Master subscription agreement.
“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”.
“Authorized Partner” means a third-party reseller or distributor who has been authorized by Talkdesk to resell Services.
“Authorized Users” means Customer’s employees and independent contractors working for or on behalf of Customer in the ordinary course of Customer’s business for whom access to the Talkdesk Services have been purchased, regardless of actual usage, pursuant to this Agreement.
“Confidential Information” means all information disclosed by a party (a “Disclosing Party”) to the other party (the “Receiving Party”), whether in oral, written, or other tangible or intangible form, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Talkdesk includes the Services and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Confidential Information of Customer does not include Customer Data.
“Customer Data” means any electronic data, information or material provided or submitted by or for Customer or its Authorized Users into the Talkdesk Services, excluding Third–Party Content and Third–Party Products; provided, however, that Customer Data does not include: Usage Data or Customer Data that is aggregated and de-identified. The obligations governing Customer Data are defined in Section 3.6.
“Damages” means any damages awarded by a court of competent jurisdiction against Customer (or agreed to in a settlement by Talkdesk) resulting from the IP Claim, including any awarded costs and awarded attorneys’ fees.
“Documentation” means any usage guides and policies that are provided or made available by Talkdesk, as updated from time to time, accessible online or via login to the applicable Services.
“Early Access Services” means Talkdesk Services or functionality that is pre-release and may be made available to Customer at Talkdesk’s discretion.
“GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Marketplace” means an online directory, catalog or marketplace of applications that interoperates with the Services, including, for example, the AppConnect marketplace at https://www.talkdesk.com/call-center-software/platform/appconnect/, and any successor websites.
“Order Form” shall mean any order form signed by both parties identifying the Services to be made available by Talkdesk pursuant to this Agreement, which may detail, among other things, the number of Authorized Users.
“Professional Services” are professional services rendered under the scope of an SOW.
“Representatives” means a party’s director, officer, agent, employee, subsidiary, parent company, or financial or legal adviser. Any recipient of a permitted disclosure of Confidential Information under Section 7.2 shall be deemed a Representative.
“Services” means the Professional Services together with the Talkdesk Services.
“Service Term” means the period of time identified in the Order Form, beginning on the Start Date, for which Customer is purchasing and will be entitled access to the applicable Talkdesk Services (the “Initial Term”, and any renewal thereof, each, a “Renewal Term”), as applicable.
“SOW” means a document governed by this Agreement describing any Professional Services, inclusive of Professional Services rates and charges.
“Talkdesk Services” means the software as a service and communication services (e.g., products, services, and minutes) to be 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.
“Taxes” means any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use, excise, or withholding taxes, assessable by any jurisdiction whatsoever.
“Third–Party Product” means a Web-based, mobile, offline or other software application functionality that interoperates with the Services, that is provided by Customer or a third party and/or listed on a Marketplace.
“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, Early Access Services or pursuant to an Order Form, as more fully described in the Documentation.
“Usage Data” means any information or data associated with or collected from Customer and each Authorized User relating to the usage or results of the Talkdesk Services.
2.1 Talkdesk Services. Subject to the terms and conditions of this Agreement and the applicable Order Form, Talkdesk hereby grants Customer a revocable, limited, non-exclusive, non-sublicensable, and non-transferable right to access and use (and to permit the Authorized Users to access and use) the Talkdesk Services during the Service Term, solely to support the internal business operations of Customer and its Affiliates. All rights in the Talkdesk Services not expressly granted in this Agreement are reserved to Talkdesk. Customer will not provide access to the Talkdesk Services to any third party without Talkdesk’s prior written consent.
2.2 Authorized User Credentials. Customer shall be responsible for and liable for its Authorized Users’ compliance with this Agreement. Each Authorized User must create and use unique access credentials, and Customer shall ensure user IDs and passwords are not shared or used by more than one Authorized User. Customer shall take all reasonable precautions to prevent unauthorized access to or use of the Talkdesk Services and shall notify Talkdesk promptly of any unauthorized access or use. Customer shall be responsible for any unauthorized usage that occurs due to misuse of its log-in credentials. Customer will be solely responsible, at Customer’s expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for Customer and each Authorized User to connect to, access, and use the Talkdesk Services.
2.3 Provision of Support; Support Requirements. Talkdesk will provide applicable Talkdesk standard support for purchased Talkdesk Services to Customer at no additional charge, and/or upgraded support if purchased. A support ticket may only be opened by Customer’s administrators. Before the established go-live date, each Customer administrator must complete the Talkdesk Admin and Advanced Admin certification track and ensure that all End Users complete the applicable certification track based on their role (Agent, Supervisor, Admin and/or Advanced Admin). All Talkdesk Academy users must use their corporate email for registration.
3. USE OF SERVICES AND CUSTOMER DATA.
3. 1 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Services are purchased as subscriptions for each Authorized User for the Service Term, (b) subscriptions for Services for additional Authorized Users may be added during the Service Term (and shall be subject to the terms of this Agreement), prorated for the portion of that Service Term remaining at the time the subscriptions are added, and (c) any added subscriptions will be co-terminus with the underlying subscriptions. The number of subscriptions for Authorized Users may only be decreased between the Initial Term and any Renewal Term, or between Renewal Terms, provided that Customer delivers a notice of such decrease to Talkdesk at [email protected] at least thirty (30) days prior to the beginning of the Renewal Term.
3.2 Customer Responsibilities. Customer will (a) be responsible for its Authorized Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Third–Party Product with which Customer uses the Services or Third–Party Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and Third–Party Content, and notify Talkdesk promptly of any such unauthorized access or use, (d) use the Services and Third–Party Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, and (e) comply with the terms of service of any Third–Party Product with which Customer uses the Services or Third–Party Content.
3.3 Removal of Third–Party Content and Third–Party Product. If Customer receives notice that Third–Party Content or a Third–Party Product must be removed, modified and/or disabled to avoid violating applicable law, or third-party rights, Customer will promptly do so. If Customer does not take required action in accordance with the above, or if in Talkdesk’s judgment continued violation is likely to reoccur, Talkdesk may disable the applicable Third–Party Content, Services and/or Third–Party Product. If requested by Talkdesk, Customer shall confirm such deletion and discontinuance of use in writing, and Talkdesk shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if Talkdesk is required by any third-party rights holder to remove Third–Party Content, or receives information that Third–Party Content provided to Customer may violate applicable law or third-party rights, Talkdesk may discontinue Customer’s access to Third–Party Content through the Services.
3.4 Use Restrictions. 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”).
3.5 Customer Data. Customer acknowledges that Talkdesk is not responsible for the creation, content, or use of the Customer Data by Customer or any third party. Customer represents that it owns or has acquired the necessary licenses to grant Talkdesk the below license to use Customer Data. During the Service Term and for 30 days thereafter, Customer may export its Customer Data from the Talkdesk Service (the “Export Period”). After the Export Period, Talkdesk may delete Customer Data in accordance with its standard schedule and procedures.
3.6 Protection of Customer Data. 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).
3.7 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 Third–Party Product and program code created by or for Customer using any Services or for use by Customer with the Services, and Customer Data, each as appropriate for Talkdesk to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If Customer chooses to use a Third–Party Product with the 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 Services. 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 such program code.
3.8 License by Customer to Use Feedback. Customer grants to Talkdesk and its Affiliates a worldwide, perpetual, irrevocable, royalty free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Authorized Users relating to the operation of Talkdesk’s or its Affiliates’ business, including but not limited to its Services, Implementation of the Services, Content, and Marketplace.
4. PROFESSIONAL SERVICES AND EARLY ACCESS SERVICES.
4.1 Professional Services. If Professional Services are purchased, Talkdesk will perform Professional Services on a time and materials basis unless otherwise stated in a SOW. Talkdesk shall control how the Professional Services are performed. Talkdesk reserves the right to make all staffing decisions in its sole and reasonable discretion. Customer shall make available at no charge all technical data, computer facilities, programs, files, documentation, test data, sample output, office space, equipment and other assistance as reasonably requested by Talkdesk in the performance of Professional Services.
4.2 Early Access Services. From time to time, Customer may purchase and/or access Early Access Services. Any use of Early Access Services is subject to Talkdesk’s Early Access Agreement located at https://www.talkdesk.com/legal/early-access-agreement/.
5. THIRD–PARTY PRODUCTS.
5.1 Usage of Third-Party Products. Talkdesk may make Third–Party Products available through a Marketplace, such as AppConnect. If Customer, at Customer’s discretion, chooses to use a Third–Party Product, then Customer may be required to accept the Third–Party Product provider’s terms of service (“Third–Party Provider’s Terms”) as part of the Third–Party Product installation process. Customer acknowledges for each Third–Party Product Customer purchases through the Marketplace, the Thir