In consideration of the preceding and the promises and undertakings of the parties, the validity and amount of care being acknowledged, InteractiveTel (“IAT”) and the Client (“Customer”) promise and agree as follows:
1.0 RESPONSIBILITIES. Customer hereby accepts this license of the SenseiCX products and services described herein under the terms of this Agreement. IAT will provide to Customer the services of listening, critiquing, screening, and charting the Customer’s incoming sales calls. All Customer calls will be screened to eliminate all but actual sales calls. IAT will provide daily reports specifying the number of total calls, Actual sales call new/used, after-hour calls, average hold times, unknown calls, time of day, call comments, call sourcing information, customer information, call score, and first call appointments set. IAT will also provide the service of working with the Customer’s individual sales staff to improve how they answer and manage the Customer’s sales calls; this service will be provided to Customer through the teaching of how to frame a call, words, and phrases, and self-critiquing through Customer’s membership in Club P4. All services described above or provided to Customer by IAT through SenseiCX (the “Services”) will be supported and enhanced with emails, virtual group sessions, and virtual one-on-one training.
2.0 ESTIMATED MONTHLY CALL VOLUME. The Monthly Call Volume and Monthly Fee shall be reevaluated and adjusted every 90 days after the initial increase specified herein of the Monthly Fee. Customer shall promptly pay the adjusted Monthly Fee for each period in which Services have been provided. The first invoice reflecting the adjusted Monthly Fee is delivered to the Customer no later than 60 days after the first date any adjustment takes effect.
3.0 PAYMENT. Customer shall pay IAT invoices upon receipt. If the invoice is not paid within thirty (30) days after issuance, the Customer shall pay interest on the unpaid balance at the highest annual interest rate permitted by applicable law, not to exceed eighteen (18%) percent per annum. In addition, if IAT shall initiate legal action to collect any invoice more than sixty (60) days past due or to pursue legal action due to a default hereunder by Customer, Customer shall pay IAT for all reasonable attorneys’ fees and litigation costs incurred in connection with collection with any such legal action, including any arbitration or alternative dispute resolution proceeding the parties agree to.
4.0 TERM AND TERMINATION. The term of this agreement shall commence on the day of staff training and shall renew on each anniversary of the commencement date until terminated as from now on provided. After an initial 90 days, if for any reason a cancellation of this agreement is requested, either party may terminate this agreement for any reason whatsoever upon thirty (30) days’ written notice to the other party. IAT may sooner terminate this agreement upon Customer’s failure to remit any payment due hereunder within thirty (30) days of the date of IAT’s invoice(s). This agreement shall immediately terminate upon the voluntary or involuntary dissolution or bankruptcy of either party or upon the written mutual consent of the Parties.
5.1 Installation and Ownership. All equipment is and shall remain the sole and exclusive property of IAT. IAT and its agents reserve the right to file UCC Financing Statements at its sole discretion. IAT shall install the equipment as soon as reasonably practicable after the execution of this agreement by Customer, provided that you cooperate in good faith in connection with such installation, including, but not limited to, obtaining any right, license, permit, easement, or right-of-way necessary and reasonable to install the equipment and any associated wiring or equipment.
5.2 Repair and Replacement. Customer and its agents shall not repair or tamper with the Equipment or remove the Equipment from the premises where it is installed or permit any third party from doing any of the preceding without our prior written consent. In the event any theft, loss, or damage (excluding normal wear and tear) of the Equipment occurs while the Equipment is in your possession (including any of your employees, agents, or representatives) or installed at your premises, regardless of when or how such theft, loss, or damage occurs, you shall pay to repair or replace (at our option) the Equipment. For all Equipment lost or damaged beyond repair, you shall pay the greater of the market price or the actual replacement cost for new Equipment when such Equipment is lost or damaged.
5.3 Liens. Customer shall make timely payments to all workmen, material, and other contractors. It shall take all other action necessary to keep the Equipment free from third-party liens caused by the action or inaction of the Customer. If a third party lien attaches to the Equipment as a result of any action or inaction of Customer, IAT may (but shall not be obligated to) make any payment necessary to discharge the lien, and Customer shall promptly pay IAT the amount so paid, together with damages, reasonable attorney’s fees, witness fees, and court costs that IAT incurs because of the lien or its discharge.
6.0 DATA COLLECTION; OWNERSHIP. Customer authorizes IAT to collect and store all data gathered by providing the Services (“Collected Data”). All Collected Data shall be the sole and exclusive property of IAT and may be used by IAT in connection with its business operations.
7.0 NO WARRANTY. THE SERVICES AND EQUIPMENT ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND. FURTHER, IAT HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM THE COURSE OF DEALING AND USAGE OF TRADE. NO ADVICE OR INFORMATION GIVEN BY IAT OR ANY OF IAT’S EMPLOYEES, AGENTS, OR REPRESENTATIVES SHALL CREATE A WARRANTY OF ANY KIND. IAT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR ANY INFORMATION OR MATERIAL ACCESSIBLE AS PART OF THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL CONTENTS OR COMPONENTS. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES AND EQUIPMENT USED ARE AT THE CUSTOMER’S SOLE RISK. IAT DOES NOT GUARANTEE THE SECURITY OF ITS PORTAL OR THE SERVICES OR THE PREVENTION FROM LOSS OR ALTERATION OF, OR IMPROPER ACCESS TO, ANY INFORMATION OR DATA RETRIEVED IN THE COURSE OF PROVIDING THE SERVICES.
8.0 LIMITATION OF LIABILITY. IAT’S LIABILITY FOR ANY LEGAL CLAIMING ARISING UNDER THIS AGREEMENT OR WITH RESPECT TO THE SERVICES SHALL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED PER CLAIM (OR IN THE AGGREGATE DURING ANY TWELVE (12) MONTH PERIOD) AN AMOUNT EQUAL TO THE TOTAL PAYMENTS MADE BY CUSTOMER FOR THE SERVICES OR EQUIPMENT UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS PRECEDING THE MONTH IN WHICH THE DAMAGE OCCURRED OR, IF APPLICABLE, TO THE PERFORMANCE STANDARD REMEDIES OUTLINED IN OUR ATTACHED SYSTEM PERFORMANCE STANDARDS. THIS PROVISION SHALL NOT LIMIT THE CUSTOMER’S RESPONSIBILITY FOR THE PAYMENT OF ALL PROPERLY DUE CHARGES UNDER THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL IAT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY FROM (A) CUSTOMER’S USE OF OR INABILITY TO USE THE SERVICES OR EQUIPMENT OR TO ACCESS THE INTERNET OR EMAIL SERVICES OR ANY PART THEREOF, (B) CUSTOMER’S RELIANCE ON OR USE OF INFORMATION, SERVICES, OR MERCHANDISE PROVIDED ON OR THROUGH THE SERVICES, OR (C) RESULTING FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATIONS OR TRANSMISSION, ANY FAILURE OF PERFORMANCE, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF CUSTOMER’S ACCOUNT, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, COST OF SUBSTITUTE EQUIPMENT OR SERVICES, OR LOSS OF PROFITS OR GOODWILL. THE FOREGOING LIMITATION APPLIES TO ANY AND ALL CLAIMS MADE IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR BY ANY OTHER FORM OF ACTION. REFERENCES TO “IAT” HEREIN INCLUDE ALL OFFICERS, DIRECTORS, STOCKHOLDERS, EMPLOYEES, AGENTS, AFFILIATES, AND REPRESENTATIVES OF IAT.
9.0 LEGAL COMPLIANCE.
9.1 Recording Calls. Customer shall train and inform all its employees, agents, and personnel. If required by the laws of any State Customer operates in, that all calls subject to the Services will be recorded.
9.2 Exclusive Responsibility. Customer retains complete and exclusive responsibility for complying with all statutes, ordinances, rules, orders, regulations, and requirements of all county, municipal, state, federal, and other applicable governmental authorities now in force or which may hereafter be in power as the same pertains to the conduct of Customer’s business, including but not limited to use of the Services, recording of customer phone calls, and use of the Equipment.
9.3 Acceptable Use Policy Statement. Customer shall use the Services for lawful purposes only. It shall comply with all terms and conditions of the IAT Acceptable Use Policy (the “Policy”). The policy may be modified at IAT’s sole and absolute discretion for any reason from time to time. Any such modification and the Policy in effect from time to time may be found on the IAT website located at interactivetel.com/terms-and-conditions. Any set changes forth on such webpage are incorporated by reference herein. It is a breach of the Agreement to use the Services that violates this provision or the Policy. IAT RESERVES THE RIGHT TO SUSPEND OR CANCEL SERVICE TO YOU (IN WHOLE OR PART) OR TO TAKE OTHER APPROPRIATE ACTION AT OUR SOLE DISCRETION, WITHOUT NOTICE, FOR VIOLATIONS OR SUSPECTED VIOLATIONS OF THIS AGREEMENT OR THE POLICY. REFUNDS OR CREDITS WILL NOT BE ISSUED IN CONNECTION WITH ANY SUCH SUSPENSION OR CANCELLATION (EVEN IF NO VIOLATION IS ULTIMATELY FOUND).
10.1 Indemnity. Customer and its affiliates shall indemnify, defend, and hold harmless IAT and its officers, directors, stockholders, employees, agents, affiliates, and representatives from and against any claim, liability, penalty, judgment, damage, action, loss or expense, including, without limitation, reasonable attorneys’ fees, witness fees, and costs of litigation, arising out of or in connection with any actual or threatened claim, suit, action or proceeding relating to (a) any breach or alleged breach of any of Customer’s obligations under this Agreement or the Policy, (b) any use or misuse of the Services or Equipment by you, whether or not authorized; and (c) the performance by IAT of its obligations under this Agreement including, but not limited to, the monitoring of telephone calls and recording activity and usage patterns of Customer employees and other users of our computer systems and such other activity engaged in by you in connection in addition to that and us.
10.2 Insurance. Customer shall always, during the Term hereof and for three (3) years thereafter, obtain and maintain at its own expense, from a qualified insurance carrier, liability insurance covering any liability Customer may have under its indemnification obligations herein of no less than of One Million United States Dollars (U.S. $1,000,000.00) combined single limit of Bodily Injury Liability and Property Damage Liability for each occurrence and annual aggregate. Upon the written request of IAT, the Customer shall immediately provide IAT a Certificate of Insurance evidencing the insurance being maintained in full force and effect as required herein.
11.1 Event of Default. Each of the following acts or omissions shall be deemed an event of default under this Agreement: (a) Customer’s failure to pay any charges or expenses payable to IAT under this Agreement, if such failure continues for seven (7) days after written notice thereof from IAT; or (b) the failure of either Party to perform any of the terms or conditions of this Agreement other than the payment of money for a period of not less than thirty (30) days after written notice thereof from the non-defaulting Party specifying each claimed event of default, unless such failure is of a character that requires longer than thirty (30) days to cure and the defaulting Party commences the cure of each failure within thirty (30) days and completes the same with due diligence.
11.2 Remedies. Subject to Section 9 above, in the event of an uncured default, the non-defaulting Party shall have all remedies available to it at law or in equity, including to terminate this Agreement, and may pursue such remedies without any additional notice the cure period has expired. The prevailing party in any proceeding to resolve a dispute about matters covered by this Agreement shall be entitled to receive its reasonable attorney’s fees, expert witness fees, out-of-pocket costs incurred in connection with such proceeding, and any other relief that may be awarded.
11.3 Each Party waives trial by jury in any court in any suit, action, or proceeding on any matter arising in connection with or in any way related to the transactions of which this Agreement is a part and the enforcement of any of rights and remedies. You acknowledge that you make this waiver and all other disclaimers outlined in this Agreement knowingly, willingly, and voluntarily and only after your attorney’s extensive review of these waivers.
12.0 GENERAL TERMS.
12.1 No Waiver. A party’s failure to insist on timely or full compliance with any of the terms, covenants, or conditions of this Agreement shall not be deemed a waiver of such representations, covenants, or needs, nor shall any waiver or relinquishment of any right or power hereunder at any one time or more times be deemed a waiver or relinquishment of such rights or powers at any other time or times.
12.2 Notices. Any notices or communications permitted or required to be given under this Service Agreement must be in writing and be submitted via email, personal delivery, US Mail, or overnight delivery service, directed to the parties at the addresses indicated next to their respective signature lines. A party may change its address or email address for notices by sending written notice as provided above.
12.3 Severability. If any term, condition, or provision hereof (including but not limited to Section 9 above) is declared by a court of law to be illegal, invalid, or unenforceable to any extent or as to any person or entity, in whole or in part, that term, condition, or provision shall be reformed to the extent necessary to make the provision legal and enforceable. If such reformation is not permitted or lawful, the subject terms and conditions shall be deemed severed from this Agreement, and the remainder of the Agreement shall be valid and enforceable to the fullest extent permitted by law.
12.4 Interpretation. The headings of the paragraphs of this Agreement are included for convenience only. They shall not affect the construction or interpretation of any of the provisions in this Agreement. Whenever the singular is used herein, the same will include the plural and vice versa. Use of the terms “and” or “our” shall be interpreted to mean “and” where appropriate. References to “we” or “our” or similar terms shall mean IAT, and references to “you” or “yours” or similar terms shall mean Customer. No provision of this Agreement shall be interpreted or construed against any party because that party or its legal representative drafted the Agreement or such provision.
12.5 Choice of Law. This Agreement shall be governed, construed, and enforced by the laws of the State of Texas.
12.6 Venue and Jurisdiction. The venue and jurisdiction for any litigation, court case, or arbitration (should the parties jointly elect arbitration in writing) shall be Harris County, Texas. Each of IAT and Customer submits to the jurisdiction of any state or Federal court sitting in Harris County, Texas, in any lawsuit, action, or proceeding arising out of or relating to any terms of this Agreement or the provision of the Services. Each Party waives any claim of improper venue or inconvenient forum.
12.7 Force Majeure. Neither Party shall be deemed in default of this Agreement as a result of circumstances or conditions beyond the reasonable control of such Party, such as, by way of example, acts of God, unforeseeable accidents, civil commotion, inability to obtain materials or services, performance or availability of communications services or network facilities, sudden accidental failure of computer systems, strikes, or government demands or requirements.
12.8 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original hereof, including the same document. Facsimile or electronic signatures on any image shall be as acceptable and binding as originals.
12.9 Entire Agreement. This Agreement, the Policy, and all Exhibits or Schedules attached hereto comprise the entire understanding and agreement of and between the Parties. All other agreements, understandings, or representations are superseded and incorporated herein.
12.10 Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, successors, and assigns. Customer shall not, however, give or delegate any of its rights or duties under this Agreement or sub-license, sell, provide or distribute any or all of the Services offered by IAT without the prior written consent of IAT, which consent may be withheld, delayed or conditioned in the reasonable business discretion of IAT.