Terms and Conditions
Last updated: August 22, 2018.
Speeko has developed a proprietary platform (the “Platform”), which includes services for automated voice analysis (“Communications”) and digital coaching (“Coaching” together the “Services”) .
2. Access to Platform
(a) Rights to Use the Platform. Subject to the terms and conditions of this Agreement (including payment of all amounts due hereunder), Speeko hereby grants Customer and its End Users (defined below) a limited, non-exclusive, non-transferable, non-sublicenseable, right and license during the Term to: (i) access and internally use the Platform, solely for its intended purpose, to upload, record and submit Communications for analysis, (ii) use the reports, analytics and other data generated by the Platform in connection with evaluating and analyzing the Communications (the “Speeko Results”) for internal educational purposes, and (iii) use the Coaching.
(c) Restrictions. Customer and its End Users may not rent, lease, lend, sell, redistribute, reproduce or sublicense the Platform, or use the Platform as a service bureau. Customer and its End Users may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, create derivative works of the Platform, or any part thereof, or use the Platform to violate any law or regulation. To the extent the foregoing restrictions are prohibited by applicable law or by an agreement between Speeko and one of its licensors, the foregoing activities are permitted only to the extent necessary to comply with such law or license(s). Customer shall not exploit the Platform in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.
3. Fees and Taxes
(a) Fees. Customer shall pay Speeko the applicable fees set forth in the Order Form pursuant to the payment terms therein. Speeko may also (at its discretion and in addition to other remedies it may have) temporarily suspend Customer’s and its End Users’ access to the Platform for any invoice that remains unpaid for more than thirty (30) days from receipt. All fees due hereunder shall be paid in U.S. dollars.
(b) Taxes. All amounts payable hereunder by Customer are exclusive of any value added, sales, use, excise or other similar taxes (collectively, “Taxes”). Customer shall be solely responsible for paying all applicable Taxes. If Speeko has the legal obligation to collect any Taxes, Customer shall reimburse Speeko upon invoice by Speeko. If Customer is required by law to withhold any taxes from its payments to Speeko, Customer shall provide Speeko with an official tax receipt or other appropriate documentation to support such payments and take reasonable steps to minimize such payments.
4. Intellectual Property
(a) Speeko Intellectual Property. Speeko retains exclusive ownership of all right, title and interest in and to the Platform, and all intellectual property rights therein. Without limiting the foregoing, Speeko will retain exclusive ownership of (i) all of Speeko’s know-how, concepts, techniques, methodologies, ideas, templates, software, interfaces, utilities and tools, (ii) all updates, modifications, improvements, enhancements and derivative works of the Platform conceived, discovered, developed or reduced to practice, solely or in collaboration with others, and (iii) in each case, all related intellectual property rights. To the extent any Speeko intellectual property result from access to or the use of Customer Confidential Information, it will constitute Speeko’s intellectual property only if Customer is not identified or reasonably identifiable therein.
(b) Feedback. If Customer or any of its End Users submit comments, suggestions, or other feedback regarding the Platform or the Platform to Speeko (“Feedback”), Customer agrees that Speeko will own all intellectual property rights to such Feedback without accounting or obligation to Customer.
(c) Customer Intellectual Property. Except as specifically set forth in this Agreement, Customer retains ownership of all right, title and interest in and to the Communications, the Speeko Results, and the Marks (defined below), and all intellectual property rights therein.
(d) License to Communications and Speeko Results. Customer hereby grants to Speeko a perpetual, non-exclusive, transferable, sublicensable, royalty free license to use the Communications and Speeko Results to provide the Platform to Customer and its End Users, and to publish such Communications, Speeko Results and related information to the Platform for End Users to view and interact with the Communications and Speeko Results. Additionally, Customer hereby grants to Speeko a perpetual, non-exclusive, transferable, sublicensable, royalty free license to use such Communications and Speeko Results to create, extract or otherwise generate, compile, synthesize and analyze such Communications and Speeko Results in order to monitor and improve the Platform, including without limitation to improve the Platform’s capabilities, (“Blind Data”); provided that such Blind Data will not contain personally identifiable information or identify Customer or its End Users as the source of such data. Notwithstanding anything in this Agreement to the contrary, to the extent that Speeko collects or generates Blind Data, Customer hereby grants Customer a perpetual, non-exclusive, transferable, sublicensable, royalty free, fully paid up license to use such Blind Data for any lawful business purpose.
(e) Trademark License. Customer hereby grants to Speeko a non-exclusive, non-transferable (except in connection with a permitted assignment of this agreement) license during the Term to use the trademarks, logos and associated branding provided by Customer to Speeko in connection with this Agreement (the “Marks”) in order to provide the Platform to Customer. Speeko’s use and display of the Marks will comply with the branding guidelines provided by Customer from time to time. Customer acknowledges that Speeko may refer to Customer as a customer of Speeko and include the Marks and information regarding Customer’s use of the Platform in Speeko’s marketing materials, list of customers and on Speeko’s website.
(f) Reservation of Rights. Each party reserves all intellectual property rights not expressly granted to the other party in this Agreement. Except as expressly stated, nothing herein shall be construed to directly or indirectly grant to a receiving party any right, title or interest in a providing party’s intellectual property rights in services or materials furnished by such providing party hereunder.
5. Term, Suspension and Termination
(a) Term. The term for this Agreement shall commence on the Effective Date and continue in effect for the initial term set forth in the Order Form (“Term”), unless earlier terminated as set forth herein.
(b) Termination. Notwithstanding anything to the contrary, this Agreement may be terminated as follows by either party: (i) upon written notice to the other party of a material breach of this Agreement by the other party, which breach the other party does not cure within thirty (30) days after receipt of written notice of the material breach; or (ii) in the event the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business. Notwithstanding the termination of this Agreement for any reason, neither party will be relieved of any duty, obligation, debt or liability that arose or accrued prior to the effective date of termination.
(c) Suspension. In the event that Customer does not pay any fees when due under this Agreement, Speeko may suspend all Services without any liability to Customer until Customer has paid all such fees.
(d) Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement shall survive such expiration or termination, including Sections: 3 (Fees and Taxes) (as to amounts owed as of termination); 4 (Intellectual Property); 5(d) (Survival); 7 (Representations and Warranties); 8 (Indemnification); 9 (Confidential Information); 10 (Acknowledgment; Disclaimer of Warranties); 11 (Limitation of Liability); and 12 (Miscellaneous).
(a) Support Services. During the Term, Speeko will provide Customer and End Users with email support regarding use of the Platform. Support inquiries made via email to email@example.com will be serviced and responded to by Speeko customer service personnel.
(b) Maintenance; Availability. Scheduled system maintenance shall take place from time to time, and during such time, the Platform may be unavailable. Emergency maintenance may be required at other times in the event of system failure. Speeko makes no representation that the Platform is available or permitted in any particular location. Use of the Platform is void where prohibited. Customer and End Users use(s) the Platform at its own initiative and is responsible for compliance with any applicable laws in connection with Customer’s and End Users’ use thereof. Speeko may also impose limits on the use or access to the Platform.
7. Representations and Warranties
(a) General. Speeko and Customer each represents and warrants to the other that: (i) it has the necessary power and authority to enter into this Agreement; (ii) the execution and performance of this Agreement have been authorized by all necessary corporate or institutional action; (iii) entry into and performance of this Agreement will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of such party; (iv) no action by any governmental organization is necessary to make this Agreement valid and binding upon such party; and (v) it possesses all governmental licenses and approvals necessary to perform its obligations under this Agreement.
(b) FERPA. If Customer is an educational institution, Customer represents and warrants that it will at all times during the Term comply with the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, and its implementing regulations, 34 C.F.R. pt 99, (“FERPA”) and other laws with respect to the Communications and its use of the Platform under this Agreement.
(c) Consents and Approvals. Customer hereby represents and warrants that it has obtained, and covenants to obtain, all required consents or approvals that are necessary to allow Speeko to collect, process, and use Communications. Speeko’s performance hereunder is specifically conditioned on Customer’s receipt of such consents and approvals.
(a) Speeko Indemnification. Speeko agrees that Customer shall have no liability and Speeko shall indemnify, defend and hold Customer harmless against any loss, damage, cost, liability and expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or paid in settlement to the extent arising from any action or claim of a third party (collectively, “Losses”) asserting that the Platform infringes the intellectual property or other proprietary rights of such third party. Speeko’s obligations under this Section 8(a) shall not apply if: (i) Customer or its End Users use the Platform in violation of applicable law or this Agreement, (ii) the Platform is modified by any person other than Speeko or its agents; (iii) the infringement claim arises out of or pertains to Speeko’s compliance with Customer’s instructions or specifications; or (iv) the infringement claim arises out of the combination of the Platform with any software, hardware or materials of any third party.
(b) Customer Indemnification. Customer agrees that Speeko shall have no liability and Customer shall indemnify, defend and hold Speeko harmless against any Loss to the extent arising from infringement of the intellectual property or other proprietary rights of a third party attributable to Speeko’s use of the Communications, the Speeko Results, or the Marks in accordance with this Agreement.
(c) Procedure. The indemnified party shall: (i) give the indemnifying party prompt written notice of any indemnified claim; (ii) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any indemnified claim; and (iii) give the indemnifying party sole and complete control over the defense or settlement of any indemnified claim; provided, however, that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation.
9. Confidential Information
(a) Definition. “Confidential Information” means information that the disclosing party identifies in good faith as confidential or proprietary or, given the nature of the information or the circumstances surrounding its disclosure, the receiving party should reasonably understand to be confidential or proprietary. All Confidential Information relating to the Platform shall be deemed to be the Confidential Information of Speeko.
(b) Non-Disclosure. Each party may use Confidential Information only as necessary to exercise its rights and discharge its obligations under this Agreement. Neither party shall disclose Confidential Information to a third party. The receiving party shall protect Confidential Information using the same degree of care it uses to protect the confidentiality of its own confidential information of like nature, but no less than a reasonable degree of care. The foregoing obligations shall not apply to any Confidential Information that: (i) was publicly known at the time the disclosing party disclosed such Confidential Information to the receiving party; (ii) becomes part of the public domain or publicly known not due to any unauthorized act or omission by the receiving party; (iii) is independently developed by the receiving party without reference to or reliance upon such Confidential Information; (iv) is provided to the receiving party by a third party who is under no obligation to the disclosing party to keep the information confidential; or (v) is required to be disclosed by law, in which case the receiving party shall take reasonable actions to minimize such disclosure and promptly notify the disclosing party of the request for disclosure, to the extent permitted by law, so that the disclosing party may take lawful actions to avoid or minimize such disclosure. Notwithstanding anything to the contrary, Speeko may identify Customer as a customer of Speeko without disclosing the nature of the services provided by Speeko to Customer.
10. Acknowledgement; Disclaimer of Warranties
(a) Customer Acknowledgment. Customer acknowledges that the Platform is an automated voice analysis system designed to identify and report on patterns and/or trends discovered in the source material, based on the recordings provided by Customer and its End Users and that the Communications and Speeko Results generally will not be manually reviewed or validated by individuals. For greater certainty, the Platform will not necessarily identify all trends or errors and: (a) the Speeko Results delivered hereunder do not constitute recommendations by Speeko; and (b) Speeko does not provide any warranties regarding the results or analysis contained in the Speeko Results or that all trends or errors will be identified. The Speeko Results should be considered as one piece of evidence about the quality of any Communications. Customer and its End Users should review and evaluate the Speeko Results and the feedback contained therein carefully to ensure that appropriate decisions are being made with respect thereto.
(b) DISCLAIMER. THE PLATFORM AND SPEEKO RESULTS ARE PROVIDED "AS IS AND "AS AVAILABLE" WITH ALL FAULTS. EACH PARTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXCEPT AS SET FORTH IN SECTION 7), EXPRESS OR IMPLIED, INCLUDING: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF ANY MATERIALS OR SERVICES PROVIDED UNDER THIS AGREEMENT. SPEEKO DOES NOT WARRANT THAT THE USE OF THE PLATFORM OR SPEEKO RESULTS WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES, WILL MEET CUSTOMER’S REQUIREMENTS OR THAT OR THAT DEFECTS IN THE PLATFORM OR SPEEKO RESULTS WILL BE CORRECTED.
11. LIMITATION OF LIABILITY
OTHER THAN WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 OR BREACH OF SECTION 9 (CONFIDENTIAL INFORMATION): (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COST OF COVER, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE THE PLATFORM, SPEEKO RESULTS OR OTHER MATERIALS OR SERVICES PROVIDED UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE; AND (B) IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES RECEIVED BY SPEEKO FROM CUSTOMER DURING THE 12 MONTHS PRECEDING THE APPLICABLE CLAIM UNDER THIS AGREEMENT. CUSTOMER AND ITS END USERS ASSUME ALL LIABILITY AND RESPONSIBILITY FOR INTERPRETING THE SPEEKO RESULTS OR SHARING THE SPEEKO RESULTS WITH ANY THIRD PARTY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; IN THOSE JURISDICTIONS SPEEKO’S LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
(a) Independent Contractors. The relationship between Speeko and Customer established by this Agreement is solely that of independent contractors. Neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party, without the express prior written consent of such other party.
(b) Notice. All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and sent to the parties according to the contact information provided in the Order Form.
(c) Assignment. Neither party may assign this Agreement, or assign or delegate any right or obligation hereunder, by operation of law or otherwise, without the prior written consent of the other party; provided, however, that no consent shall be required with respect to an assignment by either party to an affiliate or as part of any transfer by merger, acquisition, stock transfer or other consolidation of with another entity, or sale of all or substantially all of such party’s assets. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(d) Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter. In the event of any conflict between this Agreement and any Policy, the terms and conditions of this Agreement shall take precedence.
(e) Amendment. This Agreement may not be amended except in a writing executed by an authorized representative of each party.
(f) Severability. If any provision of this Agreement shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.
(g) Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the United States of America and the State of Delaware, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
(h) Jurisdiction. The parties agree that any action, proceeding, controversy or claim between them arising out of or relating to this Agreement (collectively, an “Action”) shall be brought only in a court of competent jurisdiction in Delaware. Each party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Action.
(i) No Waiver. The failure of either party to require strict performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of this Agreement, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced.
(j) Force Majeure. Neither party shall be liable for any failure to perform under this Agreement to the extent due to any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction of production facilities, insurrection or any other cause beyond the reasonable control of the party invoking this provision.