Talkdesk Services Trial Agreement.

TALKDESK SERVICES TRIAL AGREEMENT

CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING THE TERMS OF THIS TRIAL AGREEMENT BEFORE CLICKING “SUBMIT” OR “ACCEPT” AND/OR ACCESSING OR USING ANY TRIAL SERVICES. BY CLICKING “SUBMIT” OR “ACCEPT” AND/OR ACCESSING OR USING SUCH TRIAL 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 TRIAL, CUSTOMER GRANTS TALKDESK PERMISSION TO BE CONTACTED WITH TRIAL INFORMATION AND TO RECEIVE PROMOTIONAL, SALES, AND/OR MARKETING EMAILS AND/OR SMS MESSAGES FROM TALKDESK DURING THE TRIAL 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 TRIAL SERVICES.

This Agreement is made and entered into on the first day that the Trial Services are activated for Customer’s use (“*Trial Service Activation Date*”) and will remain in effect for the duration of the Trial 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” means this Talkdesk Services Trial Agreement.

“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 Trial Services.

“Content” means the audio and visual information, documents, software, products and services contained in or made available via the Trial Services, other than Customer Data.

“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 or for Customer or its Authorized Users into the Trial Services.

“Order Form” means the ordering document subsequently entered into between Customer and Talkdesk identifying the Services to be made available by Talkdesk pursuant to a Post Trial  Agreement.

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

“Talkdesk” means Talkdesk Inc. and any third parties which are providing third party services or products on behalf of Talkdesk as part of the Trial Services.

“Talkdesk Services” means the software as a service and communication services (e.g., products, services, and minutes) provided by Talkdesk, 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.

“Trial Period” means the duration of the trial, starting on the Trial Service Activation Date and ending at the earlier of fifteen (15) days or the date the total credits available for usage are exhausted (or such other period as mutually agreed in a writing signed by the parties).

“Trial Services” means access to a designated subset of Talkdesk Services and functionality for the purpose of enabling Customer to evaluate the Talkdesk Services during the Trial Period.

II. LICENSE GRANT AND RESTRICTIONS:

Subject to the terms and conditions of this Agreement, Talkdesk hereby grants Customer a revocable, non-exclusive, non-transferable, non-assignable, non-sublicenseable, limited license to use the Trial Services at no charge during the Trial Period solely for Customer’s own business purposes and strictly for the purpose of evaluating the Talkdesk Services and not for any commercial or competitive purpose. The Trial Service license is limited to a single, limited production tenant of Customer. All rights not expressly granted to Customer are reserved by Talkdesk and its licensors. Talkdesk reserves the right to make changes, modifications, reduction in functionality, and/or enhancements to the Trial 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 Trial 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 Trial Services or Content 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 Trial 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 Trial Services or the Content in any way; (e) modify or make derivative works based upon the Trial Services or the Content; (f) reverse engineer the Trial Services; or (g) access the Trial Services in order to build any product or service. 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 III.

IV. CUSTOMER RESPONSIBILITIES

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

To the extent Customer enters any Customer Data into the Talkdesk Services, Customer, not Talkdesk, shall have sole responsibility for the accuracy, quality, integrity, legality, and intellectual property ownership or right to use all Customer Data, and Talkdesk shall not be responsible or liable for the deletion, disclosure, transfer, misuse, correction, destruction, damage, or loss of such Customer Data. Talkdesk’s use of Customer Data shall be limited to the purpose of providing the Trial Services to the Customer.  To the extent Customer enters Customer Data into the Talkdesk Services, Customer agrees and acknowledges that :info: Talkdesk is not obligated to retain any Customer Data after termination or expiration of the Trial Period, and (ii) Talkdesk may in its discretion delete Customer Data after the end of the Trial 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 Trial Services, including all rights and consents to such Customer Data, applications, and products necessary for Talkdesk to provide the Trial Services.

VI. LICENSE BY CUSTOMER TO TALKDESK

Customer grants Talkdesk, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Customer Data, as well as any third–party product and program code created by or for Customer using any Trial Services or for use by Customer with the Trial Services, each as appropriate for Talkdesk to provide and ensure proper operation of the Trial Services and associated systems in accordance with this Agreement. Subject to the limited licenses granted herein, Talkdesk acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, third–party product, or program code.

VII. CONVERTING TO A FULL SUBSCRIPTION

Customer acknowledges and agrees that, at the end of the Trial Period, Customer’s access to the Trial Services will be terminated, with or without notice, unless Customer elects to license the Talkdesk Services on a paid subscription basis.  In the event Customer wishes to enter into a subscription license for the use of the Talkdesk Services, Customer will be required to (a) agree to a separate Master Subscription Services Agreement, either directly with Talkdesk or through its Reseller (“*Post Trial Agreement*”), and (b) execute an Order Form, detailing the Services, duration and pricing applicable to the use of the Talkdesk Services. All unexpired Trial Services Licenses terminate effective with the signing of a Post Trial Agreement.

VIII. 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 Talkdesk Services, the Content 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 VI 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.

IX. SUSPENSION AND/OR TERMINATION

Talkdesk reserves the right to suspend and/or terminate this Agreement and the Trial Services, with or without cause, at any time, with or without notice. Subject to Section VII above, this Agreement will terminate automatically upon the conclusion of the Trial Period and/or upon execution of a Post Trial Agreement.

X. EXCLUSION OF WARRANTY; NO MAINTENANCE OR SUPPORT

Neither Talkdesk nor its Reseller(s) have any obligation to provide maintenance or support services in connection with the Trial Services. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED TO CUSTOMER “AS-IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TALKDESK DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED.  TALKDESK DISCLAIMS ALL LIABILITY FOR ANY HARM OR DAMAGES CAUSED BY THE USE OR ACCESS TO THE TRIAL SERVICES.

THE TRIAL SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS OR SMS MESSAGES TO ANY EMERGENCY SERVICES. NEITHER TALKDESK NOR ITS REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND CUSTOMER WILL HOLD TALKDESK HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE THE SERVICES TO CONTACT EMERGENCY SERVICES.

XI. NO DAMAGES

TALKDESK HAS NO LIABILITY UNDER ANY AND ALL LEGAL THEORIES FOR ANY AND ALL CAUSES OF ACTION RELATED TO THIS AGREEMENT AND SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, DATA OR USE, OR ANY WASTED EXPENDITURE OR RELIANCE LOSS OR DAMAGES, HOWEVER CAUSED, AND WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IF THE FOREGOING LIMIT OF LIABILITY IS FOUND TO BE UNENFORCEABLE UNDER APPLICABLE LAW, CUSTOMER AGREES THAT THE MAXIMUM LIABILITY FOR TALKDESK UNDER ANY AND ALL LEGAL THEORIES FOR ANY AND ALL CAUSES OF ACTION RELATED TO THIS AGREEMENT SHALL NOT EXCEED $1,000.00.

XII. 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 or the Post Trial 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 Talkdesk Services 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 :info: 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 or, if applicable, the Post Trial 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 Post Trial Agreement and for a period of three (3) years after the termination or expiration of this Agreement and, if applicable, the Post Trial Agreement.  Customer will not disclose to any third party the existence of this Trial Agreement or its use of the Talkdesk Services.

XIII. 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 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.