This Agreement is entered into by and among SmartACTION LLC, a Delaware limited liability company (the “Vendor“), NICE inContact (the “Partner”), and the NICE inContact Client (the “Customer“). Vendor, Partner and Customer are sometimes referred to herein collectively as the “parties,” and individually each of Vendor, Partner and Customer may be referred to herein as a “party.”
WHEREAS, Vendor is engaged in the business of providing Artificial Intelligence enabled voice and digital Virtual Agents services which efficiently replace live operators in a wide variety of automated tasks using Vendor’s proprietary solution; and
WHEREAS, Customer desires to retain Vendor to configure and setup a customized version of Vendor’s solution to automate Customer’s inbound and/or outbound customer service contacts and to provide other voice and digital response related services.
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements contained herein, the parties have agreed and do agree as follows:
1.0 Term of Agreement. The term of this Agreement will commence on the Effective Date set forth in the NICE inContact Agreement and will continue until the end of the Term as specified in the SOW(s) hereunder or until terminated by either party as provided below (“Term“).
2.0 Change Orders or Out of Scope Services. To the extent that Customer requires or requests additional services or services that exceed the Services set forth in any SOW incorporated herein, Vendor may charge an additional fee for such additional services or out of scope work. Fees for such additional services or out of scope work will be set forth on a Change Order Agreement (“COA“), which will also provide a description of the changed or additional service(s) being requested. Once a COA is signed by all parties, it will be incorporated into this Agreement and have the same legal effect as the applicable SOW that is incorporated into this Agreement.
3.0 Ownership of Materials Related to Services. The parties acknowledge and agree that any materials prepared by Vendor in the course of providing the Services shall not be considered “works made for hire” under the copyright laws of the United States and that any and all intellectual property, including and without limitation, any patent, industrial design, trademark, copyright, trade secret, proprietary information, design, process, method, technique, procedure, or know-how created by Vendor during the term of this Agreement for, in connection with, in collaboration with, and/or on behalf of Customer shall belong exclusively to Vendor. Further, the parties recognize that performance of Vendor hereunder will require the skills of Vendor and, therefore, Vendor shall retain the right to use, for any purpose, such “know-how,” ideas, techniques and concepts used or developed by Vendor in the course of performance of the Services.
4.0 Independent Contractor. The parties enter into this Agreement as independent contractors and nothing within this Agreement shall be construed to create a joint venture, partnership, agency, or other employment relationship between the parties. Vendor will be solely responsible for payment of all compensation owed to its employees, including all applicable federal, state and local employment taxes and will make deductions for all taxes and withholdings required by law. In no event will any Vendor employee be eligible for or entitled to any benefits of Customer.
5.0 Confidential Information. Vendor understands and acknowledges that Customer may, from time to time, disclose to Vendor proprietary information and technologies developed by Customer relating to Customer’s information technology systems or business operations (collectively “Customer Confidential Information“). Vendor agrees (i) not to use any Customer Confidential Information for its own use or for any purpose other than the specific purpose of completing the Services; (ii) not to voluntarily disclose any Customer Confidential Information to any other person or entity other than those persons authorized by Customer, including hereunder, to have such Customer Confidential Information; and (iii) to take the same measures to protect the secrecy of, and avoid unauthorized disclosure or use of, Customer Confidential Information as Vendor takes to protect its own Confidential Information, but in no event less than reasonable measures. The foregoing duty shall survive any termination or expiration of this Agreement.
6.0 Non-exclusive Engagement. Subject to Vendor’s obligations regarding Customer Confidential Information, nothing in this Agreement shall preclude or limit Vendor’s right to (a) develop and provide the Services and other services to any third party; (b) provide Conversation Flows (as defined in the SOW) and Conversation Flow services to third parties; (c) provide Conversation Flows to third parties that contain phrases, flow and other information that are the same or similar to those contained in Customer’s Conversation Flow. Vendor may record calls or chat conversations for purposes including, but not limited to, quality assurance purposes.
7.0 Customer Responsibilities. In addition to any obligations and responsibilities described in the SOW or elsewhere in this Agreement, Customer shall have the following responsibilities (the “Customer Responsibilities“):
(a) Where Vendor is performing outbound calling on behalf of Customer, for purposes of the Telephone Consumer Protection Act (47 U.S.C. § 227) and the rules (47 C.F.R. § 64.1200 et seq.) implemented thereunder by the Federal Communications Commission (as may be amended from time to time, the “TCPA”), Customer shall be solely responsible for all TCPA compliance including, but not limited to, obtaining from any person called pursuant to this Agreement, any SOW and any COA, an agreement of express written consent of the person called that clearly authorizes the Customer (1) to initiate a telephone call, using an automatic telephone dialing system or artificial prerecorded voice, to a cellular or residential telephone number, or any service for which the called party is charged for the call, of the person called and (2) to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.
(b) For purposes of the Fair Debt Collection Practices Act (15 U.S.C. § 1692), any state law equivalents, and any rules and regulations implemented thereby or promulgated with respect thereto (as may be amended from time to time, the “FDCPA“), Customer shall inform Vendor in writing if the Services relate to the collection of any debts owed or due or asserted to be owed or due [another] and shall be solely responsible for ensuring compliance with the FDCPA.
(c) To undertake the responsibility of ensuring ongoing compliance with all applicable federal and state laws or laws of any other jurisdiction governing the electronic recording of telephone conversations. Customer shall be solely responsible for establishing, updating, and maintaining proper procedures to ensure full legal compliance therewith, including but not limited to, the inclusion and ongoing maintenance of all necessary language, notice or disclosures as required by law, either within Conversation Flows, or, with respect to calls transferred to Vendor, preceding Vendor’s receipt of the call. Vendor does not make any representations or accepts any responsibility regarding the legality of any recording or monitoring of telephone calls as it pertains to federal, state and local laws.
7.1 Project Lead. Customer shall assign an employee or representative, at its sole expense, to act as a project lead with respect to the Services (the “Project Lead“). The Project Lead shall be responsible for the timely execution of all Customer Responsibilities and shall use all commercially reasonable means to otherwise aid Vendor in all aspects of the design, implementation and tuning of the proprietary service solution.
8.0 Warranty of Services. Vendor warrants that all Services performed pursuant to this Agreement will be performed in a professional and workmanlike manner in accordance with the general standards and practices of the information technology industry in existence at the time the Services are being performed. THE FOREGOING EXPRESS LIMITED WARRANTY AND ANY ADDITIONAL WARRANTY SPECIFIED IN THE SOW ARE IN LIEU OF, AND VENDORE HEREBY EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, ORAL OR WRITTEN, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT TO THE EXTENT APPLICABLE.
9.0 Limitation of Liability. Neither party shall be liable to the other party for any consequential, punitive, special or other indirect damages of any kind for any reason whatsoever including, but not limited to, damages based upon negligence, breach of warranty, strict liability or any other theory. Vendor’s liability for any damages under this Agreement, including Vendor’s indemnification liability under Section 10 below, shall in no event exceed the amount of fees paid by Customer to Preferred Partner under the Services Agreement for that portion of services provided by Vendor under this Agreement as of the date the alleged damages were incurred; provided, however, that the limitations of liability set forth in the preceding sentence shall not apply to or limit the liability of Vendor for: (a) a material breach of its confidentiality obligations; (b) infringement, misappropriation or other violation of the intellectual property rights or other propriety rights of any third party; (c) fraud or willful or intentional misconduct; or (d) Vendor’s indemnification obligations under Section 10 below with regard to third party claims arising from or related to an event described in the foregoing sub-clauses (a), (b), or (c).
(a) In addition to any other remedies provided herein, each party shall, subject to the provisions of Section 9 above, indemnify, hold harmless, and defend the other party, its employees, officers, directors, principals (partners, shareholders or other holders of an ownership interest, as the case may be) and agents (collectively, as to each party being indemnified, the “Indemnitees”), from and against any and all third party suits, actions, damages, costs, fines, penalties, losses or expenses (including reasonable attorneys’ fees and court costs) (collectively, “Claims”) relating to or arising out of: (a) the party’s breach of its confidentiality obligations under; (b) bodily injury or death of any person or damage to real and/or tangible property to the extent proximately caused by the negligence or willful acts or omissions of the indemnifying party, its personnel or agents; or (c) claims arising from the party’s negligence or willful misconduct in performance of its obligations under this Agreement.
(b) Customer shall additionally, at its sole expense, indemnify, hold harmless, and defend Vendor Indemnitees from and against any and all Claims relating to or arising out of any violation, or alleged violation, of the TCPA or FDCPA occurring in connection with Vendor’s provision of Services under this Agreement.
(c) Vendor shall additionally, at its sole expense, indemnify, hold harmless, and defend Customer Indemnitees from and against any Claim relating to or arising out of any infringement, or alleged infringement, by Vendor of any United States patent, copyright, trademark, license or other proprietary rights of a third party.
(d) To receive the foregoing indemnities, the party seeking indemnification must promptly notify the other party in writing of a Claim and provide reasonable cooperation (at the indemnifying party’s expense) and full authority to defend or settle the Claim. The indemnifying party shall have no obligation to indemnify the indemnitees under any settlement made without the indemnifying party’s written consent.
(11.0) Term and Termination.
(a) Term. Each SOW shall have a minimum Term of at least one (1) year from the time a defined application goes live, taking production conversations with the Customers users.
(b) Termination for Cause. Either party may terminate this Agreement in the event of any material breach of this Agreement (including any Exhibits, SOW(s) or Amendments hereto) by the other party, provided that the alleged breaching party shall have the opportunity to cure the alleged material breach in the manner set forth within this Section 11.0. If either party believes that the other party has committed any such material breach, then that party may provide written notice to the other party’s management representative describing the alleged material breach in reasonable detail. If the alleged material breach relates to Customer’s failure to pay any fees due and owing under this Agreement, Customer shall have 15 business days after notice of such failure to cure the breach. If the Customer fails to cure such breach within such 15 business days of such notice, then Vendor may immediately terminate this Agreement, in whole or in part, for cause by providing written notice to the management representative of the Customer. With respect to all other material breaches, if the breaching party does not, within 15 calendar days after receiving such written notice, either (a) cure the material breach or (b) if such breach is not one that can reasonably be cured within 15 calendar days, then the non-breaching party may terminate this Agreement, in whole or in part, by providing written notice to the management representative of the breaching party.
(c) Termination for Violation of Law. Vendor may terminate this Agreement immediately, by providing written notice to the Customer, in the event that Customer’s business or its use of the Services does not comply with any law, ordinance or regulation of any governmental or quasi-governmental authority, now existing or hereinafter enacted, or otherwise violates public policy.
12.0 Payment Card Industry Data Security Standard. Pursuant to Requirement 12.9 of the Payment Card Industry Data Security Standard 3.0 (the “PCI DSS“), Vendor acknowledges that to the extent that Vendor handles, has access to, or otherwise stores, processes or transmits Customer’s cardholder data or sensitive authentication data, or manages Customer’s cardholder data environment on behalf of Customer, Vendor shall be responsible for the security of cardholder data that Vendor possesses or otherwise stores, processes, or transmits on behalf of the Customer, or to the extent that it could impact the security of the Customer’s cardholder data environment, and Vendor will maintain all applicable PCI DSS requirements.
13.0 EU Data Protection Law. To the extent that European Union Data Protection Laws apply to Customer, or if Customer is contractually or otherwise obligated to comply with such Data Protection Laws, Customer shall notify Vendor and agree to execute a separate Data Processing Addendum as jointly agreed to, which shall apply to Vendor’s Processing of Personal Data, if any, as set forth in the Data Processing Addendum. “Data Protection Laws,” “Processing” and “Personal Data” shall have the meanings set forth in the Data Processing Addendum.