IVRTOS

The Service. SmartAction will implement and maintain the Service on SmartAction’s premises, which at SmartAction’s sole discretion may include third-party co-location facilities, and provide its use to Customer through SmartAction’s telecommunications network. The Service will receive telephone calls over certain telephone lines as designated by SmartAction, provide “Intelligent IVR Features”, and transfer certain calls to Customer for handling by Customer’s telecommunications network, equipment and personnel. The Intelligent IVR Features available to handle callers’ interactions with the Service will be set forth in Conversation Flows (“Conversation Flows”). The Service may include (i) Management and Utilization Reports; and (ii) real-time and batch data interfaces with Customer’s and third-parties’ databases and websites for the reading or writing of data, recording calls, transcribing calls, handling telephony services, and embedding recordings and transcriptions in database records (“the Data Interfaces”).

Project Protocols. The successful execution of each project requires that both parties agree upon and follow a Project Protocol for exchanging information and work products. SmartAction and Customer deliverables related to the Project Protocol are described in one or more Service Agreements between SmartAction and Customer. SmartAction will incur no liability if it cannot fulfill its obligations as set forth in a Project Protocol due to Customer not fulfilling its responsibilities on a timely basis.

Invoices and Payment Terms. SmartAction will send invoices to Customer approximately on the 1st day of the month. Each invoice is due on receipt by Customer. All fees are payable in US dollars. Customer is responsible for all transmission fees, currency translation fees, wire and bank fees chargeable by or deducted from remittances by any bank, including the transmitting, intermediary or recipient bank. Any undisputed payment or part of a payment that is not paid when due will bear interest at the rate of 1.5% per month, or at the highest rate permitted by law, whichever is less, from its due date until paid. Customer will pay the unpaid interest for any unpaid payments that were disputed but subsequently determined to be in SmartAction’s favor. Customer is responsible for and will pay any applicable taxes that apply to Customer’s implementation and use of the Service, including but not limited to, federal, state, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future. If Customer is exempt from payment of any such taxes, Customer will provide SmartAction with an original government-issued certificate attesting to the tax-exempt status. Tax exemption will only apply from and after the date SmartAction receives the tax-exemption certificate. The agreement will automatically renew for successive one-year terms unless 30-day written notice to the other party is provided.

Renewal terms. Unless otherwise specified in the original agreement or SOW, the agreement or SOW shall be automatically renewed after the expiration of the Initial Term for additional successive renewal periods of one (1) year each. Either party may terminate this SOW effective at the end of the then current term by providing ninety (90) days written notice to the other party, within ninety (90) days prior to the end of the then current term.

Rights to Information. Except when Customer’s confidential or proprietary information may be compromised, the agreement between the parties does not preclude, modify or in any way limit SmartAction’s right to (a) develop and provide the Service and other services to any third party; b) provide Conversation Flows and Conversation Flow services to third parties; (c) provide Conversation Flows to third parties that contain phrases, flow and other information that are the same or similar to those contained in Customer’s Conversation Flow. SmartAction may record calls for quality assurance purposes.

Confidential Information. Neither Customer nor SmartAction shall disclose any Confidential Information to any third party except when necessary to directly further the purposes of this Agreement. The party in receipt of Confidential Information (“Receiving Party”) disclosed by the other party (“Disclosing Party”) shall protect the Confidential Information from unauthorized dissemination and use and shall, in doing so, use the same degree of care that Receiving Party uses to protect its own like information. “Confidential Information” shall mean the content of this Agreement and any information that Disclosing Party conveys to Receiving Party (a) in written, graphic, machine-readable, or other tangible form, provided that such information is conspicuously marked or designated as confidential or proprietary; (b) orally or electronically where such information is either designated as confidential or proprietary at the time of such oral or electronic disclosure and confirmed, in writing, as confidential or proprietary within fifteen (15) days of such oral or electronic disclosure; and (c) that ought, in good faith, to be treated as confidential given its nature and/or the circumstances of its disclosure. Notwithstanding the above, information shall not be deemed Confidential Information to the extent that it (a) was generally known and available in the public domain at the time it was disclosed or subsequently becomes generally known and available in the public domain through no fault of Receiving Party; (b) was independently developed by Receiving Party without any use of Confidential Information; or (c) becomes known to Receiving Party from a source other than Disclosing Party without breach of this Agreement and this can be shown by reasonable evidence.

No Technology License. Customer acknowledges that this is not a technology license agreement. It does not give Customer any right to use any proprietary software developed and used by SmartAction to provide the Service.

Marketing. Customer agrees to let SmartAction publicize its Service with Customer in press releases, on its website, or in other marketing material. However, SmartAction will ensure that Customer’s confidential and proprietary information is not disclosed without prior approval.

Warranties. SmartAction warrants only that the Service will perform as represented herein and in the event that the Service does not perform as represented herein, SmartAction will use commercially reasonable efforts to repair the Service within a period of time agreed to by the parties so that the Service will perform as represented. Customer warrants and represents that it possesses the necessary authority to engage SmartAction to provide the Service as described herein, including but not limited to any authority required under Customer’s privacy policy or any laws and regulations related thereto.

Indemnification. Customer will indemnify, defend and hold harmless SmartAction from and against all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees and disbursements, asserted against, resulting to, imposed upon or incurred by SmartAction directly or indirectly, by reason of, or resulting from, the content of a “Conversation Flow” or any modifications thereto or any Customer product or service.

Remedy for Breach. Customer’s sole and exclusive remedy for any breach of its agreement with Customer is for SmartAction to use commercially reasonable efforts to correct those aspects of the Service for which SmartAction is directly responsible so that the Service performs substantially as represented herein.

Liability Limit. SmartAction’s maximum, cumulative liability arising out of or related to any Agreement with Customer for all causes of action whatsoever and regardless of the form of action including breach of contract, tort or any other legal or equitable theory, including any that may relate to or require indemnification, whether or not contemplated under this Agreement, will be $10,000. In no event will SmartAction be liable to Customer or any third party for any consequential, incidental, special, exemplary, or punitive damages, or damages for lost profits or loss or corruption of data, whether or not SmartAction was advised of the possibility of such claims or damages.

Force Majeure. Neither party will be liable for any damages or penalties for delays in the performance of or failure to perform any obligation hereunder or for failure to give the other party prior notice thereof when such delays or failures are due to the elements, acts of God, acts of governmental or regulatory agencies, terrorism, infrastructure problems, strikes or lockouts, civil unrest, riots, shortages of materials or supplies, telephone carrier outages and other interruptions of carrier services, delays in transportation, delays in delivery by vendors or other causes beyond that party’s reasonable control.

Entire Agreement. Severability. No Waiver. This Agreement sets forth all of the representations, promises, agreements, conditions and understandings between the parties relating to the subject matter of this Agreement, and supersedes any prior or contemporaneous representations, promises, agreements, conditions, and understanding (whether written or oral) between the parties in any manner relating to subject matter thereof. This Agreement may only be modified by a written document executed by both parties. If any provision in these Terms and Conditions is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. The failure of either party in one or more instances to insist on the other party’s performance of any of the provisions of this Agreement will in no way be construed to be a waiver of such provisions in the future.

Successors. These Terms and Conditions will inure to the benefit of, and be binding upon, Customer and SmartAction, their successors and assigns.

Arbitration. Any controversy or claim arising out of or relating to these Terms and Conditions or any related Agreements, or the making, performance, or interpretation thereof, will be settled by binding arbitration in Los Angeles, California, in accordance with the Rules of the American Arbitration Association then existing, and the judgment in arbitration may be entered in any court having jurisdiction thereto.

Employment of Personnel. Without the prior written consent of SmartAction, Customer will not recruit any SmartAction employees. In the event that Customer hires as an employee, consultant, or independent contractor, any of SmartAction’s employees, Customer will pay SmartAction within fifteen (15) days of the date of such hiring, as a fee for the additional benefit obtained by Customer, an amount equal to fifty percent (50%) of the total first-year compensation Customer pays such employee, consultant or contractor.

Notices. Any notices to be given hereunder by either party to the other may be given either by personnel delivery in writing, or by mail, registered or certified, postage prepaid with return receipt requested.

Governing Law. All related Agreements will be governed by and construed in accordance with the laws of the State of California.

Term. The provisions of paragraphs 3-19 of these Terms and Conditions will survive termination of any related Agreement. Upon termination, SmartAction will discontinue all Jobs, and destroy or return to Customer any data owned by Customer that is in SmartAction’s possession. Revised:

June 2013