These ChorusCX US (DVSAnalytics) Terms of Use (“End Customer Agreement”) state the terms, conditions, and restrictions for ChorusCX US (DVSAnalytics) to provide Encore Cloud and related services purchased from ChorusCX US (DVSAnalytics) or ChorusCX US (DVSAnalytics)’ authorized reseller (a “Reseller”). The ChorusCX US (DVSAnalytics) customer or the Reseller’s customer is referred to in this End Customer Agreement as the “End Customer.”
“Authorized Use Limits” means the use limitations placed on Your use of Encore Cloud. Examples of possible Authorized Use Limits include recorded agents, data storage and data download.
“Confidential Information” is as defined in Section 6.3 below.
“dvsAnalytics Materials“ means any documentation, online help or other standard end user materials provided by ChorusCX US (DVSAnalytics) to You in connection with your use of Encore Cloud.
“dvsAnalytics Software” means any stand-alone software product that you may license from ChorusCX US (DVSAnalytics) pursuant to the ChorusCX US (DVSAnalytics) End User License Agreement. The ChorusCX US (DVSAnalytics) Software is separate from Encore Cloud. It is not required for use of Encore Cloud, but may be used in combination with it.
“dvsAnalytics Technology“ means ChorusCX US (DVSAnalytics)’ proprietary technology and intellectual property rights therein (including, but not limited to, ChorusCX US (DVSAnalytics) Materials, software, documents, processes, algorithms, user interfaces, patent, copyright and trade secret rights) used by ChorusCX US (DVSAnalytics) in providing Encore Cloud or Services to You.
“Encore Cloud“ means, collectively, the Encore Cloud Appliance and the hosted set of solutions that are developed, operated, and maintained by ChorusCX US (DVSAnalytics) (and its third party service providers) for the purpose of call recording, quality management, analytics and workforce management.
“Encore Cloud Appliance” means the appliance which acts as a gateway for transferring recordings to and from Encore Cloud.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby, or (b) prevent Your Users or any other authorized users from accessing or using the Encore Cloud as intended by this Agreement.
“Maintenance Windows“ means collectively, standard maintenance and emergency maintenance. Standard maintenance windows will be published in advance on Encore Cloud at least 72 hours in advance of the start of the standard maintenance window. Emergency maintenance will occur as needed. ChorusCX US (DVSAnalytics) will make reasonable efforts to publish emergency maintenance windows on Encore Cloud in advance of the emergency maintenance window, but it is possible that advanced notification of an emergency window may not occur. In addition, ChorusCX US (DVSAnalytics) will send email on maintenance to the email address on file with ChorusCX US (DVSAnalytics).
“Order Form“ means the ordering document(s) specifying the Encore Cloud and/or Services to be provided hereunder, including any addenda and supplements thereto, that is either entered into between You and ChorusCX US (DVSAnalytics) or you and a ChorusCX US (DVSAnalytics)’ authorized reseller.
“Services“ means any consulting, training or other professional services provided by ChorusCX US (DVSAnalytics) to You pursuant to the terms of an Order Form.
“Service Administrator“ means the person that You designate to purchase usage of Encore Cloud, authorize Users under the Agreement, and otherwise administer Your use of Encore Cloud and the Services.
“Subscription Term“ or “Term“ means the initial use term (“Initial Term“) set forth on Your Order Form and any additional renewal terms (each, a “Renewal Term“) to Encore Cloud purchased by You.
“Support and Training“ means the end user support and training for Encore Cloud provided by ChorusCX US (DVSAnalytics) during the Subscription Term, set forth in Section 4 below.
“User(s)“ means Your employees, consultants, contractors or agents authorized by Your Service Administrator to use Encore Cloud. If You are a contact center, your Users may include Your clients.
“Your Data“ means registration information, User information, business and financial information, electronic transmissions, Your recorded calls and quality reports, as well as all other information, content and data of any kind contained within e-mails or otherwise submitted by You or entered electronically in the course of Your use of Encore Cloud or the Services (such as when imported by ChorusCX US (DVSAnalytics) on Your behalf as a Service).
2.1 Use Rights. Subject to the terms of this Agreement, ChorusCX US (DVSAnalytics) grants to You during the Subscription Term the non-transferable, non-exclusive, non-sub licensable right to permit Your Users to use Encore Cloud (and any ChorusCX US (DVSAnalytics) Materials provided to You), subject to Your Authorized Use Limits, solely for Your own internal business operations.
2.2 Restrictions.
2.2.1 General Restrictions. The rights granted to You in this Agreement are subject to the following additional restrictions: (i) Your use of Encore Cloud shall be limited to Your Authorized Use Limits and Your authorized Users; (ii) You shall not license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise commercially exploit or make Encore Cloud or the ChorusCX US (DVSAnalytics) Technology available to any third party; (iii) You shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of Encore Cloud or ChorusCX US (DVSAnalytics) Technology, or access or use Encore Cloud or ChorusCX US (DVSAnalytics) Technology in order to build a similar or competitive product or service; (iv) unless otherwise expressly authorized in writing by ChorusCX US (DVSAnalytics), You may not use the ChorusCX US (DVSAnalytics) Software in connection with any software product or tools, or any other software as a service not provided by ChorusCX US (DVSAnalytics); (v) except as expressly stated herein, no part of Encore Cloud or ChorusCX US (DVSAnalytics) Technology may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; (vi) You shall not disclose any review of Encore Cloud, including but not limited to the results of any performance tests, to any third party without ChorusCX US (DVSAnalytics)’ prior written approval; (vi) You shall not bypass or breach any security device or protection used by Encore Cloud or the ChorusCX US (DVSAnalytics) Technology, nor shall you damage, destroy, disrupt or otherwise impede or harm in any manner the Encore Cloud, ChorusCX US (DVSAnalytics) Technology or any systems used by ChorusCX US (DVSAnalytics); (vii) You shall not input, upload, transmit or otherwise provide to or through Encore Cloud or any systems used by ChorusCX US (DVSAnalytics) anything that is unlawful, injurious, or contains, transmits or activates any Harmful Code and (viii) You acknowledge and agree that ChorusCX US (DVSAnalytics) shall own all right, title and interest in and to all intellectual property rights (including all derivatives or improvements thereof) in the Encore Cloud and the ChorusCX US (DVSAnalytics) Technology and any suggestions, enhancement requests, feedback, recommendations or other information provided by You or any of Your Users relating to Encore Cloud or the ChorusCX US (DVSAnalytics) Technology.
2.2.2. Payment Card Information Restriction. YOU ACKNOWLEDGE AND AGREE THAT ENCORE CLOUD IS NOT TO BE USED TO RECORD, RETAIN OR STORE ANY PAYMENT CARD SECURITY INFORMATION, NOW EXISTING OR LATER DEVELOPED, INCLUDING WITHOUT LIMITATION ANY CARD SECURITY CODE (CSC), CARD VERIFICATION DATA (CVD), CARD VERIFICATION NUMBER (CVN), CARD VERIFICATION VALUE (CVV OR CVV2), CARD VERIFICATION VALUE CODE (CVVC), CARD VERIFICATION CODE (CVC OR CVC2), VERIFICATION CODE (V-CODE OR V CODE), CARD CODE VERIFICATION (CCV), SIGNATURE PANEL CODE (SPC), OR ANY OTHER SIMILAR CODE OR OTHER CARD SECURITY INFORMATION. You agree not to ask for any such payment card information during any calls recorded using Encore Cloud. You further acknowledge and agree that your failure to comply with this Section 2.2.2 is a material breach of this Agreement for which you will be required to indemnify ChorusCX US (DVSAnalytics) pursuant to Section 7.6 of this Agreement.
2.3 General Requirements for Use of Encore Cloud. In order to use Encore Cloud, You must have access to the Internet and provide all equipment necessary to make and maintain such connection, including all third party charges for labor, materials and equipment necessary to connect Your network with Encore Cloud. If not designated in the Order Form, You shall designate a Service Administrator and notify ChorusCX US (DVSAnalytics) of the identity and contact information for said Service Administrator. You agree to provide ChorusCX US (DVSAnalytics) with Your Service Administrator’s e-mail address, to promptly provide ChorusCX US (DVSAnalytics) with any changes to such e-mail address, and to accept e-mails (or other electronic communications) from ChorusCX US (DVSAnalytics) to Your Service Administrator. Except as otherwise provided in this Agreement, You further agree that ChorusCX US (DVSAnalytics) may provide any and all notices, statements, and other communications to You through either e-mail to the Service Administrator or posting on Encore Cloud.
2.4 Encore Cloud Appliance Requirement for Use of Encore Cloud. In order to use Encore Cloud, you must also have properly installed the Encore Cloud Appliance at your site if the communication platform (PBX) is on premise or you wish to enable screen recording. At ChorusCX US (DVSAnalytics)’ request, you shall promptly provide ChorusCX US (DVSAnalytics) with reasonable access to the Encore Cloud Appliance and any ChorusCX US (DVSAnalytics)’ equipment over which you have control. You agree that You shall be responsible for securing and safeguarding all ChorusCX US (DVSAnalytics) equipment within your control and shall be liable to ChorusCX US (DVSAnalytics)’ for any damage to such equipment.
2.5 Passwords, Access. Your Service Administrator may designate and add Users and shall provide and assign unique passwords and user names to each authorized User pursuant to ChorusCX US (DVSAnalytics)’ then-current protocols. At ChorusCX US (DVSAnalytics)’ discretion, Users may be added either by ChorusCX US (DVSAnalytics) or directly the Service Administrator. The Service Administrator shall ensure that multiple Users do not share a password or user name. You acknowledge and agree that You are prohibited from sharing passwords and/or user names with unauthorized users. You will be responsible for the confidentiality and use of Your passwords and user names. ChorusCX US (DVSAnalytics) will act as though any electronic communications it receives under Your passwords, user names, and/or account numbers have been sent by You. You agree to immediately notify ChorusCX US (DVSAnalytics) if You become aware of any loss or theft or unauthorized use of any of Your passwords, user names, and/or account numbers. You agree not to access Encore Cloud by any means other than through the interfaces that are provided by ChorusCX US (DVSAnalytics).
2.6 Transmission Of Data. You understand that the technical processing and transmission of Your Data is necessary to Your use of Encore Cloud, and consent to ChorusCX US (DVSAnalytics)’ interception and storage of Your Data. You understand that You or ChorusCX US (DVSAnalytics) may be transmitting Your Data over the Internet, and over various networks, only part of which may be owned and/or operated by ChorusCX US (DVSAnalytics). You agree that ChorusCX US (DVSAnalytics) is not responsible for any portions of Your Data that are lost, altered, intercepted or stored without authorization during the transmission of Your Data across networks not owned and/or operated by ChorusCX US (DVSAnalytics).
2.7 Your Responsibilities. You will (a) be responsible for Your Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data, the means by which You acquired Your Data, (c) be responsible for cooperating and assisting ChorusCX US (DVSAnalytics) as reasonably requested by ChorusCX US (DVSAnalytics) to facilitate performance of its obligations and exercising of its rights under this Agreement, (d) use Encore Cloud, ChorusCX US (DVSAnalytics) Technology and Services only in accordance with the ChorusCX US (DVSAnalytics) Materials and applicable laws and government regulations, including not violating the intellectual property, privacy or any other rights of any third parties, and (e) use commercially reasonable efforts to prevent any security breach, including any unauthorized access to or use of Encore Cloud and ChorusCX US (DVSAnalytics) Technology. Should You become aware of any actual or threated security breach, You shall promptly notify ChorusCX US (DVSAnalytics) and take all reasonable and lawful measures within your control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Encore Cloud and/or ChorusCX US (DVSAnalytics) Technology).
2.8 Data Backup. Encore Cloud is programmed to perform data backups of recording database records and custom configuration files. In the event of any loss, destruction, damage or corruption of Your Data caused by Encore Cloud or ChorusCX US (DVSAnalytics) Technology, ChorusCX US (DVSAnalytics), as its sole obligation and liability and as Your sole remedy, will use commercially reasonable efforts to restore Your Data from ChorusCX US (DVSAnalytics)’ most current backup of Your Data. Encore Cloud will not backup your recording files. The recorded files are stored in a raid array for disk redundancy to protect against a loss of file data due to a drive failure. You acknowledge that if you wish to have your recorded files further protected, You may contract with ChorusCX US (DVSAnalytics) for an additional cost to have the files periodically moved to Your network storage device.
3.1 Professional Services. ChorusCX US (DVSAnalytics) shall provide You with consulting, training or other Services expressly set forth on any Order Form between You and ChorusCX US (DVSAnalytics), in exchange for the fees set forth on the Order Form. For the avoidance of any doubt, if You execute an Order Form with a ChorusCX US (DVSAnalytics)’ authorized reseller, any services set forth on that Order Form to be provided to you are the sole obligation of the ChorusCX US (DVSAnalytics)’ authorized reseller and shall be provided pursuant to your agreement with the ChorusCX US (DVSAnalytics)’ authorized reseller, not this Agreement.
3.2 Expenses. Except as may be otherwise provided herein or as pre-approved in writing, each party will be responsible for all expenses associated with the performance of its obligations hereunder.
During the term, You will be entitled to access training, online user guides, knowledge bases and self-help tools, and any additional standard technical support resources (collectively, “Support and Training“) offered by ChorusCX US (DVSAnalytics) from time to time. ChorusCX US (DVSAnalytics)’ current Support and Training is described at https://www.dvsanalytics.com/services/. Support and Training may be modified by ChorusCX US (DVSAnalytics) in its sole discretion, effective immediately upon notice to You. ChorusCX US (DVSAnalytics) reserves the right to provide some or all Support and Training from locations, and/or through use of third party providers, located worldwide.
5.1 Fees; Invoices. If your Order Form is between You and a ChorusCX US (DVSAnalytics)’ reseller, Your payment terms are as set forth in your agreement with the ChorusCX US (DVSAnalytics)’ reseller, not this Section 5.1. If your Order Form is between You and ChorusCX US (DVSAnalytics), this Section 5.1 applies to You. You will pay all applicable fees set forth on the Order Form in advance and acknowledge that all fees are non-refundable, except as set forth otherwise in this Agreement. Fees are based on what is purchased and not on actual usage. You will provide ChorusCX US (DVSAnalytics) with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to ChorusCX US (DVSAnalytics). If You provide credit card information, You authorize ChorusCX US (DVSAnalytics) to charge such credit card for all items listed in the Order Form, including, if you purchase anything on a subscription basis, for the Initial Term(s) and any Renewal Term(s) as set forth in Section 8.1. Such charges shall be made in advance. If the Order Form specifies payment upon invoice, ChorusCX US (DVSAnalytics) will invoice You at the time of the initial Order Form and subsequently as set forth on the Order Form; all amounts invoiced hereunder shall be due within the time period set forth on the Order Form. Late payments shall be subject to a service charge of one and a half percent (1.5 %) per month, or the maximum charge permitted by law, whichever is less. Further, ChorusCX US (DVSAnalytics) may condition future payments, including future subscriptions and future subscription renewals, on payment terms shorter than those specified in this Agreement.
5.2 Taxes. You shall pay all personal property, sales, use, value-added, withholding and similar taxes (other than taxes on ChorusCX US (DVSAnalytics)’ net income) arising from the transactions described in this Agreement, even if such amounts are not listed on an Order Form. To the extent You are exempt from sales or other taxes, You agree to provide ChorusCX US (DVSAnalytics), upon request, with the appropriate exemption certificate.
5.3 Suspension Right. ChorusCX US (DVSAnalytics) reserves the right to include disabling devices in the service and software provided under this Agreement and to use such disabling devices to suspend Your access and/or use when any payment is overdue or when ChorusCX US (DVSAnalytics) believes that You are using Encore Cloud, the ChorusCX US (DVSAnalytics) Technology, ChorusCX US (DVSAnalytics) Software and/or any Services not in accordance with the ChorusCX US (DVSAnalytics) Materials, this Agreement and/or applicable laws and government regulations. You agree that ChorusCX US (DVSAnalytics) shall not be liable to You nor to any third party for any suspension of Encore Cloud pursuant to this Section 5.3. If You are suspended for failure to pay, upon payment in full of all amounts overdue (including any interest owed), You may request the reactivation of Your account. ChorusCX US (DVSAnalytics) shall reactivate Your account within seven (7) days of ChorusCX US (DVSAnalytics) receiving in advance all applicable reactivation fees, provided that ChorusCX US (DVSAnalytics) has not already terminated pursuant to Section 8 of this Agreement.
6.1 Intellectual Property Rights. ChorusCX US (DVSAnalytics) and its licensors own all right, title and interest to the ChorusCX US (DVSAnalytics) Technology, Encore Cloud, ChorusCX US (DVSAnalytics) Software and any modifications, ideas, or recommendations provided by You, together with all associated intellectual property rights. This Agreement does not convey or transfer any ownership in Encore Cloud, ChorusCX US (DVSAnalytics) Technology or ChorusCX US (DVSAnalytics) Software, or their associated intellectual property rights.
6.2 Your Data. As between You and ChorusCX US (DVSAnalytics), You shall remain the sole owner of Your Data. Subject to the terms and conditions of this Agreement, You hereby grant to ChorusCX US (DVSAnalytics) the non-exclusive right to use, copy, distribute and display Your Data solely in connection with ChorusCX US (DVSAnalytics)’ operation of Encore Cloud and enforcement of this Agreement. You, not ChorusCX US (DVSAnalytics), shall have responsibility for the accuracy, integrity, and reliability of Your Data and Your use of Encore Cloud, and ChorusCX US (DVSAnalytics) shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Data or any destruction, damage, loss or failure caused by Your use of Encore Cloud. ChorusCX US (DVSAnalytics) will use commercially reasonable efforts to protect any of Your Data provided to ChorusCX US (DVSAnalytics) by You in the course of using Encore Cloud or Services as confidential in accordance with Sections 6.3 and 6.4
6.3 Confidential Information. For purposes of this Agreement, confidential information shall include Your Data, Encore Cloud, ChorusCX US (DVSAnalytics) Software and ChorusCX US (DVSAnalytics) Materials, and any other information that is clearly identified in writing at the time of disclosure as confidential (“Confidential Information“). Each party agrees: (a) to receive and use commercially reasonable efforts to maintain in confidence all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights hereunder; (c) to limit the internal dissemination of Confidential Information to those employees and contractors, if any, of the recipient who have a need to know and an obligation to protect it; and (d) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). Confidential Information shall not include information that: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient; or (5) was independently developed by the recipient without use of or reference to any Confidential Information belonging to the disclosing party. This Section 6.3 will not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure.
7.1 Services Warranty. ChorusCX US (DVSAnalytics) warrants that Services will be performed in a workmanlike manner. For any breach of this warranty, Your exclusive remedy shall be the re-performance of the deficient Services, and if ChorusCX US (DVSAnalytics) is unable to re-perform the deficient Services as warranted, You shall be entitled to recover that portion of the fees paid to ChorusCX US (DVSAnalytics) for such deficient Services, and such refund shall be ChorusCX US (DVSAnalytics)’ entire liability.
7.2 Your Warranties. You warrants and covenants that You own or otherwise have and will have the necessary rights and consents in and relating to the Your Data so that, as received by ChorusCX US (DVSAnalytics) and processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable laws or and government regulations, including but not limited to all foreign, United States federal and United States state recording laws.
7.3 Disclaimer Of Warranties. EXCEPT AS STATED IN SECTIONS 4.1 AND 1, ENCORE CLOUD, THE ChorusCX US (DVSAnalytics) TECHNOLOGY, SUPPORT AND TRAINING, AND ALL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE WARRANTIES STATED IN SECTIONS 4.1 AND 7.1 ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY ChorusCX US (DVSAnalytics). THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY USAGE OR TRADE, COURSE OF DEALINGS OR COURSE OF PERFORMANCE. EXCEPT AS SET FORTH IN SECTION 4.1, NO WARRANTY IS GIVEN AS TO ACCURACY, ERROR-FREE OR UNINTERRUPTED SERVICE. YOU ASSUME ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE, the ChorusCX US (DVSAnalytics) technology, the encore cloud OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR YOUR PURPOSES. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. YOU ACKNOWLEDGE AND AGREE THAT ChorusCX US (DVSAnalytics) software is NOT SUBJECT TO ANY WARRANTIES UNDER THIS AGREEMENT AND, TO THE EXTENT SUBJECT TO ANY WARRANTIES, THESE WARRANTIES ARE EXCLUSIVELY SET FORTH IN THE ChorusCX US (DVSAnalytics) END USER LICENSE AGREEMENT UNDER WITH LICENSED.
7.4 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ChorusCX US (DVSAnalytics) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING LOST PROFITS, COST OF COVER, LOST SAVINGS, CURRENCY CONVERSION LOSSES, OR LOSS OF OTHER ECONOMIC ADVANTAGE) ARISING FROM BREACH OF WARRANTY OR BREACH OF CONTRACT, OR NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR ChorusCX US (DVSAnalytics)’ PERFORMANCE HEREUNDER, INCLUDING WITHOUT LIMITATION (A) ENCORE CLOUD, ChorusCX US (DVSAnalytics) TECHNOLOGY OR SERVICES, (B) ANY INTERRUPTION OF USE OF ENCORE CLOUD, ChorusCX US (DVSAnalytics) TECHNOLOGY OR SERVICES, OR (C) FOR LOSS, INACCURACY OR CORRUPTION OF YOUR DATA, EVEN IF ChorusCX US (DVSAnalytics) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SUBJECT TO ANY GREATER AMOUNT SET FORTH IN THE REFUND PROVISIONS IN SECTIONS 4.1 AND 1, IN NO EVENT SHALL ChorusCX US (DVSAnalytics)’ aggregate LIABILITY HEREUNDER EXCEED THE AMOUNT THAT ChorusCX US (DVSAnalytics) RECEIVED (EITHER DIRECTLY FROM YOU OR INDIRECTLY FROM A ChorusCX US (DVSAnalytics)’ RESELLER) UNDER THE ORDER FORM(S) GIVING RISE TO THE CLAIM in the three (3) months immediately preceding the events first giving rise to a claim.
7.5 Indemnification by dvsAnalytics. ChorusCX US (DVSAnalytics) will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that Your use of Encore Cloud, ChorusCX US (DVSAnalytics) Software, any ChorusCX US (DVSAnalytics) Technology, or any Service in accordance with this Agreement infringe, misappropriate or otherwise violate any Intellectual Property Rights of any third party (a “Claim”), and will indemnify You from any costs, liabilities, and expenses (including, but not limited to, reasonable attorneys’ fees) awarded against You as a result of, or for any amounts paid by You under a settlement of, a Claim; provided that You (a) promptly give ChorusCX US (DVSAnalytics) written notice of the Claim, (b) give ChorusCX US (DVSAnalytics) sole control of the defense and settlement of the Claim (except that ChorusCX US (DVSAnalytics) may not settle any Claim unless it unconditionally releases You of all liability), and (c) give ChorusCX US (DVSAnalytics) all reasonable available information and assistance necessary to perform ChorusCX US (DVSAnalytics)’ obligations under this Section, at ChorusCX US (DVSAnalytics)’ expense. The indemnification obligation set forth in this Section 7.5 shall be ChorusCX US (DVSAnalytics) sole liability and Your exclusive remedy for any infringement, misappropriation or other violation of Intellectual Property Rights by Encore Cloud, ChorusCX US (DVSAnalytics) Software, any ChorusCX US (DVSAnalytics) Technology, or any Service.
7.6 Indemnification by You. You will defend ChorusCX US (DVSAnalytics), it stockholders, officers, directors, employees and agents (the “dvsAnalytics Indemnified Parties“) against any claim, demand, suit or proceeding made or brought against ChorusCX US (DVSAnalytics) Indemnified Parties by a third party (i) arising out of or relating to Your Data, including any processing of Your Data by or behalf of ChorusCX US (DVSAnalytics) in accordance with this Agreement and/or (ii) alleging that Your use of Encore Cloud, ChorusCX US (DVSAnalytics) Software, any ChorusCX US (DVSAnalytics) Technology, or any Service in breach of this Agreement infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable laws or and government regulations (collectively, (i) and (ii) claims shall be referred to as a “Claim”), and will indemnify ChorusCX US (DVSAnalytics) Indemnified Parties from any costs, liabilities, and expenses (including, but not limited to, reasonable attorneys’ fees) awarded against ChorusCX US (DVSAnalytics) Indemnified Parties as a result of, or for any amounts paid by ChorusCX US (DVSAnalytics) Indemnified Parties under a settlement of, a Claim; provided that ChorusCX US (DVSAnalytics) Indemnified Parties (a) promptly gives You written notice of the Claim, (b) gives You sole control of the defense and settlement of the Claim (except that You may not settle any Claim unless it unconditionally releases ChorusCX US (DVSAnalytics) Indemnified Parties of all liability), and (c) gives You all reasonable available information and assistance necessary to perform Your obligations under this Section, at Your expense.
8.1 Initial Term; Renewal Terms. The Subscription Term shall commence upon the date set forth on the Order Form and shall continue for the period of time set forth in the Order Form. Except as otherwise provided in an Order Form, upon the expiration of the Initial Term, THE Subscription Term shall automatically renew for successive Renewal Terms of equal length as the Initial Term at ChorusCX US (DVSAnalytics)’ then current fees unless either party provides notice of non-renewal as set forth in this Section 8.1. ChorusCX US (DVSAnalytics) (or its authorized reseller if You purchased from a reseller) will provide You with a notice of non-renewal or a notice of the fees due for each Renewal Term at least thirty (30) days prior to the commencement of the Renewal Term. If a notice of fees is provided, it will be in the form of an invoice sent via email to the email address on file with ChorusCX US (DVSAnalytics) (or its reseller, if You purchased from a reseller). You acknowledge that it is Your responsibility to provide a current email address to ChorusCX US (DVSAnalytics) and to monitor Your email for such notices. You may elect not to renew a Subscription Term by providing notice to ChorusCX US (DVSAnalytics) (or its reseller, if You purchased from a reseller) at least thirty (30) days prior to the commencement of the Renewal Term. If you purchased directly from ChorusCX US (DVSAnalytics) (not thru a reseller) and do not wish to renew, notice must be sent to ChorusCX US (DVSAnalytics) by sending both an email to csa@dvsanalytics.com (with non-renewal notice in the re line) and separate written notice to ChorusCX US (DVSAnalytics), Inc.; Attn: CSA Department, Comptroller; 17255 N. 82nd Street, Suite 120; Scottsdale, Arizona 85255.
8.2 Termination; Effect of Expiration or Termination. In the event of any breach of this Agreement by either party, the non-breaching party shall have the right to terminate the Agreement for cause if such breach has not been cured within 30 days of written notice from the non-breaching party specifying the breach in detail. ChorusCX US (DVSAnalytics) shall also have the suspension rights set forth in Section 5.3 and a right to terminate this Agreement for cause if You are in breach of any other agreement with ChorusCX US (DVSAnalytics), such as the ChorusCX US (DVSAnalytics) End User License Agreement. Upon any termination of the Agreement, (a) Your right to access and use Encore Cloud and ChorusCX US (DVSAnalytics) Technology shall terminate; (b) if ChorusCX US (DVSAnalytics) notifies You that it needs to remove ChorusCX US (DVSAnalytics) Materials installed on Your machines, You agree to promptly (but in all cases within fifteen business days) do so and provide ChorusCX US (DVSAnalytics) with written certification of the removal; and (c) if you have any ChorusCX US (DVSAnalytics) equipment in Your control, You agree to either promptly (but in all cases within fifteen business days) return such ChorusCX US (DVSAnalytics) equipment to ChorusCX US (DVSAnalytics) or allow ChorusCX US (DVSAnalytics) reasonable access to remove the it. Upon any termination or expiration of this Agreement, You agree that (a) except as set forth in this Section 8.2, ChorusCX US (DVSAnalytics) has no obligation to retain Your Data or any ChorusCX US (DVSAnalytics) Technology required to provide You with Encore Cloud and (b) both may be irretrievably deleted from Encore Cloud. Your obligation to make a payment of any outstanding, unpaid fees and reimbursable expenses shall survive termination of this Agreement. Provided that You have paid all amounts owed to ChorusCX US (DVSAnalytics) hereunder, ChorusCX US (DVSAnalytics) shall, upon written request received within fifteen (15) business days of termination, export to You your data in a comma delimited text file and your recordings in a wave format. In addition, the following provisions shall survive any termination of this Agreement: Sections 5, 6, 7, 8 and 9.
9.1 Notice. Notices regarding this Agreement to ChorusCX US (DVSAnalytics) shall be in writing and sent by first class mail or overnight courier (if from within the USA), or international courier, addressed to ChorusCX US (DVSAnalytics) at the address provided on the Order Form. ChorusCX US (DVSAnalytics) may give notice applicable to ChorusCX US (DVSAnalytics)’ general Encore Cloud customer base by means of a general notice on the Encore Cloud portal, and notices specific to You by electronic mail to Your Service Administrator’s e-mail address on record with ChorusCX US (DVSAnalytics), or by written communication sent by first class mail or overnight courier (if to an address within the USA), or international courier, to Your address on record in ChorusCX US (DVSAnalytics)’ account information. All notices shall be deemed to have been given three days after mailing or posting (if sent by first class mail), upon delivery in the case of courier, or 12 hours after sending by confirmed facsimile, e-mail or posting to the Encore Cloud portal.
9.2 No Solicit. Each party hereby acknowledges the character of the other party’s business and the substantial amount of time, money and effort that the other party has spent and will spend in recruiting competent employees and contractors, and each party agrees that it will not, during the term of this Agreement and for twelve (12) months following the termination or expiration of this Agreement, alone or with others, directly or indirectly, solicit for employment, hire, or employ, or assist any other entity or person in soliciting for employment, hiring, or employment any employee or contractor who is or who is hereafter employed or engaged by the other party at the time and with whom such party had contact with in connection with this Agreement.
9.3 Audit and Verification. At ChorusCX US (DVSAnalytics)’ written request, but not more frequently than once per calendar year, You shall furnish ChorusCX US (DVSAnalytics) with a document signed by Your Service Administrator verifying that Encore Cloud is being used pursuant to the provisions of this Agreement and the applicable Order Form. ChorusCX US (DVSAnalytics) reserves the right to audit Your use of Encore Cloud no more than once per calendar year at ChorusCX US (DVSAnalytics)’ expense. ChorusCX US (DVSAnalytics) shall schedule any audit at least thirty (30) days in advance, and any such audit shall be conducted during regular business hours at Your facilities and shall not unreasonably interfere with Your business activities. If such audit reveals that You have underpaid fees to ChorusCX US (DVSAnalytics), You shall promptly pay to ChorusCX US (DVSAnalytics) such fees pursuant to the pricing set forth in the applicable Order Form, plus applicable interest and any expenses associated with conducting the audit.
9.4 Export. You agree that U.S. export control laws and other applicable export and import laws govern Your use of Encore Cloud, including ChorusCX US (DVSAnalytics) Technology. You represent that You are not a citizen of an embargoed country or prohibited end user under applicable U.S. export and anti-terrorism laws, regulations and lists. You will not use, export or allow a third party to use or export Encore Cloud or ChorusCX US (DVSAnalytics) Technology in any manner that would violate applicable law, including but not limited to export control laws and regulations.
9.5 Force Majeure. Except for Your obligation to pay for Encore Cloud or other Services rendered, neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency, shortage of materials, acts of terrorism, or the stability or availability of the Internet or a portion thereof.
9.6 Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of Arizona and controlling U.S. federal law. The Uniform Computer Information Transactions Act, the United Nations Convention on the International Sale of Goods, and choice of law rules of any jurisdiction will not apply to this Agreement. Any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in Maricopa County, Arizona, and each party hereby submits to the personal jurisdiction of such courts and waives any defense relating to venue or forum non convenience.
9.7 Whole Agreement; Amendments. This Agreement together with any applicable Order Form where such Order Form is executed by ChorusCX US (DVSAnalytics) and You, represents the parties’ entire understanding relating to Encore Cloud, the ChorusCX US (DVSAnalytics) Technology and the Services, and supersedes any prior or contemporaneous, conflicting or additional, communications. Except as otherwise set forth herein, the terms and conditions of this Agreement may only be amended by written agreement of the parties. Nothing contained in any purchase order submitted by You other than order dates, identity, location, quantity and price shall in any way serve to modify or add to the terms of this Agreement or the Order Form. For clarity, if you executed an Order Form with a ChorusCX US (DVSAnalytics)’ reseller, that Order Form is not part of this Agreement except to the extent expressly incorporated by reference into this Agreement.
9.8 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
9.9 Relationship of Parties. No joint venture, partnership, employment, or agency relationship exists between ChorusCX US (DVSAnalytics) and You as a result of this Agreement or use of Encore Cloud.
9.10 Assignment. You may not assign this Agreement without the prior written approval of ChorusCX US (DVSAnalytics). Any purported assignment in violation of this Section shall be void. ChorusCX US (DVSAnalytics) reserves the right to provide some or all of Encore Cloud (including but not limited to Support and Training) from locations, and/or through use of third party providers, located worldwide.
9.11 Waiver. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.