Uniphore Proof of Concept Agreement - Terms of Use

License.  Subject to the terms and conditions of this POC Agreement (including any SOW(s) issued hereunder), Uniphore grants Customer a limited, non-exclusive, revocable, nontransferable right (without the right to sublicense) to  evaluate and test the Solution (“Evaluation”) during the Term as set forth in the SOW.  The license shall automatically expire and Customer’s right to use the Solution shall expire upon the termination or expiration of the SOW

Term.  The term of this Agreement shall be ninety (90) days from the SOW Effective Date (the “Term”), unless terminated earlier in accordance with this agreement.  Uniphore may terminate this Agreement at any time prior to the end of the Term for any reason or for no reason.  Customer may terminate this Agreement prior to the expiration by notifying Uniphore and returning all Software and Services to Uniphore.  The Term may be extended by mutual written consent.

Ownership and Proprietary Rights.  The software and documentation is solely owned by Uniphore.  The Software is licensed to Customer for the limited Term as stated above and is not being sold to Customer during the Evaluation.  Uniphore shall own and retain all right, title and interest in and to the Intellectual Property Rights in all Services, Software and Products and any derivative works thereof and Customer agrees that it will not acquire any other rights, express or implied, in any of the Services, Software, or anything listed in any documentation provided by Uniphore. Except as expressly provided herein, this Agreement does not grant to Customer any express or implied rights under any Uniphore patents, copyrights, trademarks, or other intellectual property rights.  All right not expressly granted to Customer hereunder are reserved for Uniphore.  The Software and associated documentation shall remain the personal property of Uniphore even if installed in or attached (even temporarily) to hardware owned by Customer or a third party.

Uniphore grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable and limited right to access, install and use the Product(s), Services and Documentation solely for Customer’s internal business use during the time period set out in the relevant SOW, subject to the terms and conditions contained herein and within the scope of use (including any Authorized Agent or geographic location limits) as defined in any corresponding SOW, order form or Purchase Document. Except as explicitly provided in this Agreement, the rights granted to Customer do not convey any rights, express or implied, including any Intellectual Property Rights, in or to the Products and/or Services. Customer may allow its employees, consultants, contractors, subcontractors and agents, who are not competitors of Uniphore, (collectively, “Authorized Agents”) as listed in the respective SOW to use the Product(s) and/or Services for Customer’s internal business operations. Customer shall ensure that each such Authorized Agent strictly complies with the licensing terms herein and is subject to confidentiality terms no less restrictive than those contained herein. Customer shall remain fully liable under the terms of this Agreement for its Authorized Agents’ compliance with the SOW. Customer agrees that the term “Authorized Agent” will include anyone to whom Customer has supplied or made available user identifications and credentials (as approved by Uniphore in a Purchase Document), and at no time during the Term of the SOW, will Authorized Agents share credentials for the purpose of accessing the Product. Customer further agrees that at no time during the SOW Term, will the (i) total number of Authorized Agent credentials exceed the usage restrictions in the applicable SOW; (ii) total number of Authorized Agents in each geographic location exceed the number of Authorized Agents for such geography as stated in the SOW, (iii) aggregate usage limit per Authorized Agent exceed an average of 80 hours per month per Authorized Agent. Any excess usage shall be billed to Customer at the per Authorized Agent price for the Product(s) at Uniphore’s standard rate.

Customer Restrictions. Customer acknowledges that the Product(s), Documentation and Services constitute valuable property and trade secrets of Uniphore and Customer agrees not to do nor allow any of the following, and that no Authorized Agent or Affiliate shall do nor allow any of the following, without the express written authorization of Uniphore:  (i) modify, copy or create any derivative works based on the Product’s features, functions, integrations, user interfaces, and/or graphics; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make available or grant any rights to the Products, Services or Documentation to any third party, other than to Authorized Agents as permitted herein; (iii) adapt, reverse engineer, unlock, disassemble, decompile, or in any way decode any portion of the Product or attempt to access the source code of any Product, except to the extent explicitly permitted by Applicable Law; (iv) access the Service, Documentation or Deliverables in order to build or assist others to build or enhance any competitive product or service, whether or not such competitive products or services are meant for internal use or commercial sale; (v) use the Products or Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (vi) interfere with or disrupt the integrity or performance of any Products or Services; (vii) introduce malicious code in the Products, Services, Hosting Servers, networks, or other computing resources of Uniphore or any other third party or upload any information or data which negatively impacts the Products or Services or otherwise tamper with the security features of the Products or Services; (viii) remove Uniphore’s proprietary rights notices; (ix) publish benchmarks or performance information about the Products and/or Services or (x) transmit unsolicited commercial or non-commercial emails via the Products or Services. Customer agrees that it will use the Products and/or Services strictly in accordance with these terms and Applicable Law and that any breach of these terms shall constitute a material breach of the SOW agreement. Uniphore has the right, but not the obligation, to monitor Customer’s use of the Product(s) and/or Services to determine compliance with these terms.  Uniphore reserves the right, without limiting any other right or remedy, to suspend Customer’s access (and therefore, all Users access) to and use of the Hosted Services if Uniphore determines, in its sole discretion, that Customer is engaging (or has engaged) in any of the prohibited activities set forth herein.

Customer Responsibilities. Customer will (a) remain fully responsible for its  Authorized Agents’ compliance with these terms; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Product; (c) notify Uniphore immediately of any unauthorized access or use of the Product, (d) use Product(s) and/or Services solely for its internal business purposes to support Customer’s contact center solutions and may not sell any data, profiles or summaries to third parties or (d) use the Product(s) and/or Services in connection with determining any individual credit worthiness or for any financial, employment or insurance decisions, or to create or contribute to a “Consumer Report” as set forth in the U.S. Fair Credit Reporting Act or with respect to eligibility for any government-granted license or benefit or authorize or permit any third parties to do any of the foregoing.

Confidentiality Obligations. “Confidential Information” includes, without limitation, the existence of this Agreement and any other information, regarding a party’s business, products or services, which has been disclosed or made available to the other party, and whether or not it has been marked as confidential, or which should reasonably be understood to be confidential given the nature and circumstances of its disclosure. Each party agrees that during the term of this Agreement and thereafter: (a) it will only use the other party’s Confidential Information to provide the Products and/or Services under this Agreement; (b) it will not disclose Confidential Information belonging to the other party to any third party (other than its parent and/or subsidiary company’s employees, contractors and/or professional advisors on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without first obtaining the disclosing Party’s written consent; and (c) it will protect Confidential Information belonging to the disclosing Party by using the same degree of care and discretion as it uses with its own confidential information, but in no event less than reasonable care. Upon request by the disclosing party, the receiving party will return or destroy all copies of any Confidential Information.  If the following is requested by the Customer, Uniphore will honor Customer deletion requests prior to termination, provided that Customer acknowledges that should such deletions adversely impact Uniphore’s provision of its Services, this will no be considered a breach of warranty or terms regardless of any negative impact and Uniphore will not be responsible to cure any such defect due to deletion of data. Confidential Information shall remain confidential until and unless it falls under one of the exclusions below. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section.

Confidentiality Exclusions. “Confidential Information” will not include any information that the receiving party can establish: (a) was independently developed, as evidenced by its written records, without use of or reference to any Confidential Information; (b) was acquired from a third party which, to the receiving party’s knowledge, was not under confidentiality or non-disclosure restrictions; (c) was generally known by or available to the public (through no fault of the receiving party) or (d) is rightfully known by the Receiving Party at the time of disclosure without an obligation of confidentiality as demonstrated with written records. Notwithstanding anything else in this Agreement, the receiving party may disclose Confidential Information to the extent required by Applicable Law or as otherwise legally compelled (including pursuant to a deposition, interrogatory, subpoena, civil investigation or similar process), provided that the receiving party shall, to the extent legally permissible, promptly notify the disclosing party before disclosing such Confidential Information, and shall assist disclosing party in its efforts, at the disclosing party’s reasonable request and expense, in obtaining a protective order to protect the confidentiality of such information to be disclosed.

Data Storage.  If the Solution provided pursuant to this Agreement includes the storage of Customer data (excluding aggregated or anonymized data), Customer must retrieve all stored data prior to the end of the Term or prior to the effective date of termination of the Agreement.  Customer is solely responsible for complying with evidentiary or record retention laws, regulations, rules, or policies.  Uniphore disclaims any and all liability for compliance with any evidentiary requirements.  Further, Uniphore does not provide assurances for or support of evidentiary rules and requirements after effective date of termination unless customer makes a purchase of the Software and Services.

Results of Evaluation.  Uniphore may receive suggestions, recommendations, comments, or other communication from Customer about the Solution (“Feedback”).  Any Feedback given by Customer is and will be entirely voluntary and Uniphore will be free to use, reproduce, license or otherwise distribute and exploit the Feedback to improve and enhance the Solution and otherwise, without any obligation or attribution to Customer.  Customer further agrees that all fixes, modifications, and improvements to the Solution conceived by or made by Uniphore that are based, either in whole or in part, on the Feedback are the exclusive property of Uniphore and all right, title, and interest in and to such fixes, modifications or improvements to the Solution will vest solely in Uniphore.

No Support Services. Uniphore is under no obligation to support the Services listed in this POC in any way or to provide any updates to You. In the event Uniphore, in its sole discretion, supplies any update to You, such Update shall be deemed Software or Services hereunder and shall be subject to the terms and conditions of this Agreement.

Open Source Software. The Terms shall not apply to any open source software accompanying the POC Products. Any such open source software is provided under the terms of the open source license agreement or copyright notice accompanying such open source software, which list may be provided upon request.

Warranties
Each Party represents and warrants that (i) it is duly organized and validly existing under applicable laws, (ii) has full power and authority and has taken all necessary corporate and other actions to execute and perform its obligations/ carry out the transactions contemplated under this Agreement, and (iii) its execution, delivery and performance of this Agreement does not and will not result in a violation or breach or conflict with its charter documents, applicable law or any contract it is a party to; and (iv) there are no actions, suits, legal proceedings,  or investigations pending or to its knowledge, threatened against it at law or equity which may affect its ability to perform its obligations under this Agreement.

Customer warrants that: (a) Customer has the right and authority to and has obtained all necessary consents required to use and provide Customer’s Data for the purposes described herein and any other of Customer’s content or data used in connection with the Services and (c) Customer will comply with all applicable laws in connection with Customer’s actions under this Agreement.

Disclaimer
SERVICE AND SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

Indemnification.  Customer will indemnify and hold Uniphore harmless from any and all liability, expense, judgement, suite, cause of action, or demand for personal injury, death, or damage to property which may accrue against Uniphore to the extent it is caused by Customer, its other contractors, or their employees or agents, including but not limited to causes of action for damages related to tracking, location based services, breach of privacy, and use or misuse of Personal Identifiable Information (“PII”) Customer is will be and remain the controller of the data contained in the Solution for purposes of all applicable laws relating to data privacy, transborder data flow, and data protection.

LIMITATION OF LIABLITY. IT IS UNDERSTOOD THAT THE POC SOFTWARE AND S ERVICES ARE PROVIDED WITHOUT CHARGE FOR LIMITED TESTING AND FEEDBACK PURPOSES. ACCORDINGLY,  THE TOTAL LIABILITY OF UNIPHORE AND ITS SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED $1,000. IN NO EVENT SHALL UNIPHORE OR ITS SUPPLIERS HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OR CORRUPTION OF DATA), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF UNIPHORE AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

Privacy.  To the extent that in connection with the performance of the Services Uniphore processes on Customer’s behalf any Personal Data (as defined in the DPA) contained in the Customer Data, the terms of the data processing addendum (“DPA”) available at https://www.uniphore.com/poc-data-processing-addendum/, shall apply and the parties agree to comply with such terms. The DPA may be updated by Uniphore if required by applicable law.  For the purposes of the Standard Contractual Clauses attached to the DPA, when and as applicable, Customer and its applicable Affiliates are each the data exporter, and Customer’s signing of this Agreement, and an applicable Affiliate’s signing of an Order Form, shall be treated as the signing of the Standard Contractual Clauses and their Appendices.

Subject to the license in the next sentence, Uniphore may use, collect, or store information, including personal data, generated from your testing and use of the POC Services, including voice data and video recordings, which will be used solely by Uniphore to improve its Services and Products (“Your Data”). You grant Uniphore a non-exclusive, worldwide, royalty-free license to collect, copy, store, access, analyze, and use the Your Data, to the extent anonymized and/or aggregated, as necessary for Uniphore to provide the Software, Services and Products to you, to further improve, enhance train or develop the capabilities of its Services, to contact you regarding submission of Feedback, to track Your usage of the Products and to track performance of the Services. Uniphore will not disclose, share, redistribute, or publish Your Data unless such data is first anonymized and/or aggregated such that no individual person or company can be identified. If you are outside of the United States, you understand and explicitly agree that Your Data may be transferred to the United States and stored on servers in the United States, subject to laws applicable in the United States.  Your Data shall be treated as Confidential Information, except that the obligation of confidentiality shall not expire with respect to Your Data so long as it remains in Uniphore’s possession.  Each party will comply at all times with all applicable data privacy and security laws.

Governing Law. This Agreement, and all disputes arising out of or related thereto, shall be governed by and construed under the laws of the State of California without reference to conflict of laws principles. All such disputes shall be subject to the exclusive jurisdiction of the state and federal courts located in the State of California, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.

Assignment. Neither party shall assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law, merger, acquisition of stock or assets, or otherwise, without the prior written consent of the other party.

Export Regulations. You understand that the Solution may be subject to regulation by U.S. and foreign governments and agencies, which prohibit export or diversion of certain technical products and information to certain countries and individuals. Each party warrants that it will comply in all respects with all export and re-export restrictions applicable to the technology and documentation provided hereunder.

Modification. The POC Agreement is the entire agreement between the parties relating to the subject matter hereof and all other terms are rejected. No waiver or modification of this Agreement shall be valid unless in writing signed by each party. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement shall remain in full force and effect.