Last updated February 20, 2012
IMPORTANT READ CAREFULLY: IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT ACCESS OR USE THE SERVICE. BY VIEWING OR USING ALL OR ANY PART OF THE SERVICE, DOWNLOADING ANY MATERIALS OR BY COMPLETING THE REGISTRATION PROCESS, YOU AND THE ENTITY YOU WORK FOR (COLLECTIVELY "YOU" OR "YOUR") AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT.
WHEN YOU CLICK ON THE "I AGREE TO THE TERMS OF SERVICE" BUTTON OR WHEN YOU OTHERWISE USE OR ACCESS OR TRANSMIT OR DOWNLOAD ANY PART OF THE SERVICES (DEFINED BELOW) YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO (OR CANNOT COMPLY WITH) ALL OF THE TERMS OF THIS AGREEMENT, THEN, YOU WILL NOT BE AUTHORIZED TO USE OR ACCESS THE SERVICES. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF AGENDIZE SHALL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY. IF THIS AGREEMENT IS CONSIDERED AN OFFER BY AGENDIZE, YOUR ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
This Terms of Service Agreement is entered into on the date of your acceptance between Agendize Services Inc. ("we," "us," "our," or "Agendize") and the person, company or organization which you have identified previously ("Customer", "you" or "your"), and includes any Agendize Service Schedules, Service Orders, and other addenda accepted by you, and hereby incorporated herein (collectively, the "Agreement").
1.1 "Agendize onDemand" shall mean Agendize's online service provisioning and customer care portal which is used to activate, modify, or otherwise configure specific aspects of the Services which Customer has ordered.
1.2 "Pay-per-action" shall mean the pricing scheme and method of payment, available through Agendize onDemand, by which you only pay when the Agendize Service appearing on your website is engaged.
1.3 "Service" shall mean any Agendize service described in a Service Schedule and identified on a particular line item of a Service Order.
1.4 "Service Order" shall mean a request for Service submitted by the Customer to Agendize, pursuant to an agreed Service Schedule, in the form of a Customer submission of Service Order data and purchase order through Agendize onDemand, or in such other form as the Customer may elect and Agendize may accept.
1.5 "Service Schedule" shall mean a schedule attached hereto, or signed or accepted between the parties from time to time and expressly incorporated into this Agreement, setting forth terms and conditions specific to a particular Service to be provided by Agendize.
1.6 "Service Term" shall mean the duration of time, measured starting on the Service Commencement Date, for which Service is ordered, as specified in the Service Order.
1.7 "Software" means any Agendize owned or Agendize licensed third party computer software and associated documentation furnished to Customer as a means to facilitate Service by Agendize.
License. Subject to the terms and conditions of this Agreement, including all exhibits and addenda attached hereto, Agendize hereby: (i) grants Customer a non-exclusive, non-transferable license to use, display, copy and distribute the Agendize software for the limited purpose of enabling the Customer's End Users to engage with the Services in accordance with the terms and conditions of this Agreement; and (ii) grants to Customer the right to use the trademarks, trade names, service marks, and logos (collectively "Marks") provided by Agendize for the limited purpose of enabling the Customer's End Users to engage with the Services in accordance with the terms and conditions of this Agreement. Customer hereby grants to Agendize the right to use Customer's Marks for the limited purpose of promotion, including but not limited to the preparation and publication of case studies and statistics.
Except as expressly provided herein, Agendize and its licensors shall retain all right, title and interest in and to the Services.
3.1 Service Description. We shall provide the Customer with the Agendize Services ("Services") specified in each of the applicable Customer's Service Schedules and Service Orders. The initial term ("Service Period") and fees for the Services are described in each Service Order. Details of the Services are set forth in the applicable Service Schedule. Unless explicitly stated otherwise, you agree and understand that any new or different features that enhance or change the then-current Services which are made available to you shall also be deemed ("Services") and shall be subject to the terms of this Agreement.
3.2 Service Orders. To order any Service, Customer or authorized Customer users may submit Service Orders requesting Services using the online service provisioning capabilities of the Agendize onDemand portal. The Service Orders and their backup details must include a description of the Service, the non-recurring charges for Service, and the applicable Service term.
3.3 Online Service Provisioning. As provided in the applicable Service Schedule, Customer may use Agendize onDemand to activate, modify, or otherwise configure specific aspects of the Services that Customer has ordered. Online provisioning actions by Customer's authorized users shall be construed as Service Orders, and automatic provisioning by Agendize in response to such online provisioning shall constitute acceptance of your Service Orders.
3.4 Acceptance by Agendize. Upon receipt of a Service Order submitted through Agendize onDemand. We will accept your order by commencing to provide the Service you ordered. Once we have accepted the Service Order by such means, we shall be obligated to provide the Service.
3.6 Compliance with Laws. You shall not permit the Software or Services to be used in violation of any applicable national, state, provincial, or local laws or regulations, including, without limitation, any laws governing the import of Services. We reserve the right to suspend the Services (or any portion thereof) without notice in the event that we believe that your use of the Services is in violation of this section. We reserve the right to terminate the Services in the event of recurrent or uncured violations of this section.
3.7 Modifications of Terms. Agendize reserves the right to modify this Agreement at any time by providing notice. You shall be responsible for reviewing and becoming familiar with any such modifications. If you do not agree to the modified agreement, you can terminate this Agreement, subject however to the provisions of section 8.4 which provide that, if you terminate this Agreement for any reason, you will not be entitled to any refunds or credit for any reason (for partial months/periods of Services or otherwise).
3.8 Account, Password and Registration Obligations. In order to take advantage or make use some of the features offered with the Services, you will be required to register and or create an account with Agendize. By creating an account, you agree to take full responsibility for maintaining the account user name, password, and all related activity that occurs under your account username. Agendize reserves the right to refuse services to any person or entity at any time and close your account at any time for any reason or no reason, in its sole discretion.
In consideration of your use and or access to Services, you agree to (a) provide accurate, current and complete information as may be prompted by any registration forms associated with the Services; (b) maintain the security of your user identification and password; (c) maintain and promptly update your registration data, and any other information you provide to Agendize, to keep it accurate, current and complete; and (d) be fully responsible for the confidentiality, security and use of your user identification, password, and your account for any actions that take place using your user identification, password, and or account. Your failure to comply with any of the forgoing shall constitute a material breach of this Agreement, which may result in immediate termination of your account and access to the Services. You agree to notify Agendize immediately if there is unauthorized access or use of your account and or your password. By obtaining a password, you authorize Agendize to honor instructions from any person using that password as if you had given the instructions. All actions taken by use of your password will be your responsibility. You may change your password at any time.
4.1 Content. You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, lists or other materials accessed through the Services ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Agendize, are entirely responsible for all Content that you upload, post, transmit or otherwise provide via the Services. Agendize does not control the Content uploaded, posted, transmitted or provided by any third parties and, as such, does not guarantee the accuracy, integrity or quality of such Content, including but not limited to business endorsements and commentary. You understand that by using the Service, you may be exposed to Content that is illegal, offensive, indecent or otherwise objectionable.
4.2 Use at Own Risk. Agendize does not endorse, verify or take responsibility for any Content uploaded, posted, transmitted or provided via the Services. You agree to use, rely on and or accept any and all Content at your own risk. Agendize and its affiliates and contractors will not be liable for any losses or damages incurred by you or others while using, accessing or relying on any Content. While Agendize holds no obligation to monitor the Content, we reserve the right to monitor the Content if we so choose and to remove or edit all or part of such Content at our discretion at any time if it violates this Agreement, is harmful, unproductive or objectionable in any way, or for any other reason we in our sole discretion deem reasonable.
4.3 License of Content. Agendize does not claim ownership of the Content you and your End Users upload, post, transmit or otherwise provide ("User Submission"). By uploading, posting, transmitting or otherwise providing User Submission of any kind you:
(a) Grant to Agendize, its affiliates and their assignees the perpetual, irrevocable, non-exclusive, royalty-free right to collect, use, reproduce, display, perform, adapt, modify, distribute, make derivative works of and otherwise exploit such content in any form for the purpose of providing the Services to you or others, including without limitation, any concepts, ideas or know-how embodied therein;
(b) Represent and warrant to Agendize that you own or otherwise control all rights to such User Submission and that disclosure and use of such User Submission by Agendize as described herein (including without limitation, publishing the User Submission) will not infringe or violate the rights of any third party; and
(c) Acknowledge that the content may not be treated confidentially.
4.4 Use of Content. You may use, modify, reproduce, copy, store or distribute any of the Content obtained through the Services in whole or in part. All web pages which are part of the Services are protected by copyright as a collective work and or compilation, pursuant to Canadian copyright laws, international conventions, and other intellectual property laws.
You agree that you will not (and you will not permit or assist any third party, including your End Users, in):
(a) Interfering with, disrupting, or creating an undue burden on the Services (including the associated technology, software, hardware, platform, communications and web pages) of the Services or the networks associated with Services;
(b) attempting to or actually impersonating another person or entity, or falsely stating or otherwise misrepresenting your affiliation with a person or entity;
(c) selling or otherwise transferring to another your user id or password or account;
(d) harming minors or others in any way;
(e) posting, uploading, transmitting, distributing, providing or otherwise making available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libellous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
(f) posting, uploading, transmitting, distributing, providing or otherwise making available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(g) posting, uploading, transmitting, distributing, providing or otherwise making available Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(h) posting, uploading, transmitting, distributing, providing or otherwise making available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
(i) disobeying any requirements, procedures, policies or regulations of networks connected to the Services;
(j) forging headers or otherwise manipulating identifiers in order to disguise the origin of any Content transmitted through the Service or developing restricted or password-only access pages, or hidden pages or images (those not linked to from another accessible page);
(k)"stalking" or otherwise harassing another using any component of the Services;
(l) collecting or storing personal data about other users of the Services other than for users who willingly provide such information in order to explore bona fide business opportunities or connections;
(m) intentionally or unintentionally violating any applicable local, state, provincial, national or international law;
(n) creating or submitting unwanted email or messaging ('Spam') to any other user of the Services;
(o) modifying any hyperlinks and other offers comprising the Service. Such hyperlinks may not be modified from the original form in which they and other offers are generally made available by Agendize;
(p) reproducing, duplicating, copying, selling, reselling or exploiting any portion of the Services except to the extent permitted or authorized by Agendize;
(q) using the Services to create and or provide competing product(s) and or service(s);
(r) reverse engineering, reverse assembling or compiling or otherwise deriving or attempting to derive the source code or structure of the Services;
(s) modifying, reproducing, or creating any derivative works of the Services;
(t) removing any copyright or other proprietary notices contained in the Services;
(u) disclosing the performance results for the Services to any third party except as expressly authorized by Agendize;
(v) modifying, publishing, transmitting, participating in the transfer or sale of, reproducing (except as provided herein), copying, storing, creating derivative works based on, distributing, performing, displaying, or in any way exploiting, any of the Services, except as expressly authorized by Agendize or its licensors; and or
(w) using the Services to for any illegal or unlawful purpose.
For the avoidance of any doubt, any restrictions specified with respect to Services herein shall apply to the Services as a whole or any component or portion of the Services.
6.1 Service Level Guarantee and Limited Remedy. We shall provide the Service with the Service Level Guarantee prescribed in the applicable Service Schedule, provided that you meet the requirements listed in the Service Schedule for the Service Level Agreement. EXCEPT FOR YOUR RIGHT TO TERMINATE AS SET FORTH IN SECTION 10.2 BELOW, THE REMEDY MENTIONED IN THE SERVICE LEVEL GUARANTEE IS THE SOLE AND EXCLUSIVE REMEDY FOR FAILURE OR DEFECT IN THE SERVICE.
The Agendize applications are hosted on a mirrored dedicated server environment in a secure location, fulfilling general global state-of-the art telecom requirements. The Customer acknowledges that utilization of the Services requires services provided by third party vendors. Such services include, among others, internet connectivity and global carrier services. Agendize is not liable to the Customer for disruptions of Service availability resulting from, without limitation, any of the following:
|(i)||The fault or negligence of the Customer, its users, employees, agents or contractors;|
|(ii)||Customers failure to comply with this Agreement;|
|(iii)||A fault in, or any problem associated with equipment or software connected on the Customer's or user's side, services provided by third party vendors, internet traffic, transit and peering, and or connections provided and controlled by other companies;|
|(iv)||Any Force Majeure event; or|
6.2 Service Interruptions or Issues. To report issues related to Service performance, you may contact Agendize by creating a trouble ticket in Agendize onDemand or by sending email to support@agendize.Com. In order for Agendize to investigate any reported issues, you agree to provide us with supporting information we may reasonably request, which may include (as applicable), without limitation:
|(ii)||End-user specific information such as originating phone number, email address, Instant Messaging system address or cell phone number; and or|
|(iii)||Advertiser information such as phone number.|
6.3 Planned Outages. Planned Outages may be required on the Agendize service platform, third party service providers, including associated hardware and or software for scheduled maintenance and upgrade activities. Agendize will endeavor to notify the Customer at least 24hrs in advance. Agendize will endeavor to limit the impacts such planned outages may have on the Customer.
6.4 Technical Support. Customer undertakes to implement and maintain an adequate support structure to offer first level support within its organization. To that end, without limiting the foregoing, the Customer shall ensure that at least one of its employees or agents are appointed to assume responsibility of all communications with Agendize for customer technical support purposes. Only this person, or their duly appointed and adequately trained replacements, may contact Agendize to require technical support in relation with any given problem.
6.5 Client Services Representative. The Agendize onDemand system will help you keep track of your trouble ticket submissions. This will allow for prompt and accurate resolution to any issue that may arise. After submitting a trouble ticket, you will receive immediate confirmation that the client services and technical support teams have received your request.
6.6 Best efforts. Agendize shall use commercially reasonable efforts to provide problem resolution but, given the nature of the Internet, cannot warrant that it will solve all problems at all times.
7.1 Confidentiality. Each party will refrain from using the other's Confidential Information, except as contemplated by this Agreement, and from disclosing such Confidential Information to any third party. The parties will, in a commercially reasonable manner, store and protect the other party's Confidential Information from unauthorized access. However, each party may disclose confidential information of the other party pursuant to order or requirement of a court, administrative agency, or other government body, provided that such disclosing party gives reasonable notice to the other party to allow them an opportunity to contest such disclosure order or requirement.
7.3 Collection and Use of Personal Data. Agendize covenants and agrees that it shall refrain from acquiring, collecting or otherwise obtaining personal data from Customers or their End Users (collectively, "Personal User Data") without your consent, and the consent of each such End User. We further acknowledge and agree your Customers will own any and all such Personal User Data obtained by us in connection with the Service, and that the Personal User Data shall be deemed your Customers' Confidential Information, and shall not be used by us for any purpose except those expressly contemplated under this Agreement. Without limiting the foregoing, we agree that Agendize shall not, nor permit any third party to, use, sell, distribute or otherwise disclose or make available any telephone numbers, fax numbers, Instant Messaging Addresses and E-mail addresses of End Users.
7.4 Confidentiality of Agendize information. Customer shall ensure that its employees and agents have signed a non-disclosure agreement suitable for the protection of Agendize's confidential information.
7.5 Non-Competition. During the period covered by this agreement as well as for a period of one (1) year afterwards, the Customer aggress that it shall not market nor develop a product or service that competes with Agendize's products or services.
8.1 Monthly and Annual Payment. With Agendize monthly and annual plans you pay for the Services upfront. You make a payment at the beginning of each billing period for use of the Services during that period. The Service will continue to be available as long as your credit card is valid and a payment is made at the beginning of each period. If a payment is not made, Agendize will cease providing the Service to you until you make another payment.
8.2 Communications Credits. With Agendize communication credits, you pay for additional telecommunications service upfront. You make a payment first, then use the Services and accrue costs until your funds run out. We'll simply deduct your costs as you accrue them. The Service is available almost immediately after we receive your payment. Then, we'll deduct the cost of actions on the Services that are provided on your website. The Service will continue to be available as long as there are adequate funds in your account. If your account runs out of funds, Agendize will cease providing the Service to you until you make another payment. We'll send you an email if your account does exhaust its balance.
8.3 Payment for Services. In the case of post-payment, If your bill is not paid within thirty (30) days after the invoice date listed on the bill ("Due Date"), you shall pay us additional interest charges equal to 1.5% per month and 18% per year of the unpaid balance due (or such lesser amount as is the maximum amount permitted under applicable law). If we initiate legal proceedings to collect any amount due hereunder and we substantially prevail in such proceedings then you shall pay the reasonable attorneys fees and costs incurred by us in prosecuting such proceedings and appeals. In addition to any other remedies under this agreement, we shall have the right to immediately and without further notice suspend Services to you in the event you fail to pay any undisputed charges by the Due Date of any such charges.
8.4 Billing Disputes. You must provide us with written notice of any disputed charges within forty-five (45) days after the invoice date noted on the bill or you shall be deemed to have waived your right to dispute such charges. If a dispute is filed on or before the Due Date for the applicable invoice, you shall pay the invoiced amount minus the disputed amount on or before the Due Date. The dispute notice shall set forth in reasonable detail the information concerning the disputed charges and reasons for the dispute. We shall attempt to work with you to resolve the dispute in good faith. If the dispute is subsequently resolved in our favor, you shall pay the disputed amount previously withheld within ten (10) days of such resolution, including interest at the rate specified above from the original due date. If the dispute is resolved in your favor, we shall issue a credit on your invoice for the disputed amount.
8.5 Prices. Prices stated in any Service Order accepted by Agendize are guaranteed for the specified Service Period. You are also responsible for any applicable taxes, tariffs, telecommunications surcharges, or other governmental charges due on account of the Services. We reserve the right to change the prices as of the beginning of any renewal Service Period by giving you thirty (30) days prior notice. If you receive a notice of increased fees and do not wish to renew the Services at the increased price, you may cancel the Services via Agendize onDemand.
You agree that Agendize shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
8.6 Payment, Refunds, Upgrading and Downgrading. A valid credit card is required for paying accounts; you are responsible to update your credit card information if your credit card expires or is over the limit or no longer valid; Agendize reserves the right to discontinue, temporarily or permanently your account if a valid credit card is not supplied at all times during the term of this Agreement. Notwithstanding the forgoing, if you are registering for our free Services, you are not required to provide a credit card number. Agendize may bill you for its Services in advance (either on a monthly basis or otherwise in longer increments of time); all fees are non-refundable and no credits shall apply if the parties termite this Agreement for any reason, this includes pre-paid accounts. You agree and understand that if you terminate this Agreement for any reason, you will not be entitled to any refunds or credit for any reason (for partial months/periods of Services or otherwise). All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.
For any upgrade from a free account to a paying account, your credit card that you provide will be charged immediately. For any upgrade or downgrade in paying plan level, your credit card that you provided will automatically be charged the new rate. Downgrading your Service may cause the loss of Content, features, functionality or capacity associated with the Services you no longer receive. You agree and understand that Agendize shall not be liable to you for any loss of data, features, functionality or capacity associated with any downgrade or upgrade in Services.
9.1 LIMITED WARRANTY. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE SERVICES AND CONTENT IS AT YOUR SOLE RISK. THE SERVICE AND THE CONTENT IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.
AGENDIZE MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
ANY CONTENT AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM AGENDIZE OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
9.2 Indemnification. We will indemnify you for damages, costs and reasonable attorneys' fees you incur from any claim that the Services or Software as provided to you by us infringe any Canadian patent, copyright, trademark, trade secret, or other intellectual property right under Canadian law. You will indemnify us from any damages, costs and reasonable attorneys' fees we incur from any claim arising from the use of the Services, your combination of the Services and Software with other products or services not provided by us, or your modification of the Services and Software. The indemnifying party shall conduct the defense and shall have control of the litigation; the other party shall give prompt notice of claims and shall cooperate in defending against the claim.
You agree to indemnify and hold Agendize, and its subsidiaries, affiliates, officers, agents, partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your User Submissions, your use of the Services, your connection to the Service, your violation of the Agreement, or your violation of any rights of another.
9.3 LIMITATION OF LIABILITY. IN NO EVENT SHALL AGENDIZE (OR ITS AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE TO YOU CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) AMOUNTS IN THE AGGREGATE GREATER THAN THE FEES YOU HAVE PAID FOR SERVICES IN THE PRIOR ONE (1) MONTH, EVEN IF AGENDIZE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF CERTAIN LIABILITIES. ACCORDINGLY, TO THE MINIMUM EXTENT REQUIRED UNDER SUCH LAWS, SUCH LIMITATIONS OR EXCLLUSIONS MAY NOT APPLY TO YOU.
9.4 Exclusion of Liability. Agendize shall have no obligation or liability to Customer if any infringement or trade secret misappropriation claim is based upon:
|(i)||The use of other than a current unaltered release of an Agendize product or service if the infringement would have been avoided by the use of a current unaltered release of an Agendize product or service;|
|(ii)||The combination, operation or use of an Agendize product or service with any programs, software or equipment not provided by Agendize, if the infringement would have been avoided by the combination, operation or use of an Agendize product or service with different programs, software or equipment;|
|(iii)||The use of the Software in other than the operating environment specified for use by Agendize if the infringement would have been avoided by use in the operating environment specified by Agendize;|
|(iv)||The use of or access to an Agendize product or service in any manner other than that for which it was provided by Agendize; and or|
|(v)||The use of an Agendize product or service which has been modified by or for Customer in such a way as to cause it to infringe third party rights.|
9.5 Third Party Infringement. Customer shall keep Agendize informed of any third party infringement of an Agendize product or service of which it may become informed.
9.6 Business Dealings. Your correspondence or business dealings with other users of the Services including, but not limited to, End Users, merchants, advertisers, service providers or your customers, including disputes regarding privacy, the scheduling appointments, payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such other user, End User, merchant or advertiser, service provider, or customer. You agree that Agendize shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. Agendize retains the right to delete identifiable information about any user of the Services from any account if requested by such user.
10.1 Term and Renewal. The term, fees and renewal for the Services are described in each applicable Service Order.
10.2 Termination for Cause. Either party may terminate this Agreement if the other fails to cure a material breach of the Agreement within thirty (30) days after receiving written notice of the breach. We reserve the right, but assume no obligation, to suspend or terminate performance immediately if you fail to maintain a positive account balance or meet other payment requirements as defined in the Service Schedule.
11.1 Marks. Subject to Customer's rights as per Sub-section 2.1iv), neither party shall have the right to use the other party's or its Affiliates' (hereinafter defined) trademarks, service marks, or trade names without the prior written consent of the other party.
11.2 Non-Disclosure. Any information or documentation disclosed between the parties during the performance of this Agreement shall be subject to the terms and conditions of the applicable non-disclosure agreement then in effect between the parties.
11.3 Reservation of Rights. Agendize shall retain all intellectual property rights in and to the Service, the software used to provide the Service, and any modifications and enhancements thereto. Except as expressly provided herein, nothing contained herein shall be interpreted so as to transfer any right, title or interest in any intellectual property right of Agendize, nor to grant Customer any rights or licenses in any intellectual property right of Agendize.
11.4 Incidental Software. In the event we provide software to you in connection with the Services, we grant you and your end users a personal, non-exclusive, non-transferable license, for the duration of the Service term, to use such software in object code form only for the sole purpose of enabling you and your End Users to use the Services. We represent and you acknowledge that the software is copyrighted, that title to the software remains with our suppliers, or us, and that the content and design of such software are valuable trade secrets. Except as provided by the applicable Service Schedule, you agree not to (a) disclose or make available to third parties any portion of such software without our prior written permission; (b) copy or duplicate such software; (c) reverse engineer, decompile, or disassemble such software; or (d) modify or make derivative works of such software. You agree not to use such software after the Service period without obtaining a valid license from us, or the relevant third party supplier. YOU ACKNOWLEDGE THAT WE AND OUR THIRD PARTY SOFTWARE SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRIGEMENT.
11.5 Marketing. You agree that Agendize may use your name and logo to identify you as a customer of Agendize on Agendize's website, and as a part of a general list of Agendize customers for use and reference in Agendize corporate, promotional and marketing literature. Additionally, you agree that Agendize may issue a press release identifying you as an Agendize customer and describing intended utilization and the benefits that you expect to receive from use of Agendize services.
11.6 Proprietary Rights. You agree that all Content and materials delivered via the Services or otherwise made available by Agendize are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. Except as expressly authorized by Agendize in writing, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such materials or content. However, you may print or download a reasonable number of copies of the materials or content at Agendize's website for your internal business purposes; provided, that you retain all copyright and other proprietary notices contained therein. Systematic retrieval of data or other content from Agendize's website to create or compile, directly or indirectly, a collection, database or directory without written permission from Agendize is prohibited.
Reproducing, copying or distributing any content, materials or design elements available on the web pages associated with the Services for any other purpose is strictly prohibited without the express prior written permission of Agendize. Use of the content or materials for any purpose not expressly permitted in this Agreement is prohibited. Any rights not expressly granted herein are reserved.
12.1 Notices. All notices and communications under this Agreement shall be provided via Agendize onDemand, addressed to the respective party as set forth below or to such other address as may be designated by the respective party. Notice shall be deemed given upon receipt. Notices shall be addressed as follows:
IF TO AGENDIZE:
Agendize Services Inc.
210-3981 Blvd. St-Laurent
Montréal, QC H2W 1Y5
IF TO CUSTOMER:
At such address, email or facsimile number provided by Customer via Agendize onDemand.
12.2 Force Majeure. If the performance of any obligation hereunder is interfered with by reason of any circumstances beyond a party's reasonable control, including but not limited to acts of God, labor strikes and other labor disturbances, power surges or failures, or the act or omission of any third party, the party shall be excused from such performance to the extent necessary, provided the party shall use reasonable efforts to remove such causes of nonperformance.
12.3 Assignment. Customer may not assign this Agreement without the prior written permission of the Agendize. Agendize may, at any time, assign this agreement to a party capable of meeting Agendize's obligations herein.
12.4 Customer Affiliates. The parties acknowledge and agree that Customer's Affiliates and or any of its related or associated companies or entities may purchase Service under this Agreement, provided, however, any such Customer Affiliate and or related or associated companies or entities agree that such Service is provided pursuant to and governed by the terms and conditions of this Agreement. "Affiliate" shall mean an entity that now or in the future, directly or indirectly controls, is controlled by, or is under common control with, a party to this Agreement. For purposes of the foregoing, "control" shall mean the ownership of (i) greater than fifty percent (50%) of the voting power to elect directors of the company, or (ii) greater than fifty percent (50%) of the ownership interest in the company. Customer shall be jointly and severally liable for all claims and liabilities arising under this Agreement related to Service ordered by any Customer Affiliate and or related or associated companies or entities, and any event of default under this Agreement by any Customer Affiliate or related or associated companies or entities shall also be deemed an event of default by Customer. Any reference to Customer in this Agreement with respect to Service ordered by a Customer Affiliate or related or associated company or entities shall also be deemed a reference to the applicable Customer Agreement.
12.5 Governing Law. This Agreement shall be deemed executed in, and shall be construed in accordance with and governed by, the laws applicable in the province of Quebec, Canada, excluding its conflict of laws provisions. Customer understands and agrees that, as the amounts charged by Agendize have been set in relation to the term of this agreement, Customer waives and therefore cannot invoke section 2125 of the Civil Code of Quebec, such section allowing early termination without cause.
12.6 Entire Agreement. The terms and conditions of this Agreement supersede all previous agreements, proposals, or representations related to the Services and Software. This Agreement sets forth the entire agreement and understanding between the parties pertaining to the subject matter hereof and supersedes all prior written or oral agreements between them. All Service Schedules, whether attached hereto or executed by the parties after the effective date of this Agreement, are integral parts hereof and are hereby made a part of this Agreement.
12.7 Modification of Agreement. This Agreement, including its attachments, may only be amended, modified, or supplemented by a separate written document duly executed by authorized representatives of both parties.
12.8 Independent contractors. The parties to this agreement are independent contractors and nothing in this agreement shall be deemed to create a joint venture, partnership, or agency relationship between the parties in this Agreement.
12.9 Order of Precedence. In the event of any conflict between this Agreement and the terms and conditions of any Service Schedule and or Service Order, the order of precedence is as follows: (1) Pre-existing written agreements which predate this Agreement; (2) the Service Schedule and this Agreement; and (3) the Agendize onDemand online Service Order.
12.10 No Waiver. No failure by either party to enforce any right(s) hereunder shall constitute a waiver of such right(s).
12.11 Partial Invalidity. If any provision of this Agreement shall be declared invalid or unenforceable under applicable law, such invalidity or unenforceability shall not invalidate or render this Agreement unenforceable, but rather this Agreement shall be construed as if not containing the invalid or unenforceable provision. However, if such provision is an essential element of this Agreement, the parties shall promptly attempt to negotiate a substitute therefore that would preserve, to the fullest extent possible, the respective rights and obligations imposed on each party under this Agreement as originally executed.
12.12 No Third Party Beneficiaries. This agreement shall be binding upon, inure solely to the benefit of, and be enforceable by each party and their respective successors and assigns hereto, and nothing in this Agreement, express or implied, is intended to or shall confer upon any third party any right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
12.13 Language. This Agreement has been drawn up in the English language at the express wish of the parties. La présente entente a été rédigée en anglais selon la volonté expresse des parties.
This schedule is an integral part of the Terms of Services Agreement between Agendize and the Customer.
Any capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Terms of Service Agreement.
1.1 "Actions Box" shall mean the graphical user interface that appears after a Button is clicked, enabling the End User to either request a voice communications session, initiate a chat session, save the information for later or share the information with others about the advertiser, or make an appointment.
1.2 "Agendize Click-to-Call Service" shall mean the service described in the Service Description (paragraph 2.1.1).
1.3 "Customer" shall mean any person or entity that purchases Agendize Services.
1.4 "Call" shall mean a two-way voice communications session connecting an End User's telephone to Customer's telephony equipment.
1.5 "Customer Service Representative" ("CSR") shall mean a person who receives Click-to-Call Calls on behalf of Customer, regardless of the title given to such person by Customer.
1.6 "End User" shall mean a person initiating a voice communications session or a click-to-save & share action from a Customer web site using the Service.
1.7 "Originating Telephone Number" shall mean the End User's telephone number for a phone-to-phone voice communication session.
1.8 "Button" ("Button") shall mean the graphical icon, text hyperlink, or other hyperlink object that launches an action as described in the Service Description (paragraph 2.1)
1.9 "Service" shall mean any one or more of Agendize Click-to-Call Service, Click-to-Chat Service (paragraph 2.1.2), Click-to-Save & Share Service (paragraph 2.1.3), and or Online Scheduling Service (paragraph 2.1.4).
1.10 "Terminating Telephone Number" shall mean the telephone number designated by the Customer to receive Click-to-Call Calls when a Click-to-Call Button is clicked.
1.11 "Agendize onDemand User" shall mean an authorized Customer or Customer representative who accesses the Agendize customer care portal known as Agendize onDemand.
1.12 "Whisper" shall mean an audio message heard by the Caller (End User) and or by the Customer Service Representative at the beginning of a call.
2. Service Delivery.
2.1 Service Description.
|2.1.1||The Agendize Click-to-Call Service enables End Users who are viewing a Customer related Web site on a personal computer equipped with a Web browser to click a "Click-to-Call" button and initiate a two-way voice communication session with a Customer Service Representative. A Whisper message can be played to Callers and or Customer Service Representatives at the outset of each call.|
|2.1.2||The Agendize Click-to-Chat Service enables End Users who are viewing a Subscriber related web site on a personal computer equipped with a web browser to click a "Click-to-Chat" button and initiate a two-way chat session with a Customer Service Representative.|
|2.1.3||The Agendize Click-to-Save & Share Service enables End Users who are viewing a Customer related Web site on a personal computer equipped with a Web browser to click a "Click-to-Save & Share" button and:|
|(i)||Save an advertisement and contact details to their mobile phone as an SMS;|
|(ii)||Save an advertisement and contact details to their desktop personal Information managers (MS Outlook, Outlook Express, Lotus Notes, Lotus Organizer, Act!, GoldMine, Novell Groupwise, Apple iCal);|
|(iii)||Save an advertisement and contact details to their PDA personal information managers (Palm Desktop, Pocket PC);|
|(iv)||Save an advertisement and contact details as a desktop note (PDF, RTF) on their PC;|
|(v)||Save an advertisement and contact details in a fully customizable web space (MySelection). This web space includes RSS and category management functionalities;|
|(vi)||Print an advertisement and contact details;|
|(vii)||Share an advertisement and contact details to a Blog (such as Twitter, WordPress, etc.);|
|(viii)||Share an advertisement and contact details to a web social bookmarking and tagging service (such as Facebook, MySpace, Yahoo MyWeb, Google Bookmarks, Ask.com, Furl, Spurl, Delicious, etc.);|
|(ix)||Share an advertisement and contact details by mobile phone as an SMS, including a personal message;|
|(x)||Share an advertisement and contact details by email. End-users can share the information with several people at once, including a personal message;|
|(xi)||Share an advertisement and contact details by instant messaging systems (MSN Messenger, Yahoo! Messenger, AOL Messenger (AIM), ICQ and Google Talk).|
Agendize shall provide Customer with access to provisioning and reporting tools and options through Agendize onDemand.
|2.1.4||The Agendize Online-Scheduling Service enables End Users who are viewing a Customer related Web site on a personal computer equipped with a Web browser to click a "Click to Schedule" button and make an appointment, it also allows the Customer to access a console through Agendize onDemand to view appointments that have been made by End Users.|
2.2 Call and Chat Recording. Customer hereby agrees and acknowledges that Agendize may record, review and evaluate digitized telephone calls and chat sessions for internal quality assurance, performance measurement or at the request of the Customer. If the recording feature is activated, Customer hereby agrees to notify present and future employees that their conversations may be recorded. Customer acknowledges that this shall be relied upon by Agendize, and is essential to the ability of Agendize to provide such services. Customer shall indemnify and hold harmless Agendize, its parents and affiliates, their respective officers, directors and employees, jointly and severally, against any liabilities, losses, damages, costs or expenses, including reasonable attorney's fees, arising from any third party claim, action, or proceeding based upon or in a way related to or resulting from telephone call or chat session recording provisioned by or requested by Customer.
2.4 Reporting. Customer shall have access via Agendize onDemand to continuously updated reporting on actions performed. Customer may designate reporting variables to pass data from their Web site(s) to Agendize onDemand for reporting purposes. Customer may export reporting data for analysis using XML or Excel file formats.
2.5 Operation. Agendize shall host, operate, administer, and maintain the Service.
2.6 Other Services. Agendize shall provide such other professional services for integration, customization, training, or other purposes as may be ordered in a Service Order accepted by Agendize.
3. Service Levels.
3.1 Network Redundancy. Agendize shall maximize Service availability by operating at least two geographically separated, load-balanced points of presence (PoPs) at all times. Agendize shall maintain sufficient capacity such that 100% of expected traffic can be carried despite the loss of a PoP.
3.2 Service Availability. Service availability shall be defined as the availability of Agendize's servers to download Web pages (including the Actions Box) and to connect calls and the availability of Agendize's gateways and contracted inter-exchange carriers to bridge calls from End Users to Customer Service Representatives.
3.3 Service Level Goal. Agendize shall use commercially reasonable efforts to meet or exceed a Service Level of 99.9% availability during every month of Service.
3.4 Local Exchange Carriers. Downtime on the part of local exchange carriers (LECs) serving either End Users or Customer Service Representatives is not under Agendize's control, and these carriers cannot be bypassed. Accordingly, downtime on the part of LECs shall not be included in measuring downtime or availability.
3.5 Disaster Recovery. Agendize shall use commercially reasonable efforts to restore Service within 24 hours if all PoPs are destroyed or incapacitated.
This schedule is an integral part of the Terms of Service Agreement between Agendize and Customer.
Any capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Terms of Service Agreement.
1.1 "Customer" shall mean any person or entity that purchases Agendize Call Tracking Service.
1.2 "Call" shall mean a two-way voice communications session connecting a Caller's telephone to a Customer's telephone.
1.3 "Call Tracking Number" shall mean a telephone number assigned by Agendize that a Caller may dial to be connected to Customer at the Terminating Telephone Number.
1.4 "Caller" shall mean a person who dials a call via a Call Tracking Number.
1.5 "Caller Demographic Information" shall mean information derived from the Caller's Originating Telephone Number, which may include a name for the head of household, address of the Originating Telephone Number, neighborhood demographics, and or other information which may be available from telecommunications providers and other sources.
1.6 "Caller ID" shall mean the ten digit caller identification telephone number, as provided by the Caller's Local Exchange Carrier, where and when available.
1.7 "Customer Service Representative" ("CSR") shall mean a person who answers Calls on behalf of Customer, regardless of the title given to such person by Customer.
1.8 "Agendize Call Tracking Service" (the "Service") shall mean the service described in the Service Description (paragraph 2.1).
1.9 "Interchange Carrier" shall mean a long distance telephone company that connects calls across multiple local access and transport areas (LATAs).
1.10 "Local Exchange Carrier" shall mean a local telephone company that operates local switching equipment within Rate Centers and that connects calls within local access and transport areas (LATA) comprising multiple Rate Centers.
1.11 "Local Number" shall mean a telephone number associated with a specific geographically based Rate Center.
1.12 "Originating Telephone Number" shall mean the Caller's telephone number.
1.13 "Rate Center" shall mean a geographic area containing one or more telephone switching centers, used by telecommunications carriers as the basis to define local and toll-calling areas.
1.14 "Terminating Telephone Number" shall mean the telephone number designated by the Customer to receive Calls when a tracking number is called.
1.15 "Toll Free Number" shall mean a telephone number that a Caller may dial to be connected to a called party outside of the local calling area without the Caller needing to pay long distance toll charges.
1.16 "Agendize onDemand User" shall mean an authorized Customer or Customer representative who accesses the Agendize customer care portal known as Agendize onDemand.
1.17 "Whisper" shall mean an audio message heard by the Caller at the beginning of a Call.
2. Service Delivery.
2.1 Service Description. The Agendize Call Tracking Service enables Customer to obtain Call Tracking Numbers from Agendize, which may be published by Customer in advertisements and other media. When a Caller dials a Call Tracking Number, Agendize shall connect the Caller to the Terminating Telephone Number designated by Customer. Agendize shall provide Customer with access to provisioning and reporting tools and options through Agendize onDemand.
2.2 Provisioning. Customer shall designate Agendize onDemand Users who shall access the Agendize onDemand portal to provision (set up) Call Tracking Numbers either directly through "Manual Provisioning tool", indirectly using the Excel ("Bulk Provisioning tool") or automatically using the XML provisioning option available in Agendize onDemand. Once activated, any fees associated with a Call Tracking Number shall be billed to Customer. Subject to any limitations specified in the Service Order form, Customer may suspend or delete Call Tracking Numbers within Agendize onDemand.
|2.2.1||Selecting Call Tracking Numbers. Customer may request/provision Call Tracking Numbers from Agendize's Local Number or Toll Free Number inventory, in which case Agendize shall make commercially reasonable efforts to activate the Service for the requested number immediately. Customer may request Call Tracking Numbers for Rate Centers not currently in inventory in which case Agendize shall make commercially reasonable efforts to activate the Service for the requested number within ten (10) business days.|
|2.2.2||Terminating Numbers. Customer shall designate the Terminating Telephone Number for each Call Tracking Number. Terminating Numbers shall be limited to the territory specified in the Agendize Call Tracking Service Order.|
|2.2.3||Reporting Variables. Customer shall provide the names and values of reporting variables that it wishes to use to analyze Call traffic.|
2.4 Call Demographic Information. To the extent specified in the Service Order, and where Caller ID is available, Agendize shall query one or more sources of Call Demographic Information and include this information in Agendize's reporting database.
2.5 Call Recording. Customer hereby agrees and acknowledges that Agendize may record, review and evaluate digitized telephone calls for internal quality assurance, performance measurement or at the request of the Customer. If the Call Recording feature is activated, Customer hereby agrees to notify present and future employees that their conversations may be recorded. Customer acknowledges that this shall be relied upon by Agendize, and is essential to the ability of Agendize to provide the Call Recording services. Customer shall indemnify and hold harmless Agendize, its parents and affiliates, their respective officers, directors and employees, jointly and severally, against any liabilities, losses, damages, costs or expenses, including reasonable attorney's fees, arising from any third party claim, action, or proceeding based upon or in a way related to or resulting from Call Recording provisioned by or requested by Customer.
2.6 Operation. Agendize shall host, operate, administer, and maintain the Service.
2.7 Agendize Training. Agendize shall provide familiarization training, by telephone, for initial Agendize onDemand Users.
2.8 Other Services. Agendize shall provide such other professional services for integration, customization, training, or other purposes as may be ordered in a Service Order accepted by Agendize.
3. Service Levels.
3.1 Network Redundancy. Agendize shall maximize Service availability by operating at least two geographically separated, load-balanced points of presence (PoPs) at all times. Agendize shall maintain sufficient capacity such that 100% of expected Call Tracking traffic can be carried despite the loss of a PoP.
3.2 Service Availability. Service availability shall be defined as the availability of Agendize's servers to route calls, and the availability of Agendize's gateways and contracted interchange carriers to bridge calls from Callers to Customers' Terminating Telephone Numbers.
3.3 Service Level Goal. Agendize shall use commercially reasonable efforts to meet or exceed a Service Level of 99.9% availability during every month of Service.
3.4 Minimum Service Level. Failure by Agendize to deliver at least 99% system availability during a calendar month shall be considered a material breach of the Agreement. Customer may terminate this Agreement without penalty upon (30) days written notice to Agendize, provided Customer must base its decision to terminate on commercially reasonable grounds. Agendize shall not be responsible for any failure to meet performance standard resulting from any act or omission by Customer or from circumstances beyond Agendize's reasonable control.
3.5 Local Exchange Carriers Performance. Downtime on the part of local exchange carriers (LECs) serving either Caller's Originating Telephone Numbers or Customers' Terminating Telephone Numbers is not under Agendize's control, and these carriers cannot be bypassed. Accordingly, downtime on the part of LECs shall not be included in measuring downtime or availability. In the event a LEC fails to perform as required, Agendize may transfer the numbers to another LEC or provide new numbers, depending on the circumstances. If a LEC fails to provide continuous service or to promptly handle local number provisioning requests, Customer may request and Agendize shall agree to enter into an agreement with another LEC to provide such services.
3.6 Inter-Exchange Carrier Performance. Agendize shall obtain toll free numbers from one or more inter-exchange carriers ("IXCs"). Agendize shall make commercially reasonable efforts to provide continuity in the availability of those numbers. Agendize shall not be responsible for failure on the part of the IXC to provide continuous service or to promptly handle toll free number provisioning requests. In the event an IXC fails to perform as required, Agendize may transfer the numbers to another IXC or provide new numbers, depending on the circumstances.
3.7 No Withdrawal of Numbers. Agendize agrees that upon provision of a local number to Customer that Agendize shall not withdraw the number from Customer during the term of this Agreement or any extensions thereof.
3.8 Portability of Numbers. Agendize agrees that upon termination or expiration of this Agreement for any reason, upon the request of Customer, Agendize shall assign the local numbers to any other provider identified by Customer. Any costs charged by third parties for porting numbers shall be borne by Customer.
3.9 Disaster Recovery. Agendize shall use commercially reasonable efforts to restore Service within 24 hours if all PoPs are destroyed or incapacitated.