Terms and Conditions

These Terms and Conditions, ( these “Terms”) are entered into between the Customer (as identified on the Order Form) and the Service Provider (as identified on the Order Form) and set forth the terms and conditions under which Service Provider will provide the Customer with access to the applications set forth on the applicable Order Form (the “Application(s)”) and the user documentation that Service Provider makes generally available in hard copy or electronic form to its customers in general in conjunction with the subscription of such Applications (the “Documentation”). The Applications and the Documentation are hereinafter, collectively, the “Software.”

SUBSCRIPTION GRANT AND RIGHT OF USE
1. Subscription Grant.  Subject to the limitations and restrictions contained herein and in the applicable Order Form, Service Provider grants Customer a nonexclusive, nontransferable right to access and use the Software for Customer’s business purposes. If the applicable Order Form states that Customer is licensing the Applications on an on-prem basis, Service Provider will deliver an object code version of the Application(s) promptly following execution of the applicable Order Form. , If the applicable Order Form states that Customer is licensing the hosted version of the Application(s) (“Hosted Applications”), Service Provider shall provide access to the Applications promptly following execution of the applicable Order Form. Customer’s use of the Applications (“Use”) shall be limited to performance of the functions described in the Documentation.
2. Authorized Users. Customer may permit its and its Affiliate’s employees, agents, representatives and contractors (each, an “Authorized User”) to access and use the Applications solely in connection with Customer’s use of the Applications during the Term. Customer is responsible for ensuring each Authorized User’s compliance with the terms and conditions of these Terms. To the extent an Authorized User breaches any provision of this Agreement, Customer and such breaching Authorized User shall be jointly and severally liable for all losses, damages, penalties, and fees (including reasonable attorney’s fees) resulting from the breach. Authorized User subscriptions are for designated users and cannot be shared or used by more than one Authorized User but may be reassigned to new users replacing former Authorized Users who no longer require on-going use of the Software. “Affiliate” means an entity that a party, directly or indirectly, controls, an entity that controls a party or an entity that is under common control with a party; and control means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity.
3. Restrictions.  In no event will Customer or any Authorized User: (i) transmit any content or data that is unlawful or infringes the intellectual property rights of any third party; (ii) circumvent or endanger the operation or security of the Application; (iii) disassemble, decompile, or reverse engineer, or create any derivative works of or undertake any similar efforts with respect to, the Software or Confidential Information (as defined herein); (iv) resell, rent, lease, transfer, download lend, timeshare, assign, display or permit others to access or use the Software except as explicitly permitted under these Terms; (v) use the Software in any manner that is not permitted under these Terms or in violation of applicable law; (vi) permit any third party to access the Software other than Authorized Users; (vii) store or transmit any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, or otherwise engage in unfair, unlawful or deceptive practices in connection with the use of the Software; (viii) except to the extent necessary to use the Application(s), upload or provide any Customer Data that is defamatory, offensive, abusive, obscene, of menacing character, or that violates the privacy rights of any third party; (ix) attempt to gain unauthorized access to the Software or the related systems and networks, or systematically access the Software using ‘bots’ or ‘spiders’; (x) copy, modify, frame or mirror the Software in whole or in part; or (xi) access or use the Software to develop or offer a service that is similar to the Application(s). The above restrictions apply to the Software in whole and in part.
4. Login Credentials. Customer is responsible for maintaining the confidentiality of its logins and account and for all activities that occur under its logins and account, including the activities of Customer’s Authorized Users. If Customer or its Authorized Users become aware of any unauthorized use of the Software or Customer’s accounts, Customer will contact Service Provider immediately at support@voxco.com.
5. Customer Data.  
  1. Customer grants to Service Provider a non-exclusive, royalty-free license to access, use, reproduce, modify, perform, display and distribute Customer Data as is reasonable or necessary for Service Provider to perform or provide the Application. “Customer Data” means any content, materials, data and information that Authorized Users enter into the production system of an Application or that Customer derives from its use of and stores in the Application (e.g. Customer-specific reports).
  2. Customer will collect and maintain all personal data contained in the Customer Data in compliance with applicable data privacy and protection laws.
  3. Customer will maintain reasonable security standards for its Authorized Users’ use of the Software. Customer will not conduct or authorize penetration tests of the Software without advance approval from Service Provider.
6. Support Services. Upon payment of the fees set forth on the applicable Order Form, Customer will receive the support services for the Application pursuant to the ‘Support Services’ attached hereto and incorporated by reference as Exhibit B.
ADDITIONAL TERMS FOR HOSTED APPLICATIONS
1. Service Availability. Solely with respect to Hosted Applications, Service Provider will use reasonable efforts to achieve Service Provider’s availability goals described in the ‘Service Level Agreement’ attached hereto as Exhibit A.
2. Compliance with TCPA. If applicable, Customer will comply with the terms of Exhibit C in connection with its use of the Hosted Applications.
3. Customer Data Access. During the term of the applicable Order Form, Customer can access Customer Content at any time, and Customer may export and retrieve its Customer Content in a standard format. Export and retrieval may be subject to technical limitations, in which case Service Provider and Customer will find a reasonable method to allow Customer access to Customer Content. Customer may use Service Provider’s self-service export tools (as available in an Application) to perform a final export of Customer Data from the Application. Alternatively, Customer may request data export through a support ticket. Within a reasonable period after termination of the applicable Order Form, Service Provider will delete the Customer Content remaining on servers hosting the Application unless applicable law requires retention. Retained data is subject to the confidentiality provisions of the Agreement. In the event of third party legal proceedings relating to the Customer Data, Service Provider will cooperate with Customer and comply with applicable law (both at Customer’s expense) with respect to handling of the Customer Data.
PAYMENT
1. Fees. Unless otherwise provided in the Order Form, Service Provider will invoice Customer for all license fees, other fees, and charges (“Fees”) due thereunder immediately following the Order Form Effective Date.
2. Payment Due Date.  All Fees are payable by Customer without deduction or setoff in the currency stated on the applicable Order Form and payment is due according to payment terms on the applicable Order Form. Invoices will be sent by electronic delivery unless Customer requests otherwise; in which case, additional fees will apply.
3. Purchase Orders. Customer may provide Service Provider with a valid purchase order, upon execution of an Order Form. Notwithstanding anything to the contrary herein, purchase orders are to be used solely for Customer’s accounting purposes and any terms and conditions contained therein are of no force or effect with respect to the parties’ relationship and these Terms. Customer’s failure to provide Service Provider with the corresponding purchase order shall not relieve Customer of its obligations to pay the Fees as set forth in these Terms.
4. Late Payment. Any late payment will be subject to any costs of collection (including reasonable legal fees) and will bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less.
5. Invoice Disputes. Customer is deemed to have accepted the amounts stated on the invoice if Service Provider does not receive a written notice from Customer of a good faith dispute regarding such invoice prior to the date payment is due. In the event of a good faith, timely notified dispute by Customer relating to a portion of the invoice, Customer will pay all undisputed amounts and may withhold the payment of the disputed amount. The parties will work diligently together to resolve such dispute.
6. Taxes. The Fees do not include any federal, state, municipal or other governmental taxes, duties, sales or use taxes, excise taxes, telecommunications taxes, or tariffs now or hereinafter imposed (excluding any taxes on Service Provider’s net income) (“Taxes”). All Taxes are the sole responsibility of Customer. If Customer is exempt from Taxes, Customer will furnish Service Provider with a valid tax exemption certificate. If the Customer is required by law to make any deduction or to withhold from any sum payable to the Service Provider by the Customer hereunder, then the sum payable by the Customer upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, the Service Provider receives and retains, free from liability for such deduction or withholding, a net amount equal to the Fees in the absence of such required deduction or withholding. If the Customer is required by law to make any such deduction or withholding, the Customer shall promptly effect payment thereof to the applicable tax authorities. Customer shall promptly provide Service Provider with official tax receipts or other evidence issued by the applicable tax authorities sufficient to enable Service Provider to support a claim (if applicable) for income tax credits in the Service Provider’s applicable taxable country.
OWNERSHIP
1. Reservation of  Rights.
  1. Except for the rights granted to Customer in these Terms, Service Provider retains all right, title, and interest in and to the Software, subject to any limitations associated with intellectual property rights of third parties.
  2. Except for the rights granted to Service Provider in these Terms, Customer retains all right, title, and interest in and to the Customer Data.
2. Marks and Publicity.  Service Provider and Customer trademarks, trade names, service marks, and logos, whether or not registered (the “Marks”), are the sole and exclusive property of the respective owning party, which owns all right, title and interest therein. Service Provider may: (i) use the Customer’s name and/or logo within product literature, press release(s), social media, and other marketing materials; and/or (ii) make such other use of the Customer’s name and/or logo  as   may   be   agreed   between   the   parties. Service Provider shall comply with Customer’s trademark use guidelines as such are communicated to the Service Provider in writing and Service Provider shall use the Customer’s Marks in a manner which is consistent with industry practice. Neither party grants to the other any title, interest or other right in any Marks except as provided in this Section.
CONFIDENTIALITY
1. Generally. Service Provider, on the one hand, and Customer and Authorized Users, on the other hand (the “Receiving Party”) may, during the course of providing or receiving business services hereunder, have access to, and acquire knowledge from material, data, systems and other information of or with respect to the disclosing party (the “Disclosing Party”), which may not be accessible or known to the general public, including information concerning the Software or hardware, software, business plans or opportunities, business strategies, finances or employees and third party proprietary information that the Disclosing Party treats as confidential (“Confidential Information”). The Receiving Party will protect and safeguard such Confidential Information with the same degree of care as it uses to protect its own Confidential Information of like importance, but in no event less than a reasonable degree of care. Customer acknowledges and agrees that the Software is Confidential Information and subject to the restrictions contained herein.
2. Exceptions. Confidential Information does not include any information that: (i) has entered or subsequently enters the public domain without the Receiving Party’s breach of any obligation under these Terms; (ii) was known to the Receiving Party, prior to disclosure under these Terms; (iii) is obtained from a third party without violation of known nondisclosure covenants and without restrictions on its disclosure; (iv) is independently developed by the Disclosing Party, without reference to the Confidential Information; or (v) is required to be disclosed as a result of a legal or administrative or governmental or similar proceeding. Any knowledge acquired by the Receiving Party relating to the Confidential Information or otherwise through engagement hereunder shall not be used by the Receiving Party, other than for the limited purpose of performing or using services under these Terms, nor used, published or divulged by the Receiving Party, in connection with any products sold or services rendered or used, to any other person, firm or corporation, in any advertising, promotion regarding the Receiving Party, or its products or services, or in any other manner or connection whatsoever without first having obtained the written permission of the Disclosing Party, which permission may be withheld by the Disclosing Party is its sole discretion.
3. Injunctive Relief.  Each party acknowledges that any unauthorized disclosure or use of the Confidential Information may cause the other party imminent irreparable injury and that such party will be entitled to seek, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the other party does not fulfill its obligations under this Section.
4. Suggestions/Improvements to Software.  Notwithstanding this Section, unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Customer regarding the Software or other Service Provider materials provided to Customer will be owned by Service Provider, and Customer hereby agrees to assign any such rights to Service Provider. Nothing in these Terms will preclude Service Provider from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Service Provider in the performance of services hereunder.
WARRANTY
1. Mutual Warranties.  Customer and Service Provider warrant that each (i) has the right to enter into these Terms and that these Terms and the Order Forms executed hereunder will be executed by an authorized representative of each entity; and (ii) will comply with all applicable laws, regulations, and ordinances relating to such party’s performance under these Terms.
2. By Service Provider.   Service Provider warrants that: (i) the Application, at the time of delivery or when first made available to Customer, does not contain any malicious code, program, or other internal component (e.g., computer virus, computer worm, computer time bomb, or similar component), which could damage, destroy, or alter the Application, or which could reveal, damage, destroy, or alter any data or other information accessed through or processed by the Application in any manner; and (ii) the Application will perform substantially in accordance with the Documentation during the applicable Term. Customer must: (i) notify Service Provider promptly in writing of any nonconformance to either of the foregoing warranties; (ii) provide Service Provider with reasonable opportunity to remedy any nonconformance; and (iii) provide reasonable assistance in identifying and remedying any nonconformance. Customer’s exclusive remedy and Service Provider’s entire liability under these warranties warranty is for Service Provider to correct these non-conformances within a reasonable period of time not to exceed thirty (30) days, or if Service Provider cannot remedy such non-conformances during such time period then refund the unearned portion of the Fees pre-paid.
3. Disclaimers. EXCEPT AS SET FORTH IN THIS SECTION 6, THE SOFTWARE AND ANY RELATED SERVICES PROVIDED BY SERVICE PROVIDER TO CUSTOMER UNDER THESE TERMS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. SERVICE PROVIDER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NONINFRINGEMENT. NEITHER SERVICE PROVIDER (NOR ANY OF ITS SUBSIDIARIES, AFFILIATES, SUPPLIERS OR LICENSORS) WARRANTS OR REPRESENTS THAT THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY.
INDEMNIFICATION
1. By Service Provider.  Service Provider will defend, indemnify and hold Customer and its officers, directors, employees, consultants, and agents harmless from and against any and all damages, costs, liabilities, expenses (including, without limitation, reasonable attorneys’ fees), and settlement amounts incurred in connection with any claim arising from or relating to any claim brought against Customer alleging that the Software, when used as permitted under these Terms, infringes the intellectual property rights of any third party.
2. No Liability.  Service Provider will have no liability for any claim of infringement to the extent the: (i) Software which has been modified by parties other than Service Provider where the infringement claim would not have occurred in the absence of such modification; (ii) Customer’s use of the Software in conjunction with data or third party software where use with such data or third party software gave rise to the infringement claim; or (iii) Customer has used the Software other than as permitted under these Terms.
3. Remedies. Should the Software become, or in Service Provider’s opinion is likely to become, the subject of a claim of infringement, Service Provider will, at its option and expense, (i) obtain the right for Customer to continue using the Software in accordance with these TErms, (ii) replace or modify the Software so it is no longer infringing, or (iii) if neither of the foregoing options is commercially reasonable, terminate the access and Use of the Software. Upon such termination, Customer shall cease accessing the Software and Service Provider will refund to Customer, as Customer’s sole remedy for such subscription termination, the unearned portion of the Fees paid by Customer. THIS SECTION 7 STATES THE ENTIRE LIABILITY OF SERVICE PROVIDER WITH RESPECT TO ANY CLAIM OF INFRINGEMENT REGARDING THE APPLICATION.
4. By Customer.  Customer  agrees  to  defend,  indemnify, and hold Service Provider and its officers, directors, employees, consultants, and agents harmless from and against any and all damages, costs, liabilities, expenses (including, without limitation, reasonable attorneys’ fees), and settlement amounts incurred in connection with any claim arising from or relating to Customer’s: (i) (ii) Customer’s gross negligence or willful misconduct; (iii) actual or alleged use of the Application in violation of these Terms or applicable law by Customer or any Authorized Users; (iv) any actual or alleged infringement or misappropriation of third party intellectual property rights arising from data provided to Service Provider by the Customer or otherwise inputted into the Application, whether by the Customer, an Authorized User or otherwise including Customer Work Product (as defined below); and/or (v) any violation by Customer or its Authorized Users, of any terms, conditions, agreements or policies of any third party service provider. “Customer Work Product” means that data and those forms developed or acquired by Customer for internal business purposes independent from Service Provider or the Application.
5. Indemnification Procedures.  Each indemnifying party’s obligations as set forth in this Section are subject to the other party: (i) giving the indemnifying party prompt written notice of any such claim or the possibility thereof; (ii) giving the indemnifying party sole control over the defense and settlement of any such claim; and (iii) providing full cooperation in good faith in the defense of any such claim. Notwithstanding the foregoing, the indemnifying party may not enter into a settlement of a claim that involves a remedy other than the payment of money by the indemnified party (which amounts must be subject to indemnification by the indemnifying party) without the indemnified party’s written consent.
LIMITATION OF LIABILITY
1. Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SERVICE PROVIDER BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), ATTORNEYS FEES AND COSTS, OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, THE AMOUNT OF THE FEES PAID BY CUSTOMER TO SERVICE PROVIDER DURING THE ONE YEAR PRIOR TO THE DATE OF THE APPLICABLE CLAIM
2.  Disclaimer of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SERVICE PROVIDER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES AND COSTS, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL. THE FOREGOING LIMITATIONS APPLY EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
TERM AND TERMINATION
1. Subscription Term. The term of these Terms will continue until the termination of the last Order Form. Unless earlier terminated as provided herein, the term of each Order shall automatically renew for the same term period as the term indicated within the then-current Order Form at Service Provider’s then-current rates, unless either Party notifies the other Party in writing of its intent not to renew at least sixty (60) days prior to the expiration of the then-current term.
2. Termination For Cause.   Each of Service Provider and Customer has the right to terminate these Terms and any then current Order if the other Party breaches or is in default of any material obligation under these Terms, when such a breach or default (i) is incapable of cure; or (ii), being capable of cure, has not been cured within thirty (30) days after receipt from the other Party of written notice of the breach or default.
3. Effect of Termination.  Upon termination of these Terms, Customer shall no longer access the Software.
4. Suspension. Service Provider may, at its option, suspend access to the Application or remove any data or content transmitted via the Application without liability if: (i) Service Provider reasonably believes that the Application is being used in violation of these Terms (ii) continued use of the Application may result in material harm to the Application or its users; (iii) requested by a law enforcement or government agency or otherwise to comply with applicable law, provided that Service Provider shall use commercially reasonable efforts to notify Customer prior to suspending the access to the Application. Service Provider will limit a suspension or limitation in time and scope as reasonably possible under the circumstances.
5. Other Remedies.  Termination of Terms will not limit either party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under these SaaS Terms, including, but not limited to, any Order Form.
MISCELLANEOUS
1. Assignment. Customer may not assign these Terms or otherwise transfer any right created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of Service Provider. Any purported assignment of these Terms, or any rights in violation of this Section will be deemed void. Service Provider may assign these SaaS Terms, sub-contract or otherwise transfer any right or obligation under these SaaS Terms to a third party without the Customer’s prior written consent.
2. Affiliates and Third Parties.  At the direction and sole discretion of Service Provider, affiliates of Service Provider (the “Service Provider Affiliates”) may perform certain tasks related to Service Provider’s obligations and rights under the Order Form and the Master Agreement, including, but not limited to, invoicing, payment, technical support, project management and/or sales support. Service Provider will have the right to use third parties, including offshore entities who employ foreign nationals, as well as employees and contractors of Service Provider Affiliates and subsidiaries, who may also be foreign nationals (collectively, “Subcontractors”) in the performance of its obligations hereunder and, for purposes of these SaaS Terms, all references to Service Provider or its employees will be deemed to include such Subcontractors. Service Provider will have the right to disclose Customer Confidential Information to such third parties provided such third parties are subject to confidentiality obligations similar to those between Service Provider and Customer.
3. Third Party Web Services and Components. The Application may include integrations with web services made available by third parties (other than Service Provider Affiliates) that are accessed through the Application and subject to terms and conditions with those third parties. These third party web services are not part of the Application and the Agreement does not apply to them. The Software may contain or be accompanied by certain third-party components created and separately subscribed to Customer by third parties. CONSEQUENTLY, SERVICE PROVIDER’S PROVISION OF THIRD-PARTY COMPONENTS TO CUSTOMER IS ON “AS IS” BASIS WITHOUT WARRANTY FROM SERVICE PROVIDER OF ANY KIND. SERVICE PROVIDER DISCLAIMS ALL WARRANTIES AND INDEMNITIES WITH RESPECT TO THE THIRD-PARTY COMPONENTS, EXPRESS OR IMPLIED, AND ASSUMES NO LIABILITY WITH RESPECT TO THE THIRD-PARTY COMPONENTS.
4. Export Laws. Customer agrees that all Service Provider offerings are subject to Canadian and/or U.S. export control laws and regulations, including the Export Control Reform Act, the International Emergency Economic Powers Act, the Trading with the Enemy Act, the regulations of the Office of Foreign Assets Control (“OFAC”), the Bureau of Industry and Security, and the Department of State, and similar restrictions under Canadian and/or U.S. law, executive order, regulation, or rule (collectively, the “Export Laws”). Customer agrees to comply with all applicable Export Laws in connection with Customer’s use of the Service Provider offerings. 
5. Survival. The provisions set forth in Sections 3, 4, 5, 6.3, 8 of these SaaS Terms will survive termination or expiration of these Terms and any applicable license hereunder.
6. Notices. Any notice required under these Terms shall be given in writing and will be deemed effective upon delivery to the party to whom addressed. All notices shall be sent to the applicable address specified on the Order Form or to such other address as the parties may designate in writing.
7. Force Majeure.  Service Provider will not be liable to Customer for any delay or failure of Service Provider to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Service Provider. Such causes will include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by Customer in providing required resources or support or performing any other requirements hereunder.
8. Restricted  Rights. Use of the Software by or for the United States Government is conditioned upon the Government agreeing that the Software is subject to Restricted Rights as provided under the provisions set forth in FAR 52.227-19. Customer shall be responsible for assuring that this provision is included in all agreements with the United States Government and that the Software, when accessed by the Government, is correctly marked as required by applicable Government regulations governing such Restricted Rights as of such access.
9. Privacy. Obligations with respect to personally identifiable information (if any) are set forth in the ‘Data Processing Addendum’ located at https://www.voxco.com/data-processing-agreement/ .
10. 10.10.Entire  Agreement. These Terms together with the documents referenced herein constitute the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect to the subject matter contained herein. All terms respecting the subject matter of the SaaS Terms and contained in purchase orders, invoices, acknowledgments, shipping instructions, or other forms exchanged between the parties will be void and of no effect.
11. 10.11.Modifications. The parties agree that these SaaS Terms cannot be altered, amended or modified, except by a writing signed by an authorized representative of each party.
12. 10.12.Non-solicitation. During the term of these SaaS Terms and for a period of two (2) years thereafter, Customer agrees not to hire, solicit, nor attempt to solicit, the services of any employee or Subcontractor of Service Provider without the prior written consent of Service Provider. Customer further agrees not to hire, solicit, nor attempt to solicit, the services of any former employee or Subcontractor of Service Provider for a period of one (1) year from such former employee’s or Subcontractor’s last date of service with Service Violation of this provision will entitle Service Provider to liquidated damages against Customer equal to two hundred percent (200%) of the solicited person’s gross annual compensation.
13. 10.13.Headings. Headings are for reference purposes only, have no substantive effect, and will not enter into the interpretation hereof.
14. 10.14.No Waiver.  No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
15. 10.15.Severability and Reformation.  Each provision of these SaaS Terms is a separately enforceable provision. If any provision of these SaaS Terms is determined to be or becomes unenforceable or illegal, such provision will be reformed to the minimum extent necessary in order for these SaaS Terms to remain in effect in accordance with its terms as modified by such reformation.
16. 10.16.Independent Contractor.  Service Provider is an independent contractor and nothing in these SaaS Terms will be deemed to make Service Provider an agent, employee, partner, or joint venturer of Customer. Neither party will have authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
17. 10.17.Governing Law; Venue. The laws of the province of Quebec, Canada and the federal Laws of Canada applicable therein, govern the interpretation of these SaaS Terms, regardless of conflict of laws The United Nations Convention on Contracts for the International Sale of Goods (1980) and the Uniform Computer Information Transactions Act (UCITA) are hereby excluded in their entirety from application to these SaaS Terms. The parties agree that the courts of the District of Montreal, Province of Quebec, Canada will have exclusive jurisdiction for the adjudication of any and all disputes or controversies arising under, out of, or relating directly or indirectly to these SaaS Terms and waive any objections to the assertion or exercise of jurisdiction by such courts, including any objection based on forum non conveniens. Mediation will be held in the District of Montreal, Province of Quebec, Canada.
18. 10.18.Dispute Resolution.
  1. 10.18.1.Prior and as a condition to initiating any legal action, the parties will attempt in good faith to resolve any dispute related to these Terms first by direct communications between the persons responsible for administering these Terms and next by negotiation between executives with authority to settle the dispute. Either party may give the other party a written notice of any dispute not resolved in the normal course of business. Within five (5) business days after delivery of the notice, the receiving party will submit to the other party a written response. The notice and the response will include a statement of each party’s position and a summary of arguments supporting that position and the name and title of the executive who will represent that party. Within five (5) business days after delivery of the disputing party’s notice, the executives of both Parties will meet at a mutually acceptable time and place, including by phone or video conference, and thereafter as often as they reasonably deem necessary, to resolve the dispute. All reasonable requests for information made by one party to the other will be honored. All negotiations pursuant to this clause are confidential and will be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.
  2. 10.18.2.Injunctive Relief. The parties, in addition to all other available remedies, shall each have the right to initiate an action in any court of competent jurisdiction without complying with the procedure set forth in Section 11.21.1 in order to request injunctive or other interim relief with respect to a violation of intellectual property rights or confidentiality obligations. The choice of venue does not prevent a party from seeking injunctive or any interim relief in any appropriate jurisdiction.
19. 10.19.Country-Specific Terms. The country-specific provisions described in the ‘Country-Specific Terms Addendum’ located at https://www.voxco.com/country-specific-terms-addendum/ replace or supplement the equivalent provisions above as noted therein where the Customer is located in one of the countries identified in the Country-Specific Terms Addendum and, in any case, where the law of the jurisdiction listed in the Country-Specific Terms Addendum gets applied.

EXHIBIT A – SERVICE LEVEL AGREEMENT FOR HOSTED APPLICATIONS

Capitalized terms used but not defined in this SLA have the meanings assigned in the Terms.

Definitions.
1. “Downtime” means the time in which the Application is not capable of being accessed or used by the Customer, as monitored by Service Provider.
2. “Monthly Uptime Percentage” means the total number of minutes in a calendar month minus the number of minutes of Downtime suffered in a calendar month, divided by the total number of minutes in a calendar month.
3. “Exclusions from Downtime” means the following are not Downtime for the purpose of calculating Monthly Uptime Percentage:
  1. Unavailability caused by Service Provider’s scheduled monthly planned maintenance windows and ad-hoc scheduled maintenance for which Service Provider will endeavor to provide seven (7) days’ advance notice ; or
  2. Service unavailability caused by Force Majeure Events.
Service Provider SLA.
1. During the term of the applicable Order Form, Service Provider will use reasonable efforts to achieve a Monthly Uptime Percentage of at least 99.5% (the “Uptime Commitment”). If the Uptime Commitment is not met in any month, Customer’s sole and exclusive remedy is the issuance of the credits described below. .
2. Notwithstanding the foregoing, if the Uptime Commitment is (i) not met in three (3) consecutive months; or (ii) not met in four (4) months in any rolling twelve (12) month period, Customer may terminate the affected Order Form upon notice to Service Provider.
3. Service Credits.

Monthly Uptime Percentage	Service Credit
<99.5% but >= 99.2%	5% of the monthly fee
<99.2% but >= 99.0%	10% of the monthly fee
<99.0% but >= 98.7%	15% of the monthly fee
<98.7%	20% of the monthly fee

1. To receive a credit for failure to meet the Uptime Commitment in a particular calendar month, Customer must submit a claim via the Customer support portal within thirty (30) days of the end of the month during which the Uptime Commitment was not met, and include the following information:
  1. Customer name and account number;
  2. the name of the service to which the claim relates;
  3. the name, email address, and telephone number of the Customer’s designated contact; and
  4. information supporting each claim of Downtime, including date, time, and a description of the incident and affected service, all of which must fall within the calendar month for which the claim is being submitted.
2. Any credit will be applied to the next invoice for fees due from Customer Software and will not be paid to Customer as a refund. All claims for credit are subject to review and verification by Service Provider, and all credits will be based on Service Provider’s measurement of its performance and will be final.

EXHIBIT B – SUPPORT SERVICES

Capitalized terms used but not defined have the meanings assigned in the Terms.

Definitions. 
“Issue” means a failure of the Application to substantially conform to the functional specifications set forth in the Documentation.

“Response Time” means the time period in which the assigned support resource (or support system) shall provide Customer with an initial technical response as a result of an Issue reported by Customer.

“Term” means the duration set forth in the Order Form.

Support Services.

Description.  Support Services are provided for Issues that are reproducible by Service Provider. All information regarding how to contact support and help desk accessibility periods are published below.

“Support” Defined. Support consists of assistance provided to customers via the Internet with respect to use of the Application and to resolve Issues. Support cases are tracked and managed through access to a call management system operated by Service Provider’s support center (the “Customer Support Portal”).

Severity Classification and Response Time Goals. Issues are classified by Service Provider according to severity of impact on the use of the Application, according to the chart in Table A below and are processed based on the case severity levels described in Table A below.  When submitting a case, Customer will be asked to indicate the severity of the case for initial response in accordance with the severity definitions described in Table A below. When the case is received, Service Provider support specialists will be allowed to change the severity level if, in their discretion, the Issue does not conform to the definition for the suggested severity and will notify Customer of such change. All disputes regarding severity classification will be resolved by Service Provider in its reasonable discretion.  Service Provider will respond to Support Services requests and endeavour to provide workarounds or fixes in accordance with the target timeframes described in Table A. Service Provider will oversee the escalation process described at below to aid in the tracking and resolution of outstanding issues that have not been resolved within a reasonable timeframe.

Technical Contacts.  Customer’s technical contacts must be trained on the Software in order to help resolve Issues and to assist Service Provider in analyzing and resolving technical Support Service requests. When submitting a Support Service request, Customer’s technical contact must have a good understanding of the problem encountered and an ability to reproduce the problem in order to assist Service Provider in diagnosing and triaging the Issue.

Customer Obligations.

Contacting Service Provider Support. Service Provider’s support teams can be reached via the following means:
Service Provider Customer Portal. The Service Provider Customer Portal enables customers to view their cases and interact with the Service Provider Support team in an online Portal environment. Customers who have been provided access to this Portal should use it as their primary means to contact Service Provider Support.

Via email ticketing system to Service Provider Support:

Voxco Product: support@voxco.com

Ascribe Product: support@goascribe.com

The Service Provider Support team can also be contacted via email using the identified email address above. When a customer submits a request via email, an acknowledgement email reply, with a case number, will automatically be sent by Service Provider to confirm receipt of the request. Note: If the matter is of high severity, please clearly state so in the email subject line to ensure your urgent request is treated in priority order.

Via Telephone – in case of emergency/high severity. Should a customer have a critical or urgent support need, customers can reach Service Provider Support via phone at the one of the support centers listed below (Support Locations).

Best Practice For Reaching Service Provider Support.  In order to ensure you receive the quickest response to your support request, please follow these best practice guidelines:

Place your support request using the recognized support channels: either via the Customer portal or official support email address.

Clearly indicate the nature of your request, the product it concerns, the severity of the issue and provide the relevant details about your request.

To avoid unnecessary duplication of cases (and any ensuing confusion), if you subsequently provide additional information about your request, please do so by using the original email string (i.e. add your comments to the “automated acknowledgement email” you received, rather than starting a new email).

For high severity issues/situations, create a case request via the portal or email and also please call the Service Provider Support team to receive immediate support.

Support Offices – Phone Numbers.  You can reach the regional Service Provider support offices at the phone numbers listed below.

Dedicated Voxco Support:

North America office (Montreal): 

              Local (Montreal): +1 514 312-9255

              Toll-free (from North America): +1 844-342-9255

              Australia office:  +61 (0)2 9746 5896

              France office:  +33 0800 10 30 40

              Germany office:  +49 621 875 577

              UK office:  +44 1992 892 684

Dedicated Ascribe Support:

Toll-free (From North America): +1 877 241 9112 x21

Local US: +1 513 241 9112 x21.

Support Offices – Support Hours.  The local Service Provider Support offices are available to provide help during the following times (expect during major Holiday times, see below):

1. North America office local support hours:

Monday to Friday regular hours: 08:30 – 20:00 (New York time)

Monday to Friday extended hours: 20:00 – 23:00 (New York time)*

Saturday extended hours: 09:00 – 17:00 (New York time)*

2. Europe offices local support hours:

                Monday to Thursday: 09:00 – 18:00 (Paris time)

                Friday: 09:00 – 17:00 (Paris time)

3. Australia office local support hours:

                Monday to Friday: 08:30 – 17:00 (Sydney time)

*Support during extended hours is available to treat high severity (1 & 2) incidents for CUSTOMER whose maintenance contract includes Extended Coverage.

Support Offices – Closed/Limited Support during holidays.

The local Service Provider support teams are unavailable on the following holidays:     

Christmas Eve: December 24 at 12:00 pm ET
Christmas Day: December 25
New Year’s Eve: December 31 at 12:00pm ET
New Year’s Day: January 1
Major Canadian and US holidays: Case handling may be limited to Critical and Major severity.
All France public holidays
All German public holidays
All New South Wales (NSW) public holidays

Case Escalation. Our Service Provider front line technical support experts are your first point of contact when requesting help with usability questions and solutions to incidents. They aim to ensure your support needs are fully addressed and resolved to your satisfaction. On occasion, your assigned support specialist may be unable to provide the required help for a specific issue/case.  In such a situation, your case may be escalated to other Service Provider team members in order to obtain additional help in achieving prompt resolution of the case/issue.  Below outlined is the Case Escalation Process followed at Service Provider.

Types of Escalation.  Service Provider recognizes two types of escalation, which are not mutually exclusive. Either one or both may be applicable to a given situation. Functional Escalation refers to the process of assigning a case from one functional team to another team based on the skills required to resolve the incident or case.  Hierarchical Escalation refers to the process of involving a more senior Service Provider team member in the case to help support its resolution. At Service Provider, this could mean oversight by one of the following: the Director of Support, your assigned Project Manager, your Account Manager and/or, in extreme cases, someone from the Service Provider management team (VPs & CEO).

Steps in Requesting Escalation.  Before escalating a case, please be sure you have:

1) Created a case through the proper channels, and

2) Contacted Support for help  

Should your case/issue require escalation, your technical support specialist will request the appropriate escalation on your behalf.  However, if you are not satisfied by the speed or type of escalation, Service Provider entitles you to personally request escalation from other individuals at Service Provider. To escalate a case, please address your request incrementally in the following fashion:

Step 1: Ask the specialist assigned to your case/incident to escalate the issue.

Step 2: Reach out to your Account Manager/Sales Manager

Remote Connection. If appropriate, Customer will cooperate with Service Provider to allow and enable Service Provider to perform Support via remote connection using standard, commercially available remote control software. Customer will be solely responsible for instituting and maintaining proper security safeguards to protect Customer’s systems and data.

Table A – Support Case Severity Levels

Customer Supports customer engagement frequency and urgency on cases is driven by the impact of the request.  To ensure the expectations of our customers are set properly, we commit to our customers that we will engage and work towards active resolution, which is dependent on severity of the impact.  *Note that these Service Level Agreements are only relevant to the work that can be acted upon and resolved within the support team.  Items requiring development attention will follow the standard Product Level Service Agreement and be provided with the development tracking number and regular updates to progress and expected resolution times.

Priority Level	Description	Initial Response Time	Resolution Time Target	Coverage
1- Critical	System Down or >50% capacity affected; severe operational or business impact, no workaround available.	30 Minutes	4 Hours Continuous effort towards resolution	24/7
2- High	Major malfunction or intermittent failures; critical business processes significantly impacted.	3 Hours	1 Day Continuous effort towards resolution	24/7
3- Normal	Does not prevent system usage; workaround exists, moderate operational impact.	Same Business Day	2 Business Days	Business Hours
4- Low	Minor abnormalities, cosmetic issues, or routine requests with little to no business impact.	2 Business Days	5 Business Days	Business Hours

Disclaimer: Service Provider will not be responsible to provide Support, updates, or any other maintenance and support to the extent that Issues arise because Customer: (a) misuses, improperly uses, mis-configures, alters, or damages the Application; (b) uses the Application with any hardware or software not recommended by Service Provider; (c) uses the Application at any unauthorized location; (d) fails to install an update to the Application if such update would have resolved the Issue; or (e) otherwise uses the Application in a manner not in accordance with the Master Agreement.

EXHIBIT C – TCPA

Customer is required to use the Software in full compliance with all applicable laws and regulations, including without limitation, all state, federal and international: (1) Do- Not-Call list prohibitions; (2) consumer cancellation rights; (3) mandatory disclosures; (4) cell phone messaging restrictions; (5) internal DNC/opt-out rules; and all other applicable laws and regulations. By making any use of the Software, Customer expressly warrants that Customer is and shall continue to act in full compliance with the law.

Customer agrees that Customer has read and understands the FTC’s Telemarketing Sales Rule (“TSR”) and the FCC’s Telephone Consumer Protection Act (“TCPA”), and all other applicable laws and regulations. Customer understands that in some cases, applicable state and local restrictions are more restrictive than the federal rules. Customer should review these rules with Customer’s own legal counsel to ensure that Customer understands and complies. Service Provider will not assume any liability if Customer is ever held liable for any law violation.

Customer will purchase and timely scrub against a national list of wireless numbers and numbers ported from landlines to cell phones. Customer agrees that Voxco is not responsible for ensuring that Customer does not transmit messages to cell phones in violation of the cell consent rules.

Customer agrees to create and enforce its own internal safe harbor and Do Not Call policies and procedures in full compliance with the law.

Customer warrants and represents that all present and future marketing practices used by their organization are in compliance with the Telephone Consumer Protection Act as defined under 47 U.S.C. Section 2227 (http://www.fcc.gov/ccd/consumernews/tcpa.html). No legal advice or counsel is given, or shall be deemed to have been given, by Voxco.