1. DESCRIPTION OF THE SOLUTION
A. Generally. VHT provides the Mindful internet-based software service, which facilitates omnichannel call scheduling, seamless channel transitions, automated SMS notifications, and insight through real-time customer feedback and analytics (the “Mindful Platform”) and any printed or online written guides and documentation made generally available by VHT in conjunction with the Mindful Platform (the “Documentation”). The Mindful Platform and the Documentation are referred to collectively in these Term as the “Solution.” The Solution is subject to certain usage limits set forth in the Order that determine the Solution pricing.
B. Changes. VHT may choose to modify or discontinue features of the Solution as offerings are updated and more features are added. We may stop, suspend, or modify features available through the Solution at any time without prior notice to you.
2 . USE OF THE SOLUTION
A. Registration. You agree to provide true, accurate, current, and complete information as prompted by our registration process, and to maintain and promptly update such information to keep it true, accurate, current and complete.
B. Right to Use the Solution. Subject to your strict compliance with all terms and conditions set forth in this Agreement, including the full and complete payment of all Fees (as defined in Section 5(A) (Fees and Payment)) when due, VHT grants to you a limited, personal, non-assignable, non-transferable, non-sublicensable, and non-exclusive right to access and use the Solution during the Subscription Period ((as defined in Section 11(B) (Subscription Period)) for your internal business purposes. You may allow the employees and contractors of you and your Affiliates (as defined below) (the “Authorized Users”) to access the Solution in compliance with the terms of this Agreement, provided that (i) you have paid all applicable Fees for such access to VHT or the Reseller, and (ii) the access to and use of the Solution must be for your sole benefit. An “Affiliate” of a party to this Agreement means any entity that directly or indirectly controls, is controlled by, or is under common control with such party, but only so long as such control exists. You shall be responsible and liable for the compliance of your Affiliates and Authorized Users with this Agreement. Any act or omission by any Affiliate or Authorized User that would constitute a breach of the Agreement if such Affiliate or Authorized User were a party to the Agreement shall be deemed a breach of the Agreement by you.
C. Your Responsibilities in Using the Solution. You, your Affiliates and your Authorized Users shall (i) use the Solution only in accordance with this Agreement and any laws, regulations, rules, ordinances, and government orders (“Laws”) applicable to the use of or access to the Solution; and (ii) prevent unauthorized access to or use of Solution and notify VHT promptly of any such unauthorized access or use. You and your Authorized Users must keep all login credentials, including, without limitation, usernames and passwords, secure and confidential. You are responsible for any activity originating from your account, regardless of whether such activity is authorized by you.
D. Restrictions. Your use of the Solution and the rights granted in this Agreement are subject to compliance with the restrictions set forth in this subsection. You, your Affiliates and your Authorized Users shall not, and shall not permit, assist, authorize, or encourage any third party to:
- sell, resell, license, sublicense, distribute, copy, reproduce, rent, or lease the Solution, or include the Solution in a service bureau or outsourcing offering, or otherwise make the Solution available to, or use the Solution for the benefit of, anyone other than you;
- access the Solution for purposes of monitoring availability, performance, or functionality, to build a competitive product or service, or for any other benchmarking or competitive purposes;
- use the Solution to store or transmit (i) infringing, libelous, or otherwise unlawful or tortious material, (ii) material in violation of third-party privacy rights, or (iii) code, files, scripts, agents, or programs intended to do harm, including without limitation viruses, worms, time bombs, trojan horses, malware, vulnerabilities, advanced persistent threats, exploits, code injections, and targeted attacks;
- disrupt, disable, or interfere with the integrity or performance of the Solution or third-party data contained therein;
- permit direct or indirect access to or use of the Solution in a way that circumvents any usage limit or attempt to gain unauthorized access to the Solution or its related systems or networks;
- modify, translate, adapt, merge, or make derivative works of the Solution, or frame or mirror any part of the Solution;
- reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any software made available or used in the provision of the Solution, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- remove or alter VHT’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within the Solution;
- access or use any manual or automated software devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to “scrape” or download data from the Solution; and
- use the Solution in a way that violates any Laws or restrictions set forth in the Documentation.
E. Open Source. The Solution may include programs or code that are licensed under an open source software (“OSS”) license model. OSS programs and code are licensed under and are subject to the terms and conditions of the applicable OSS license, and are specifically excluded from all license grants, warranty, and support obligations set forth in this Agreement. Nothing in this Agreement limits your rights under, or grants rights that supersede, the terms and conditions of any applicable end user license for the OSS.
3 . PROPRIETARY RIGHTS
A. Client Data. You are the sole owner of any data, files, content, and other information that are submitted by you or any Authorized User to VHT directly or to the Solution (collectively, the “Client Data”), including any of the foregoing that are submitted to the Solution by any third party as a result of VHT’s provision of the Solution to you (each an “End Customer”). Client Data shall include without limitation all Client PII (as defined in Section 4(B) (Client’s Responsibilities for Client Data) below) and all intellectual property rights therein. You grant to VHT and its service providers a non-exclusive, worldwide license to use, copy, display, and distribute the Client Data solely as necessary to provide the Solution in accordance with this Agreement. Subject to the limited licenses granted herein, VHT acquires no right, title or interest in or to the Client Data.
B. Feedback. You grant to VHT a worldwide, perpetual, irrevocable, royalty-free, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner any suggestion, enhancement request, recommendation, correction, or other feedback (collectively, the “Feedback”) provided by You, your Affiliates and your Authorized Users relating to the Solution.
C. Aggregated Data. VHT reserves the rights to: (i) collect information about use of the Solution by you, the Authorized Users, and the End Customers, (ii) analyze the Client Data, and (iii) aggregate such information and analysis (the “Aggregated Data”). Aggregated Data shall: (1) be anonymized in a manner that ensures that such information or analysis is not attributable to you, any Authorized User, or any End Customer; and (2) not contain any Client Data. You acknowledge and agree that the Aggregated Data does not constitute your confidential information and may be shared by VHT with third parties for the purpose of providing, improving, or marketing the Solution.
D. Reservation of Rights. VHT is the sole owner of the Solution (including all software, workflow processes, user interfaces, designs, know-how, and other technologies made available as part of the Solution, but excluding any Client Data stored in the Solution), the Aggregated Data, and all intellectual property rights in or to any of the foregoing. Subject to the limited rights expressly granted hereunder, VHT and its licensors reserve all right, title and interest in and to the Solution and the Aggregated Data. No rights are granted to you or any Authorized User hereunder other than as expressly set forth herein.
4 . CLIENT DATA AND PRIVACY
A. Protection of Client Data. VHT shall maintain appropriate and reasonable administrative, operational, physical, and technical safeguards designed to protect the security, availability, and confidentiality of Client Data. The safeguards described herein shall meet or exceed the prevailing industry security assurance standard embodied in ISO 27001, Statement on Standards for Attestation Engagements No. 18 Type II (“SSAE 18”) SOC 2.
5 . FEES AND PAYMENT
A. Fees and Payment. You shall pay all fees specified in the Orders (the “Fees”). Except as otherwise specified in an Order: (i) Fees are based on the Solution quantities that are purchased and not actual usage, (ii) payment obligations are noncancelable and, except as otherwise set forth in this Agreement, Fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Subscription Period. You will be invoiced in advance and otherwise in accordance with the relevant Order. Unless otherwise stated in the Order, invoiced charges are due net 30 days from the date of such invoice. If any invoiced amount is not received by the due date, then without limiting other rights or remedies, those amounts may accrue late interest at the rate of 1.5% per month or the maximum rate permitted by law.
B. Suspension of Access. If any amount owing by you to VHT or a Reseller (as applicable) is 30 or more days overdue, VHT may, upon at least 10 days’ prior notice and without limiting any other rights and remedies, suspend all access to and use of the Solution by you and your Authorized Users until such amounts are paid in full.
C. Taxes. All amounts payable by you do not include any levies, duties, similar governmental assessments of any nature, value-added, use, withholding, or other taxes assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes, and any related penalties and interest, associated with the Fees and use of the Solution. You shall make all payments to VHT or Reseller free and clear of, and without reduction for, any Taxes. If VHT or Reseller has the legal obligation to pay or collect Taxes for which you are responsible, VHT or Reseller will invoice you and you shall pay such amounts unless you provide a valid tax exemption certificate authorized by the appropriate taxing authority. If applicable, sales tax shall be a separate line item on invoices issued to you. You shall indemnify and hold VHT and Reseller harmless from any claims, losses, costs (including reasonable attorneys’ fees), damages, or liabilities arising out of or relating to your failure to pay any Taxes or sales tax. VHT is solely responsible for taxes on VHT’s income, property, and employees.
6 . CONFIDENTIALITY
A. Definition. “Confidential Information” means all non-public information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of its disclosure. Your Confidential Information is the Client Data. VHT’s Confidential Information includes the non-public aspects of the Solution and all pricing related thereto. Confidential Information of each party includes the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
B. Protection of Confidential Information. The Receiving Party shall (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (ii) not disclose any Confidential Information of the Disclosing Party to any third party without the Disclosing Party’s prior written consent, except as otherwise permitted by this Section 6, (iii) use the same degree of care to protect the Confidential Information of the Disclosing Party that the Receiving Party uses to protect the confidentiality of its own like confidential information (but not less than reasonable care), and (iv) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. The Receiving Party may disclose the terms of this Agreement or any Order to its legal counsel and accountants, and to its Affiliates and current and prospective investors and financing sources, and their respective legal counsel and accountants, and the Receiving Party shall be responsible for the compliance of such entities with this Section 6.
C. Compelled Disclosure. The Receiving Party may preserve and disclose Confidential Information of the Disclosing Party to the extent compelled by Law to do so or in a good faith belief that such preservation or disclosure is reasonably necessary to comply with legal process or protect the rights, property or personal safety of the public. The Receiving Party shall give the Disclosing Party prompt notice of the compelled disclosure (to the extent legally permitted). If the Receiving Party is compelled by Law to disclose the Disclosing Party’s Confidential Information as part of a civil or criminal claim, action or proceeding to which the Disclosing Party is a party, the Disclosing Party shall reimburse the Receiving Party for its reasonable costs of compiling and providing secure access to that Confidential Information.
D. Equitable Relief. Each party acknowledges that the breach of this Section 6 will likely result in irreparable injury to the other party, for which money damages alone would be an inadequate remedy and that, in addition to its other remedies, the non-breaching party shall be entitled to seek equitable relief, including specific performance and an injunction to restrain any threatened or continued breach of this Section 6 in any court of competent jurisdiction. No bond or other security shall be required in obtaining any equitable relief.
7 . SUPPORT AND SERVICE LEVEL POLICY
A. Support. As part of the Solution and subject to the terms of the Agreement, VHT shall provide you with support Services for the Solution under the terms of VHT’s Mindful Support Policy, which is located, as of the Effective Date (as defined in Section 11(A) (Term of Agreement) below), at https://getmindful.com/legal/support-policy/. VHT reserves the right to update the Mindful Support Policy from time to time.
B. Service Level Policy. VHT shall make the Solution available in accordance with VHT’s Service Level Policy, which is located, as of the Effective Date, at https://getmindful.com/legal/service-level-policy. VHT reserves the right to update the Service Level Policy from time to time. Your sole remedy and VHT’s sole obligation with respect to any unavailability of the Solution is as set forth in VHT’s Service Level Policy.
8 . REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS
A. Warranty. VHT warrants that during a Subscription Period, the Solution shall perform materially in accordance with the Documentation. VHT’s sole obligation and your exclusive remedy for any breach of the foregoing warranty is for VHT to modify the Solution to conform to the warranty.
B. Disclaimers. USE OF THE SOLUTION IS AT THE SOLE RISK OF YOU, YOUR AFFILIATES AND THE AUTHORIZED USERS. VHT MAKES NO WARRANTY REGARDING RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOLUTION. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN SECTION 8(A) ABOVE, VHT DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. VHT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9 . INDEMNIFICATION
A. Indemnification by VHT. VHT shall defend you against any claim, demand, suit, or proceeding (“Claim”) brought against you by a third party alleging that the use of the Solution infringes or misappropriates such third party’s patent, copyright, or trade secret rights, and shall indemnify you from any damages, reasonable attorney fees, and costs finally awarded against you as a result of, or for amounts under a court-approved settlement of, such a Claim. If VHT receives information about a Claim covered by this Section, VHT may in its discretion and at no cost to you: (i) modify the Solution so that it no longer the subject of such Claim, (ii) obtain the necessary rights for your continued use of the Solution in accordance with this Agreement, or (iii) terminate your subscriptions for that Solution and refund any Fees prepaid to VHT covering the remainder of the terminated Subscription Period. VHT shall not be obligated to defend or indemnify you pursuant to this Section for any Claim arising from any use of the Solution (a) not in accordance with this Agreement, (b) in combination with other products, equipment, or software not supplied, authorized in writing, or recommended in writing by VHT, if such infringement would not have occurred but for such combination, or (c) any modification of the Solution by any person other than VHT or its authorized agents or subcontractors. This Section 9(A) states VHT’s sole liability to, and your exclusive remedy against VHT, for any claim of intellectual property infringement.
B. Indemnification by You. You shall defend VHT against any Claim brought against VHT by a third party alleging that the Client Data (or provision thereof to VHT), or your use of the Solution, infringes, misappropriates or violates such third party’s intellectual property rights or privacy rights, and shall indemnify VHT from any damages, reasonable attorney fees, and costs finally awarded against VHT as a result of, or for any amounts paid under a court-approved settlement of, such a Claim. You shall not be obligated to defend or indemnify VHT pursuant to this Section to the extent that the Claim that is the responsibility of VHT pursuant to Section 9(A) above.
C. Procedures. The party seeking indemnification for a Claim under this Section 9 agrees that it shall give the indemnifying party (i) prompt written notice of the Claim, (ii) sole control of the defense and settlement of the Claim (except that the indemnifying party may not settle any Claim unless it unconditionally releases the indemnified party of all liability), and (iii) all reasonable assistance, at the indemnifying party’s request and expense, in the defense and settlement of the Claim.
10 . LIMITATION OF LIABILITY
EXCEPT WITH REGARD TO A LIABILITIES ARISING FROM A BREACH OF SECTION 6 (CONFIDENTIALITY), A PARTY’S OBLIGATIONS UNDER SECTION 9 (INDEMNIFICATION), OR A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, OR IN YOUR CASE, A BREACH OF SECTION 2 (USE OF THE SOLUTION), TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, OR, WITH REGARD TO VHT, ITS SUPPLIERS OR LICENSORS, BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT SUCH PARTY HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. EXCEPT WITH REGARD TO A LIABILITIES ARISING FROM YOUR BREACH OF SECTION 2 (USE OF THE SOLUTION), EACH PARTY’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SOLUTION OR THIS AGREEMENT WILL AT ALL TIMES BE LIMITED TO THE AMOUNTS YOU PAID TO VHT OR RESELLER FOR THE AFFECTED ASPECT OF THE SOLUTION IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM. THESE LIMITATIONS ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN VHT AND CLIENT OR CLIENT USER.
11. TERM AND TERMINATION
A. Term of Agreement. This Agreement commences on the date that you accept this Agreement, the date that you enter into an Order, or the date that you first access the Solution (whichever date occurs first) (the “Effective Date”), and continues until all subscriptions hereunder have expired or have been terminated.
B. Subscription Period. The term of each subscription shall be as specified in the applicable Order. Except as otherwise specified in an Order, subscriptions will automatically renew for additional periods equal to one year, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The initial subscription term specified in the Order plus any applicable renewal periods for that Order are referred to herein as the “Subscription Period.”
C. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach is curable and remains uncured at the expiration of such period, (ii) immediately upon written notice to the other party of a material breach that is not curable, or (iii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
D. Effects of Termination. Upon termination or expiration of this Agreement for any reason (i) any amounts owed to VHT under this Agreement before such termination or expiration will be immediately due and payable by you, (ii) all rights granted to the Solution in this Agreement will immediately cease to exist, and (iii) all of you, your Affiliates and the Authorized Users must promptly discontinue all access to and use of the Solution. The following provisions shall survive any termination of this Agreement: 2(A) (Registration), 2(C) (Your Responsibilities in Using the Solution), 2(D) (Restrictions), 3 (Proprietary Rights), 4 (Client Data and Privacy), 5 (Fees and Payment), 6 (Confidentiality), 8(C) (Disclaimers), 9 (Indemnification), 10 (Limitation of Liability), 11(D) (Effects of Termination), 12 (Compliance with Laws), 13 (Governing Law), and 14 (General Terms).
12. COMPLIANCE WITH LAWS.
You acknowledge and agree that the technology made available by VHT may be subject to U.S. export control Laws. You shall comply with these Laws and shall not, without prior U.S. government authorization, export, re-export, or transfer the Solution, or any portion thereof, either directly or indirectly, in violation of such Laws. In particular, the Solution may not be exported or re-exported (i) into any United States embargoed countries, or (ii) to anyone of the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Solution, you represent and warrant that (a) you, your Affiliates and Authorized Users are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (b) you, your Affiliates and Authorized Users are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Solution for any purpose prohibited by Law, including the development, design, manufacture, or production of missiles, nuclear, chemical, or biological weapons.
13. GOVERNING LAW
This Agreement will be governed and construed in accordance with the laws of the State of Delaware without regard to any conflict of laws principles that would require the application of the laws of another jurisdiction. Any dispute arising under or in connection with this Agreement will be heard exclusively in the state and federal courts located in New Castle County, Delaware. Each party hereby expressly and irrevocably consents, and waives any objection, to the venue and convenience of such courts. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
14. GENERAL TERMS
A. Entire Agreement. This Agreement constitutes the entire agreement between VHT and you with respect to the Solution and supersedes and replaces any other agreements, terms, and conditions applicable to the Solution. Notwithstanding the foregoing, if you have executed a separate subscription agreement with VHT regarding your use and access to the Solution, the terms of such separate agreement shall govern your access to and use of the Solution. Any terms stated in your purchase order or acknowledgement shall have no force or effect. In the event that inconsistencies exist between this Agreement and any Order, the terms of this Agreement shall prevail, except to the extent an Order specifically references the section of this Agreement which such Order intends to modify or amend (and any such modification or amendment in an Order shall apply solely for purposes of such Order). This Agreement creates no third party beneficiary rights.
C. No Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
D. Severability. If a provision is found unenforceable the remaining provisions of the Agreement will remain in full effect and an enforceable term will be substituted reflecting the intent as closely as possible.
E. Assignment. You may not assign any of your rights or obligations under this Agreement, without the prior written consent of VHT, which shall not be unreasonably withheld, conditioned, or delayed, and any such attempt is null and void.
F. Relationship of the Parties. The relationship of the parties hereto is that of independent contractors for all purposes.
G. Force Majeure. VHT will not be responsible for any failure to perform or delay in performing any of its obligations under this Agreement to the extent that such failure or delay results directly or indirectly from an event beyond VHT’s reasonable control.
H. Limitation of Time to File Claims. Any cause of action or claim you may have arising out of or relating to this Agreement or the Solution must be commenced within one (1) year after the cause of action accrues. Otherwise such cause of action or claim is permanently barred.
I. Notice. All notices required under this agreement must be in writing and are considered effective: (i) if given by email, upon confirmed receipt, or (ii) three business days after mailing, when sent via certified mail, return receipt requested or postage prepaid. Notices to you will be sent to the address or email address on your most recent Order. You (a) consent to receive communications from VHT in an electronic form; and (b) agrees that all notices and other communications provided by VHT electronically satisfy any legal requirement that such communications would satisfy if they were to be in writing. In the event that the last e-mail address you provided to VHT is not capable of delivering to you any notices required by this Agreement, VHT’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice as of the date sent. Notices to VHT must be sent to the following address or email address:
Virtual Hold Technology Solutions, LLC.
Attention: Head of Legal & Compliance
3875 Embassy Parkway, Suite 350
Akron, Ohio 44333
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