THESE TERMS OF SERVICE (“TERMS”) GOVERN YOU AND YOUR AFFILIATES’ USE OF THE PRODUCTS AND SERVICES MADE AVAILABLE TO YOU BY VOICEXP, INC. (“VOICEXP”). THE TERMS “YOU” OR “YOUR” SHALL REFER TO YOU PERSONALLY OR, IF YOU REPRESENT A COMPANY OR OTHER SUCH ENTITY, TO THAT COMPANY/ENTITY AND ITS EMPLOYEES, AGENTS AND AFFILIATES AS THE CASE MAY BE.
YOU AGREE THAT BY COMPLETING AND SIGNING AN ORDER FORM WHICH REFERENCES THESE TERMS THAT THESE TERMS BECOME PART OF THE AGREEMENT (AS DEFINED BELOW). IF YOU ARE SIGNING AN ORDER FORM ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS.
ANY OTHER TERMS AND CONDITIONS, WHETHER SET FORTH IN YOUR PURCHASE ORDER OR OTHER DOCUMENTS OR WHETHER ISSUED BY YOU BEFORE OR AFTER THE DATE OF YOUR ORDER, ARE HEREBY EXPLICITLY REJECTED BY VOICEXP AND SHALL NOT BE BINDING IN ANY WAY ON VOICEXP.
1 Defined Terms
3 Skill Information and Content
4 Skill Distribution
5 Platform Use and Proprietary Rights
6 Professional Services
9 Disclaimer of Representations and Warranties
10 Limitation of Liability
12 Term and Termination
- DEFINED TERMS
“Admin(s)” means an individual who is authorized by You to create, copy, delete, and hide skills within the container, as well as manage Your access to the Platform and Skill Performance Analytics.
“Affiliates” means, with respect to a party, any person that directly or indirectly Controls, is Controlled by or is under common Control with that party, where “Control” means beneficial ownership of at least fifty percent (50%) of the then-outstanding voting shares or equity interests in the person in question or the ability to otherwise direct the affairs or operations of the person in question, but only so long as such control exists.
“Agreement” means, collectively, these Terms and an applicable Order.
“Skill” means each VoiceXP proprietary skill, mobile, tablet, and web-based application.
“Skill Store” means the Apple® App Store℠, Google Play™, Amazon Alexa or other voice activated application store.
“Competitor” means any individual or entity engaged in the business of developing or marketing products that are the same as or similar to the Platform.
“Content” means all of the copyrighted materials, data, information, and other content, whether copyrighted or not, originated by You and delivered to VoiceXP that enables the Skill to operate properly in connection with the Platform and Professional Services.
“End User” means an individual who downloads or otherwise accesses a Published Skill for that individual’s own personal use and not for resale or distribution to any other person or entity.
“EULA” means an End User License Agreement entered into by End Users that governs use of the Published Skill.
“Event” means a conference or other gathering produced by You.
“Partner” means a vendor, company, individual, entity or organization other than You that You invite to Your Skill, but who may only participate in such Skill on an individual basis as a User and to whom You may grant certain rights and privileges to use the Published Skill.
“Marks” means each of Your trademarks, service marks, and logos that are delivered or made available by You to VoiceXP for use in connection with the Agreement.
“Media Assets” means all Content consisting of branded graphics provided by You to be incorporated in the Skill through the Studio that meets the specifications provided to You by VoiceXP.
“Order” means an Order Form that references these Terms and is signed by VoiceXP and You.
“Platform” means, collectively, VoiceXP’s standard proprietary platform offering consisting of access to VoiceXP websites and software (including Studio), Skill provisioning, Skill and websites hosting, assistance with use of the Studio, Skill publication and distribution assistance, technical support, and related services made available by VoiceXP to You, as identified in an Order.
“Professional Services” means any consulting, on-site support, or similar professional services to be performed by VoiceXP, as identified in an Order.
“Published Skill” means an Skill that is published to an Skill Store. A Published Skill may be used for single or multiple use cases depending on the applicable license.
“Studio” means VoiceXP’s content management system and portal.
“Term” means the period beginning on the Contract Start Date and ending on the Contract End Date, each as specified in Your Order, which may be further extended.
“Territory” means one or more of the following regions as indicated on the Order – North and Central America; South America & ROW; Europe; Middle East & Africa; and Asia (including Japan and Australia).
2.1 General. VoiceXP shall provide You the Platform, Skills and Professional Services as stated in an Order. Unless otherwise stated in an Order, access to the Platform is provided on a subscription basis, and Your ability to access and use, and enable Admins and Users to access and use, the Platform and content contained therein is dependent upon a current subscription term being in effect. You acknowledge that any Orders You place are not contingent upon the delivery of any future functionality or features, and nothing in this Agreement obligates either party to enter into any Order(s) or any further agreements. If You change Platform tiers during the Term, You will have a thirty (30) day transition period from the date of such change to remove and reassign Your Published Skills and Admins as applicable under Your new tier. You may not access the Platform if You are a Competitor.
2.2 Platform Features. VoiceXP will provide You with access to the Platform features, and Your Users will have access (via the Published Skills) to the features listed at http://www.voicexp.com/services/. This features list may change from time to time, in which case, VoiceXP will use commercially reasonable efforts to maintain the primary features of the Published Skills which are of equivalent functionality as of the date of Your most recent Order. VoiceXP will notify and offer You commercially reasonable alternatives if a primary feature of a Published Skill used by You in Your current Term is discontinued.
2.3 Hosting Services. After all Content for an Event has been delivered by You through the Studio, VoiceXP will host and make available such Content together with the Published Skill for access and use by Your Users and Admins. VoiceXP will ensure that the Studio does not contain any viruses, spam, files, malware or any other malicious software content that may harm or disrupt Your use of the Studio. You acknowledge that VoiceXP may limit Your use of the Platform to conform with the User, Admin, and Published Skill amounts listed in Your Order.
2.4 Skills. An annual maximum number of Skills will be allotted to You per Platform tier, as stated in an Order. Skills are counted on a per use case basis, so that by way of example, the same skill loaded into the Studio for two (2) Use Cases will count as two (2) Skills. VoiceXP will count on an aggregate basis the number of Skills from the start through the finish: (i) of each specific Skill and (ii) of all Skills during the Term, which count shall be tallied at the end of each term. VoiceXP will monitor User usage and notify You if You exceed the Skill count based upon Your Order(s). You will not be responsible for any Skill overages unless notified of having exceeded Your limit. Additional Attendees may be provisioned via an Order and their usage rights will expire at the end of the then-current Term.
2.5 Published Skills. Each Platform tier will include a license for at least one (1) Published Skill and one (1) Admin role. Once a license is used for a specific Published Skill, it will be considered to be tied to such Published Skill, and a new license will have to be procured for any other Published Skill. Furthermore, each license for a Published Skill must be tied to at least one (1) Admin and must be renewed upon expiration in order for the Published Skill to remain available on the Skill Store. Additional licenses for Published Skills may be provisioned via an Order, and each new license will also include at least one (1) Admin role.
2.6 Admins. A certain number of Admin roles will be provided to You per Platform tier, as stated in an Order. You must activate each Admin role by assigning it to a single Published Skill. Admin roles may be reassigned to different Published Skills so long as there is always at least one (1) Admin assigned to each Published Skill. VoiceXP will monitor Your Admin roles and notify You if You exceed the Admin count based upon Your Orders. You will not be responsible for any Admin role overages unless notified of having exceeded Your limit. Additional Admins may be provisioned via an Order.
2.7 Per Skill license. If You order a Per Skill license, You may access and use, and enable Admins, Marketers, and Content Managers to access and use, the Platform and content contained therein; provided, however that You may be allotted a certain number of Users that may only be used for a single Skill.
2.8 Support. VoiceXP will provide technical support for the Studio to You as specified in Your Order and as further specified below. Additional information regarding VoiceXP support can be found at http://www.voicexp.com/services/.
2.9 Access. VoiceXP will use commercially reasonable efforts to provide You with access to the Studio and Published Skills 98% of the time during the Term, subject to scheduled and planned (with advance notice) maintenance and subject to You and/or Your Attendees having adequate connectivity and hardware. VoiceXP will use various physical, electronic and procedural security measures to protect Your Content and User Data. These measures include safeguards to prevent access, use, or modification of such content and data except to provide You use of the Platform and Published Skills or as compelled by law. Where Your use of the Platform includes the processing of personal data (as described in the EU Data Protection Directive 95/46/EC) within the European Economic Area, the terms of VoiceXP’s data processing agreement shall apply to such processing.
- SKILL INFORMATION AND CONTENT
3.1 Content Management System. As a part of the Platform, VoiceXP will provide You with access credentials to the Studio during the Term through which You will be able to upload Skill information and other Content for Your Skill, add and manage Users (including push notifications), and access User data and related usage metrics. You will provide VoiceXP with Media Assets for each Skill in accordance with the specifications provided by VoiceXP, and You must deliver such assets for each Skill no later than twenty (20) business days prior to the intended launch date of the Skill in order for the Skill to be published and made available to Users. You will also provide all necessary Skill Content through the Studio in order for the Platform and Skill to be made available to Users in a timely manner.
3.2 Unauthorized Use. You will maintain the confidentiality of all usernames and passwords issued to You for Admins and Users and are solely responsible for all activities that occur under these usernames. User and Admin passwords may not be shared between individuals.
- Skill STORE DISTRIBUTION
4.2 By You. If You are responsible for Skill distribution:
4.2.1 You will comply with all applicable rules, guidelines, and terms and conditions of each Skill Store relating to the distribution permitted by this Agreement and will only distribute the Skills to End Users subject to a binding agreement that complies with the requirements of the applicable Skill Store and that contains the following terms: (i) title to, and ownership of, the Skills (excluding any of Your Content and/or Marks therein) remains with VoiceXP; (ii) the Skills may not be altered, modified, distributed, transferred, reverse engineered, decompiled, or disassembled; (iii) all warranties, express and implied, are disclaimed on behalf of VoiceXP; (iv) all direct, consequential, special, and indirect damages are disclaimed on behalf of VoiceXP; and (v) data use and license provisions, as required to be passed on to End Users pursuant to a EULA subject to Section 5 of this Agreement;
4.2.2 In the case of the Apple App Store, You must deliver the iOS Distribution Certificate, Apple® Push Notifications Production Certificate, provisioning profile with Skill ID and Bundle Identifier and associated passwords for each Skill to VoiceXP no later than fifteen (15) days prior to intended Skill launch date in order to effect a timely deployment;
4.2.3 In the case of Google Home: (i) You will be solely responsible to obtain and maintain a Google Home developer account during the Term; and (ii) You may elect, in your sole discretion, to provide VoiceXP with “Release Manager” access to Your Google Home account or, in the alternative, VoiceXP can provide You Android .apk files to upload to the Skill to enable such use; and
4.2.4 VoiceXP will use commercially reasonable efforts to provide You with distribution assistance and support to upload the Skill to the applicable Skill Store.
4.3 Skill Store Operator. You agree that the operator of each applicable Skill Store has the discretion to approve or reject the Skills and that VoiceXP shall have no responsibility for any Skill that is rejected by the owner/operator of such Skill Store.
4.4 Suspension. VoiceXP will have the right to immediately suspend or discontinue the distribution of any Published Skill in the event that it reasonably determines that such distribution may result in significant harm, damage, or liability for VoiceXP.
- PLATFORM USE AND PROPRIETARY RIGHTS
5.1 Platform License. VoiceXP hereby grants to You, subject to the terms and conditions of this Agreement, a limited, revocable, non-exclusive, non-transferable (except as set forth in Section 13.10), fully paid, and royalty-free license to access and use the Platform in the Territory during the Term, solely for Your internal business purposes and for the purpose of uploading and viewing content and data related to the Platform. VoiceXP shall own and retain all right, title, and interest in and to the Platform.
5.2 Restrictions on Use. You shall not, and shall not permit any third party to: (i) reproduce, modify, adapt, alter, translate or create derivative works from the Platform and/or any Skill; (ii) merge the Platform and/or any Skill with any other software; (iii) reverse engineer, decompile, dissemble, or otherwise attempt to derive the source code for the Platform and/or any Skill; or (iv) distribute, sublicense, lease, rent, loan, or otherwise transfer the Platform and/or any Skill to any third party except as expressly allowed under this Agreement. You may not, without the express prior written consent of VoiceXP, use the Platform in combination with any other products of Competitors to compare, monitor or benchmark the Platform against such other products. You must not remove, alter, or obscure in any way any proprietary notices of VoiceXP or its suppliers within the Platform and/or on any copies of any Skill.
5.3 VoiceXP IP
5.3.1 The Platform, Skills and any other work product resulting from the Platform and/or the Professional Services, including, without limitation, notes, records, drawings, designs, works, discoveries, improvements, specifications, operating instructions, inventions, processes, know-how, techniques, trade secrets, software and any derivatives, updates or upgrades to all of the foregoing, which may or may not be included in a portion of the Platform or Professional Services, but excluding all Content, Media Assets and Marks incorporated therein, and all worldwide intellectual property rights in all of the foregoing (collectively, “VoiceXP IP”), are the exclusive property of VoiceXP. For avoidance of doubt, any copyrightable subject matter developed by VoiceXP during the Term of this Agreement is not a work made for hire and shall be owned directly by VoiceXP. All licenses granted by VoiceXP to You are express, are limited to their terms and conditions specified herein, and there are no implied licenses granted to You to any VoiceXP IP.
5.3.2 VoiceXP may explicitly identify its ownership or other rights within the Platform and Skills and any other work product resulting from the Platform and/or the Professional Services by using its branding, trademarks, the phrase “Powered by VoiceXP” or other identifying material.
5.4 Assignment of Rights. If You obtain any ownership rights in or to any VoiceXP IP or any other work product resulting from VoiceXP’s performance under this Agreement, You hereby irrevocably and unconditionally: (i) assign all such right, title, and interest to VoiceXP; (ii) waive any enforcement of any such ownership rights You may have against VoiceXP; (iii) grant VoiceXP an unlimited, non-revocable, worldwide, exclusive, transferable, fully paid, royalty-free, non-assessable license to such ownership rights; and (iv) covenant and agree that in the event any moral rights exist that cannot be assigned to VoiceXP, You, to the maximum extent permitted by law, shall not exercise such moral rights in any way that might interfere with VoiceXP’s economic exploitation of such material or which might inhibit VoiceXP from modifying the material in any manner in which VoiceXP sees fit.
5.5 License to Your Content, Media Assets and Marks. You hereby grant VoiceXP a worldwide, royalty-free and nonexclusive license during the Term to use, reproduce, perform, display, distribute, and modify all Content, Media Assets and Marks (collectively, “Your Licensed IP”), solely for Your benefit as follows: (i) in connection with the Platform and Professional Services; (ii) for creation of, or incorporation of materials into, the Studio and any Skill; and (iii) in connection with marketing activities as requested by You in the Order. Your Licensed IP is and shall remain Your exclusive property. The license granted by You to VoiceXP to use Your Licensed IP as provided herein is express, is limited to its terms and conditions specified herein, and there are no implied licenses granted by You to VoiceXP.
5.6 Your Licensed IP. You represent and warrant that: (i) Your Licensed IP is correct and current; (ii) Your Licensed IP is owned by You or You have the right to grant the license in Section 5.5 above; (iii) Your Licensed IP shall not contain nor distribute any viruses, spam, files, malware or any other malicious software content that may harm or disrupt the operation of the Platform; (iv) VoiceXP’s placement, provision and/or use of Your Licensed IP shall not violate or infringe the intellectual property, moral, privacy, or publicity rights of any third party; and (v) to the extent necessary, VoiceXP’s use of Your Licensed IP has been properly and completely approved for the uses hereunder.
5.7 Attendee Data. To the extent You obtain Usage data (such as posts, photos and responses to surveys from Users and the names of Users), including any rights therein, as part of the Platform or use of a Published Skill (collectively, “User Data”), You agree to process User Data in accordance with local data protection legislation, to inform Users of the means and purposes for which you process their data and to inform Users of their rights to access, delete and modify their personal data.
5.8 License to User Data. VoiceXP will not disclose, transfer, or use any User Data for any purpose other than to perform its obligations under this Agreement with the following exception: You grant VoiceXP a perpetual, worldwide, royalty-free, and nonexclusive right to use, reproduce, modify, and adapt non-personally identifiable User Data for the sole purposes of developing and improving VoiceXP’s services and products.
- PROFESSIONAL SERVICES.
VoiceXP shall perform Professional Services (as identified in an Order) in a professional and workmanlike manner.
7.1 Fees. You shall pay VoiceXP the fees for the Platform provided over the Term and for the Professional Services, in each case as described in the Order. In the event that You are late or otherwise in default with respect to any payment due herein: (i) You shall pay VoiceXP interest at an annual percentage rate of 18% or the maximum rate permitted by law, whichever is lower, on the outstanding sum from the payment due date until the date of full payment and (ii) without limiting its other remedies, VoiceXP may suspend and/or terminate access to the Platform and withhold performance of Professional Services. Furthermore, any returned or stopped payments will incur additional handling charges. All subscriptions are non-cancelable, as payment obligations for such subscriptions are incurred at the time the subscription is activated, and fees paid are non-refundable; provided that fees for Professional Services that are unused in the current year may be carried over for Professional Services to be rendered in the following year. Fees will be paid in the currency specified in the Order, by electronic transfer, in full, or as further agreed to in writing by VoiceXP’s Accounting Office.
7.2 Taxes. The fees exclude all applicable sales, use, and other taxes (other than taxes on VoiceXP’s income), duties, charges, and related fees and penalties in each case arising from any payments to be made to VoiceXP under this Agreement and/or performance hereunder (collectively, “Taxes”) unless otherwise specified in an Order, and You will be responsible for payment of all Taxes. VAT, when due, will be specified in an Order. You will make all payments of fees to VoiceXP free and clear of, and without reduction for, any withholding taxes; any such taxes will be Your sole responsibility, and You will provide VoiceXP with official receipts issued by the appropriate taxing authority, or such other evidence as VoiceXP may reasonably request, to establish that such taxes have been paid.
8.1 Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products or services, or other confidential or proprietary information (collectively, “Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the source code for the Skills and all enhancements and improvements in the foregoing, and technical and functional information of the Platform will be considered Confidential Information of VoiceXP. You acknowledge and agree that information which is uploaded, by You, or on your behalf, for distribution with a skill, whether or not Confidential Information, shall be distributed to your Partners and Users in accordance with this Agreement.
8.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to those employees with a need to know, who have confidentiality obligations no less restrictive than those set forth herein and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care.
At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files consistent with that party’s records retention/destruction policy) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence. The confidentiality obligations set forth in this Section shall not apply to any information that: (i) becomes generally available to the public through no fault of the Receiving Party; (ii) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (iii) was already known to the Receiving Party at the time of disclosure; or (iv) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees or contractors of the Receiving Party who did not use the Confidential Information.
8.3 Necessary Disclosure. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body; provided, that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
- DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
THE PLATFORM, SKILLS, AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND VOICEXP HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE PLATFORM, SKILLS AND ITS PERFORMANCE OF THE PROFESSIONAL SERVICES UNDER THIS AGREEMENT, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. VOICEXP DOES NOT WARRANT THAT USE OF THE PLATFORM, SKILLS, AND PROFESSIONAL SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED.
- LIMITATION OF LIABILITY
EXCEPT FOR A BREACH OF SECTION 8, A CLAIM RELATING TO MISUSE OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, AND/OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, OR TO THE PLATFORM, ANY SKILLS, OR PROFESSIONAL SERVICES. EXCEPT FOR A BREACH OF SECTION 8, A CLAIM RELATING TO MISUSE OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, AND/OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, EACH PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT, THE PLATFORM, ANY SKILL, AND/OR PROFESSIONAL SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED TWO (2) TIMES THE AMOUNT OF FEES PAID TO VOICEXP BY YOU UNDER THIS AGREEMENT. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT SHALL NOT INCREASE EITHER PARTY’S LIABILITY. IN NO EVENT SHALL VOICEXP’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
11.1 By VoiceXP. VoiceXP will defend, indemnify and hold You harmless at its own expense for any action against You brought by a third party to the extent that the action is based upon any claim that the Published Skills (excluding any Content, Marks, or any User Data incorporated therein) infringe any U.S. copyrights or misappropriate any trade secrets (including those recognized as such under the Uniform Trade Secret law) and will pay those costs and damages finally awarded against You in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. VoiceXP will have no obligation under this Section with respect to an infringement claim based upon: (i) any use of the Published Skills (or any of its components) not in accordance with this Agreement; (ii) any use of the Published Skills (or any of its components) in combination with other products, equipment, software or data not supplied by VoiceXP; or (iii) any modification of the Published Skills (or any of its components) by any person other than VoiceXP and its authorized representatives (collectively, “Excluded Claims”).
If any Published Skill becomes, or in VoiceXP’s opinion is likely to become, the subject of an infringement claim, VoiceXP may at its option: (a) procure for You the right to continue using the Published Skill; (b) replace or modify the infringing component(s) of the Published Skill so that it becomes non-infringing; or (c) terminate this Agreement and refund any fees actually paid by You to VoiceXP as advance payment for provision of the Platform for the remainder of the Term then in effect. This Section states Your sole and exclusive remedy and VoiceXP’s entire liability for infringement claims and actions.
11.2 By You. You will defend, indemnify and hold VoiceXP harmless at Your expense for any action brought against VoiceXP, and will pay any settlement You make or approve, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party resulting from or relating to: (i) any actions or omissions on Your part in marketing or distributing the Published Skills; (ii) any representations, warranties, or guarantees made or published by You; (iii) the Content, Marks, Media Assets; or (iv) the Excluded Claims. This Section states the sole and exclusive remedy of VoiceXP and Your entire liability for the claims and actions described herein.
11.3 Procedure. The foregoing obligations of the indemnifying party are conditioned upon the indemnitee promptly notifying the indemnifying party in writing of the action, the indemnitee giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, and the indemnitee cooperating and, at indemnifying party’s expense, assisting in such defense.
- TERM AND TERMINATION
12.1 Term. Unless sooner terminated as permitted herein, the Agreement shall commence and expire on the dates identified in Your Order. Upon expiration, the Order will not automatically renew under the same terms unless either party provides written notice of non-renewal at least thirty (30) days before the end of the then-current term or the parties enter into a new Order that expressly replaces and supersedes the then-existing Order. In the event of any pricing changes prior to expiration of Your current Order, You will be notified of such changes at least forty-five (45) days prior to Your renewal date for such Order.
12.2 Termination. Either party may terminate this Agreement immediately upon written notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured for more than fourteen (14) days after receipt of such notice of breach. Upon termination or expiration of this Agreement for any reason and except as expressly provided herein, all rights and obligations of both parties shall immediately terminate and each party shall promptly return (or, at the other party’s request, destroy) the other party’s Confidential Information as defined in Section 8.2.
12.3 Platform Discontinuance. For a period of not less than thirty (30) days following termination or expiration of this Agreement, You may access the Platform to export or download Your Content and User Data. During such period, You may not upload any new Content nor create any new Skills, and Your then-existing Published Skills will be suspended. After such minimum thirty (30) day period and unless legally prohibited, VoiceXP will have no obligation to provide You access or maintain Your Content or User Data.
12.4 Survival. The following Sections shall survive expiration or termination of this Agreement: 1, 3.2, 5.2 – 5.5, 5.7 – 5.10, 7, 8, 9, 10, 12.3, 12.4, and 13. Rights under any then-in-effect EULA shall survive expiration or termination of this Agreement in accordance with their terms.
13.1 Notice. Any notice or communication permitted or required hereunder shall be in writing and if given in person or by courier, it shall be effective upon date of delivery; if sent by fax or standard email, it shall be effective as of the date of transmission; and if notice is given by mail, it shall be effective two (2) business days after deposit in the mail. Notices to You will be sent to the address or email address You provide on the Order. Notices to VoiceXP must be sent to: VoiceXP, Inc., 11846 Dorsett Road, Maryland Heights, Missouri 63043, Attention: Legal Department. Each party has the right to change its address for notice by providing the other party at least ten (10) days’ prior, written notice.
13.2 Relationship of the Parties. The parties are independent contracting parties to this Agreement. Neither party is the legal representative, joint venturer, or partner to the other party for any purpose. Neither party has authority to bind the other party to any third party or otherwise to act in any way as the other party’s representative or agent, except as this Agreement provides or the parties expressly agree in writing.
13.3 Legal Costs and Expenses. In the event either party must retain an attorney to enforce this Agreement or to file or defend any action arising out of this Agreement, the prevailing party in the action is entitled, in addition to any other remedies available to it, to recover from the other party its reasonable fees for lawyers and expert witnesses, plus court costs and expenses as a court of competent jurisdiction may fix. The term “prevailing party” for the purposes of this Section includes a defendant who has by motion, judgment, verdict, or dismissal by the court, successfully defended against any claim that has been asserted against it.
13.4 Waiver. No failure or delay by either party in exercising any right, power or remedy under this Agreement operates as a waiver of any right, power or remedy. No waiver of any provision of this Agreement is effective unless in writing and signed by the party against whom the waiver would be enforced. Any waiver by either party of any provision of this Agreement is not a waiver of any other provision of this Agreement, nor does any waiver operate as a waiver of the relevant provision respecting any future event or circumstance.
13.5 Modifications and Amendments. VoiceXP may at any time, with or without notice, revise these Terms by providing written notice to You or by prominently posting an update to this online document on the VoiceXP website, except that VoiceXP may not revise these Terms without Your written consent, if Your current Terms were previously modified and signed by both parties. For purposes of this Section, You agree that written notice to You may be provided by email to the email address set out in the Order. You are responsible for providing us with Your most current e-mail address. In the event that the last e-mail address that You have provided us is not valid, or for any reason is not capable of delivering to You the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of the Platform following notice or posting of changes shall indicate Your acknowledgement of such changes and agreement to be bound by such changes. All modifications or amendments to the Order must be made in a writing signed by both parties in order to be effective.
13.6 Publicity. Upon mutual agreement, the parties may issue a press release, case study, blog post or social media post relating to the business relationship between them.
13.7 Severability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, that provision will be enforced to the extent possible consistent with the parties’ stated intention or, if incapable of enforcement, will be deemed to be deleted from this Agreement while the remainder of this Agreement will continue in full force.
13.8 Entire Agreement. This Agreement constitutes the parties’ entire agreement. This Agreement supersedes all prior or contemporaneous agreements, understandings or communications between the parties, whether oral or written, with respect to its subject matter; provided, however, that any nondisclosure agreement in effect between the parties will remain in full force. You are not relying upon any statement, representation or warranty, whether negligently or innocently made, of any person that is contrary to this Agreement. In the event of conflict between these Terms and an Order, these Terms shall prevail.
13.9 Remedies. You acknowledge that the Skills contain valuable trade secrets and proprietary information of VoiceXP, that any actual or threatened breach of Sections 5 or 8 shall constitute immediate, irreparable harm to VoiceXP for which monetary damages would be an inadequate remedy. In such case, VoiceXP will be entitled to immediate injunctive relief without the requirement of posting bond.
13.10 Assignment. Neither party may assign or transfer, by operation of law or otherwise, this Agreement, in whole or in part, without first obtaining the other party’s prior written consent, except that either party may assign this Agreement, in whole or in part, without obtaining the consent of the other party, to the assigning party’s Affiliates and/or in connection with a merger, acquisition, reorganization, or sale of all or substantially all of the assigning party’s assets. Any attempted assignment or transfer in violation of the foregoing will be void.
13.11 Export Control and FCPA. You shall not export from anywhere any part of the Platform or any direct product thereof except in compliance with all applicable export laws, rules and regulations, including but not limited to the laws, rules and regulations administered by the U.S. Department of Commerce or other agency or department of the United States Government. By placing an Order to use the Platform, You shall not take any action in violation of the U.S. Foreign Corrupt Practices Act and shall make no payment or transfer anything of value, directly or indirectly, to any employee or a government or instrumentality thereof, international organization, political party or official or candidate thereof, to influence any decision to obtain or retain business or secure other advantage. You shall inform VoiceXP of any laws in the nature of lobbying registration or disclosure which may be found to apply to use of the Platform, and assist VoiceXP in its consideration of and compliance with any such requirements.
13.12 Force Majeure. Any delay in the performance or duties of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the reasonable control of such party; provided, that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
13.13 Governing Law; Venue. This Agreement is governed by and interpreted in accordance with the laws of the State of Missouri, excluding that body of law related to choice of laws, and of the United States of America. Any proceeding brought to enforce this Agreement or to adjudicate any dispute related to this Agreement must be heard in the courts of St. Louis County, Missouri or the Eastern District of Missouri. Each party submits itself to the exclusive jurisdiction and venue of these courts for purposes of proceedings related to this Agreement, waives forum non conveniens and similar defenses, and agrees that any service of process may be affected by delivery of the summons to the address for notice as specified herein.