"Customer Data" means all data, calls recordings, voice and materials: uploaded to or stored on the Platform by the Customer and by the usage of the Customer of the Services; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Company for uploading to, transmission by, or storage on the Platform; or generated by the Platform as a result of the use of the Services by the Customer;

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

"Platform" means the platform managed by the Company and used by the Company to provide the Services, including the website and database software for the Services, the system and server software used to provide the Services;

"Direct Inward Dialing" means the telephony address by which incoming calls arrive to. (hereinafter referred to as the "DID")

"Services" means the contact center solution services, as specified in the Services Specification, which will be made available by the Company to the Customer as a service via the internet in accordance with this Agreement including the DID;

"Services Specification" means the specification for the Services described by the features of the product and delivery of the service rendered through the Platform; and

"Support Services" means technical and business services provided to assist with delivering or ensuring the viability of the service as a best effort;

Services and Rights Granted

Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the nonexclusive, non-assignable worldwide limited right to use the Services through the Platform solely for the Customer’s internal business operations.

The Company shall create an Account for the Customer and shall provide to the Customer login details for that Account on or promptly following the date they are testing the service and transfer to a fully paid and chargeable Account.

The license granted by the Company to the Customer under this Clause is subject to the following limitations and prohibitions:

  1. the Services may only be used by the employees of the Customer as identified on their assigned user lists of agents and admins or other system roles.
  2. the Customer must not sub-license its right to access and use the Services to any third parties;
  3. the Customer must not permit any unauthorized person to access or use the Services;
  4. the Customer must not use the Services to provide services to third parties;
  5. the Customer must not make any alteration to the Platform;
  6. The Customer must not use the Services in any way that causes, or may cause, damage to the Services or Platform or impairment of the availability or accessibility of the Services;
  7. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, or data related to the Services ("Software"); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels;
  8. the Customer must not republish or redistribute any content or material from the Services;
  9. the Customer must not use the Services for any other purpose other than for the purpose to perform and practice its business operations (i.e. the Customer must not use the Services for promotional purposes and for advertisements);

The Customer shall use reasonable endeavors, including reasonable security measures relating to administrating Account access details, to ensure that no unauthorized person may gain access to the Services and/or the usage of the Services.

The Company shall use reasonable endeavors to maintain the availability of the Services to the Customer, but does not guarantee 100% availability.

For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:

  1. a Force Majeure Event;
  2. a fault or failure of the internet or any public telecommunications network (including but not limited to third party telecommunication and/ or DID service providers engaged by the Company for the purpose of this Agreement);
  3. a fault or failure of the Customer's computer systems or networks;
  4. any breach by the Customer of this Agreement; or
  5. scheduled maintenance carried out by the Company, provided that the Customer is informed by the Company of this scheduled maintenance in advance.

The Customer must not use the Services:

  1. in any way that is unlawful, illegal, fraudulent or harmful;
  2. in connection with any unlawful, illegal, terrorism, fraudulent or harmful purpose or activity.
  3. to make robocalls and/or spam calls and/or use the Services as a prepaid calling card.
  4. For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.

The Customer shall be responsible for providing updates and upgrades relating to the Services.

The Customer agrees that the Company may for any reason beyond its control change the identification of the DID without any right to the Customer to object to such action.

Term

This Agreement shall take effect from the Effective Date and shall continue in force for the period of usage of the Platform and as long as the Customer pays the amounts due to the Company (the "Term") unless terminated earlier pursuant to the "Termination" Clause of this Agreement.

Proprietary Rights

Company shall own and retain all right, title and interest in and to (a) the Services, Platform and Software, all improvements, enhancements or modifications thereto, (b) any software, websites, inventions or other technology developed in connection with the Services or support, and (c) all intellectual property rights related to any of the foregoing. Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Company to the Customer.

Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

Nothing in this Agreement is meant and shall be construed to assign the ownership and/or the Intellectual Property Rights of the DID.

Back Up Data

The Customer hereby grants to the Company a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit, record, disclose and translate the Customer Data to the extent reasonably required for the performance of the Company's obligations, the exercise of the Company’s rights under this Agreement, for quality assurance purposes, for the Company’s performance of analysis relating to its business or the provision of Services under this Agreement and to perform its right to revert back to call records and listen to the call records in the event where any claim is filed by the Customer and/or any of its clients and/ or any third parties pertaining to the quality of the call all together with the Company’s non-exclusive license to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Company’s obligations and the exercise of the Company’s rights under this Agreement and/or the performance of any of the actions provided under this Clause.

Payment of Fees

The Customer will pay the Company for the Services the fees provided as agreed upon with Company sales team members, "Fees".

If Customer should at any time fail to make timely payment in full, Company is entitled to either terminate this Agreement as provided under article 12 of this Agreement and/or suspend the Services until the Customer pays the due amounts. In addition, Customer shall pay all costs of collection, including reasonable attorneys' fees and costs in the event any collection effort or action is required to collect any fees due.

All sums payable under this Agreement are exclusive of Value Added Tax and any other duty or tax, which shall (if and to the extent applicable) be payable by Customer.

Except for the Fees specified to be paid upon this Agreement or separately agreed upon charges, Company will invoice Customer monthly. payment shall be made no later than 15 days from invoice date. Otherwise, the delay terms provided under the "Payment of Fees" Clauses shall apply.

Each invoice is automatically deemed approved by the Customer unless within ten (2) working Days of the Company of receipt of said invoice transmitted as provided for in "Notices" Clauses, the Customer notifies the Company of specific errors.

In the event that Company has reasonable concerns over a Customer’s ability to pay the fees, Company reserves the right to revise its terms of payment, including by requiring payments in advance and/or seeking suitable guarantees from Customer, upon prior written notice provided by the Company to the Customer.

Confidentiality

Each Party must:

  1. keep the Confidential Information strictly confidential;
  2. not disclose the Confidential Information to any person without the other Party's prior written consent;
  3. use the same degree of care to protect the confidentiality of the other Party’s Confidential Information as the Party receiving the Confidential Information uses to protect its own confidential information of a similar nature, being at least a reasonable degree of care;
  4. act in good faith at all times in relation to the Confidential Information; and
  5. not use any of the Confidential Information for any purpose other than the purpose of this Agreement.

Notwithstanding the "Warranties" Clauses, each Party may disclose the Confidential Information to its officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information for the performance of their work with respect to the Services and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information.

This Clause imposes no obligations upon either Party with respect to Customer Confidential Information that:

  1. is known before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
  2. is or becomes publicly known through no act or default of the Party receiving the Confidential Information; or
  3. is obtained from a third party in circumstances no breach of an obligation of confidentiality has occurred.

The restrictions in this Clause do not apply to the extent that any Confidential Information is required to be disclosed by either Party by any law or regulation, by any judicial or governmental order or request.

Warranties

The Customer warrants to the Company that:

  1. it has the legal right to disclose all data that it does in fact disclose to the Company under or in connection with this Agreement, and that the processing of that data by the Company for the permitted purpose in accordance with this Agreement will not breach any applicable data protection or data privacy laws;
  2. it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
  3. it will comply with the laws applicable in the jurisdictions the Customer operates in, and the laws of the countries where the Customer interacts through the Services;
  4. the Customer Data will not infringe the Intellectual Property Rights of any person, and will not breach the provisions of any law, statute or regulation in any jurisdiction and under any applicable law.

The Company warrants to the Customer that:

  1. the Company has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
  2. the Company will comply with all applicable legal and regulatory requirements applying to the exercise of the Company’s rights and the fulfilment of the Company’s obligations under this Agreement;
  3. the Company has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.

Acknowledgements and Warranty Limitations

The Services are provided by the Company on "AS IS" and "AS AVAILABLE" basis, the Company disclaim all warranties of any kind except as expressly provided herein, the Company makes no warranties of any kind, express, implied, statutory or otherwise. This disclaimer applies to everything including warranties of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law. The Customer uses the Service solely on its own risk. The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Company gives no warranty or representation that the Services will be wholly free from defects, errors and bugs. 9.2The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Company gives no warranty or representation that the Services will be entirely secure. 9.3The Customer acknowledges that the Company will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Services; and, except to the extent expressly provided otherwise in this Agreement, the Company does not warrant or represent that the Services or the use of the Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person. Any advice or information, written or oral, given to the Customer by the Company, its employees or representatives does not create any warranty not stated in the terms expressly.

Limitations and Exclusions of Liability

COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

The Company takes no responsibility and shall have no liability, for any incorrect or inaccurate content posted related to the Services, the Software or the Platform, whether stated by the Company any other user of the Services, or any other third party.

Either Party shall not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is:

  1. beyond the reasonable control of a Party,
  2. could not reasonably have been foreseen or provided against, but
  3. will not be excused for failure or delay resulting from only general economic conditions or other general market effects.

Force Majeure Event

If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement, that obligation will be suspended for the duration of the Force Majeure Event.

A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:

  1. promptly notify the other; and
  2. inform the other of the period for which it is estimated that such failure or delay will continue, if it's estimable.

A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

Termination

Either Party may terminate this Agreement for convenience by giving to the Customer at least 30 days' written notice of termination.

Without prejudice to any other rights the Company has towards the Customer’s breach of this Agreement, either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement and if such breach has not been cured within a period of 10 days after the defaulting Party receives a remedy notice from the non-defaulting Party.

Either party may terminate this Agreement immediately by giving at least 10 days written notice of termination to the other party if:

  1. the other party: (a) is dissolved; (b) ceases to conduct all (or substantially all) of its business; (c) is or becomes unable to pay its debts as they fall due; (d) is or becomes insolvent or is declared insolvent; or (e) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
  2. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
  3. an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of the other party under this Agreement).

Effects of Termination

Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect.

Except to the extent that this Agreement expressly provides otherwise, the termination or expiration of this Agreement shall not affect the accrued rights of either party until the date of the termination or the expiration.

Assignment

The Company may assign its rights and obligations under the Agreement to another company within the Company’s group (to any of its affiliates and/or subsidiaries), neither party may assign its rights or obligations under this Agreement in whole or in part to any third party without the prior written consent of the other party, such consent not to be unreasonably withheld.

Notwithstanding any other provision of this Agreement, the Customer acknowledges and agrees that the Company may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.

Notices

Unless expressly stated otherwise in this Agreement, any notices required to be given to or by either Party under this Agreement will be in writing and will be delivered or transmitted to the intended recipient's address as stated above or such other address as either Party may notify to the other. Any notice shall be deemed to have been properly served on delivery if delivered by hand and on completion of transmission if sent by facsimile or email.

Miscellaneous

Each Party warrants that it is not in any way restricted, either by law, contract or otherwise from entering into this Agreement.

This Agreement contains all the terms agreed between the Parties regarding its subject matter, and supersedes all previous written or oral commitments, understandings or undertakings made between the parties regarding the obligations and liabilities in respect of the supply or purported supply of, the failure to supply, or any delay in performing the Services.

Unless otherwise stated in this Agreement, any amendments or additions to this Agreement must be made in writing and signed by both Parties.

Customer acknowledges and agrees that no representations were made prior to the entering into of this Agreement and that, in entering into this Agreement, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether Party to this Agreement or not) other than as expressly set out in this Agreement.

The invalidity or unenforceability of any term or any part of any term of, or any right arising pursuant to, this Agreement shall not affect the validity or enforceability of any other terms or rights or the remainder of any such term or right which shall continue in full force and effect except for any such invalid or unenforceable provision or part thereof.

In the event that any provision of this Agreement or part thereof should to any extent be or become invalid or unenforceable, the Parties shall agree upon any necessary and reasonable adjustments to the Agreement in order to secure the interests and objectives of the parties prevailing at the time of execution of the Agreement.

A person who is not a Party to this Agreement shall have no rights to enforce any term of this Agreement.

Disputes and Governing Law

Except as required by mandatory local law applicable in a jurisdiction where the Service are performed, this Agreement shall be governed by, and construed in accordance with the laws of England and Wales (excluding its choice of law provisions). Any dispute controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be settled by The courts of Estonia.