- 1. Definitions and interpretation
- 2. Commencement and Term
- 3. Scope and Services
- 4. Implementation Services
- 5. Fees; Invoicing and Payment
- 6. Use of System
- 7. Warranties
- 8. Intellectual Property Rights
- 9. Information Security
- 10. Data Management and Use
- 11. Confidentiality
- 12. Termination
- 13. Force Majeure
- 14. Limitation of Liability
- 15. Indemnification
- 16. Notices
- 17. Publicity
- 18. Entire Agreement and Conflicts
- 19. Assignment
- 20. General Provisions
- 21. Governing Law and Jurisdiction
Last updated: 22 October, 2021
1. Definitions and interpretation
1.1 - In this Agreement, unless the context otherwise requires, the following words have the meanings set forth below:
“Commencement Date” means the date of last signature (or digital equivalent) of this Agreement.
"Customer Data" means all data that is supplied by Customer to Vialog, and/or that is processed or used by Vialog on behalf of Customer.
“Data Protection Legislation” means any applicable statute, rule, regulation, order, directive, law, trade agreement, administrative or regulatory guidance, constitution, treaty, or other requirement of or by any legislative, administrative, judicial, or other government authority governing the protection and/or processing of personal data and on the free movement of such data, which applies to either party’s processing activities under this Agreement.
“Data Protection Legislation” may include EU General Data Protection Regulation 2016/679 (“EU GDPR”); United Kingdom General Data Protection Regulation (“UK GDPR”); Privacy and Electronic Communications Directive 2002/58/EC (”ePrivacy Directive”); the Data Protection Act 2018; the Privacy Act 1988 (Cth); as well as any applicable laws or regulations amending or implementing any of the foregoing.
“Extended Term” means the period following the end of the Initial Term.
“Fees” means the charges for the Services calculated in accordance with the Subscription Form. For the avoidance of doubt, “Fees” do not include Commissions. Fees shall be paid in the currency indicated in the Subscription Form.
“Force Majeure Event” means any event beyond the reasonable control of a party including, without limitation, acts of God, war (whether or not declared), riot, civil commotion, compliance with any law or governmental order, rule, regulation or direction, fire, flood, storm.
“Implementation Services” means the services provided by Vialog to Customer to implement the System, as set out in the Subscription Form.
“Initial Term” means the period starting from the Last Payment Date (as defined in the Subscription Form) and continuing for the period set out in the Subscription Form.
“Intellectual Property Rights” means and includes: (a) rights in, and in relation to, any patents, registered designs, design rights, trademarks, trade and business names (including all goodwill associated with any trademarks or trade and business names), copyright, moral rights, databases, domain names, and including the benefit of all registrations of, applications to register each for their full term (including any extensions or renewals thereof) and wherever in the world enforceable; (b) trade secrets, confidentiality and other proprietary rights including rights to know how; and (c) all other intellectual property rights and forms of protection of a similar nature or having equivalent or similar effect and protection and which may subsist anywhere in the world.
“Last Payment Date” means the first day of the period for which the Customer is paying for the Services, as identified in the Subscription Form.
“Personal Data” means information within the meaning of ‘personal data’, ‘personal information’, or ‘personally identifiable information’, as such terms (or any similar term) are defined under applicable Data Protection Legislation.
"Subscription Form" means the document detailing the key commercial terms of the agreement between Vialog and Customer which shall include these Customer Terms. The direct link to the Subscription Form is this: https://my.vialog.io/settings/subscription;
“Vialog Data” means all data, other than Customer Data, processed by Vialog under or pursuant to this Agreement, including, for the avoidance of doubt, any contact details of Partners submitted through the System.
“Related Company” means any subsidiary, affiliate, or other entity that controls, is controlled by, or is under the common control of, either party.
"Service" means the operation, management, and provisioning of the System, as well as the associated services, including Support, provided by Vialog to Customer in accordance with the terms of this Agreement (as may be varied from time to time in accordance with this Agreement).
"Service Levels" means the standards to which Vialog shall provide the Services as set out here:
“Support” means the support services provided by Vialog to Customer in accordance with the Service Levels.
"System" means the Product specified in the Subscription Form, and all other assets and/or know how owned and/or developed by Vialog and provided for use in "engageTech" services that are not exclusively provided for Customer but also used to provide services to unrelated third-party companies on a shared platform.
“Term” means the period commencing on the Commencement Date and continuing for the Initial Term and any Extended Terms.
“User” means any employee contractor, or representative of Customer who is authorized by Customer to access and use the System as provided herein.
1.2 - In the event of any conflict between these Customer Terms, and the Subscription Form, the following order of precedence shall apply: the Subscription Form, then the Customer Terms.
2. Commencement and Term
This Agreement shall be effective as of the Commencement Date and continue for the Term, unless earlier terminated in accordance with the terms herein. At the end of the Initial Term, this Agreement will automatically renew for one or more Extended Terms, unless either party provides written notice to the other party, at least 90 days before the end of the Initial Term or any Extended Term (as applicable), that it declines to renew the Agreement.
3. Scope and Services
3. 1 - In accordance with the terms and conditions set out in this Agreement, Vialog will make the Service available to Customer during the Term, in accordance with the usage limitations set forth herein and solely for Customer’s internal business purposes. The Services shall be provided in accordance with the Service Levels.
3.2 - As part of Vialog’s product development cycle Vialog may, from time-to-time, and at its sole discretion, make new functionality available to Customer.
3.3 - As part of Vialog’s product development cycle Vialog may, from time-to-time, at its sole, but reasonable, discretion and on no less than thirty (30) days’ notice in writing, modify or withdraw existing functionality provided that any such modification or withdrawal will not adversely affect either party’s ability to perform its obligations under the Agreement.
3.4 - Each party shall promptly supply the other party with all information and assistance it may reasonably require for the proper performance of its obligations under this Agreement. If either party fails to do so, the other party will not be liable for any breach of this Agreement by it, if such breach was caused in part or in whole by such failure.
3.5 - This Agreement is not exclusive with respect to Vialog’s ability to provide the Services to other customers, including parties that may compete with Customer in the marketplace.
3.6 - Customer is solely responsible for determining whether the features and functionality of the System meet Customer’s technical, business, or regulatory requirements. Customer understands and acknowledges that it remains solely responsible for its regulatory compliance in connection with its use of the System.
4. Implementation Services
Vialog and Customer shall use commercially reasonable efforts to fulfil their respective obligations as set out in the Subscription Form so as to complete the Implementation Services in a timely manner.
5. Fees; Invoicing and Payment
5.1 - In accordance with the provisions of the Subscription Form and in consideration for the provisioning of the Services, Customer shall pay the Fees to Vialog.
5.2 - Customer shall pay all invoices within thirty (30) days of the invoice date, in the currency and to the bank account stated on the invoice, and shall submit corresponding remittance information to Vialog. If Customer fails to provide remittance information, payments may be applied against the oldest outstanding invoice(s); such allocations will not be reversible, once made. All Fees and any other sums payable under this Agreement shall be paid in cleared funds to such bank account as Vialog may specify from time to time, without any set-off, deduction, or withholding, except any tax which Customer is required by law to deduct or withhold.
5.3 - If Customer fails to pay in full any of the Fees or any other sum payable under this Agreement on the date or within the period specified for payment:
- (a) the outstanding amount shall bear interest, both before and after any judgment, at the rate of 4% per annum above the base rate of HSBC Plc from time to time from that date or the last day of that period until that amount is paid in full or the date of judgement as the case may be. Such interest shall accrue on a daily basis; and
- (b) Vialog reserves the right to suspend access to the System until payment in full has been made.
5.4 - Vialog reserves the right to increase the Fees.
6. Use of System
Customer will use the System solely in accordance with the product description (as may be updated from time to time) at
- (a) allow anyone other than Users to access and use the System;
- (b) allow a Customer to share his or her login credentials to the System with any third party;
- (c) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the System;
- (d) use the System for any purpose not specifically permitted in this Agreement;
- (e) sell, resell, license, sublicense, distribute, rent, or lease the System, or include the System or any part thereof in a service bureau or outsourcing offering; or
- (f) introduce, post, or upload to the System any harmful, malicious, or hidden code, programs, procedures, or routines that would damage, corrupt, or otherwise interfere with the operation of the System.
7.1 - Each party represents and warrants that, as of the Commencement Date and throughout the Term:
- (a) it has full right, capacity, power, and authority to enter into and to perform all of its obligations under this Agreement;
- (b) it shall perform its obligations under this Agreement in compliance with all applicable laws and binding regulations, and in accordance with the terms hereof;
- (c) it shall cooperate in good faith with the other party in performing its obligations under this Agreement;
- (d) this Agreement is executed by a duly authorised representative of that party;
- (e) once duly executed this Agreement will constitute its legal, valid and binding obligations; and
- (f) the execution, delivery and performance of this Agreement shall not violate the rights of any third party and shall not constitute a breach or default under any contract or agreement to which it is a party or by which it is bound.
7.2 - Vialog represents and warrants to Customer that, as of the Commencement Date and throughout the Term:
- (a) the Services and Vialog's other obligations set out in this Agreement shall be provided in a professional manner by appropriately experienced and qualified personnel consistent with good industry practice; and
- (b) it is licensed, entitled, and otherwise duly authorised to host and make the Services available to Customer and has otherwise obtained all third-party licences, permissions, or consents as are necessary to provide the Services.
7.3 - Each party hereby warrants to the other that, save to the extent that any infringement of Intellectual Property Rights arises from or in connection with a breach by the other party, or any of the other party’s subcontractors, of its obligations under this Agreement, the performance of its obligations or duties or exercise of any rights under this Agreement will not infringe, violate, or misappropriate the Intellectual Property Rights of any third party, either in whole or in part.
7.4 - The warranties in this Section 7 are in lieu of all other warranties, express, implied, or statutory, and all other warranties are expressly disclaimed to the maximum extent permitted by law. Customer acknowledges that it has not relied on any representations made prior to the effective date of this Agreement other than as expressed herein. Vialog disclaims all warranties of any kind that the System will be uninterrupted or error-free.
8. Intellectual Property Rights
8.1 - All Intellectual Property Rights in and to any of the System remain with Vialog and/or its licensors, and Customer acknowledges that any modification or enhancement relating to the above vests in and shall remain with Vialog and/or its licensors.
8.2- All Intellectual Property Rights in and to Customer’s Intellectual Property, remain with Customer and/or its licensors. Vialog acknowledges that any modification or enhancement relating to the above vests in and shall remain with Customer and/or its licensors.
8.3 - Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to the Agreement.
8.4 - The
9. Information Security
Each party shall implement appropriate technical and organizational measures to protect Customer Data against (i) accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access and against all other unlawful forms of processing; and (ii) the risks presented by the processing of Customer Data in connection with the Service.
10. Data Management and Use
10.1 - Vialog may use Customer Data in an aggregated, statistical form for any commercially reasonable purpose, and all Intellectual Property Rights in any modification or enhancement to the System resulting from such use shall be owned by Vialog.
10.2 - Subject to Section 10.1 above, Vialog acknowledges that Customer reserves all Intellectual Property Rights that may subsist in Customer Data.
10.3 - Customer acknowledges that Vialog reserves all Intellectual Property Rights that may subsist in Vialog Data.
10.4 - Customer shall not include, and to the extent permitted by applicable Data Protection Legislation, Vialog assumes no responsibility or liability for, any Personal Data of its end customers/users within the data that Customer sends to Vialog.
10.5 - Each party shall comply with all Data Protection Legislation applicable to its own processing activities under or pursuant to this Agreement. Without limiting the foregoing, Vialog will not sell any Personal Data (within the meaning of the CCPA) or retain, use, or disclose Customer Personal Data outside of the direct business relationship between Vialog and Customer. Vialog shall use Personal Data solely for the purposes of providing the Services to Customer as set forth in this Agreement.
11.1 - A party shall not use or disclose any business, employee or customer information or data of the other which is disclosed or otherwise comes into its possession directly or indirectly as a result of or pursuant to entering into this Agreement ("Confidential Information") except as strictly necessary to perform its obligations or exercise its rights hereunder provided that this obligation shall not apply to Confidential Information which:
- (a) the receiving party can prove was known to the public at the date it was received or obtained; or
- (b) the receiving party lawfully or properly obtained without obligation of confidentiality; or
- (c) becomes known to the public other than through the default or negligence of the receiving party;
- (d) was information received from a third party, where such third party is not prohibited from disclosing such information to the receiving party by a contractual or fiduciary obligation; or
- (d) was independently developed by the receiving party without reference to the Confidential Information of the other party.
11.2 - To the extent Confidential Information of the other party is required to be disclosed to a court or a body having similar authority, the required party may disclose only such portions of the Confidential Information that it is advised by counsel is required, provided that the disclosing party is given prompt notice and, is afforded a reasonable opportunity to seek a protective order or other protective relief.
11.3 - To the extent Confidential Information of the other party is required to be disclosed:
- in order to obtain or maintain any listing on any recognised stock exchange; or
- by either party or on its behalf to its auditors;
the required party may, with the consent of the other party (such consent not to be unreasonably withheld or delayed), disclose only such Confidential Information as is necessary for the intended purpose provided that the receiving party uses reasonable endeavours to protect the Confidential Information.
12.1 - Either party can terminate this Agreement if the other party materially breaches this Agreement and fails to cure such breach within 14 days of receiving written notice of the breach. Customer's failure to pay Vialog any Fees or other amounts due hereunder in a timely manner shall be deemed a material breach.
12.2 - Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
- (a) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts; or
- (b) the other party takes any step or action in bankruptcy, or any other proceeding for or in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent amalgamation or restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent amalgamation or restructuring), having a receiver appointed to any of its assets or ceasing to carry on business.
12.3 - On termination or expiration of this Agreement, for whatever cause:
- (a) All access rights to the System granted to Customer under the Agreement shall automatically terminate; and
- (b) Neither party’s rights against the other in respect of any breach of this Agreement shall be prejudiced or affected.
12.4 - Provisions of this Agreement that by their nature continue beyond the expiration or termination of this Agreement, and those provisions that are expressly stated to survive termination, shall survive the termination or expiration of this Agreement, including, but not limited to, Section 8 (Intellectual Property Rights), Section 10 (Data Management and Use), and Section 11 (Confidentiality).
13. Force Majeure
13.1 - A party shall not be in default of this Agreement on account of, nor shall it be liable to the other party for, any cessation, interruption or delay in the performance of its obligations (excluding payment obligations) due to a Force Majeure Event, provided that the party relying on this Section 14:
- (a) gives prompt written notice thereof; and
- (b) takes all reasonable steps necessary to mitigate the effects of the Force Majeure Event; and
- (c) as soon as reasonably possible after the cessation of the Force Majeure Event that party shall notify the other party in writing of such cessation and shall resume performance of its obligations under this Agreement.
13.2 - If the Force Majeure Event continues for more than forty-five (45) days after the commencement of the Force Majeure Event then either party may terminate this Agreement by giving not less than 30 (thirty) days’ notice in writing to the other party.
14. Limitation of Liability
14.1 - Neither party will be liable to the other for any special, incidental, indirect, punitive, or consequential damages (including lost profits or lost business), without regard to the theory or cause of action on which a claim is based and without regard to whether or not the party has been apprised of the possibility of such damages. This provision shall not limit Customer’s obligations to pay any fees owed under this Agreement.
14.2 - The aggregate liability of Vialog arising out of or in connection with this Agreement, whether in contract, tort (including negligence), or otherwise, shall be no greater than the Fees paid or payable to Vialog in the 12 months preceding the date of the event on which the claim is based (such amount to be prorated in the event the Agreement has been in effect for less than 12 months from such date). The foregoing limit shall not apply to: (a) any claim based on death or personal injury caused by Vialog gross negligence or that of its employees, agents, or subcontractors; or (b) any claim that cannot be excluded by operation of law in the jurisdiction in which Customer is located.
15.1 - Customer shall defend, indemnify, and hold harmless Vialog against all claims, liabilities, suits, losses, damages, expenses, and other liabilities (including without limitation costs and reasonable legal fees) suffered or incurred as a result of any claims from any third parties (“Customer Claims”) relating to or arising from: (a) any breach by Customer of its warranties under Section 7 of this Agreement, or (b) claims against Vialog as a result of following Customer instructions regarding Personal Data. Customer’s indemnification obligations hereunder shall not apply to any Customer Claim that arises due to any breach by Vialog of this Agreement.
15.2 - Vialog shall defend, indemnify, and hold harmless Customer against all claims, liabilities, suits, losses, damages, expenses, and other liabilities (including without limitation costs and reasonable legal fees) suffered or incurred as a result of any claims from any third parties relating to or arising from: (a) any breach by Vialog of its warranties under Section 7 of this Agreement; (b) any breach by Vialog of Section 10 (Data Management and Use) or Section 11 (Confidentiality) of this Agreement; or (c) infringement of a third-party’s Intellectual Property Rights.
Any notice to a party under this Agreement shall be in writing, signed by or on behalf of the party giving it and shall, unless delivered to a party personally, be e-mailed, left at, or sent by prepaid first class airmail post or prepaid airmail recorded delivery to the address of the party as set out in the Subscription Form or as otherwise notified in writing from time to time. In the case of notices sent via e-mail these shall be followed by a hard copy posted to the head office of the receiving party. All notices hereunder e-mailed to Vialog shall be sent to: email@example.com.
17.1 - Each party shall have the right to publicise the existence of this Agreement and the commercial relationship between the parties (which, for the avoidance of doubt, may involve the issue of press releases) but shall not disclose the commercial terms of this Agreement (including the Subscription Form). Vialog may use Customer’s name and logo in any publicity under the terms of this Section 17.
17.2 - Customer shall make commercially reasonable efforts to support Vialog marketing activities, including but not limited to video testimonials provided by senior representatives of both parties.
18. Entire Agreement and Conflicts
This Agreement sets out the entire agreement and understanding between the parties, and supersedes all prior written or oral agreements made by or on behalf of Customer and Vialog in relation to the subject matter hereof. Each party acknowledges that it has entered into this Agreement in reliance only upon the representations, warranties, and promises specifically contained or incorporated in this Agreement and, save as expressly set out in this Agreement, each party 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.
This Agreement shall be binding upon and inure for the benefit of the successors in title of the parties but, shall not be assignable by either party without the prior written consent of the other party; provided, however, that either party may assign any or all of its rights and obligations hereunder to any Related Company, or in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise), upon prior written notice without the consent of the other party.
20. General Provisions
20.1 - 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.
20.2 - Any party may, in whole or in part, release, compound, compromise, waive or postpone, in its absolute discretion, any liability owed to it or right granted to it in this Agreement by any other party or parties without prejudicing or affecting its rights in respect of that or any other liability or right not so released, compounded, compromised, waived or postponed.
20.3 - No single or partial exercise, or failure or delay in exercising any right, power or remedy by any party shall constitute a waiver by that party of, or impair or preclude any further exercise of, that or any right, power or remedy arising under this Agreement or otherwise.
20.4 - Nothing in this Agreement shall be construed as creating a partnership between the parties or as constituting any party as the agent of any other party for any purpose whatsoever and no party shall have the authority or power to bind the other party or to contract in the name of or create a liability against any other party in any way or for any purpose.
20.5 - This Agreement may be executed by electronic signature, or in such other manner as agreed by the parties and in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
20.6 - Save as expressly permitted in this Agreement a person who is not a party to this Agreement has no right to enforce any term of this Agreement.
20.7 - This Agreement may not be amended unless agreed in writing and signed by both parties.
21. Governing Law and Jurisdiction
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales, and each party hereby irrevocably submits to the exclusive jurisdiction of the courts of London, England in any dispute arising out of or relating to this Agreement.