Terms and Conditions

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  1. Definitions. Capitalized terms used but not otherwise defined in this Master Services Agreement will have the meanings set forth in the Services Order. The following terms, as used in this Agreement, have the following meanings:

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  1. “Admin Portal” means the administration portal for the Software made available to Client to configure parameters, send and receive messages, and track user usage.  

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  1. “Client Content” means all content and content formats provided by Client or developed at Client’s direction which is intent to be sent to Users.

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  1. “Client Data” means all information provided by Client or developed at Client’s direction to allow CommunityCX to provide the Services. Client Data includes Client Content.

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  1. “Documentation” means the operating instructions, user manuals, product specifications, sample marketing collateral including posters, flyers and other documentation that CommunityCX makes available to Client in hard copy or electronic form for the Platform, and any modified, updated, or enhanced versions of such documentation. s

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  1. “Intellectual Property Rights” means patents and patent applications, inventions (whether or not patentable), trademarks, service marks, trade dress, copyrights, trade secrets, know-how, data rights, specifications, mask-work rights, moral rights, author’s rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all derivatives, renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country or jurisdiction. 

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  1. “Services” means all Solution Services, Implementation Services, and Managed Services stated in the Services Order.

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  1. “Software” means the Admin Portal and other proprietary software described in the Services Order and used by CommunityCX to provide Client the services under this Agreement, and any modified, updated, or enhanced versions of such software platform that CommunityCX may use to provide Client such services. 

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  1. “User” means any person Client contacts or directs to be contacted by means of the Software.

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  1. “User Information” means all information and data related to a User that is supplied by Users to CommunityCX via messaging.

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  1. Services. Subject to Client’s compliance with the terms and conditions of this Agreement and the Services Order (including Client’s payment of the applicable fees), CommunityCX will use commercially reasonable efforts to provide the Services to Client. Client understands and agrees that each User’s access to the Software is subject to the then-current CommunityCX Terms of Service and Privacy Statement. The Terms of Service is available online at https://www.communitycx.co/terms-of-conditions-and-use and the Privacy Statement is available online at https://www.communitycx.co/privacy

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  1. Support. CommunityCX will provide Client with technical support related to the Software pursuant to CommunityCX’s then-current support policies. For fastest response, customer support tickets should be entered at https://www.communitycx.co/contact-us

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  1. Changes. CommunityCX’s reserves the right to change, modify, and otherwise convert the Software used to provide the Services; provided that the basic functionality and quality of the Services will not be materially reduced. 

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  1. Exclusions. Notwithstanding anything in the Agreement to the contrary, CommunityCX will have no responsibility or liability of any kind under this Agreement, arising or resulting from (a) problems caused by failed Internet connections, phone carriers or hardware, software or equipment which is not owned, controlled or operated by CommunityCX; (b) service interruptions resulting from Client’s, Users’, or any third party’s, misuse, abuse, negligence, or improper or unauthorized use of all or any part of the Software or Services; (c) modification, amendment, revision, or change to the Software by any person other than CommunityCX; or (d) any other factor outside of CommunityCX’s reasonable control. 

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  1. License
  1. License Grant. Subject to the terms and conditions of the Agreement, CommunityCX hereby grants to Client a non-exclusive, non-transferable license, without the right to grant or authorize sublicenses, during the Term (as defined below), to: (a) access and use the Software in accordance with the Documentation; (b) reproduce and use a reasonable number of copies of the Documentation in support of the exercise of the license granted in this clause.

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  1. No Implied Licenses. The Software and Documentation is the valuable property of CommunityCX and embodies, contains, and constitutes valuable trade secrets of CommunityCX. Subject to the license expressly granted to Licensee in Section 3.1, as between the parties, CommunityCX owns and reserves all right, title and interest in and to the Software and Documentation, including any customization or other modifications of the Software or Documentation made by CommunityCX for Client, and no licenses or other rights (including patent licenses or rights) are granted to Client by implication, estoppel or otherwise.

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  1. License Restrictions.  The license granted in Section 3.1 does not include the right to, and Client will not and will not permit any third party to, do any of the following: (a) attempt to access or use the  Software or its related systems or networks except as expressly permitted in the Documentation; (b) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Software; (c) modify, adapt, translate or create derivative works based on the Software or Documentation; (d) distribute, license, sublicense, assign, transfer or otherwise make available to any third party any Software or Documentation, except to the extent expressly permitted in Section 3.1; (e) interfere with or disrupt the integrity or performance of the Services; (f) remove, alter or obscure any references to CommunityCX, trademarks, or proprietary rights notices in or on the Software or Documentation; (g) use the Software or Documentation for the purpose of developing a product or service competitive with any of the Services; (h) publicly disseminate results of benchmark tests run on or by the Software; or (i) use or otherwise dispose of the Software or Documentation in any manner or for any purpose not expressly permitted in the license granted in Section 3.1.

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  1. Client Obligations
  1. Client Assistance. Client will assist CommunityCX in the Implementation Services by providing all assistance reasonably requested by CommunityCX. CommunityCX shall have no liability for deficiencies in the Services resulting from the acts or omissions of Client, its agents or employees. Without limiting the forgoing, Client shall provide CommunityCX, in the form and format and on the schedule specified by CommunityCX, all Client Data reasonably required for CommunityCX’s performance of its obligations under this Agreement.

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  1. Client Content. Client shall provide all Client Data within the time periods designated by CommunityCX and in the formats specified by CommunityCX. Client hereby grants to CommunityCX a non-exclusive, royalty-free, fully-paid, worldwide license, under all of Client’s Intellectual Property Rights, to reproduce, modify, incorporate, perform and otherwise use the Client Data as necessary to provide the Services to Client.

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  1. Account Credentials. Client is solely responsible for maintaining the confidentiality of any Client logon identifications, passwords and account information and for all uses of Client’s account.

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  1. Compliance and Use. Client shall (a) be responsible for Users’ compliance with the then-current CommunityCX Terms of Service, (b) be responsible for the accuracy, quality, integrity and legality of Client Data and of the means by which Client acquired Client Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and all Documentation and immediately notify CommunityCX in writing of any such unauthorized access or use or violation by Client or its Users of this Agreement, (d) ensure, at its own expense, that all uses of the Service are in compliance with applicable laws, including those concerning soliciting, telemarketing, automated dialing announcing devices, automatic telephone dialing systems, telephonic solicitation, Do Not Call Lists, text messaging, and similar laws, regulations, provisions, and ordinances, including, but not limited to, the Telephone Consumer Protection Act of 1991, 47 U.S.C. 227 (“TCPA”), as revised, including all Federal Communications Commission (“FCC”) regulations related to TCPA and all other rules and regulations issued under the TCPA by the FCC and other federal agencies; (e) use the Services only in accordance with the Documentation, and (f) comply with all applicable laws and government regulations. Client will cooperate and assist with any actions taken by CommunityCX to prevent or terminate unauthorized use the Services or any Documentation. 

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  1. Acceptable Use Policy. Neither Client nor their representatives may use the Services in any manner that conflicts with CommunityCX’s then-current Acceptable Use Policy. The Acceptable Use Policy is available online at https://www.CommunityCXectlabs.com/terms-of-conditions-and-use. 

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  1. Ownership 
  1. Client Data. As between the parties, Client retains all rights, title and interest in and to Client Data. Subject to the terms of this Agreement, Client hereby grants to CommunityCX throughout the Term of this Agreement, and after the Term as necessary for any of CommunityCX’s post-termination obligations, the rights to use, reproduce, store, distribute, modify, publicly display and perform, cache, and transmit Client Data to the extent necessary to provide the Services or any portion thereof.

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  1. Feedback. If Client provides CommunityCX with any comments, suggestions, ideas or other feedback concerning the features, functionality or performance of the Services (including identifying potential errors and improvements), Client hereby assigns to CommunityCX all right, title, and interest in and to such feedback,.CommunityCX is free to use the feedback without payment or restriction.

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  1. Publicity. Client and CommunityCX each may refer generally to the existence of this Agreement and use the other's name in press releases, on web sites, and other promotional material, but will not reveal any specific terms of this Agreement or the other the party’s Confidential Information. In addition, Client agrees, upon satisfaction with results of the Services provided by CommunityCX, to participate in occasional case studies or “white papers” with CommunityCX. 

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  1. Fees and Payment
  1. Fees. Client shall pay to CommunityCX the fees specified in the Services Order in accordance with the payment terms specified in Section 6.2. The fees are exclusive of all applicable sales, use, value-added and other taxes, or other similar charges, and Client will be responsible for payment of all such taxes (other than taxes based on CommunityCX’s income), and any related penalties and interest, arising from the payment of the fees or the access or use of the Software by Client, or performance of any services by CommunityCX. 

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  1. Terms of Payment. During the Term, CommunityCX will invoice Client as stated in the Services Order. Invoices are due and payable to CommunityCX within thirty (30) days of Client’s receipt of the invoice. Any invoiced amount not paid by Client when due shall bear interest from the due date to the date of payment, at the rate of 1% per month (or the maximum rate allowed by law, whichever is lower). Additionally, Client is responsible for all reasonable costs, including attorneys’ fees and costs, associated with CommunityCX’s collection of past due amounts. In addition, CommunityCX reserves the right to suspend any or all Services for which invoices are past due. 

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  1. Term and Termination
  1. Term. Unless terminated earlier in accordance with the terms of this Agreement, the term of Agreement will begin on the Effective Date stated in the Services Order and continue for the Service Period set forth in the Services Order (“Term”). 

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  1. Termination for Cause. Either party may terminate the Agreement by giving written notice to the other party if such other party materially breaches this Agreement, such termination to be effective (a) thirty-one (31) day following the date on such notice, if the breach, is capable of being cured, and is not cured within thirty (30) days following the date on such notice or (b) immediately, if the breach is not capable of cure.

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  1. Termination for Insolvency. Either party may terminate the Agreement, effective on written notice to the other party, if the other party takes any corporate action to dissolve, liquidate or wind-up its business, makes a general assignment for the benefit of its creditors, or proceedings or a case are commenced in any court of competent jurisdiction by or against such party seeking (a) such party’s reorganization, liquidation, dissolution, arrangement or winding-up, or the composition or readjustment of its debts, (b) the appointment of a receiver or trustee for or over such party’s property, or (c) similar relief in respect of such party under any law relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debt, and such proceedings or case will continue undismissed, or an order with respect to the foregoing will be entered and continue unstayed, for a period of more than thirty (30) days.

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  1. Effects of Termination. Upon expiration or termination of the Agreement for any reason, (a) each party shall cease using, and destroy, any and all information or materials supplied by the other party pursuant to the Agreement, and all copies thereof in such party’s possession or control, including the Documentation and Client Data, as applicable and (b) all fees due CommunityCX under the terms of the Agreement shall be immediately due and payable. The parties’ respective rights and obligations under Sections 1, 2.3, 3.2, 4-12, and 15 of this Master Services Agreement, together with all other provisions that may reasonably be construed to survive, will survive the expiration or termination of this Agreement for any reason. 

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  1. Confidential Information
  1. “Confidential Information” means nonpublic information disclosed under this Agreement by either party or its agents (as applicable, such entities collectively, the “Disclosing Party”) to the other party or its agents (collectively, the “Receiving Party”) that is designated as confidential or that the Receiving Party knows or should have known, under the circumstances, should be considered confidential.  CommunityCX’s Confidential Information includes, without limitation, (a) the Software, (b) the Documentation, (c) Client’s username, and (d) the fees. 

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  1. Each party will: (a) not disclose to any third party or cause to be disclosed any of the other party's Confidential Information expect as needed to perform the Services or as authorized in writing by the other party; (b) refrain from using the other party's Confidential Information except as authorized under the Agreement; and (c) preserve and protect the confidentiality of the other party's Confidential Information with the same degree of care it uses to protect its own Confidential Information, but in no event less than reasonable care. 

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  1. Confidential Information does not include Client Content, User Information or information that is: (a) publicly available through no fault of the Receiving Party; (b) otherwise known to the receiving party through no wrongful conduct of the Receiving Party; (c) disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; or (d) independently developed by the receiving party without access to, or use of, the Disclosing Party’s Confidential Information.

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  1. If the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party without violating Section 8.2 to the extent that such Confidential Information is required to be disclosed by law or court order. However, that the Receiving Party shall first give the Disclosing Party prompt notice of such legal obligation so that the Disclosing Party may take appropriate actions to protect its rights, including seeking a protective order or other appropriate remedy. 

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  1. Except as may be required by law, upon the written request of the Disclosing Party or the expiration or termination of the Agreement, whichever comes first, the Receiving Party will either, at its option, return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control promptly. At the Disclosing Party’s request, the Receiving Party will certify in writing signed by an officer of the receiving party that it has fully complied with its obligations under this Section 8.5.

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  1. CommunityCX Indemnification
  1. CommunityCX will defend at its own expense any action against Client brought by a third party to the extent that the action is based upon a claim that the Software infringes any copyrights or misappropriates any trade secrets of such third party, and CommunityCX will pay those costs and damages finally awarded against Client in any such action that are specifically attributable to such claim or those costs and damages agreed to by CommunityCX in a monetary settlement of such action. The foregoing obligations are conditioned on Client notifying CommunityCX promptly in writing of such action, giving CommunityCX sole control of the defense thereof and any related settlement negotiations, and cooperating and, at CommunityCX’s reasonable request and expense, assisting in such defense. If the Software becomes, or in CommunityCX’s opinion is likely to become, the subject of an infringement claim, CommunityCX may, at its option and expense, either (a) procure for Client the right to continue exercising the rights licensed hereunder; (b) replace or modify the Software so that it becomes non-infringing; or (c) refund to Client any fees paid in advance by Client for any unused portion of the then-current term of the Agreement, whereupon CommunityCX may terminate this Agreement upon written notice to Client. 

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  1. Notwithstanding the foregoing, CommunityCX will have no obligation under this Section or otherwise with respect to any infringement or misappropriation claim  (a) that is pending or threatened against Client as of the Effective Date, (b) based upon any modification of the Software by any person other than CommunityCX, (c) based upon the use, operation, or combination of the Software with any technology or other item not provided by CommunityCX, if the claim would have been avoided by the use of the Software without such  technology or other item, or (d) based upon Client Data or User Information. This Section 9 states CommunityCX’s entire liability and Client’s sole and exclusive remedy for infringement and misappropriation claims and actions. 

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  1. Client Indemnification
  1. Client will indemnify, defend and hold harmless CommunityCX and its affiliates (including parent and subsidiary companies) and their directors, officers, employees and agents (each, an “CCL Party”) from and against all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or in connection with (a) Client’s breach of Section 4 or (b) Client or User’s use of the Services. CommunityCX will have the right to approve the counsel selected by Client for defense of any such claim, which approval will not be unreasonably withheld or delayed. CommunityCX will provide Client prompt written notice of any such claim, however, a delay in such notification will not affect Client’s obligations in this Section except to the extent that such delay prejudices Licensee’s ability to defend such claim. Further, CommunityCX will provide Client such information and assistance as Client may reasonably request to help Client defend such claims, provided that Client pays or reimburses all of the costs and expenses reasonably incurred by the CCL Parties in connection with any such requested assistance. Client will not acquiesce to any settlement or judgment without CommunityCX’s written consent, which consent will not be unreasonably withheld or delayed

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  1. Disclaimer
  1. OTHER THAN AS SET FORTH IN THIS MASTER SERVICES AGREEMENT, CommunityCX MAKES NO WARRANTIES WHATSOEVER, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH REGARD TO THIS AGREEMENT OR THE SOFTWARE OR SERVICES, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. CommunityCX DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OF THEIR USE WILL BE CORRECT, ACCURATE, OR RELIABLE. ADDITIONALLY, CommunityCX DOES NOT PROVIDE LEGAL ADVICE ON CLIENT’S OBLIGATION TO ENSURE THAT ALL ITS USES OF THE SERVICE ARE IN COMPLIANCE WITH APPLICABLE LAWS, INCLUDING THE TCPA. CLIENT ACKNOWLEDGES THAT IT HAS RELIED ON NO SUCH WARRANTIES OR REPRESENTATIONS AND THAT NO SUCH WARRANTIES OR REPRESENTATIONS ARE MADE BY CommunityCX OR ITS AGENTS. 

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  1. Limitation of Liability
  1. IN NO EVENT SHALL CommunityCX BE LIABLE, UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY, FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSS OF OR DAMAGE TO DATA, COST OF COVER, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS, ARISING FROM OR IN CONNECTION WITH THE AGREEMENT OR CommunityCX’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE, IN WHOLE OR IN PART, THE SOFTWARE OR SERVICES PROVIDED BY CommunityCX, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CommunityCX’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR IN CONNECTION WITH THE AGREEMENT AND THE SOFTWARE AND SERVICES PROVIDED BY CommunityCX, UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY, EXCEED THE TOTAL FEES ACTUALLY PAID TO CommunityCX BY CLIENT UNDER THE AGREEMENT IN THE TWELVE (12) MONTH IMMEDIATELY PRECEDING THE DATE THE FIRST CLAIM GIVING RISE TO THE LIABILITY AROSE. CLIENT AGREES THAT CommunityCX’S SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THE AGREEMENT. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES SET FORTH IN THIS AGREEMENT.

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  1. Force Majeure 
  1. Neither party shall be responsible for any default or delay in its performance of its obligations under this Agreement if such default or delay is due to labor disputes, shortage of materials, supplier interruptions, fire, earthquake, flood, epidemics (including communicable disease outbreaks and public health emergencies) or any other cause beyond its reasonable control, except payments by Client to CommunityCX that are due pursuant to the terms of the Agreement.

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  1. Notices
  1. Any notice or other communication required or permitted under this Agreement shall be given in writing and sent to the other party at its address or email address at it appears in the Services Order, or to such other address or email address of which notice is given in the same manner. For purposes of this Agreement, a written notice will be deemed to include email. 

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  1. Miscellaneous 
  1. Client may not assign, delegate or otherwise transfer the Agreement or any of its rights or obligations hereunder to a third party without the written consent of CommunityCX, except to a successor by virtue of merger, consolidation or other corporate reorganization. Any such attempted assignment, delegation, or transfer in violation of the forgoing shall be null and void. CommunityCX may freely assign or delegate this Agreement or its rights and obligations hereunder without Client’s consent. 

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  1. Any waiver, amendment or modification of any provision of the Agreement must be in writing and executed by both parties. The failure of either party to exercise any right provided for by the Agreement shall not be deemed a waiver of that right. Each party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party’s obligations have been duly authorized, and that the Agreement is a valid and legal agreement binding on the party and enforceable according to its terms. 

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  1. The Agreement shall be interpreted , construed, and enforced in all respects in accordance with, the laws of the State of California, without reference to its choice of law principles. Neither party will commence or prosecute any action, suit, proceeding or claim arising under or by reason of this Agreement other than in the state or federal courts located in San Mateo County, California. Each party irrevocably consents to the jurisdiction and venue of the courts identified in the preceding sentence in connection with any action, suit, proceeding or claim arising under or by reason of this Agreement. If any term or provision of the Agreement is determined to be illegal, unenforceable, or invalid, that term or provision shall be stricken from the Agreement and shall not affect the legality, enforceability or validity of the remainder of the Agreement. 

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  1. The parties acknowledge and agree that they are dealing with each other as independent contractors. Nothing in the Agreement and its performance shall be construed as creating a joint venture or agency between CommunityCX and Client. The Agreement, including the Services Order, constitute the entire agreement between the parties regarding this subject matter and supersedes all prior oral or written agreements or communications with regard to the subject matter described. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”

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