This Services Agreement (the “Agreement”) is effective as of the date of last signature below (the “Effective Date”) and is entered into by and between Sorenson Communications, LLC, a Utah limited liability company with offices at 4192 S. Riverboat Road, Salt Lake City, UT 84123 (“Sorenson”) to the entity identified on the signature page below (“Customer”). Sorenson and Customer are each referred to in this Agreement as a “Party” and collectively as the “Parties.” This Agreement, together with all attachments and exhibits (the terms of which are hereby incorporated herein by reference), governs the provision of Services (defined below) by Sorenson to Customer.
Sorenson offers a variety of communication-enabling services as described in one or more Service Descriptions attached as Exhibit A hereto, which include its documentation, support, and the features and functionality provided through Sorenson’s software and applications (collectively, the “Services”).
This Agreement incorporates the following additional policies, which are subject to change from time to time:
Each Service Description describes how Customer can access the Services, which may include Customer setting up a dedicated account (“Customer Account”). Sorenson will not be liable for losses caused by any unauthorized use of the Customer Account. Customer must notify Sorenson promptly of any breach of security or any known unauthorized use of the Customer Account. Upon termination of this Agreement, Customer may delete its Customer Account by emailing its Sorenson account manager. Notwithstanding deletion of the Customer Account, Sorenson may retain Customer Content (as defined below) as reasonably necessary for compliance with applicable law.
Customer agrees to pay the Fees for Services set forth in the applicable Service Order provided by Customer’s account manager and executed by Customer (collectively, the “Fees”). Customer’s obligation to pay the Fees is without the right of set-off, deductions, or counterclaim. Some Services accept recurring period charges. By choosing Services with a recurring payment feature, Customer accepts responsibility for all recurring charges owed for the Services. Sorenson will invoice Customer for the Services monthly, and payment will be due thirty (30) days following the date of invoice, without deduction. Invoices will be sent to the e-mail address specified in the Service Order and will be deemed received on the date sent. Customer will pay interest on past due amounts at a rate of 1.5% per month or the maximum rate permitted by law, whichever is less, and will be responsible for all costs of collection.
All Fees are exclusive of any country, province, federal, state or local taxes, including without limitation, use, sales, value-added, privilege, or other taxes, levies, imports, duties, fees, surcharges, governmental assessments and withholdings (“Taxes”). Customer will be solely liable for and will pay upon demand all Taxes associated with Customer’s access to and use of the Services and will not deduct any Taxes or any other withholdings from the Fees, but will not be responsible for taxes based on Sorenson’s net income.
Subject to Customer’s compliance with this Agreement, Sorenson hereby grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicenseable license until this Agreement or the Services are terminated (the “Term”) to (i) access and use the Services and any user manuals, handbooks, and guides relating to the Services provided by Sorenson(“Documentation”), and/or (ii) make the Services available to Customer’s employees or customers, as applicable (“End Users”). This license extends to Customer’s Affiliates (defined below), provided that they access Services via the Customer Account and provided further that Customer remains fully liable for all acts and omissions of its Affiliates. Any access to Services by any Customer Affiliate will be deemed access by Customer for the purposes of its obligations under this Agreement. An “Affiliate,” with respect to a Party, means any entity that controls, is controlled by, or is under common control with that Party.
Customer will not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer will not, and will not permit any End Users to: (i) engage or participate in communications or conduct of an abusive, pornographic, lewd, obscene, harassing, fraudulent, or unlawful nature while using the Services; (ii) post on the Internet, or transmit the voice, image, and/or likeness of any Sorenson employee in any way for any purpose, or to store, retrieve, use, or facilitate the use of, the voice, image, and/or likeness of the Sorenson employee in any way other than as necessary to permit the provision of Services; (iii) alter, copy, modify, translate or create derivative works of the Services or Documentation, in whole or in part; (iv) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation to third parties; (v) remove any proprietary notices from the Services or Documentation; or (vi) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
Sorenson Content. Sorenson owns and reserves all right, title and interest in and to the Services and Documentation and all improvements, modifications and derivative works thereof. Other than the Customer Content (as defined below), all content made available through the Services or Documentation (collectively, “Sorenson Content”) is, as between Customer and Sorenson, owned by Sorenson. Customer will abide by and maintain all copyright notices, information, and restrictions contained in any Sorenson Content accessed through the Services.
Customer Content. As between Customer and Sorenson, Customer owns and reserves all right, title and interest in any content originally transmitted by Customer or its End Users while using the Services (collectively, “Customer Content”). Customer authorizes Sorenson to access and use the Customer Content to provide the Services.
Suggestions and Feedback. Customer’s suggested improvements to and feedback regarding the Services are not Confidential Information (as defined below), and Customer grants to Sorenson an unrestricted, irrevocable, fully paid-up, and non-exclusive right to use such suggestions and feedback for any purpose.
Publicity. Except as explicitly granted herein, neither Party is granted a license or other right to use any trademarks, copyrights, service marks, logos or trade names, of the other Party without the prior written consent of the other Party. Sorenson may identify Customer using its name, trademarks and/or logos in its marketing collateral, presentations and websites.
Data Security. The receiving Party will use the Confidential Information of the disclosing Party solely in connection with the performance of this Agreement and provision of Services, and for no other reason. Each Party agrees to take the necessary precautions to protect Confidential Information by using at least commercially reasonable standards of care. During the Term of this Agreement and corresponding Services, Sorenson will employ and maintain reasonable and appropriate safeguards designed to: (a) reasonably protect all Customer Content in Sorenson’s possession from unauthorized use, alteration, access, or disclosure; (b) detect and prevent against a material security breach; and (c) ensure Sorenson meets and is compliant with applicable privacy laws governing privacy data. Sorenson and Customer mutually acknowledge that during the Term of this Agreement, neither Party will have access to the other Party’s information technology (IT) systems through access or system integration.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND SORENSON HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SORENSON SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SORENSON MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES WILL MEET CUSTOMER’S, END USERS’ OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Customer Indemnification. Customer agrees to defend, indemnify and hold harmless Sorenson, its Affiliates, and partners, and each of their respective employees, contractors, directors, officers and representatives, from and against any damages, liabilities, claims, demands, obligations, losses, fines, penalties, and expenses (including reasonable attorney’s fees) (collectively, “Losses”) incurred in connection with claims made or brought by a third party arising from or relating to: (i) unauthorized or prohibited use of the Services, including violations of Section 5 or applicable law, by Customer, its Affiliates or its or their End Users, employees, agents or subcontractors, (ii) Customer Content, (iii) claims by End Users to the extent they purport to extend Sorenson’s liability or obligations beyond the limitations and disclaimers set forth in this Agreement, or (iv) gross negligence or willful misconduct of Customer, its Affiliates or its or their employees, agents or subcontractors.
Procedure. Sorenson will notify Customer promptly after Sorenson learns of the existence of an indemnifiable claim hereunder; provided, however, that failure to give such notice will only affect the rights of Sorenson to the extent that Customer is prejudiced. Customer will be entitled to take sole control of the defense and investigation of the indemnifiable claim at its own expense, by providing prompt written notice to Sorenson, subject to Sorenson’s approval of Customer’s counsel, such approval not to be unreasonably withheld or delayed. Sorenson will cooperate in all reasonable respects with Customer and its attorneys in the defense of the claim (including by making available books, records, and personnel), and may reasonably participate at its own expense, through its attorneys or otherwise, provided that such participation does not interfere with Customer’s defense. All settlements of indemnifiable claims under this Section will: (i) be entered into only with Sorenson’s consent if such settlement requires any admission of guilt or imposes any restriction on Sorenson; and (ii) include an appropriate confidentiality agreement prohibiting disclosure of the terms of such settlement.
Mutual Representations. Each Party represents and warrants to the other Party that: (i) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; and (ii) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
Sorenson Representations. Sorenson represents and warrants to Customer that it will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SORENSON OR ITS AFFILIATES OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE UNDER ANY CONTRACT, TORT, WARRANTY, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT FOR: (I) ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, LOST PROFITS, GOODWILL, REVENUE, INCOME OR BUSINESS, DATA LOSS, INTERRUPTION OF BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, RIGHTS OR SERVICES (HOWEVER ARISING AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES); OR (II) ANY LIABILITY THAT EXCEEDS THE AMOUNT OF FEES PAID OR PAYABLE TO SORENSON IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Certain Services may be offered as a beta version (“Beta Version”) of a Service. The fact and existence of any Beta Version will be deemed to be Sorenson Confidential Information under this Agreement. Customer is not required to use any Beta Version and does so at its sole risk. Sorenson may not charge for the Beta Version but reserves the right to charge for subsequent versions, including any potential commercial releases. Customer acknowledges and agrees that the Beta Version may contain, in Sorenson’s sole discretion, more or fewer features or different licensing terms than a subsequent commercial release version of the Beta Version. Sorenson reserves the right not to release commercial release versions of the Beta Version. Without limiting any disclaimer of warranty or other limitation stated in this Agreement (or any separate terms and conditions that would otherwise be applicable to such Beta Versions), Customer agrees that Beta Versions are not considered by Sorenson to be suitable for commercial use, and that may contain errors affecting their proper operation. CUSTOMER ACKNOWLEDGES AND AGREES THAT USE OF ANY BETA VERSION MAY EXHIBIT SPORADIC DISRUPTIONS THAT HAVE THE POTENTIAL TO DISRUPT CUSTOMER’S USE OF ANY SERVICES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SORENSON SPECIFICALLY DISCLAIMS ALL DAMAGES RESULTING FROM CUSTOMER’S USE OF ANY BETA VERSION.
Suspension of Services; Termination for Cause. Sorenson may suspend Customer’s right to use any Services or terminate this Agreement in its entirety, for cause: (A) if Customer is in breach of its payment obligations or any other provision (excluding Section 5) of this Agreement and has failed to cure such breach within thirty (30) days after written notice thereof, or (B) immediately (i) if Customer has violated or Sorenson has reason to believe Customer has violated or has encouraged others to violate any provision of Section 5, or (ii) upon Customer’s liquidation, commencement of dissolution proceedings, disposal of Customer’s assets, failure to continue Customer’s business in the ordinary course, assignment for the benefit of creditors, or if Customer becomes the subject of a voluntary or involuntary bankruptcy or similar proceeding.
Effect of Suspension. Upon Sorenson’s suspension of Customer’s use of or access to any Services: (i) Fees will continue to accrue for any Services that are still in use by Customer, notwithstanding the suspension, (ii) Customer remains liable for all Fees incurred through the date of suspension with respect to the Services, and (iii) all of Customer’s rights with respect to the Services will be terminated during the period of the suspension.
Effect of Termination and Survival. Upon termination of this Agreement, for any reason: (i) Customer remains liable for all Fees accrued and owed by Customer through the effective date of such termination, and (ii) except as expressly set forth herein, all of Customer’s rights and licenses under this Agreement will immediately terminate and Customer will cease using the Services. All amounts accrued or owed to Sorenson in connection with this Agreement and Sections 3, 5, 6, 7, 8, 9, 11, 13, 14 and 15 will survive any termination of this Agreement.
This Agreement will be governed by and construed in accordance with the laws of the jurisdiction of the contracting entity identified below, without reference to its principles of conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods will not be applicable hereto. Without limiting the preceding language, Customer agrees to submit, for purposes of this Agreement, to the jurisdiction and venue of the of the contracting entity identified below:
US and Americas
Sorenson Communications LLC
State and federal courts of Delaware
United Kingdom & EMEA
Significan’t (UK) Ltd.,
London and Wales
Courts of London, England
Entire Agreement; Headings. This Agreement constitutes the entire agreement between Customer and Sorenson with respect to the Services and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Sorenson with respect thereto. The section and paragraph headings in this Agreement are for convenience of reference only and will not affect their interpretation. No oral or written information or advice given by Sorenson or its employees and other representatives will create any obligations or warranty on behalf of Sorenson unless otherwise agreed in a writing signed by an authorized Sorenson representative. Any purchase orders, confirmations, payment documentation, or other terms provided by Customer, even after the date hereof, will have no force or effect. In the event that the Parties have executed versions of this Agreement drafted in more than one language, the English language version will govern and prevail.
Modifications/Waivers. Except as expressly provided elsewhere in this Agreement, this Agreement may not be changed or modified, nor may any provisions hereof be waived, nor may any consent or confirmation be considered to have been given, except by an agreement in writing signed by the Party against whom enforcement of the change or modification is asserted, and any such modification, change, waiver, consent or confirmation on Sorenson’s behalf may only be given by an authorized signatory of Sorenson. The failure of either Party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder.
Severability. If any provision of this Agreement, or any part of such provision, is found to be unenforceable or invalid, that provision will be (to the minimum extent necessary) replaced by a valid and enforceable provision the effect of which comes as close as possible to the intended economic effect of the unenforceable or invalid provision, so that this Agreement will otherwise remain in full force and effect and enforceable.
Compliance with Laws. Sorenson will, at its own expense, comply with all applicable laws, rules and regulations applicable to it in connection with its performance of the Services.
Force Majeure. Neither Party is liable for any failure of performance (other than for delay or performance in the payment of money due and payable hereunder) to the extent such failure is due to any cause or causes beyond such Party’s reasonable control, including acts of God, fire, explosion, vandalism, cable cut, adverse weather conditions, governmental action, acts of terrorism, strikes and similar labor difficulties, war, sabotage, outages of third party connections, utilities, or telecommunications networks, including, without limitation, carrier-related problems or issues, internet-access issues, denial of service attacks, shortage or unavailability of supplies, and other mechanical, electronic or communications failures or degradation. Either Party’s invocation of this clause will not relieve Customer of its obligation to pay for any Services actually provided or permit Customer to terminate any Services except as expressly provided herein.
Notices. Customer hereby authorizes Sorenson to send notices to Customer relating to this Agreement via email to the email address Customer provides to Sorenson in the Service Order, in addition to the other means and methods set forth in this Agreement. It is Customer’s responsibility to keep Customer’s email address current, and Customer will be deemed to have received any email sent to the last known email address Sorenson has on record for Customer. Notices that Sorenson sends to Customer via email will be deemed effective upon Sorenson’s sending of the email. Notices provided to Sorenson under this Agreement will be sent to the attention of Customer’s account manager, with a copy sent to the following address with respect to any legal matters, at:
Sorenson Communications, LLC
4192 S. Riverboat Road, Salt Lake City, UT 84123
Attn: Legal Department
Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent via next day delivery by recognized overnight delivery service.
Relationship of the Parties. The relationship of the Parties will not be that of partners, agents or joint venturers for one another, and nothing contained in the Agreement will be deemed to constitute a partnership or agency agreement between the Parties for any purpose. Sorenson and Customer are independent Parties and will discharge their contractual obligations at their own risk subject to the terms of this Agreement.
Assignment. This Agreement inures to and is binding upon the Parties’ successors and permitted assignees. Customer will not assign this Agreement without Sorenson’s prior written consent.
Export Controls. By using the Services, Customer represents and warrants that (i) its use of the Services will not violate any embargoes, sanctions, trade restrictions or similar restrictions issued by any applicable governmental entity, and (ii) Customer, its Affiliates, and its End Users have not been designated by any applicable government or any government agency as a prohibited or restricted party under any trade restrictions, export laws or the like. Customer may not use, export, re-export, import, or transfer any technology or data related to the Services except as authorized by both this Agreement and all applicable laws, rules and regulations.