Cue Saas TermsThe Parties hereto agree as follows:
1. Services. Cue provides a Cloud-based dynamic scripting platform (the “System”) which consists of technology hosted on Cue’s computers and accessed remotely, via the Cloud, to provide dynamic sales and service scripting to customer sales and service representatives. During the Contract Period, Customer may access and use the System for providing real-time scripting, tracking, analysis and reporting for its customer sales and service representatives pursuant to this Agreement and Cue’s policies posted on its Website at www.itscue.com, as such policies may be updated from time to time in accordance with Section 12(a) below.
2. Contract Period. The initial term of this Agreement is one (1) year starting from the Effective Date. This Agreement shall automatically renew for additional terms of one (1) year each unless either party shall give written notice of cancellation at least thirty (30) days prior to the expiration of the original term or any renewal thereof.
3. Usage Fees; Billing and Payment. For access and use of the System, Customer agrees to pay to Cue the fees set forth, which fees shall remain in effect for the initial Contract Period. Customer shall be invoiced monthly and payments are due within 15 days after invoice date. Services will be terminated if payments are not received within the terms, after serving a seven days notice via email. Fees are subject to change after the initial Contract Period.
4. Licensed Material. Cue hereby grants to Customer a personal, nonexclusive, non-sublicensable, nontransferable license during the term of this Agreement to use, in object code form, all software and related documentation provided by Cue (“Licensed Material”), which may be furnished to Customer under this Agreement. Customer agrees to use commercially reasonable efforts to ensure that its Users of all Licensed Material hereunder comply with the terms and conditions set out in this Agreement, and that Customer shall be responsible for any breach by any User of any term of this Agreement. Customer also agrees to refrain from taking any steps, such as reverse assembly or reverse compilation, to derive a source code equivalent to the Licensed Material. All Licensed Material furnished to Customer under this Agreement shall be used by Customer only for Customer’s internal business purposes in its use of the System, shall not be reproduced or copied in whole or in part, and shall not be removed from the United States. As used in this Agreement, “User” means any individual who uses the System on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
5. IP Rights. Cue retains all right, title, and interest in and to the System and the Licensed Material, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Customer any intellectual property license or rights in or to the System or the Licensed Material or any of its components, except to the extent provided in Section 4 above. Customer recognizes that the System, the Licensed Material and components thereof are protected by copyright and other laws. Any modification to software performed by Customer directly or indirectly extending the current capabilities of the System or Licensed Material shall be the property of Cue and all copyrights and other rights are hereby assigned to Cue.
6. Representations and Warranties. Cue represents and warrants that, at the time of the delivery of the Services, it is the owner of the System and of each and every component thereof, or the holder of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. In the event of a breach of the foregoing warranty in this Section 6, Cue, at its own expense, will promptly take the following actions: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it noninfringing; or (c) terminate the infringing features of the System and Licensed Material or this Agreement. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Cue’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 6, and for potential or actual intellectual property infringement by the System and Licensed Material.
Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (c) it is a corporation, the sole proprietorship or an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
Customer is solely responsible for the content of any postings, data, or transmissions using the System, or any other use of the System by Customer or by any person or entity Customer permits to access the System. Customer represents and warrants that it will: (a) not use the System in a manner that: (i) is prohibited by any law or regulation, or will facilitate the violation of any law or regulation; or (ii) will disrupt a third parties’ similar use of the System or the Licensed Material; and (b) not violate or tamper with the security of any Cue computer equipment or program. If Cue has reasonable grounds to believe that Customer is utilizing the System for any such illegal or disruptive purpose Cue may suspend Customer’s use of the System immediately with or without notice to Customer. Cue may terminate the Agreement as contemplated in Section 11 if Customer in fact fails to adhere to the foregoing acceptable use standards and the Acceptable Use Policy posted on Cue’s website, as may be amended from time to time in accordance with Section 12(a) hereof.
DISCLAIMER OF WARRANTIES. CUSTOMER ACCEPTS THE SYSTEM AND THE LICENSED MATERIAL “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (A) CUE HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (B) CUE DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; (C) CUE DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE; AND (D) CUE DOES NOT GUARANTY UPTIME OR REPRESENT OR WARRANT THAT THE SYSTEM WILL BE AVAILABLE OR ACCESSIBLE AT ALL TIMES.
7. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL CUE OR ANYONE ELSE INVOLVED IN ADMINISTERING, DISTRIBUTING OR PROVIDING THE SYSTEM, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SYSTEM, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR LOST PROFITS, OR DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, NEGLIGENCE, UNAVAILABILITY, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, FAILURE OF PERFORMANCE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO CUE’S RECORDS, PROGRAMS OR SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF ANY BREACH BY CUE OF THIS AGREEMENT, CUE’S LIABILITY TO CUSTOMER WILL NOT EXCEED THE AMOUNT PAID TO CUE BY CUSTOMER DURING THE PREVIOUS THREE MONTHS.
8. Confidential Information.
Definition. For purposes of this Agreement “Confidential Information” shall mean information including, without limitation, all Customer data, computer programs, code, algorithms, names and expertise of employees, contractors and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial and product development plans, forecasts, strategies and information marked “Confidential”, or if disclosed verbally, is identified as confidential at the time of disclosure, as well as any personally identifiable information of Customers clients and prospective clients, including, specifically but without limitation, protected health information and personal financial information. In addition to the foregoing, Confidential Information shall include third party software, if any, that may be provided to Customer under this Agreement, including any related source or object codes, technical data, data output of such software, documentation, or correspondence owned by the applicable licensor. Confidential Information excludes information that: (i) was or becomes publicly known through no fault of the receiving party; (ii) was rightfully known or becomes rightfully known to the receiving party without confidential or proprietary restriction from a source other than the disclosing party; (iii) is independently developed by the receiving party without the participation of individuals who have had access to the Confidential Information; (iv) is approved by the disclosing party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing party; and (v) the receiving party is legally compelled to disclose; provided, however, that prior to any such compelled disclosure, the receiving party will (a) assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (b) cooperate fully with the disclosing party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event that such protection against disclosure is not obtained, the receiving party will be entitled to disclose the Confidential Information, but only as, and to the extent, necessary to legally comply with such compelled disclosure.
Terms of Agreement Confidential. Each of the parties agrees not to disclose to any third party the terms of this Agreement, including pricing, without the prior written consent of the other party hereto, except to advisors, lenders, investors and others on a need-to-know basis under circumstances that reasonably ensure the confidentiality thereof, or to the extent required by law.
Injunctive Relief. In the event of an actual or threatened breach of the above confidentiality provisions, the non-breaching party will have no adequate remedy at law and will be entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
Feedback. Cue has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Cue, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Cue’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. “Feedback” means and refers to any suggestion or idea for improving or otherwise modifying any of Cue’s products or services.
9. Customer Responsibility.
Customer will be able to connect and integrate its Cue account with services provided by third party vendors such as Salesforce, RingCentral and other solutions providers. By connecting its Cue account to a thirdparty service provider, Customer acknowledges and agrees that it consents to the continuous release of Customer Data (as defined below) to such service provider (in accordance with Customer’s privacy settings on those third-party sites).
Customer acknowledges that the Services, the System, and the Licensed Materials are accessible via the Internet and that Customer, and not Cue, is responsible for Customer’s ability to access the Services, the System, and the Licensed Materials.
Customer is solely responsible for the content of communications transmitted by Customer using the System, including communications involving Customer’s third party service providers, and shall defend, indemnify and hold harmless Cue from and against all claims, liabilities and costs (including reasonable attorney’s fees) arising from any and all third-party claims by any person based upon the content of any such communications or use of any third party service provider by Customer.
Customer remains solely responsible for its regulatory compliance in its use of the System, including actions taken or not taken by its Users. Customer represents and warrants that it has made Cue aware of any technical requirements that result from its regulatory obligations prior to entering into this Agreement. Cue acknowledges that Customer Data may include (i) data that is “protected health information” including medical, demographic, visual or descriptive information that can be used to identify a particular patient/individual and/or any other data subject to the Health Insurance Portability and Accountability Act (“HIPAA”) and the regulations promulgated thereunder (“PHI”); and (ii) information that relates to a person and that coul
Customer shall use the System only for lawful purposes and shall at all times comply with Cue’s Acceptable Use Policy as posted at www.itscue.com. As may be amended from time to time in accordance with Section 12(a) hereof. To the extent deemed necessary by Customer, Customer shall implement security procedures necessary to limit access to the System and Licensed Material to Customer’s authorized users and shall maintain a procedure external to the System for reconstruction of lost or altered files, data or programs.
Customer is responsible for establishing designated points of contact to interface with Cue.
Customer Data and Privacy.
Use of Customer Data. Unless it receives Customer’s prior written consent, Cue: (a) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the System; and (b) shall not intentionally grant any third party access to Customer Data, including without limitation Cue’s other customers, except contractors or subcontractors that are subject to a reasonable nondisclosure agreement. For purposes hereof, “Customer Data” means all data and information submitted to Cue or the System, including data submitted by employees, contractors, agents and Users of Customer, and including, specifically but without limitation, data regarding Customer’s clients and potential clients. Notwithstanding the foregoing, Cue may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Cue shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
Risk of Exposure. Customer recognizes and agrees that accessing and/or hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks and agrees that it shall be responsible for storage and backup of all Customer Data. Cue offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
Data Accuracy. Cue shall have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Users.
Data Deletion. Cue may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.
Aggregate & Anonymized Data. Notwithstanding the provisions above of this Section 10, Cue may use, reproduce, sell, manipulate, or otherwise exploit Aggregate Data in any way, in its sole discretion. “Aggregate Data” refers to Customer Data with the following removed: personally-identifiable information and the names and addresses of any person.
If a party fails to perform or observe any material term or condition of this Agreement and the failure continues unremedied for seven (7) days after receipt of written notice, (1) the other party may terminate this Agreement, or (2) where the failure is a nonpayment by Customer of any charge when due, Cue, may, at its option, terminate or suspend services and access to the System with or without any notice.
This Agreement may be terminated immediately upon written notice by either party if the other party becomes insolvent or involved in a liquidation or termination of business, files a bankruptcy petition, has an involuntary bankruptcy petition filed against it (if not dismissed within thirty days of filing), becomes adjudicated bankrupt, or becomes involved in an assignment for the benefit of its creditors.
Upon termination of this Agreement, Customer shall cease all use of the System and return to Cue all copies of the Licensed Material in its possession or control, and delete or destroy to Cue’s satisfaction, all electronic and stored copies of any Licensed Material and any derivations thereof. Customer shall be responsible for payment of all charges under a terminated Agreement incurred as of the effective date of termination.
12. General Provisions.
(b) Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, or employment relationship between the parties, nor shall either party have the right, power, or authority to create any obligation or duty, express or implied, on behalf of the other.
(c) Customer shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software or other Licensed Material provided by Cue or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria). Customer will indemnify and hold Cue harmless from and against any damage, loss, liability or expense (including attorney’s fees) that Cue may incur as a result of Customer’s failure to comply with this section
(d) This Agreement may not be assigned, sublicensed or transferred, in whole or in part, by Customer without the prior written consent of Cue. Any attempted assignment, subletting or transfer shall be void.
(e) If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(f) No delay or failure of Cue or Customer in exercising any right herein and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights herein. Any waiver by Cue or Customer of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent or other breach.
(g) No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
(h) The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Cue employee or contractor will be an employee of Customer.
(i) Cue may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to firstname.lastname@example.org, and such notices will be deemed received 72 hours after they are sent.
(j) This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, and which, when taken together, shall constitute a single instrument. This Agreement may be executed and delivered by facsimile or via electronic mail via .PDF (“PDF), and the printed product of such facsimile transmission or PDF shall constitute an original of this Agreement.
(k) The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
(l) This Agreement shall be governed by and construed under the laws of the State of Georgia applicable to contracts made in and wholly to be performed in the State of Georgia without regard to conflicts of law.
(m) If a dispute arises out of or relates to this Agreement, or the breach thereof, and if said dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation under the Commercial Mediation Rules of the American Arbitration Association, before resorting to arbitration. Any dispute arising out of or relating to this Agreement, or the breach thereof, that cannot be resolved by mediation within 30 days shall be finally resolved by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitration will be conducted in the English language in the City of Atlanta, Georgia, in accordance with the United States Arbitration Act. There shall be one arbitrator, named in accordance with such rules. The award of the arbitrator shall be accompanied by a statement of the reasons upon which the award is based. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the cost of its own experts, evidence and counsel’s fees, except that in the discretion of the arbitrator, any award may include the cost of a party’s counsel if the arbitrator expressly determines that the party against whom such award is entered has caused the dispute, controversy or claim to be submitted to arbitration as a dilatory tactic.
(n) In the event and to the extent that Customer intends to, reasonably expects to, or actually uses the Services, the System, or the Licensed Materials in connection with PHI, Customer agrees to the terms of and agrees to be bound by the terms of the Business Associate Agreement (as may be amended from time to time, the “BAA”), which is hereby incorporated by reference in its entirety. In the event of any conflict among the terms of the BAA and any other terms in this Agreement, the terms and conditions that are more protective of PHI shall govern to the extent of that conflict. Customer agrees to execute the BAA (or a form substantially similar) in favor of Cue at Cue’s request. Notwithstanding any provision to the contrary, the BAA shall have legal superiority and control over any conflicting or limiting provision of any contract or agreement between the Parties, whether entered before, simultaneous, or after the BAA.