Voxsmart Ltd, a company incorporated under the laws of England with business registration number 5691475, whose office is at 12th Floor, 30 Crown Place, London EC2A 4EB United Kingdom ("Voxsmart") owns the copyright, trade mark, trade names, patents and other intellectual property rights subsisting in or used in connection with its Software including the VoxRecord and other mobile phone applications, the VoxRecord Control Centre and other server based applications and all documentation and manuals. The Software is protected by international copyright laws. Violation of copyright is a serious offence, punishable by monetary penalties and possible imprisonment.
Voxsmart has agreed to provide the Customer with access to and use of the Software and the Services on the terms and conditions of this Agreement. Installation of the Software and use of the Services will constitute acceptance by the Customer of these terms and conditions.
IT IS AGREED THAT
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
'Initial Period' means the minimum term of this Agreement which shall be 24 months from the Acceptance Date unless otherwise expressly provided in the Order;
'Intellectual Property Rights'
‘User’ means an individual natural person registered and licensed to use the Software in accordance with the provisions of this Agreement;
1.1 In this Agreement (except where the context otherwise requires):
1.1.1 any reference to any statute, law, statutory instrument, regulation or other similar instrument having the force of law shall be deemed to include any lawful amendment, re-enactment, extension, replacement, modification, consolidation and/or repeal;
1.1.2 any use of the words ‘including’, ‘includes’, ‘in particular’ or similar expressions shall be construed as illustrative and shall not limit the general words to which they relate.
2. Licence and Services
2.2 The Licence shall start on the Acceptance Date and shall continue for the Initial Period unless terminated in accordance with clause 9.
2.3 The Customer acknowledges that any and all of the patents, copyrights, trademarks and other intellectual property rights used or embodied in or in connection with the Software including all documentation and manuals relating thereto is and shall remain the property of Voxsmart and the Customer shall not during or at any time after the expiry of or termination of this Agreement in any way question or dispute the ownership of any such rights by Voxsmart.
2.6 The Customer may not nor permit others to use the Software for any unlawful purpose whatsoever. The Customer specifically agrees to reimburse Voxsmart against all reasonable costs and liabilities arising out of all claims which result from any breach by the Customer of this clause;
2.7 The Customer is solely responsible for the selection and support in respect of the Equipment. Notwithstanding the foregoing:
2.7.1 if the Software cannot be used with the Equipment because it is inoperable for any reason then the Licence shall be temporarily extended without additional charge to use with any other equipment until such failure has been remedied, provided that such equipment is under the direct control of the Customer.
2.7.2 the Customer may Use the Software on and in conjunction with any suitable replacement equipment if the use of the Software on and in conjunction with the Equipment is permanently discontinued. The replacement equipment shall become the Equipment for the purposes of the Licence.
2.8 Voxsmart shall provide the Services to the Customer in consideration of the payment of the Charges as set out in Schedule 3 below, subject to this Agreement.
2.9 Voxsmart shall invoice the Customer for the fees payable as specified in the Order, in respect of the Services supplied by Voxsmart.
2.14 The Customer acknowledges that it is its sole responsibility to determine that the Software and Services meet the needs of its business and to satisfy itself that the Equipment is ready for operational use in its business before it is so used.
2.15 The Customer acknowledges that, unless otherwise notified, all Customer Information held will be automatically deleted by Voxsmart upon expiry of the 180 day storage period referred to in Schedule 1 and it is the Customer’s sole responsibility to arrange to download and maintain any back up of the Customer Information on the Customer’s own site that may be required after this 180 day period has expired.
2.16 Where Voxsmart at the request of the Customer provides Customer Information to the Customer on a hardware storage device for archiving on the Customer’s own site:
2.17 The licence granted to the Customer in clause 2.1 above is personal to the Customer and/or the Affiliates and neither the Customer nor the Affiliates is permitted to assign, transfer, sub-license, or otherwise dispose of any of the licensed rights (or any part thereof) to a third party. Nothing in this Agreement transfers any proprietary rights in the Software or the Services to the Customer.
3. Copying and Security of the Software
3.1 The Customer may make only one copy of the Software for back up and disaster recovery purposes only. Such copy and the media on which it is stored shall be the property of Voxsmart and the Customer shall ensure that such copy shall bear Voxsmart’s proprietary notices. This Agreement shall apply to such copy as it applies to the Software save that the Customer shall not use such copy other than for back up or disaster recovery purposes.
3.2 Save as provided for in clause 3.1, no other copies or part-copies of the Software may be made without the prior written consent of Voxsmart.
3.3 The Customer shall during the continuance of this Agreement effect and maintain adequate security measures to safeguard the Software from access or use by any unauthorised person.
4. Customer Obligations
4.1 The Customer shall:-
4.1.1 not use the Software or Services for any illegal purpose, for the transmission of information or other material that is libellous, unlawful, harassing, abusive, threatening, harmful, vulgar, defamatory, obscene, pornographic or might cause offence in any way, or for information or material that infringes a third party’s rights (including Intellectual Property Rights), or is contrary to the laws governing pornography. The Customer shall not to use the Services to transmit or receive any material which would contravene the laws of England (which, without prejudice to the generality of the foregoing, shall specifically include conduct contrary to the COMPUTER MISUSE ACT 1990 or the TELECOMMUNICATIONS ACT 1984, or the DATA PROTECTION ACT 1998, or the OFCOM or ICSTIS codes of practice or the lawful requirements of any existing or future regulatory body) or any equivalent, comparable or similar rules, regulations or laws in any applicable jurisdiction. ANY BREACH OF THE ABOVE WILL RESULT IN THE TERMINATION OF ALL SERVICES AND MAY AS A CONSEQUENCE RESULT IN CRIMINAL PROSECUTION;
4.1.2 comply in every material respect with all reasonable instructions which Voxsmart provides concerning the Services;
4.1.3 be responsible for ensuring that all security access codes issued to the Customer will be held in a secure environment to prevent unauthorised access to these codes. Any unauthorised access to the Services will be the responsibility of the Customer and the Customer will indemnify Voxsmart and hold it harmless against any resultant liabilities to or costs incurred by Voxsmart. The Customer shall also be responsible for adhering to any security procedures which Voxsmart may notify to the Customer from time to time;
4.1.4 not reproduce, disseminate or otherwise disclose the content of any Software except as expressly set out in this Agreement and/or as permitted by law;
4.1.5 not modify, disassemble, decompile, or reverse engineer the Software at any time during or after expiry or termination of this Agreement;
4.1.6 not permit the use by any third party of the Software outside the terms of this Agreement and/or as permitted by law.
4.2 The Customer shall use only Equipment which is in good working order and in compliance with the minimum specification provided by Voxsmart. If the Customer proposes to make changes to the Equipment in future the Customer agrees to check with Voxsmart that any such proposed Equipment is compatible with the Services.
4.3 If, for the sole purpose of providing the Services, it is necessary for Voxsmart and/or Voxsmart to access or use any Equipment, Customer Information, facilities or services, the Customer will make these available to Voxsmart and/or Voxsmart for access on request from Voxsmart and/or Voxsmart free of charge.
4.4 The Customer acknowledges and agrees that it is entirely responsible for its Customer Information and its input to the Services and for any use that it or any third party may make of such Customer Information and input for any purposes and that Voxsmart has no responsibility for such input or use. Without prejudice to the generality of the foregoing, the Customer undertakes to inform itself (and, if appropriate, Voxsmart) concerning, and in performing its obligations under this Agreement, to comply fully with all laws, regulations, licences or binding codes or standards of practice relevant to personal data (including without limitation the Data Protection Act 1998).
4.5 The Customer shall hold, at all relevant times for the duration of this Agreement, all appropriate licences to operate telecommunications systems and equipment which are used with the Services and will not use the Services in a way which is likely to lead to any breach of the provisions of any license held by any party.
4.6 If the Customer is in breach of any of its obligations in this clause 4, then, without prejudice to the other terms and conditions in this Agreement Voxsmart shall not be liable for any failure to meet the Service Levels which arises as a direct or indirect result of such Customer breach.
4.7 If Voxsmart suffers any loss, damage or expense as a result of:
4.7.1 any unauthorised access to, or use or misuse of the Services by any employee, agent or sub-contractor of the Customer;
4.7.2 any unauthorised access to, or use or misuse of the Services by any third party if such access, use or misuse was permitted or facilitated by such employee, agent or sub-contractor;
the Customer shall fully indemnify Voxsmart in respect of such loss, damage or expense.
4.8 The Customer acknowledges that Voxsmart does not monitor or pre-screen any use of the Services or any content created by the Customer via the Services. However Voxsmart shall have the right to examine the use to which the Customer puts the Services and the nature of the data/information that the Customer is transmitting or receiving via the Services where such examination is necessary: (i) to protect / safeguard the integrity, operation and functionality of the Services; or (ii) to comply with police, judicial, regulatory or governmental orders, notices, directives or requests.
4.9 If during the term of a committed period contract, the Customer requests an upgrade or additional services or users, then it is agreed that, unless otherwise agreed in writing by Voxsmart, the term of the upgrade in question shall run co-terminously with that of the original commitment period.
4.10 Once an Order has been processed and acknowledged by Voxsmart, all Charges payable for the Services are non-refundable. For the avoidance of doubt if the number of Users stated on the Order is reduced, Charges remain payable for the total number of users stated on the Order for the committed period of the contract.
5. Warranties and Liabilities
5.1 Voxsmart warrants that during the Period:
5.3 To the extent permitted by applicable law, Voxsmart disclaims all other warranties with respect to the Services, either express or implied, including but not limited to any implied warranties relating to quality, fitness for any particular purpose, loss of profits, loss or corruption of data, business interruption or loss of contracts or ability to achieve a particular result.
5.4 The Customer acknowledges that in providing the Services to the Customer Voxsmart may use the services of a third party for the purposes of hosting the Services and storing and accessing the data (the “Host”) and the Customer expressly agrees to this arrangement.
5.5 The technology used to provide the Services depends on the performance of services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections. Voxsmart cannot guarantee that such events will not occur. Accordingly, Voxsmart cannot and does not warrant that the Services will be uninterrupted, error-free or entirely secure, and disclaims any and all liabilities resulting from or related to such events. The Customer agrees that Voxsmart will not be responsible or liable if, for any reason the Services cannot be provided and agrees that the existence of such errors shall not constitute a breach of this Agreement.
5.6 Any content sent, transmitted or obtained through the use of the Services is done solely at the discretion and risk of the Customer
5.8 The Customer's statutory rights as a consumer (if any) are not affected. All liability that is not expressly assumed in this Agreement is excluded. These limitations will apply regardless of the form of action, whether under statute, in contract or tort including negligence or any other form of action. For the purposes of this clause, 'Voxsmart' includes its employees, sub-contractors and suppliers who shall all have the benefit of the limits and exclusions of liability set out above in terms of the Contracts (Rights of Third Parties) Act 1999. Nothing in this Agreement shall exclude or limit liability for fraudulent misrepresentation
5.9 Voxsmart shall defend at its own expense any claim brought against the Customer alleging that the Software infringes the intellectual property rights of a third party (‘Intellectual Property Claim’) and Voxsmart shall pay all costs and damages awarded or agreed to in settlement of an Intellectual Property Claim provided that the Customer:
i. furnishes Voxsmart with prompt written notice of the Intellectual Property Claim;
5.11 If the remedies set out in clause 5.10 above are not in Voxsmart’s opinion reasonably available, then the Customer shall return the Software which is the subject of the Intellectual Property Claim and Voxsmart shall refund to the Customer the corresponding portion of the Charges paid for the remainder of the Period, as normally depreciated, whereupon this Agreement shall immediately terminate.
6. Privacy Statement
Voxsmart is committed to protecting a Customer’s privacy. It will only use the information that it collects about a Customer lawfully (in accordance with the Data Protection Act 1998) and will ensure that any agreement with a Host utilised by Voxsmart contains equivalent protection for the Customer’s data. Voxsmart collects information about Customers for the purposes of processing customer orders and for providing the Services.
The personal information that Voxsmart holds will be held securely in accordance with Voxsmart’s internal security policy. If Voxsmart or any Host used by Voxsmart intends to transfer Customer’s information outside the EEA (European Economic Area) Voxsmart will obtain the Customer’s prior consent.
Each party shall, during the term of this Agreement and for a period of 5 years thereafter, each keep confidential and only use for the purposes of the Agreement the Confidential Information of each party where absolutely required for the purposes of undertaking their respective obligations set out in this Agreement, unless such Confidential Information has become public knowledge otherwise than in breach of this clause or disclosure is required by law or the Customer’s regulatory body or with the prior written consent of the other party. Where disclosure is made to any employee, consultant or agent it shall be done subject to obligations equivalent to those set out in this Agreement and each party shall be responsible to the other in respect of any disclosure or use of such Confidential Information by a person to whom disclosure is made. This Clause 7 shall survive termination of the Agreement.
Unless otherwise agreed all notices which are required to be given under this Agreement shall be in writing and shall be sent to Voxsmart’s business address above or to the Customer’s correspondence address.
9.1 At the end of the Initial Term, this Agreement will be automatically extended by Voxsmart on behalf of the Customer for a further 3 months at the then current list price for 3 month contracts unless the customer re-signs for a further term or serves notice by giving to Voxsmart not less than 3 months' written notice. For the avoidance of doubt, if this Agreement is terminated for any reason during the Initial Period (other than by the Customer under clauses 9.2 and 9.3 below) the Customer shall remain liable to Voxsmart for the Charges in respect of the entire Initial Period (irrespective of whether or not Services are provided to it for the entire Initial Period) and any sums due to Voxsmart for the entire Initial Period shall immediately become payable in full.
9.2 This Agreement may be terminated by the Customer on written notice if Voxsmart commits any material breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing from the Customer so to do, to remedy the breach (such request to contain a warning of the Customer's intention to terminate).
9.3 Either party may terminate this Agreement immediately on giving written notice to the other if the other party has a receiver or administrator or administrative receiver appointed over it or over any part of its undertaking or assets or passes a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction makes an order to that effect or if the other party enters into any voluntary arrangement with its creditors or becomes subject to an administration order or becomes insolvent according to the laws of the country in which the party is established.
9.4 Upon expiry or termination (for whatever reason) of this Agreement:
10.1 This Agreement together with any documents referred to in this Agreement sets out the entire agreement and understanding between the parties and supersedes all prior agreements, understandings or arrangements (oral or written) in respect of the subject matter of this Agreement. No waiver or amendment of any provision of this Agreement shall be effective unless made in writing and signed by an authorised representative of both parties.
10.2 The Customer acknowledges that it has entered into this Agreement in reliance only on the representations, warranties promises and terms contained in this Agreement and, save as expressly set out in this Agreement, Voxsmart shall have no liability in respect of any other representation, warranty or promise made prior to the date of this Agreement unless it was made fraudulently by Voxsmart.
10.3 To the extent that any provision of this Agreement is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be deemed not to be a part of this Agreement, it shall not affect the enforceability of the remainder of this Agreement nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.
10.4 Notwithstanding anything else contained in this Agreement, Voxsmart shall not be liable for any delay in performing its obligations if such delay is caused by circumstances beyond its reasonable control (including, without limitation, any delay caused by any act or omission of the other party).
10.5 Unless expressly provided in this Agreement, no term of this Agreement is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it. For the avoidance of doubt a Distributor and Voxsmart's selected third party hosting provider (to be determined from time to time) are deemed to be a party to this Agreement.
10.6 This Agreement shall be governed by and construed in accordance with English law. Each of the parties irrevocably submits for all purposes in connection with this Agreement to the exclusive jurisdiction of the courts of England.
SCHEDULE 1 – SERVICES
The Services provide a cloud call recording facility for Customers to record, search, replay and store recordings for 180 days via a password protected online web portal.
Number of Users: As specified in the Order and may be increased at the Customer’s request on payment of additional user fees
User Manuals / Documentation to be provided: All as required including assistance on the use of updated and/or amended Software.
Support and Maintenance: Provided in accordance with Voxsmart’s published SLA at the time of delivery.
Period: Commitment period as specified in the Order which can be cancelled after the Initial Term by the Customer in writing with 3 months notice.
SCHEDULE 2 - ADDITIONAL CHARGES
New Users - For each additional concurrent mobile number registered over and above the initial number stated on the Order during each calendar month, charged at the monthly rental cost detailed in the Order. There is no charge for replacing an existing user’s details.
Installation Charges – onetime charge for Voxsmart engineers to install the Software and train the Customer in using the Services as described in the Order.
Professional Services – for ongoing on site or remote support of the Software and Hosted Recording Services charged at the rate agreed with the Customer. Travel time and expenses are chargeable outside central London.
Archiving Service – a service provided for Customers who wish Voxsmart to provide a copy of the recordings made on a storage media device to enable retention of recordings beyond the 180 day maximum storage period.