In this Agreement, the following terms shall have the following meanings:
1.1B “Agreement” means these Terms and Conditions of Use; any Orders and the Support Policies;
1.1A “Collab” means COLLAB – SOLUÇÕES INFORMÁTICAS DE COMUNICAÇÃO E COLABORAÇÃO S.A., VAT number 503476749 Portugal, headquartered at Av. D. João II, Lote 1.03.2.3, Parque das Nações, Lisboa, Portugal.
1.1 “Customer” means any company/ies or individual/s accessing and subscribing to the NUBITALK© Service in accordance with this Agreement.
1.2 “Customer Software” means a software component provided or used by the Customer with or through the NUBITALK© Service, if any.
1.3 “Confidential Information” has the meaning set forth in Section 12.
1.4. “Customer Data” means all electronic data or information that Customer processes through the NUBITALK© Service, including without limitation, voice recordings and voice prompts.
1.4A ““Data Protection Legislation” means the Data Protection Directive (95/46/EC) and all local implementing legislation, and all other applicable Laws and regulations relating to the processing of personal data and privacy including, where applicable, the guidance and codes of practice issued by the relevant data protection authorities;
1.5. “Documentation” means NUBITALK© user manuals and/or training materials provided to Customer electronically or physically as updated from time to time.
1.6. “Downtime” means the amount of time within which NUBITALK© Service is not available and no useful work can be performed.
1.6A “Effective Date” means the same as “Effective Service Date” as defined in 1.7.
1.7. “Effective Service Date” means, with respect to NUBITALK© Service the date from which a Customer is granted access to the NUBITALK© Service under this Agreement.
1.7A “Fees” means any subscription fee, setup fee, professional service fee and/or any such other fees as may be set out in the Order;
1.8. “Intellectual Property” means all intellectual property, including any and all rights inherent to NUBITALK © Service and the components thereof (hardware, software, architecture, design of Service) any other Collab inventions, patents, copyrights, trademarks, service marks, trade names, trade secrets, know-how, moral rights, licenses, database rights, design rights and any other intangible proprietary or property rights, whether registered or not, under statute or common law.
1.9. “Order” means a digital Purchase Order form to be filled in by the Customer with the elements and information required by the digital purchase ordering process installed at the NUBITALK© website whereby Customers purchase a variable number of goods and/or services available for purchase at the NUBITALK © website (and “Order”/”Ordered” used as a verb shall refer to the placing of an Order).
These Terms and Conditions of Use shall apply to any and all Orders.
An Order is binding when submitted to Collab and the purchase of Subscriptions is not contingent on the delivery of any future functionality or features nor on the providing of any oral or written public representations and/or warranties made by Collab with respect to NUBITALK © Service.
1.10. “Ordered licenses” means the number of NUBITALK © licenses purchased and paid for by a Customer through an Order generated at the NUBITALK © website.
1.11. “Subscription” means a non-exclusive, non-transferable, non-sub- licensable right to access and use certain NUBITALK© Service for Customer’s internal business operations for the maximum number of Ordered licenses specified in the Order, subject to increases as described in Section 3.2.
1.12. “Subscription Term” means the Subscription period commencing on the Effective Service Date and continuing for the term specified on the applicable Order.
1.13. “Support Policies” means the support policies as amended and in force from time to time are available for consultation and download at www.nubitalk.com.
1.13A “Trial Subscription” means the licenses provided by Nubitalk for free at the time of customer registration for the duration of trial term as defined in 1.13B.
1.13B “Trial Term” means the term specified in the Order as indicated on the NUBITALK © at the time of the “Effective Service Date”.
1.14. “Uptime” means the period within which NUBITALK© Service is available for use by Customer. Uptime does not include the proper functioning of scripts or other files installed by Customer, the proper functioning of Customer’s web servers, software, or services or third-party Internet connectivity between NUBITALK © data centers and Customer’s network.
1.15. “User” means Customer’s employees, consultants, contractors or agents who are authorized to use the NUBITALK© Service concurrently with other Users and have been supplied user identifications and passwords by Customer (or by Collab at Customer’s request). The number of authorized users is the same as the number of “Ordered Licenses”.
1.16. “NUBITALK© Service” means online, Web-based access to the service specified in an Order provided by Collab via http://www.NUBITALK.com or other designated websites and any additional services specified in the Order.
1.17. “NUBITALK© Website” means http://www.NUBITALK.com or any successor website.
2. TRIAL SUBSCRIPTION
2.1 If Customer registers on the NUBITALK© Website for a trial subscription, this Section 2 applies. Customer may only use NUBITALK© Service for internal evaluation purposes during the Trial Term, and by no more than the number of Users permitted by Collab. Customer may convert the Trial Subscription rights to full Subscription rights during the Trial Term by submitting an Order. If Customer does not convert, NUBITALK© Service will not be available after the end of the Trial Period.
2.2. This Agreement shall apply to the Trial Subscription throughout the Trial Term and, where applicable, thereafter as provided for herein
3. LIMITED WARRANTY
3.1. NUBITALK© SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE". EXCEPT AS EXPRESSLY STATED OTHERWISE IN THIS AGREEMENT COLLAB, ITS AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND/OR GUARANTEES FOR NUBITALK © SERVICE, ITS USE, SUFFICIENCY, AND/OR QUALITY, ACCURACY OR COMPLETENESS, PERFORMANCE, RELIABILITY AND/OR ANY OTHER EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY FOR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, WARRANTY OF NON-INFRINGEMENT OR WARRANTY THAT OPERATION OF THE NUBITALK© SERVICE WILL BE UNINTERRUPTED, CONTINUED OR ERROR FREE OR THAT CUSTOMER'S WILL BE ABLE TO USE, OPERATE AND/OR OBTAIN A CERTAIN LEVEL OF PERFORMANCE OR SATISFACTION WITH THE NUBITALK© SERVICE. NUBITALK© SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INCLUDING BUT NOT LIMITED TO THOSE INHERENT, PERTAINING OR ARISING FROM EQUIPMENT, NETWORKS, CONNECTIVITY, RADIO, ELECTRICAL OR ELECTRONIC INTERFERENCE, TELEPHONIC AND/OR ELECTRONIC COMMUNICATIONS AND/OR ANY OTHERS.
3.2 COLLAB SHALL NOT BE LIABLE FOR DELAYS, ERRORS, DOWNTIME (EXCEPT AS PROVIDED FOR IN SECTION 5.2), SERVICE INTERRUPTION, SERVICE PERFORMANCE, DELIVERY FAILURES, AND/OR ANY OTHER LOSS OR DAMAGE RESULTING FOR A CUSTOMER WHETHER DIRECTLY OR INDIRECTLY FROM THE USE OF THE NUBITALK © SERVICE, IF ANY.
3.3. COLLAB MAKES NO REPRESENTATION AND PROVIDES NO WARRANTY IN RELATION TO SUGGESTIONS MADE BY COLLAB FOR EQUIPMENT, ACCESSORIES AND/OR ANY OTHER MATERIALS, DEVICES OR ITEMS TO CONNECT, INTERCONNECT AND/OR ENHANCE OR CUSTOMISE BY ANY MEANS THE NUBITALK © SERVICE, EVEN IF MADE AS PROVIDED FOR IN SECTION 4. BELOW.
4. NUBITALK© SERVICE General Terms
4.1. Provision of NUBITALK © Service. Collab will make NUBITALK© Service available to Customer pursuant to this Agreement. During the Subscription Term, Collab shall use reasonable endeavours to maintain the NUBITALK© Service such that it will perform materially in accordance with the Documentation.
4..1A Subject to Section 4.1, Collab may amend, alter or adapt the NUBITALK© Service from time to time provided always that the functionality of the NUBITALK © Service shall not materially decrease.
4.2. Limited License. Upon Subscription and payment by the Customer of the Fees payable under this Agreement Collab grants to Customer a revocable, non-exclusive, non-sublicenseable, non-transferable, limited license for Customer to access and use the Customer Software and such Deliverables, in object code form, for the Subscription Term, according to its Subscription, the Documentation and this Agreement for the intended purposes of the NUBITALK © Service only.
4.3. License Restrictions. Customer undertakes to use the NUBITALK © Service only in accordance to this Agreement and shall refrain from any of the actions specified in Section 5.3 with respect to Customer Software or Deliverables. 4.4. Support. From the Effective Service Date onwards, subject to Customer complying with its obligations under this Agreement and the Support Policies, Collab will provide on-line and telephone support service for NUBITALK© Service during the Subscription Term in accordance with the Support Policies.
4.5 [Not Used].
4.6. Data Storage. NUBITALK© Service may include storage of voice recordings processed through NUBITALK© Service and other data relating to NUBITALK© Service and Customer’s use thereof as described in the Documentation. Collab will destroy the recordings at the end of the storage period specified on the Order, when the maximum storage is reached, or upon termination of this Agreement for any reason, whichever is earlier.
4.6.1. While using or in connection with its use of the NUBITALK© Service Customer will not use, send, disseminate, disclose, process and/or store in the NUBITALK © Service or through/via the NUBITALK © Service any confidential, proprietary, personal, identifiable, sensitive data or information of any parties including but not limited to payment card information, information on intellectual property, trade secrets or information on health, security or safety of any person or country and/or any other information that could be or lead to breach of the rights of any third parties or against any Laws (“SECRET DATA”) DATA other than in accordance with section 4.6.2.
4.6.2. Customer represents and warrants to Collab that whenever intending to access, use or process SECRET DATA through/via the NUBITALK © Service Customer will be in possession of any and all authorizations, licenses and/or authorizations and/or credentials (if any) and it will do so only in strict compliance with any and all Laws applicable to such SECRET DATA or its proprietors 4.6.3. Customer shall indemnify and have Collab indemnified for and against any and all losses, damages, expenses (including reasonable attorney’s fees) and liability arising out of claims by any parties in relation to SECRET DATA or parts thereof and/or in relation to any loss or damage arising from SECRET DATA or from the usage by any possible means of the SECRET DATA in/to/from/through/via the NUBITALK © Service.
4.7. COLLAB DISCLAIMS ANY AND ALL LIABILITIES AND WARRANTIES IN RESPECT OF SECRET DATA AND IN RELATION OR IN CONNECTION WITH THE ACCESS, MANAGEMENT, STORAGE AND/OR PROCESSING, LOSS, ADULTERATION AND/OR DESTRUCTION OF ANY SUCH SECRET DATA OTHER THAN IN ACCORDANCE WITH SECTION 4.6.2.
4.8. Equipment and Connectivity. Collab may suggest minimum technical specifications’ requirements of equipment generally available in the market for Customer to connect to NUBITALK© Service provided however that Collab’s suggestions are made on an “as is” basis without representations and/or warranties of any kind. Collab’ suggestions are not made and shall not be construed and/or interpreted by Customer or any recipients as a replacement or substitute of professional advice by adequately trained personnel of hardware manufacturers and/or specialists in the hardware industry, nor are they aimed at replacing the reading and verification of the manufacturer’s documentation and/or the user manuals accompanying any hardware equipment (as available and amended from time to time). CUSTOMER SHALL BE ENTIRELY FREE TO SOURCE THE EQUIPMENT TO CONNECT WITH NUBITALK © SERVICE AND SUCH WILL BE AT CUSTOMER’ OWN DIRECT AND SOLE RISK.
4.9. Telephone Numbers. Collab facilitates one inbound direct dial number for the Trial Subscription period. Customer may order additional numbers and such will be provided by Collab depending on availability. Collab maintains ownership of telephone numbers and reserves the right to change the number(s).
5. NUBITALK © SERVICE AVAILABILITY
5.1. Service Level Agreement (“SLA”). Estimated Uptime will be 24 hours a day, 7 days a week, excluding: (a) planned Downtime of which Collab will give at least 72 hours’ notice via the NUBITALK© Service and which Collab will schedule to the extent reasonably practicable on Saturdays from 1:00 AM Central European Time to 4:00 AM Central European Time, (b) any unavailability caused by circumstances beyond Collab’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, telecommunications, Internet service availability or hosting facility failures or delays involving hardware, software or power systems not within Collab’s possession or reasonable control, and network intrusions or denial of service attacks, (c) quality of service issues that cause minor or partial loss of functionality, intermittent problems or minor degradation of operations, such as audio noise or static on calls, intermittently slow network connectivity, or outbound calls occasionally failing to certain area codes due to PSTN congestion, or as otherwise outlined in the Support Policies, (d) Downtime caused by Customer’s use of NUBITALK© Service in violation of this Agreement, and (e) as otherwise defined in the Support Policies.
5.2. Downtime, SLA Credit. Collab will refund 1% of Customer’s monthly Subscription Fee for the month during which Downtime occurred for every whole minute of Downtime up to a maximum of 30% (thirty percent) of the monthly Subscription Fee only as a credit against future invoices (“SLA Credit”). Customer is not eligible to accrue SLA Credit for Downtime that occurs while Customer owes Collab any past due amounts, nor can SLA Credit be applied to invoices issued prior to the date Downtime occurred. Downtime begins when Customer opens a trouble ticket according to the Support Policies in effect and ends when NUBITALK© Service is again available. Customer must submit a request for an SLA Credit by opening a ticket in Collab’s Customer Care case management system.
5.3 SLA CREDIT IS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND COLLAB’S SOLE LIABILITY FOR INTERRUPTION, FAILURE, NON-PERFORMANCE AND/OR ANY OTHER ERRORS OR DEFECT OF NUBITALK© SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COLLAB MAKES NO FURTHER REFUNDS AND/OR REPAYMENT OF ANY MONEYS PAID BY CUSTOMERS IN CONNECTION WITH THE NUBITALK © SERVICE UNLESS IN CONNECTION WITH SLA AS PROVIDED FOR HEREIN.
6. CUSTOMER RESPONSIBILITIES
6.1. Customer Use. Customer is responsible for all activity occurring under Customer’s User accounts and for the manner in which it and its Users use NUBITALK© Service, including the policies and procedures it establishes to protect the security of its data, computer network and other facilities, its choice of equipment, software and online content. In addition, Customer will: (a) use NUBITALK© Service according to the Documentation; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the NUBITALK© Service; (c) notify Collab immediately by telephone and confirm by fax or email of any unauthorized access or use or any other known or suspected breach of security, including without limitation misappropriation or security breach of NUBITALK© Service login credentials, and use commercially reasonable efforts to immediately stop any unauthorized access, use, other security breach or violation of law known or suspected by Customer; (d) be responsible for custody and use of NUBITALK© Service login credentials.
6.2. Other Customer Responsibilities. Customer will (a) select, purchase and configure computer hardware, software, communication equipment and related services at Customer premises, including Internet service, voice and data service with sufficient quality and bandwidth to allow trouble free browsing, data upload, download and high quality voice transmission; (b) maintain its equipment to ensure connectivity to NUBITALK© Service; (c) resolve network issues and procure any required equipment modifications and upgrades necessary to support NUBITALK© Service during the Subscription Term; and (d) be responsible for all facilities, network, equipment and software on the internal side of the point at which the public telephone network ends and connects to Customer’s network.
6.3. Prohibitions. Customer will not and will not permit others to: (a) license, sublicense, sell, resell, rent or lease Documentation, Customer Software, or Deliverables, or use NUBITALK© Service, Customer Software, or Deliverables for use other than permitted pursuant to this Agreement including but not limited to any use for hosting or re-hosting as an application service provider or otherwise; (b) permit any third party to access or use NUBITALK© Service, Documentation, Customer Software, or Deliverables, except for Customer’s affiliates and contractors using NUBITALK© Service, Documentation, Customer Software, or Deliverables for Customer’s internal business operations, provided Customer (i) ensures its affiliates and contractors’ compliance with the terms of this Agreement and (ii) Customer is and remains directly liable for the acts and omissions of such affiliates and contractors; (c) transfer or use Customer Software or Deliverables to or in a country other than that to which Collab shipped or otherwise provided the NUBITAK © Service; (d) alter, derive, copy, modify or by any other possible means infringe or attempt to infringe Customer Software’s or Deliverables’ copyright or any other intellectual property rights inherent to NUBITALK© Service and its component parts; (e) copy, frame or mirror any part or content of NUBITALK© Service, other than copying or framing Customer’s own intranets or for Customer’s own internal business purposes; (f) reverse engineer or decompile NUBITALK© Service or Customer Software or any parts thereof; (f) access NUBITALK© Service or Customer Software in order to build a competitive product or service, or copy any features, functions or graphics of NUBITALK© Service or Customer Software (g) infringe Collab’s or its licensors’ Intellectual or Industrial Property; (h) use NUBITALK© Service to send spam or otherwise duplicative or unsolicited messages or store or transmit infringing, libelous, or otherwise unlawful or tortious material or transmit material in violation of third-party privacy rights; (i) use NUBITALK© Service to store or transmit viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs, interfere with or disrupt the integrity or performance of NUBITALK© Service or third-party data contained therein, or attempt to gain unauthorized access to NUBITALK© Service or their related systems or networks; or (j) upload, store, or transmit through NUBITALK© Service any SECRET Data or any other data or Information proprietary or personal of others and/or otherwise prohibited by the Documentation or the applicable Laws.
7. CUSTOMER DATA
7.1. License. Customer grants Collab a non-exclusive license to use, copy, store, transmit and display data and information of the Customer (Customer Data) as necessary to provide and maintain NUBITALK© Service, including improving, modifying, monitoring and upgrading NUBITALK© Service; as required by law; and to make disclosures to Collab's licensors as required for royalty reporting.
7.2. Storage and Security. Customer is responsible for adequately storing Customer Data. Collab is not responsible or liable for Customer’s failure to store Customer Data, the deletion, correction, destruction, damage to or loss of any Customer Data, or for security or handling of Customer Data. Customer represents and warrants that Customer Data will not violate any third party's rights or any law. Collab may withhold, remove, and/or discard Customer Data without notice for any breach, including, without limitation, Customer’s non-payment. Upon termination for cause, Customer’s right to access or use Customer Data immediately ceases, and Collab has no obligation to maintain or forward any Customer Data.
7.3 Data Protection. Customer shall comply with all Data Protection Legislation in relation to the processing of any Customer Data. 7.4 Customer and Collab acknowledge that for the purposes of the Data Protection Legislation, Customer is the ‘Data Controller’ and Collab is the ‘Data Processor’ in respect of any Customer Data.
7.5 Collab shall process the Customer Data only for the purpose of providing the NUBITALK © Service or otherwise in accordance with Customer’s instructions from time to time.
7.6 Customer shall indemnify, and keep indemnified, Collab for all losses damages, expenses (including reasonable attorney’s fees) and liability incurred or suffered by it relating to any failure by Customer to comply with its obligations under Data Protection Legislation and/or any act or omission of Customer which puts Collab in breach of its obligations under the Data Protection Legislation.
8. PROFESSIONAL SERVICES
8.1. Orders. Customer may order Professional Services in connection with NUBITALK© Service as offered by Collab by submitting a specific signed Order to Collab. This Agreement governs all Orders for Professional Services until Professional Services are terminated or completed.
8.2. Professional Services Limited Warranty. Collab warrants for a 30 (thirty) calendar day period after the Professional Services have been performed (“Warranty Period”) that Professional Services will be performed with reasonable care and skill. Customer must provide a written warranty claim to Collab within the Warranty Period. Collab, at its option, will re-perform Professional Services that do not comply with the warranty at no additional charge, or if not practical and solely at Collab’s option, refund the part of the Professional Services Fee, if paid, for the Professional Services that do not comply with the warranty. 8.2A THIS SECTION 8.2 DESCRIBES CUSTOMER’S SOLE REMEDY FOR A PROFESSIONAL SERVICES WARRANTY CLAIM AND COLLAB SHALL HAVE NO OTHER LIABILITY WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), FOR BREACH OF STATUTORY DUTY, OR OTHERWISE. COLLAB, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL OTHER WARRANTIES, REPRESENTATION, AND GUARANTEES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, FOR PROFESSIONAL SERVICES OR DELIVERABLES.
8.3. Disclaimer. The warranty provided in Section 7.2 does not cover problems caused by (a) abuse, misuse, alteration, neglect, accident, unauthorized repair or installation, or acts or omissions of any party other than Collab; or (b) defects, problems or errors caused by hardware, software, networks, or systems not supplied by Collab and/or other than directly and exclusively caused by Collab Professional Services.
9. FEES AND PAYMENT
9.1. Fees. Customer will pay a setup Fee and Subscription Fees in the amounts specified on the Order. Subscription Fees are based on the NUBITALK© Service functionality and number of licenses specified in the Order. Customer will pay for Users added in a month for the full month and the remaining months of the Subscription Term. Subscription Fees are nonrefundable and Customer’s payment obligation is not cancelable. Customer will pay Professional Services Fees and related expenses as specified in the Order. Unless otherwise stated in the Order, all Fees are quoted and payable in the currency stated in the order.
9.2. Invoicing and Payment. Unless specified on an Order, Subscription Fees are billed monthly in advance at time or order using the customer’s PayPal account. Professional Services Fees are billed as services are performed. Invoices are payable 30 days from invoice date if not otherwise specified. Customer shall maintain complete and accurate billing and contact information with Collab.
9.2A Late payments. If Customer fails to make any payment due to Collab under this Agreement by the due date for payment, then, without limiting Collab's remedies under this Agreement, Customer shall pay interest on the overdue amount at the rate of [three] per cent (%) per annum above the then current Bank of England base rate at the date the invoice was issued, on any validly issued invoices paid late. Customer shall pay the interest together with the overdue amount.
9.2B Collab reserves any and all rights in relation to assessment of creditworthiness of any Customers and effective granting of any credit to Customers. Collab may revise the terms of any credit granted to Customers from time to time and/or determine any specific financial terms to each and every specific Customer at its sole discretion. Customers may not assign, negotiate or deal on any invoices by Collab unless Collab authorizes Customer to do so in writing beforehand. An attempt or execution of any of the latter said by Customer shall be null and void and of no effect towards Collab.
9.3. Taxes. Fees do not include taxes. Customer will pay all sales, use and other taxes imposed upon the purchase, sale, license or use of NUBITALK© Service, except taxes on Collab's net income. Fees payable by Customer will not be reduced by any tax withholding. Customer will pay invoice Fees grossed up for withholding, if mandatory in accordance to any governing Laws, so that Collab Fees remain net. Customer will provide a tax exemption certificate or tax payment receipt prior to Collab's delivery of NUBITALK© Service if/when applicable.
9.4. Verification. Within 30 days of Collab's request but no more than once annually, Customer will provide access at reasonable times to its premises and records to enable Collab to monitor, audit and verify Customer's compliance with the terms of this Agreement. Customer will pay any additional Fees due for NUBITALK© Service used in excess of the Subscription and Ordered Users, including Fees in arrears and Collab's expenses with the audit.
10. BINDING AGREEMENT.
Each party represents and warrants that it has the legal power to enter into this Agreement and will be legally bound by its terms. Collab represents and warrants that it owns or otherwise has sufficient rights to the NUBITALK© Service and the Collab Technology to grant the rights and licenses as provided for in this Agreement.
11. PROPRIETARY RIGHTS
11.1. Intellectual Property Ownership; Suggestions. Collab, its affiliates or licensors own and retain all right, title and interest to and in (a) all Intellectual Property in NUBITALK© Service, Customer Software, Deliverables, and Documentation, (b) all other Collab information, proprietary materials, software, products and all derivative works, and (c) any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any other party relating to NUBITALK© Service (collectively, “Collab Technology”). This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to NUBITALK© Service, Customer Software, Documentation, Deliverables, or any other Collab Intellectual Property. Collab’s name and logo and the product names associated with NUBITALK© Service are trademarks of Collab, and no right or license is granted by any means to Customer for using them. Collab reserves the right to enforce its rights and remedies to protect its rights including seeking adequate protective order or injunctive relief in all jurisdictions and before any courts or instances of competent jurisdiction over Customers. Customer grants to Collab an irrevocable, royalty-free, worldwide, perpetual license for Collab to use or incorporate and/or modify or convert any suggestions, ideas, enhancements, feedback, recommendations or other information provided by Customer relating to NUBITALK© Service.
12.1. Definition of Confidential Information. As used herein, “Confidential Information” means any material, data, or information, in any form or media, whether disclosed orally or in writing or marked as confidential, which is proprietary or confidential to a party and by its nature or treatment by its owner, should reasonably be considered to be confidential. Confidential Information includes: this Agreement, Orders, NUBITALK© Service, Customer Software, Documentation, Collab Technology, Customer Data, either party’s non-public data or personally identifiable information regarding employees or customers residing on the party’s computer systems and all Intellectual Property, provided Confidential Information does not include information that is (a) publicly available without breach of this Agreement; (b) reasonably shown to disclosing party’s satisfaction to have been known by receiving party prior to disclosure or independently developed by receiving party subsequent to disclosure without breach of these terms; or (c) obtained by receiving party from a third party without confidentiality obligation (for the avoidance of doubt, advertising and/or availability of the NUBITALK © Service and/or granting of the licenses in relation thereof by Collab including availability and licensing of the Customer Software shall not be construed and/or interpreted as placing the Collab Technology and its integral parts including but not limited to NUBITALK © Service in the public domain).
12.1A To the extent permitted by law, the receiving party will promptly notify disclosing party if it is compelled by a court to disclose Confidential Information and will take any reasonable action requested to maintain the confidentiality of the Confidential Information. Customer shall not serve a Court Order or an injunction to disclose any or parts of Collab’s Confidential Information unless it first notifies Collab in writing of such request with sufficient advance notice so as to enable Collab to either contest such order or otherwise determining the means of complying with it by the legal means available.
12.2. CUSTOMER AND THIRD PARTIES CONFIDENTIAL INFORMATION.
CUSTOMER UNDERSTANDS AND ACCEPTS THAT COLLAB MIGHT HAVE NO MEANS AVAILABLE TO PROTECT AND SAFEGUARD CONFIDENTIAL INFORMATION OF ANY ENTITIES. CUSTOMER UNDERTAKES NOT TO STORE, DEPOSIT, MANAGE OR BY ANY OTHER MEANS ACCESS, MANAGE, DEAL WITH, TRANSMIT, DISCLOSE OR REFER TO ANY CONFIDENTIAL INFORMATION OF CUSTOMER OR ANY THIRD PARTIES, INCLUDING BUT NOT LIMITED TO SECRET DATA THORUGH/VIA THE NUBITALK © SERVICE OTHER THAN IN ACCORDANCE WITH SECTION 4.6.2.
12.3 COLLAB MAKES NO WARRANTIES OR REPRESENTATIONS IN RELATION TO ANY CONFIDENTIAL INFORMATION AND EVERY AND ALL CONFIDENTIAL INFORMATION ACCESSED, MANAGED, DEALT WITH, TRANSMITTED, DISCLOSED, REFERENCED OR REFERRED BY ANY MEANS THROUGH/VIA THE NUBITALK © SERVICE SHALL BE AT THE SOLE AND EXCLUSIVE RISK OF CUSTOMER.
12.4 CUSTOMER SHALL INDEMNIFY AND HOLD COLLAB AND ITS LICENSORS AND CONTRACTORS INDEMNIFIED AGAINST ANY AND ALL CLAIMS, LOSS, DAMAGES, EXPENSES (INCLUDING REASONABLE ATTORNEY’S FEES) AND LIABILITY PERTAINING TO OR IN RELATION TO AND/OR ARISING FROM WITHOUT LIMITATION THE DISCLOSURE, ACCESS, USE OR ABUSE, MANIPULATION, TRANSMISSION, STORAGE, MANAGEMENT, INTERCONNECTION, LOSS, DETERIORATION AND/OR ADULTERATION OF ANY AND ALL CONFIDENTIAL INFORMATION OF CUSTOMER OR ANY THIRD PARTIES.
13. INDEMNIFICATION BY CUSTOMER
13.1. In addition to other terms of these Terms and Conditions, Customer will defend and indemnify Collab, its licensors and affiliates, and each of their respective employees, officers, directors, and representatives, against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) Customer’s use, and use by Customer’s Users of NUBITALK© Service or Customer Software other than in accordance with the Documentation and this Agreement, or telephone numbers provided by Collab; (b) breach of this Agreement or violation of applicable laws; (c) SECRET DATA, Confidential Information of Customer or any third Parties other than Collab, Customer Data, including any claim alleging a privacy violation, infringement or misappropriation of third party rights; or (d) a dispute between Customer and its customers. If Collab or any of its affiliates or licensors is obligated to respond to a third party subpoena or other compulsory legal order or process described above, Customer will also reimburse the responding party for reasonable attorneys’ fees, as well as employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at Collab’s then-current hourly rates.
13.2. Collab will notify Customer promptly of any claim once Collab has actual knowledge of same, but a failure to promptly notify will only affect Customer’s obligations under Section 12.2 to the extent that the failure prejudices Customer’s ability to defend the claim. Customer may: (a) use counsel of its own choosing (subject to Collab’s written consent) to defend against any claim; and (b) settle the claim as it deems appropriate, provided Customer obtains Collab’s prior written consent before entering into any settlement. Collab may also assume control of the defense and settlement of the claim at any time.
14. LIMITATION OF LIABILITY
14.1. NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES A PARTY'S LIABILITY FOR DEATH OR PERSONAL INJURY ARISING OUT OF ITS NEGLIGENCE, OR THAT OF ITS EMPLOYEES OR FOR LOSSES BY THE OTHER PARTY ARISING OUT OF THE FIRST PARTY'S (OR ITS EMPLOYEE’S) FRAUD, WILFUL MISCONDUCT OR THE TORT OF DECEIT.
14.2 SUBJECT TO SECTION 14.1, COLLAB WILL NOT BE LIABLE IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), FOR BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY INDIRECT, CONSEQUENTIAL PUNITIVE OR INCIDENTAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER AND HOWEVER CAUSED OR ANY INTERRUPTION OF BUSINESS OR OPERATIONS, COSTS OF RECOVERY, LOSS OF GOODWILL, LOSS OF DATA, LOSS PROFITS OR REVENUE, IN EACH CASE, EVEN IF COLLAB HAS BEEN ADVISED OF THEIR POSSIBILITY OR SUCH LOSSES ARE REASONABLY FORESEEABLE.
14.3 SUBJECT TO SECTIONS 14.1 AND 14.2 COLLAB’S (AND ITS AFFILIATES’ OR LICENSORS’) LIABILITY TO THE CUSTOMER IN ANY 12 MONTH PERIOD WHETHER IN CONTACT OR TORT (INCLUDING NEGLIGENCE), FOR BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED, THE AMOUNT OF FEES PAID FOR THE SUBSCRIPTION IN THE RELEVANT 12 MONTH PERIOD PRECEDING THE EVENT BEING THE SUBJECT MATTER OF THE CLAIM.
14.4. TO THE EXTENT PERMITED BY LAW, COLLAB SHALL NOT BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN 12 MONTHS AFTER THE DAMAGING EVENT’S OCCURRENCE OR IN CASE OF A CHAIN OF EVENTS, THE DATE WHEN THE FIRST OF SUCH CHAINED EVENTS OCCURRED.
14.5. COLLAB’S FAILURE TO EXERCISE ANY RIGHT AND/OR REMEDY UNDER THIS AGREEMENT OR BY LAW SHALL NOT BE REGARDED OR INTERPRETED AS A WAIVER.
15. TERM AND TERMINATION
15.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Subscription Terms have expired or been terminated in accordance with Sections 15.3 and 15.4 below.
15.2. Subscription Term. NUBITALK© Service is available from the Effective Service Date for the Subscription Term specified in the Order (the end of the calendar month of the order), and the Subscription Term will renew automatically for subsequent Subscription Terms. The Customer may cancel at any time by selecting online at the NUBITALK© website the licenses to be cancelled. If cancelled the licenses will be active and usable until the end of the Subscription Term (end of current calendar month). Collab will keep customer data and configurations in case of future renewal for a minimum of 3 months counting from the end of the Subscription Term.
15.3. Termination for Cause. Either party may terminate this Agreement in the event that the other party (the ‘defaulting party’) commits a material breach of this Agreement remains uncured more than 10 days after written notice from the ‘non-defaulting party’.
15.3A Suspension of the NUBITALK © Service Without prejudice to its rights in Section 15.3, Collab may (at its sole discretion) suspend the NUBITALK© Service in the event that the Customer breaches this Agreement and such breach remains uncured for more than 10 days after written notice from Collab.
15.4. Termination by Collab. Collab may terminate this Agreement, a Subscription and/or or license, or terminate NUBITALK© Service (a) immediately upon written notice if Customer infringes Collab’s or its licensors Intellectual Property or fails to comply with any Subscription or Section 4.3, or if Collab is required to do so by law; (b) if Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (c) if Customer does not pay an invoice on/before its due date.
15.5. Effect of Termination. Upon termination (a) Customer's Subscription will immediately cease and its license to use Customer Software and Deliverables will immediately terminate, (b) Customer will cease using NUBITALK© Service, return or destroy any Collab Confidential Information, Customer Software, Deliverables and Documentation as Collab directs, and upon Collab’s request provide written certification of such destruction.
15.6 Surviving Provisions. The provisions pertaining to Liabilities, Warranties, Confidential Information, Intellectual property, Licensing, Payment Terms, Orders, Applicable Laws and Disputes Resolution shall survive any termination or expiration of this Agreement.
16. OTHER TERMS
16.1. Entire Agreement. This Agreement constitutes the entire agreement between Collab and Customer in relation to the NUBITALK © Service and shall supersede all prior agreements, arrangements and understandings between the parties whether oral or written, concerning its subject matter. Each party hereby confirms that it has not relied upon any representations, statements, information or promises made by the other party that are not expressly set out in this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties (save for changes to the Support Policies which Collab may amend from time to time). In the event of any conflict between the provisions in this Agreement; any Order and the Support Policies executed hereunder, then the conflict or inconsistency shall be resolved in accordance with the following descending order of precedence (from high priority to low priority): (a) any variations to this Agreement agreed in writing between authorised representatives of the parties after the Effective Date; (b) the Sections of these Terms and Conditions of Use; (c) any Order; (d) the Support Policies; (e) any other document referenced in this Agreement or any other document forming part of this Agreement.
16.1A Invalidity. If any term of this Agreement is illegal, invalid, or unenforceable, the other unaffected terms shall remain in full force and effect and the Agreement shall remain valid without the invalid, unenforceable and/or invalid term.
16.2. Assignment. Collab may assign, transfer, novate or subcontract this Agreement in whole or in part to any entity without notice or consent. Customer may not assign transfer, novate or subcontract this Agreement, in whole or in part, without the prior written consent of Collab.
16.3. Force Majeure. For the purposes of this Agreement, “Force Majeure” in relation to either party means an event or circumstance which is beyond the reasonable control of that party and which includes: (a) an act of God or any fire, flood, earthquake, epidemic or other similar event; or (b) a civil commotion or disorder, riot, invasion, war, epidemic or civil unrest, except to the extent that such event or circumstance is caused by: (i) a party’s own default, misconduct or negligence (or that of its employees); or (ii) events or circumstances that could have been prevented, overcome or mitigated by that party as a result of exercising reasonable care.
16.3A Neither party will be liable to the other as a result of any delay or failure in the performance of its obligations under this Agreement if and to the extent that such delay or failure is caused by Force Majeure.
16.4. Governing Law and Disputes Resolution. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
16.5. No Agency. Each party is an independent contractor and may not commit the other party in any way without written authorization. This Agreement does not create an employment, joint venture, partner, or agency relationship or any other between Collab and Customers.
16.6. Notice. Notice or approval must be in writing signed by a party’s authorized representative and sent to the address provided on the Order or otherwise specified in writing by a party for notice. Notice must be sent by mail or overnight courier, with return receipt, and is effective 1 business day after being sent by overnight courier or 3 business days after being sent by mail. 16.7. Publicity. Customer agrees that it will participate with Collab in reasonable marketing programs to support Collab’s communication of the benefits of the NUBITALK© Service, including product brochures and other marketing materials. Such marketing programs will be mutually agreed upon, but will include, at a minimum, a press release announcing that Customer has purchased the NUBITALK© Service. Customer also agrees to participate in a case study describing the use of the NUBITALK© Service within its organization, and to participate in, or host a reasonable number of reference calls or reference visits from Collab prospects. All material to be published featuring Customer (except for a mention of Customer in a general press release or client list) including Customer’s trademarks, service marks, logos or branding, is subject to the prior approval of Customer, such approval not to be unreasonably withheld or delayed.
16.8. Third Party Beneficiaries. This Agreement is not for the benefit of Third Parties of Customer. This Agreement is for the benefit of Customer only and Collab and Collab’s successors and permitted assigns.
16.9 Counterparts. This Agreement may be executed in any number of counterparts, and by the parties in separate counterparts, which together constitute one single agreement between the parties.