Terms and Conditions
Last Updated: December 9, 2022
Grant of License
Subject to and conditioned on Customer’s payment of Fees and compliance with all terms and conditions of this Agreement, Speak4 hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right to access and use the Services during the term, solely for use by Customer in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use.
Term and Termination
a. The initial term will commence when Customer signs up for the Services and will continue for one (1) year thereafter (“Initial Term”). Unless explicitly stated otherwise, following the expiry of the Initial Term, the Services will automatically renew for successive one (1) year increments (“Renewal Term”) unless you provide thirty (30) day notice of non-renewal. The Renewal Term and Initial Term collectively are the “Term.”
b. This Agreement is effective for as long as you access the Services. Speak4 accepts the unaltered terms of this Agreement by supplying the Agreement to you. This Agreement will continue for as long Speak4 permits you to use the Services. Speak4 may suspend and/or terminate your access at any time upon notice to you if Speak4 determines that you have breached the terms of this Agreement. Speak4 reserves the right to suspend and/or terminate your access to the Services or this Agreement for any or no reason, without notice, at any time, and without any liability to you. Notwithstanding the immediately foregoing sentence, if Speak4 terminates this Agreement for convenience and you have paid in advance for the license/access to the Services, Speak4 shall refund a pro rata refund of the fees previously paid, which will be calculated based on the unexpired license and access term. In the event of any termination hereunder, all licenses and other rights granted to you will immediately terminate or otherwise cease and you shall cease using the Services, permanently delete or destroy all portions of the Services within your possession, custody or control, and, upon written request from Speak4, certify, in writing, your compliance with this provision. In the event of any suspension hereunder, you shall immediately cease using any the Services until notified by Speak4 that such suspension has been lifted. Upon expiration or termination of the license, Customer agrees to (a) return to Speak4 all copies of Speak4 IP (defined below), and (b) delete from all computer systems all copies of such Speak4 IP.
c. Speak4 may also terminate the license immediately if Speak4 determines that (a) there is a threat or attack on any of the Speak4 IP; (b) Customer’s use of the Speak4 IP disrupts or poses a security risk to the Speak4 IP or to any other customer or vendor of Speak4; (c) Customer is using the Speak4 IP for fraudulent or illegal activities; (d) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (e) Speak4’s provision of the Services to Customer is prohibited by applicable law.
d. If Customer cancels the Services prior to the expiration of the Term, then Customer must immediately pay the remaining fees under the unexpired Term within ten (10) days of cancellation.
Fees and Payment
a. Customer shall pay Speak4 fees (“Fees”) as agreed to in the relevant purchase order or contract, without offset or deduction, to have access to the Services. Customer shall make all payments hereunder in US dollars. All Fees shall be non-refundable. Invoices are due upon receipt. In the event Speak4 is unable to collect the fees owed to Speak4 for the Services, Speak4 may take any other steps it deems necessary to collect such fees from you and that you will be responsible for all costs and expenses incurred by Speak4 in connection with such collection activity, including collection fees, court costs and attorneys’ fees. You further agree that Speak4 may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due, or may immediately cease your access to the Services.
b. Fees are subject to adjustment at any time for new Customers at Speak4’s sole discretion. Adjusted Fees are effective for current Customers at the commencement of the following Renewal Term and Speak4 shall provide sixty (60) day notice of adjusted Fees before the commencement of the following Renewal Term. If Customer fails to object to such Fee adjustment in writing prior to the commencement of the following Renewal Term in accordance with Section 2 above, then Customer will be deemed to have agreed to the Fee adjustment.
Ownership of Services
- Customer acknowledges that, as between Customer and Speak4, Speak4 owns all right, title, and interest, including all intellectual property rights, in and to the Speak4 IP. “Speak4 IP” means the Services, any documentation, and any and all intellectual property provided to Customer in connection with the foregoing. For the avoidance of doubt, Speak4 IP includes any information, data, or other content derived from Speak4’s monitoring of Customer’s access to or use of the Services.
- The Parties do not intend to jointly create any intellectual property pursuant to this Agreement; if any such intellectual property is inadvertently jointly developed, it shall be the sole property of Speak4, including any intellectual property rights therein. As requested by Speak4, Customer agrees to execute any documents related to these intellectual property rights.
- If Customer is ever held or deemed to be the owner of any copyright rights in the Speak4 IP, then Customer hereby irrevocably assigns to Speak4 all such rights, title and interest and agrees to execute all documents necessary to implement and confirm the letter and intent of this Section.
- If Customer or any of its employees or contractors sends or transmits any communications or materials to Speak4 by mail, email, telephone, or otherwise, suggesting or recommending changes to the Speak4 IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Speak4 is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Speak4 on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Speak4 is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Speak4 is not required to use any Feedback.
- Customer is solely liable and responsible (and Speak4 has no liability or responsibility to you or Customer or any third-party) for obtaining and maintaining, at Customer’s own expense, all computer hardware, software, communication equipment, access lines and such other equipment necessary to access and utilize the Services.
- Customer’s use of the Services will be in accordance with all applicable laws, and Customer shall not use the Services in any way that might expose Speak4 to any liability of any kind. Where Customer uses the Services in connection with other platforms, including, without limitation, social media platforms, Customer agrees to comply with all applicable rules and policies, including, without limitation, the Facebook Platform Terms (https://developers.facebook.com/terms/).
- Customer shall not use the Services in any manner that: is illegal, immoral, false, misleading, harmful, unauthorized, infringing, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, offensive, hateful, or racially, ethnically or otherwise inappropriate or objectionable, all as determined by Speak4 in our sole discretion; is designed to interrupt, destroy or limit the functionality of, any computer software or hardware or telecommunications equipment (including by means of software viruses or any other computer code, files or programs); interferes with or disrupts the Services, services connected to the Services, or otherwise interferes with operations or services of the Services in any way; infringes any copyright, trademark, trade secret, patent or other right of any party, or defames or invades the publicity rights or the privacy of any person, living or deceased (or impersonates any such person); consists of any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; causes Speak4 to lose (in whole or in part) the services of our Internet service providers or other suppliers; links to materials or other content, directly or indirectly, to which you do not have a right to link; copies, modifies, creates a derivative work of, reverse engineers, decompiles or otherwise attempts to extract the source code of the software underlying the Services or any portion thereof; violates, or encourages anyone to violate the Agreement; violates, or encourages to violate, any applicable local, state, national, or international law, regulation, or order; or exposes Speak4 to any liability of any kind.
- Customer agrees to receive updates (e.g., bug fixes, enhanced functions, etc.), and permits Speak4 to deliver updates, as part of its use of the Services.
- Customer is solely liable and responsible (and Speak4 has no liability or responsibility to Customer or any third-party) for any information, data, reports, settings, or surveys Customer creates or inputs, or adds or exports into or from the Services (collectively, the “User Data”). It is Customer’s sole responsibility to manage, maintain and make back-up copies of such User Data. Customer acknowledges and agrees that, upon termination of Customer’s access to the Services, Customer will no longer have access to any data available through the Services, which includes, without limitation, all User Data. If Customer submits User Data in connection with the Services, Customer represents warrant, and covenants that: (i) Customer owns all intellectual property rights in the User Data; (ii) Customer has the right to publish all of the User Data; (iii) the posting and use of the User Data in connection with the Services does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iv) Customer agrees to pay for all royalties, fees, and any other monies owed by reason of User Data you post on or through the Services. In addition, Customer represents, warrants, and covenants that its activities with respect to the Services and the User Data are lawful in every jurisdiction where it accesses or uses the Services and submits any User Data.
a. Acknowledgment of Trade Secrets. Customer acknowledges that the Services contains valuable trade secrets and confidential information owned by Speak4, including but not limited to the development status of the Services, the functionality of the Services, the appearance, content, flow, look and feel of the Services screens, the method and pattern of user interaction with the Services, and the content of the Services documentation.
b. Confidential Information. Any and all information pertaining to Speak4’s business, including but not limited to, all information, data, concepts, drawings, documents, proposals, specifications and works, Services, as well as samples, specimens, copyright, patent and/or trademark applications or registrations, trade secrets, know-how, and all proprietary information relating to development, testing, creating and/or commercializing products or Services of Speak4, is considered confidential and proprietary to Speak4 (the “Confidential Information”). Confidential Information as used herein shall also include any and all information discussed between Speak4 and Customer. Customer hereby agrees not to use or disclose to others, either directly or through any third party, Confidential Information, regardless of the manner in which the Confidential Information was communicated to or received by Customer, whether oral, written, digital or otherwise, and regardless of whether the Confidential Information was marked as confidential or proprietary.
Any and all Confidential Information disclosed by Speak4 to Customer is proprietary to, the exclusive property of and owned in full by Speak4. Customer hereby agrees not to use, either directly or through any third party, said information in any manner. Customer shall not attempt to reverse engineer, decompile, disassemble or in any way attempt to duplicate, either directly or through a third party, the Confidential Information. Customer shall not design, create or otherwise replicate, or cause to be designed, created or otherwise replicated, either directly or through any third party, commercial products or Services substantially similar to the products or Services of Speak4, or the products or Services under development by Speak4 or any way relates to Confidential Information.
c. Restrictions. Customer agrees that Customer and its employees shall not, directly or indirectly, (i) sell, lease, assign, sublicense or otherwise transfer, (ii) duplicate, reproduce or copy (except to make one backup copy), (iii) disclose, divulge or otherwise make available to any third party, (iv) use except as authorized by this Agreement, or (v) decompile, disassemble or otherwise analyze for reverse engineering purposes, the Services, including all trade secrets and Confidential Information therein. Customer shall take all reasonable precautions to prevent inadvertent disclosure of the Services, including all trade secrets and confidential information therein.
d. No Disclosure to Third Parties. Without in any way limiting Subsections 6.b and 6.c, Customer specifically acknowledges and agrees that it shall not permit any third party, nor any employee, representative or agent thereof, that develops, markets or licenses computer programs with functionality similar to the functionality of the Services to have access to the Services or to any trade secrets and Confidential Information therein.
Dispute Resolution and Agreement to Arbitrate
a. By using the Services, you and Speak4 agree that, if there is any controversy, claim, action, or dispute arising out of or related to your use of the Services or the breach, enforcement, interpretation, or validity of this Agreement or any part of them, except for disputes that qualify for small claims court or those related to either party’s intellectual property (“Dispute”), both Parties shall first try in good faith to settle such Dispute by providing written notice to the other party describing the facts and circumstances of the Dispute and allowing the receiving party thirty (30) days in which to respond to or settle the Dispute. Notice shall be sent to:
- Us, at 3001 Washington Blvd, 7th Floor, Arlington, VA 22201 or
- You, at the address we have on file for you.
b. Both you and Speak4 agree that this dispute resolution procedure is a condition precedent that must be satisfied before initiating any litigation or filing any claim against the other party. IF ANY DISPUTE CANNOT BE RESOLVED BY THE ABOVE DISPUTE RESOLUTION PROCEDURE, YOU AGREE THAT THE SOLE AND EXCLUSIVE JURISDICTION FOR SUCH DISPUTE WILL BE DECIDED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY. Other rights that you and we would otherwise have in court will not be available or will be more limited in arbitration, including discovery and appeal rights. All such disputes shall be exclusively submitted to JAMS (www.jamsadr.com) for binding arbitration under its rules then in effect, before one arbitrator to be mutually agreed upon by both Parties, in the Arlington, Virginia area.
c. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising under or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable.
d. Notwithstanding anything to the contrary in the Agreement, the arbitration shall be conducted in compliance with JAMS’ Consumer Arbitration Minimum Standards (www.jamsadr.com/consumer-minimum-standards) (“Minimum Standards”) if the Minimum Standards are deemed by JAMS or the arbitrator to be applicable to the Dispute.
Choice of Law and Choice of Forum
a. This Agreement has been made in and shall be construed in accordance with the laws of the United States (including federal arbitration law) and the state of Virginia, without giving effect to any conflict of laws principles. Except for disputes or claims properly lodged in a small claims court in the United States, any disputes or claims not subject to the arbitration provision discussed above shall be resolved by a court located in Virginia and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.
b. You and Speak4 acknowledge that this Agreement evidence a transaction involving interstate commerce. Any arbitration conducted pursuant to this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).No Warranty.
SPEAK4 DISCLAIMS IMPLIED WARRANTIES THAT THE SERVICES AND ALL SOFTWARE, CONTENT AND SERVICES, INFORMATION DISTRIBUTED THROUGH THE SERVICES ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, TIMELY, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SPEAK4 OR A REPRESENTATIVE SHALL CREATE A WARRANTY. WE DO NOT GUARANTEE THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THEY ARE ERROR-FREE, RELIABLE, WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SERVICES, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, OR FREE OF HARMFUL CODE, OR AVAILABLE AT ALL TIMES. WE DO NOT GUARANTEE THAT THE SERVICES THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, INCLUDING ANY SUPPORT SERVICES, WILL BE EFFECTIVE, RELIABLE, AND ACCURATE OR MEET YOUR REQUIREMENTS. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES (EITHER DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT ALL TIMES OR LOCATIONS OF YOUR CHOOSING. FURTHER, SPEAK4 DOES NOT ENDORSE AND MAKES NO WARRANTY REGARDING THE ACCURACY OR RELIABILITY OF ANY OPINION, INFORMATION, ADVICE OR STATEMENT ON THE SERVICES. UNDER NO CIRCUMSTANCES WILL SPEAK4 BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE CONTENT ON THE SERVICES. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION, OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SERVICES. PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC INFORMATION, OPINION, ADVICE OR OTHER CONTENT ON THE SERVICES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
Limitation of Liability
CUSTOMER AGREES TO BE RESPONSIBLE FOR ANY AND ALL LIABILITIES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES, FINES, AND COSTS OF ENFORCEMENT) ARISING FROM OR RELATED TO CUSTOMER’S BREACH, ACTS, OR OMISSIONS UNDER THIS AGREEMENT. IN NO EVENT SHALL SPEAK4 BE LIABLE TO ANYONE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), INCLUDING BUT NOT LIMITED TO DIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, COLLATERAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, THE RESULTS OF USE, OR THE INABILITY TO USE THE SERVICES, EVEN IF SPEAK4 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.SPEAK4 SHALL HAVE NO OBLIGATION UNDER THIS AGREEMENT TO CORRECT ANY BUGS, DEFECTS OR ERRORS IN THE SERVICES OR TO OTHERWISE SUPPORT OR MAINTAIN THE SERVICES. CUSTOMER AGREES THAT IT SHALL HAVE THE SOLE RESPONSIBILITY FOR PROTECTING ITS DATA USED IN CONNECTION WITH THE SERVICES. UPON CUSTOMER’S BREACH OF ANY TERM OF THIS AGREEMENT, SPEAK4’S REMEDIES SHALL INCLUDE ANY DAMAGES AND RELIEF AVAILABLE AT LAW OR IN EQUITY AGAINST CUSTOMER AS WELL AS INTERRUPTION OR TERMINATION OF ACCESS TO THE SERVICES AND PERMANENT DELETION OR DESTRUCTION OF ALL PORTIONS OF THE SERVICES WITHIN CUSTOMER’S POSSESSION, CUSTODY OR CONTROL. IF SPEAK4 RETAINS ANY THIRD PARTY TO OBTAIN ANY REMEDY TO WHICH IT IS ENTITLED UNDER THIS AGREEMENT, SPEAK4 SHALL BE ENTITLED TO RECOVER FROM CUSTOMER ALL COSTS AND EXPENSES, INCLUDING ATTORNEY’S FEES OR COLLECTION AGENCY COMMISSIONS, INCURRED. CUSTOMER IS NOT RESPONSIBLE FOR ACTS OR OMISSIONS OF ANY OTHER CUSTOMERS UNLESS SUCH ACTS OR OMISSIONS ARE ATTRIBUTABLE IN ANY WAY TO CUSTOMER’S ACTS OR OMISSIONS.THE LIMITATION OF LIABILTY CONTAINED IN THIS AGREEMENT IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN SPEAK4 AND CUSTOMER. THE SERVICES WOULD NOT BE PROVIDED TO CUSTOMER WITHOUT SUCH LIMITATIONS. In addition, when using the Services, information will be transmitted over a medium which is beyond the control and jurisdiction of Speak4, its partners, advertisers, and sponsors or any other third party mentioned on the Services. Accordingly, Speak4 assumes no liability for or relating to the delay, failure, interruption, or corruption of any data or other information transmitted in connection with use of the Services. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
The Customer agrees to indemnify, defend, and hold harmless Speak4, and its current and future affiliates and its respective equity holders, directors, officers, affiliates, employees, agents, advisors, and representatives, and the successors and assigns of each of the foregoing (collectively and individually, a “Speak4 Party”) from and against any and all liabilities, losses, obligations, damages, costs, and expenses (including reasonable attorneys’ fees and expenses) incurred by any Speak4 Party as a result of any claim, action, or proceeding brought by a third party (including Speak4 suppliers/licensors) arising out of or relating to User Data (including but not limited to any loss thereof), your use of, or acts or omissions related to, the Services, or your breach of the Agreement, negligence or willful misconduct
- Independent Parties. Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, agent or employment relationship between Speak4 and Customer.
- No Assignment. Customer may not assign or otherwise transfer in any way any of the rights or obligations arising out of this Agreement without the prior written consent of Speak4. Speak4 may assign, delegate and otherwise transfer this Agreement or Speak4’s rights and obligations to any entity. This Agreement is binding upon and will inure to the benefit of the Parties and their respective successors and permitted assigns.
- Entire Agreement. This Agreement constitutes the entire and only agreement between the Parties for Services and all other prior negotiations, representations, agreements, and understandings are superseded hereby. No agreements altering or supplementing the terms hereof may be made except by means of a written document signed by the duly authorized representatives of the Parties. Speak4 may make changes to this Agreement from time to time. Customer understands and agrees that if it uses the Services after the Agreement has changed, Speak4 will treat Customer’s use as acceptance by Customer of the updated Agreement. The term this “Agreement” shall mean this Agreement, and this Agreement as modified by any changes by Speak4 to this Agreement.
- Compliance with Laws. Customer shall comply with all applicable federal, state and local laws, regulations, and ordinances in connection with its activities pursuant to this Agreement.
- Enforcement/Waivers. Our failure to act with respect to a breach by you or others of this Agreement does not waive our right to act with respect to a subsequent or similar breach or breaches. Failure of Speak4 to enforce a right under this Agreement shall not act as a waiver of that right or the ability to later assert that right relative to the particular situation involved.
- Severability. If any provision of this Agreement shall be found by a court to be void, invalid or unenforceable, the same shall be reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or enforceability of this Agreement.
- Survival. The terms of this Agreement that by their nature should survive shall survive termination of this Agreement, including the terms of the proprietary rights, no warranty, limitation of liability, indemnification, governing law and arbitration, and General sections.
- Headings. The section headings used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.
YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE ON BEHALF OF YOURSELF AND THE CUSTOMER TO BE BOUND BY ITS TERMS.