Talkdesk Services Pilot Agreement.

CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING THE TERMS OF THIS PILOT AGREEMENT BEFORE CLICKING “SUBMIT” OR “ACCEPT” AND/OR ACCESSING OR USING ANY PILOT SERVICES (AS DEFINED BELOW). BY CLICKING “SUBMIT” OR “ACCEPT” AND/OR ACCESSING OR USING SUCH SERVICES, THE INDIVIDUAL ACCEPTING THIS AGREEMENT CONFIRMS THAT HE OR SHE HAS READ AND ACCEPTS THIS AGREEMENT AND HAS THE AUTHORITY TO BIND CUSTOMER. IN ADDITION, BY REGISTERING FOR THE PILOT, CUSTOMER GRANTS TALKDESK PERMISSION TO BE CONTACTED WITH INFORMATION AND TO RECEIVE PROMOTIONAL, SALES, AND/OR MARKETING EMAILS AND/OR SMS MESSAGES FROM TALKDESK DURING THE PILOT PERIOD. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND NEITHER THE INDIVIDUAL NOR THE CUSTOMER MAY USE THE PILOT SERVICES.

This Agreement is made and entered into as of the Start Date indicated on the Order Form (“Pilot Activation Date”) and will remain in effect for the duration of the Pilot Period, as specified below.

I. Definitions.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. Affiliates of Customer are included in the definition of “Customer.”

“Agreement” includes, as applicable, any Order Form, this Talkdesk Services Pilot Agreement, and any other exhibit expressly incorporated by reference or attached hereto. In the event of a conflict between the terms of any Order Form with the other provisions of the Agreement, the terms of the Order Form will control, but (a) only with respect to the specific Services purchased under such Order Form, and (b) only if the Order Form specifically references the conflicting provisions(s) of this Agreement with the intention to supersede such provision(s).

“Authorized Users” means Customer, and any of Customer’s employees and independent contractors working for or on behalf of Customer in the ordinary course of Customer’s business who are authorized to use the Pilot Services.

“Customer” means the individual accepting this Agreement or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement.

“Customer Data” means any electronic data, information, or material provided or submitted by Customer or its Authorized Users into the Pilot Services, including call recordings, call transcripts, and voicemails. Customer Data does not include Service-Generated Data, Third-Party Content, or Third-Party Products.

“Damages” means any damages awarded by a court of competent jurisdiction against a party (or agreed to in a settlement) or fines awarded by a regulatory body resulting from a Section XI indemnity claim, including any awarded costs and awarded attorneys’ fees.

“Order Form” means an ordering document or online registration identifying the Services to be made available by Talkdesk pursuant to this Agreement, or any click-through agreement entered into by Customer within the Talkdesk Services.

“Pilot Period” means the period of time identified in the Order Form beginning on the Pilot Activation Date for which Customer will be entitled access to the applicable Pilot Services.

“Pilot Services” means a designated subset of Talkdesk Services and functionality as identified in an Order Form.

“Reseller” means a third party reseller or distributor who has been authorized by Talkdesk to resell, distribute, or provide Talkdesk Services to Customer.

“Service-Generated Data” means data created by, or resulting from, the use of the Services, their performance and operation and includes, but is not limited to analysis, statistics, reports, and Customer Data that is de-identified. Service-Generated Data does not include call recordings, call transcripts, or voicemails.

“Talkdesk” means Talkdesk, Inc.

“Talkdesk Services” or “Services” means the software as a service and communication services (e.g., products, services, and minutes) provided by Talkdesk as identified in the Order Form, as may be modified by Talkdesk to maintain or improve the quality or marketability of the Talkdesk Services or to bring Talkdesk’s provision of the Talkdesk Services into compliance with applicable law.

“Third-Party Content” means information obtained by Talkdesk from publicly available sources or its third-party content providers and made available to Customer through the Services.

“Third-Party Product” means a Web-based, mobile, offline or other software application functionality and/or Communication Service that interoperates with the Services, that is provided by Customer or a third party.

II. License grant and restrictions; Services.

Subject to the terms and conditions of this Agreement, Talkdesk hereby grants Customer a revocable, limited, non-exclusive, non-transferable, non-assignable, non-sublicenseable, right to access and use (and to permit the Authorized Users to access and use) the Pilot Services during the Pilot Period solely for Customer’s own business purposes and strictly for the purpose of evaluating the  Services. All rights not expressly granted to Customer are reserved by Talkdesk and its licensors. Talkdesk reserves the right to make changes, modifications, reductions in functionality, and/or enhancements to the Pilot Services at any time without prior notice.

III. Limitations.

Competitors of Talkdesk (entities that provide the same or similar services as Talkdesk) are prohibited from accessing the Pilot Services. By accepting this Agreement, Customer represents and warrants that it is not a competitor of Talkdesk. In addition, Customer may not, and may not cause or permit others to: (a) make the Pilot Services or Service-Generated Data available in any manner to a third party; (b) measure or disclose results (obtained from any party) of the availability, performance, or functionality tests or benchmarking tests of the Pilot Services; (c) perform or disclose security testing (obtained from any party) including but not limited to vulnerability scanning, password cracking, or penetration testing; (d) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Pilot Services or Service-Generated Data in any way; (e) modify or make derivative works based upon the Pilot Services or Service-Generated Data; (f) reverse engineer the Pilot Services; or (g) access the Pilot Services in order to build any product or service.

IV. Customer responsibilities.

Customer will: (a) comply (and be responsible for its Authorized Users’ compliance) with this Agreement; (b) be responsible for the legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Pilot Services, and the interoperation of any Third-Party Product with which Customer uses the Pilot Services or Third-Party Content; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Pilot Services, and notify Talkdesk promptly of any such unauthorized access or use; and (d) use the Pilot Services only in accordance with this Agreement and applicable laws and government regulations.

Customer and all Authorized Users must comply with Talkdesk’s Acceptable Use Policy located at https://www.talkdesk.com/es-es/legal/acceptable-use-policy/ (the “Acceptable Use Policy”) and any acceptable use or similar policies imposed by the applicable telco carrier.

Customer agrees to indemnify Talkdesk against any claim arising out of a violation by Customer of its obligations in this Section IV.

V. Customer Data.

Talkdesk’s use of Customer Data shall be limited to the purpose of providing the Pilot Services to the Customer. To the extent Customer enters Customer Data into the Pilot Services, Customer agrees and acknowledges that: (i) Talkdesk is not obligated to retain any Customer Data after termination or expiration of the Pilot Period, and (ii) Talkdesk may in its discretion delete Customer Data after the end of the Pilot Period, without further obligation or liability to the Customer. Talkdesk will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Authorized Users).

To the extent that Talkdesk processes any personal data (as defined by GDPR), such personal data will be processed in accordance with the terms of the Data Processing Agreement located at https://www.talkdesk.com/legal/dpa/, which shall be incorporated by reference into this Agreement in accordance with the terms thereof, or such other Data Processing Agreement as may be entered into between the parties. To the extent Talkdesk processes any personal data from the European Economic Area, the United Kingdom or Switzerland, the Standard Contractual Clauses, as set forth in the Data Processing Agreement (“SCCs”), apply. By accepting this Agreement or any applicable Order Form, Customer and its Affiliates are deemed to have executed the applicable SCCs as set forth in the Data Processing Agreement. For the purposes of the SCCs, Customer and its applicable Affiliates are each the data exporter, and Talkdesk and its applicable Affiliates are each the data importer.

Customer further acknowledges and agrees it is responsible for obtaining at its sole expense any rights and consents from third parties necessary for the use of the Customer Data, applications, and other vendors’ products provided by Customer and used with the Pilot Services, including all rights and consents to such Customer Data, applications, and products necessary for Talkdesk to provide the Pilot Services.

VI. License by Customer to Talkdesk.

Talkdesk may use Customer Data to provide and ensure proper operation, improvement, and maintenance of the Pilot Services and associated systems and for benchmarking and for the purpose of improving the Pilot Services and associated systems in accordance with this Agreement. If Customer chooses to use a Third-Party Product with the Pilot Services, Customer grants Talkdesk permission to allow the Third-Party Product and its provider to access Customer Data and information about Customer’s usage of the Third-Party Product as appropriate for the interoperation of that Third-Party Product with the Pilot Services.

VII. Ownership.

Customer does not transfer any ownership rights in the Customer Data. Talkdesk (and its licensors, where applicable) owns all right, title and interest, including all related intellectual property rights, in and to the Pilot Services, Service-Generated Data, and deliverables (if any), including to any and all enhancements, enhancement requests, suggestions, modifications, extensions, and/or derivative works thereof. Talkdesk does not grant any rights in any intellectual property to Customer except the limited right to use defined in Section II above and Talkdesk retains all right, title and ownership in all Talkdesk intellectual property. Talkdesk does not grant any right to use, display, or disclose any Talkdesk marks including its name, the Talkdesk logo, or any product names associated with the Talkdesk Services.

VIII. Fees and payment.

Beginning on the Pilot Activation Date, Customer shall pay Talkdesk (or its Authorized Partner, as applicable) all fees identified in an Order Form (“Fees”).

In addition to the other Fees identified herein, Customer may be charged usage fees based on Customer’s use of the Pilot Services, as applicable, including but not limited to interactions with respect to AI products, minute for calls, phone number line access fees, SMS fees, and transcription fees (“Usage Fees”). Customer agrees to pay all Usage Fees billed by Talkdesk.

IX. Suspension and/or termination.

Notwithstanding anything to the contrary herein, if: (a) Customer fails to timely pay any amounts due under this Agreement; (b) Customer is in material breach of this Agreement; (c) Customer is using the Services in violation of law, the Acceptable Use Policy, or applicable regulations; and/or (d) as required by a regulator or as necessary to comply with applicable law, then Talkdesk may immediately suspend Customer’s access to the Pilot Services or terminate this Agreement, effective immediately. Notices under this Section may be sent to the Customer’s billing email address stated on the Order Form. This Agreement will terminate automatically upon execution of a Master Services Agreement.

X. Mutual Indemnification.

Indemnification by Customer. Customer will pay all Damages and defend Talkdesk from and against all claims brought or asserted against Talkdesk by a third party alleging: (i) Customer’s use of any feature of the Pilot Services violates Customer’s contractual, regulatory, or other legal obligations, including but not limited to the Acceptable Use Policy; (ii) Talkdesk’s use of any Customer Data as permitted by this Agreement or any Customer Data infringes or misappropriates a third party’s Intellectual Property Rights; (iii) a Third-Party Product provided by Customer or the combination of a Third-Party Product provided by Customer and used with the Pilot Services infringes or misappropriates a third party’s Intellectual Property Rights; (iv) Customer’s failure to maintain adequate AI management controls; or (v) a product or strict liability claim to the extent arising from Customer’s configuration, deployment, or the way in which Customer makes use of Service-Generated Data. Talkdesk shall: (a) promptly give Customer written Notice of the claim against Talkdesk, (b) give Customer sole control of the defense and settlement of the claim against Talkdesk (except that Customer may not settle any claim against Talkdesk unless the settlement it releases Talkdesk of all liability related to the claim), and (c) assist and cooperate with Customer in defense of same.

Indemnification by Talkdesk. Talkdesk will pay all Damages and defend Customer from and against all claims brought or asserted against Customer by a third party alleging that Customer’s use of the Pilot Services as permitted by this Agreement infringes or misappropriates a third-party copyright, trade secret, trademark or patent (“IP Claim”); provided Customer: (a) promptly gives Talkdesk written Notice of any such IP Claim, (b) gives Talkdesk sole control over the defense and settlement of any such IP Claim (except that Talkdesk may not settle an IP Claim against Customer unless the settlement releases Customer of all liability related to the IP Claim), and (c) shall assist and cooperate with Talkdesk in defense of same. If Talkdesk receives notice or information about the IP Claim, Talkdesk may in its discretion and at no cost to Customer: (i) modify the Pilot Services so that they no longer infringe or misappropriate the third-party’s IP rights, (ii) obtain a license for Customer’s continued use of such Pilot Services in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for such Pilot Services upon 30 days’ written Notice and refund Customer any prepaid and unused fees covering the remainder of the Pilot Term. The above defense and indemnification obligations do not apply if: (1) the allegation does not state with specificity that the Pilot Services are the basis of the IP Claim against Customer; (2) an IP Claim against Customer arises from the use or combination of the Pilot Services or any part thereof with software, hardware, data, or processes not provided by Talkdesk, if the Pilot Services or use thereof would not infringe without such combination; (3) an IP Claim against Customer arises from Pilot Services for which there is no charge; or (4) an IP Claim against Customer arises from Third-Party Content, a Third-Party Product or Customer’s breach of this Agreement, the Documentation or applicable Order Forms.

Exclusive Remedy. This Section states Talkdesk’s sole liability to, and Customer’s exclusive remedy against, Talkdesk for any IP Claim.

XI. Disclaimer of warranty.

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PILOT SERVICES ARE PROVIDED ON AN “AS IS” AND AS AVAILABLE BASIS, AND TALKDESK DOES NOT MAKE ANY, AND HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY OF ACCURACY, COMPLETENESS, MERCHANTABILITY, INTEROPERABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. TALKDESK DOES NOT WARRANT THAT THE PILOT SERVICES WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.

XII. Limitation of Liability.

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR: (i) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, BUSINESS INTERRUPTION, PUNITIVE OR EXEMPLARY DAMAGES; (ii) ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), SAVINGS, GOODWILL, BUSINESS OPPORTUNITY, BUSINESS, OR REVENUES; OR (iii) ANY WASTED EXPENDITURE OR RELIANCE LOSS OR DAMAGES, WHETHER OR NOT CHARACTERIZED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE BY ONE OR BOTH PARTIES AND WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT WITH RESPECT TO ITS OBLIGATIONS UNDER SECTION XI, IN NO EVENT SHALL TALKDESK’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT PAID BY CUSTOMER TO TALKDESK PURSUANT TO THIS AGREEMENT FOR THE PILOT SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT THAT GAVE RISE TO SUCH CLAIM. NOR WILL TALKDESK BE LIABLE FOR CUSTOMER’S INABILITY TO USE THE PILOT  SERVICES BECAUSE OF A FAILURE OR DEGRADATION OF A THIRD-PARTY PROVIDER’S NETWORK, A FAILURE OR DEGRADATION OF INTERNET SERVICES PROVIDERS OR ANY OTHER THIRD-PARTY CAUSE.

NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO A CUSTOMER’S LIABILITY ARISING FROM ITS BREACH OF THE PROVISIONS STATED IN SECTION IV.

XIII. Confidentiality.

Each party (as a “Receiving Party” hereunder) shall not disclose to any third party, any Confidential Information of the other party (as a “Disclosing Party” hereunder) provided to such Receiving Party in anticipation of, or in connection with the performance of this Agreement. For the avoidance of doubt, this includes Confidential Information provided to the Receiving Party prior to the Effective Date of this Agreement. As used herein, the term “Confidential Information” refers to any and all financial, technical, commercial, or other information concerning the business and affairs of the Disclosing Party, including, without limitation, any cost or pricing information, contractual terms and conditions, marketing or distribution data, business methods or plans.If Confidential Information is (a) provided as information fixed in tangible form or in writing (e.g., paper, disk or electronic mail), such shall be conspicuously designated as “Confidential” (or with some other similar legend) or (b) provided orally, such shall be identified as confidential at the time of disclosure and confirmed in writing within thirty (30) days of disclosure, unless a reasonable person would understand such information to be confidential based on its content. Notwithstanding the above, Talkdesk Confidential Information shall include the Pilot Services, Service-Generated Data, and all pricing terms offered to Customer under any Order Form, and Customer Confidential Information shall include Customer Data. Confidential Information does not include information which (i) becomes generally available to the public other than as a result of a disclosure by the Receiving party, (ii) was available to a party on a non-confidential basis prior to its disclosure by the other party or in connection with the performance by such party of its obligations under this Agreement, or (iii) becomes lawfully available to a party on a non-confidential basis from an independent third party. The Receiving Party will not use Confidential Information for any purpose other than carrying out its obligations as set forth in this Agreement and shall not disclose Confidential Information to any third party, without the prior written consent of the Disclosing Party and an agreement in writing from the third party that it will adhere to the confidentiality obligations imposed herein. Third parties shall not include agents of the Receiving Party, employees or affiliates of the Receiving Party, attorneys, accountants, and other professional advisors of the Receiving Party, in each case such person must have a legitimate reason to have access to such Confidential Information and must be under a duty to protect such Confidential information which duty is substantially equivalent to the obligations contained herein. Each Receiving Party’s confidentiality obligations with respect to such Confidential Information, shall remain in effect for the term of this Agreement and for a period of three (3) years after the termination or expiration of this Agreement. Customer will not disclose to any third party the existence of this Pilot Agreement or its use of the Pilot Services.

XIV. Entire Agreement.

This Agreement constitutes the entire and sole agreement among the parties with respect to the subject matter hereof and supersedes any previous or contemporaneous agreements, negotiations, understandings, or other matters, whether oral or written, with respect to the subject matter hereof. This Agreement will prevail over any additional, conflicting or inconsistent terms and conditions which may appear on any purchase order furnished by Customer, and such purchase order terms and conditions will have no force or effect, notwithstanding Talkdesk’s acceptance or execution of such purchase order. Any additions or modifications to this Agreement must be made in writing and signed by both parties. This Agreement and any dispute related to this Agreement shall be governed by and interpreted in accordance with the laws of the State of California without regard to its conflict of laws provisions. If any litigation is validly instituted in connection with this Agreement, the parties hereby consent to the exclusive personal jurisdiction of the state and federal courts in San Francisco, California and waive any objection as to venue or inconvenient forum. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Talkdesk. In the event that any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.