PCS Minimum Service Terms
These minimum service terms, together with the PCS Service Order and all relevant Addendums, either linked herein, attached hereto, or signed separately (collectively, the “PCS Terms”) contain the terms and conditions that govern the reselling, provision of, and access to the Parlance Cloud Services (“PCS” or “Services”), as provided by Parlance Corporation, a Massachusetts corporation having its registered office at 400 W Cummings Park, Suite 2000, Woburn MA 01801, USA (“Parlance”), to the entity or person agreeing to these Terms (“Customer”, “You”).
BY ACCEPTING THE PCS TERMS, BY ANY ACCEPTABLE MEANS OF ACTIVE AFFIRMATIVE CONSENT (INCLUDING BUT NOT LIMITED TO, SIGNING, ELECTRONIC SIGNING, CLICKING “I ACCEPT”), RESELLING THE SERVICES, AND/OR ACCESSING OR USING THE SERVICES MADE AVAILABLE BY PARLANCE HEREUNDER, YOU REPRESENT THAT (I) YOU ARE AUTHORIZED TO ACT ON BEHALF OF CUSTOMER AND HAVE THE AUTHORITY TO LEGALLY BIND CUSTOMER TO THE PCS TERMS, (II) YOU HAVE READ THESE PCS TERMS, AND (III) CUSTOMER SHALL COMPLY WITH AND BE BOUND BY THESE PCS TERMS. IF YOU DO NOT HAVE AUTHORITY TO BIND CUSTOMER, OR IF YOU OR CUSTOMER DO NOT AGREE TO THE PCS TERMS, YOU AND CUSTOMER MAY NOT USE THE SERVICES.
THESE PCS TERMS TAKE EFFECT ON THE DAY YOU ACCEPT THEM OR, IF EARLIER, WHEN YOU USE ANY OF THE SERVICES (THE “EFFECTIVE DATE”). IF YOU HAVE EXECUTED A SEPARATE AGREEMENT WITH PARLANCE SPECIFIC TO THIS TRANSACTION, THAT SEPARATE AGREEMENT WILL TAKE PRECEDENCE AS TO THE TERMS AND CONDITIONS APPLICABLE TO YOUR TRANSACTION.
- Definitions
1.1. “Affiliate” means, with respect to a subject entity, any other entity controlling, controlled by, or under common control with the subject entity.
1.2. “Applicable Law” means all laws, rules, regulations, treaties (and similar governmental obligations), including without limitation local, national and multinational, that are applicable as the context requires.
1.3. “Claim” means any allegation, claim, cause of action, suit, proceeding, arbitration, mediation, or demand of any nature.
1.4. “Confidential Information” means any information that Parlance and Customer may disclose (directly or indirectly) to each other, pertaining to private, proprietary, or confidential information of either Parlance or Customer.
1.5. “Customer End-User” means any company, business, employee, representative, user, agent, or any other individual the Customer authorizes to use the Services.
1.6. “Effective Date” has the meaning set forth in the Recitals.
1.7. “Intellectual Property Rights” or “Proprietary Rights” means any and all intellectual property rights anywhere in the world, including, without limitation, all rights in, arising out of, or associated therewith (a) procedures, designs, inventions, discoveries, and all patents issued or issuable thereon; (b) works of authorship, copyrights and other rights in works of authorship; (c) trade secrets; (d) know-how; (e) copyrights and trademarks; and (f) mask work rights.
1.8. “Materials” means source code, software, hardware, servers, networks, and similar materials.
1.9. “Parlance Marks” or “Marks” means business names, trade names, trademarks, service names, logos, and similar identifiers of Parlance or its Affiliates.
2. License – Intellectual Property Rights
2.1. Parlance grants to Customer a limited, revocable, non-exclusive, non-transferable, non- sublicensable license for the duration of the provision of the Services to resell the Services described within the Service Order Form(s) and any software provided by Parlance to access those Services, including Parlance proprietary interface elements, application program interfaces and/or software development kits, and the related documentation, data, code, sample applications and materials (collectively, “Software”), solely for applicable business purposes.
2.2. Customer acknowledges and agrees that Parlance exclusively owns all right, title and interest to the Services and Software, including without limitation code, deliverables copyrights, know how, Marks, trade secrets, service marks, logos, copyrights, know-how, information and system data, technologies, intellectual property, information and data generated by Parlance or Parlance’s systems, whether pre-existing, or created after the effective date of the PCS Terms, including any modifications, enhancements and derivatives thereof (including, without limitation, metrics, data and information generated by such Services and Software).
2.3. Customer does not acquire any rights, express or implied, in the Services, except as expressly granted herein. Customer acknowledges and agrees that its rights in and to Parlance’s technology and the Services are limited to the license rights set forth in this Section. Customer shall not claim ownership or proprietary rights in Parlance’s technology or the Services. Customer agrees that any deliverables, Parlance products or Parlance services, that are based on an existing product of Parlance that have been improved or enhanced with extra functionalities, as well as any model of Parlance, and in particular (i) software, (ii) tools, (iii) acoustic models, (iv) semantic and/or language model(s), improved or enhanced as a result of training with Customer data as well as any and all derivative works of the above deliverables shall constitute Parlance’s Intellectual Property.
3. Provision of Services
3.1. Parlance provides and maintains through itself and authorized third parties the hardware, equipment, technical support, systems, and personnel necessary to ensure the hosting and controlling of the Services. All patches and fixes and standard new releases and new versions of the Services will be provided to Customers at no additional charge when generally available. Non-standard upgrades and optional product enhancements, such as other Parlance products, integration work, extensive customization and non-standard features, may be made available for an additional fee.
3.2. The infrastructure used to provide the Services and Customer data may be hosted on servers that are controlled by Microsoft Azure (“Azure”) and/or Amazon Web Services (“AWS”). By using the Services, Customer consents to this processing and storage of Customer Data and the Azure and/or AWS Service Terms which can respectively be consulted at: https://azure.microsoft.com/en-us/support/legal/ and https://aws.amazon.com/legal/
3.3. Parlance may terminate the provision of Services immediately and without liability to Customer if:
(i) Customer or any Customer End-User infringes (or will likely or threatens to infringe) Parlance’s intellectual property rights; or
(ii) Customer or any Customer End-User willfully violates or otherwise fails to comply to the Acceptable Use Terms and Other Restrictions set forth in sections 6 & 7 of these PCS Terms; or
(iii) Customer files for (or is involuntarily forced into) bankruptcy proceedings;
(iv) the Services have had no network activity for a period of 60 days.
(v) Customer does not accept proposed amendments to the PCS Terms as set forth in Section 12.
3.4. Upon termination of the provision of the Services, Parlance will make Customer Data (as it existed at the end of the Services Term) available for retrieval by the Customer for a retrieval period of ninety (90) days. At the end of such retrieval period, and except as may be required by law, Parlance may delete or otherwise render unrecoverable any Customer Data that remains in the Services. Customer may request that such data be exported in a readable format during this retrieval period and provided to Customer for an additional fee.
4. Confidentiality. Customer will maintain the confidentiality of all Confidential Information. Customer acknowledges and agrees that Parlance and Customer may share information pertaining to the use of the Parlance Services by the Customer and Parlance may have access to Customer Data.
5. Data Processing, Security and Usage
5.1. Customer shall provide an unlimited, unrestricted, non-exclusive license to Parlance to use Customer Data related to Services, to the full extent permitted by applicable laws and regulations (such as, but not limited to, GDPR), for the provision of Parlance’s Products and Services.
5.2. Customer shall, as required by applicable laws or regulation, provide notice to its own end customers or users and obtain valid consent if required for the use of Services and related technology to the provision of the Services (such as, regarding Parlance’s monitoring features, the use of cookies, messaging functionality, etc.), in Customer’s privacy policy and as otherwise required;
5.3. If Customer decides to use SMS or other messaging functionality, Customer shall comply with all applicable consumer regulations as well as with opt-in and opt-out requirements applicable to Customer’s business use of SMS or other messaging functionality, including, but not limited to obtaining and maintaining valid consumer consent to receive SMS or other messages.
5.4. Customer agrees that Services include monitoring of user activity and generate system data based on such activity and understands that Parlance shall not use or disclose personally identifiable user information to any third party without the prior written consent of the Customer, as applicable, except to subcontractors performing services for Parlance who are bound by confidentiality terms. It is understood that non-personally identifiable data, transcripts and information generated by Parlance’s systems may be used by Parlance for purposes such as, but not limited to, troubleshooting, optimization and tuning, system improvements, customer support and reporting. Parlance may, in its sole discretion, review, modify, relocate, remove or otherwise eliminate any content or other material sent through or otherwise included in the Services by the Customer or anyone on behalf of or for the benefit of the Customer in the event such content is not in compliance of the Services. Parlance shall be permitted to process Customer’s data for the following purposes: (a) to provide the Services; (b) to operate, maintain, enhance and support such Services (and related services) and the infrastructure used to provide the Services; and (c) to respond to customer support requests.
5.5. Customer may select the geographical region or country where certain Customer Data will be stored (“Data Location”), and Parlance will store it there in accordance with these PCS Terms. If Customer does not specify a Data Location with respect to any Customer Data, Parlance may process and store the Customer Data in any data center where servers providing the Services are located. To the extent permitted by law, Parlance retains the right to move the Data to other data center and / or data center locations, within the selected Data Location. By using the Services, Customer consents to this processing and storage of Customer Data.
5.6. Customer will ensure to undertake all necessary measures to meet all requirements of any applicable data privacy laws. If, under applicable data privacy laws, Customer is a data processor (or data importer) and Parlance is a sub-processor (or sub-importer), Customer shall ensure that Parlance shall be permitted to process Customer End-User’s data for the following purposes: (a) to provide the Services; (b) to operate, maintain, enhance and support such Services (and related services) and the infrastructure used to provide the Services; and (c) to respond to Customer End-User support requests.
6. Acceptable Use
6.1. Customer agrees to resell the Services only in full compliance with applicable laws and regulations and with the terms set forth in this Section 6 of these PCS Terms (“Acceptable Use Terms”).
6.2. If Parlance becomes aware that the Customer End-User’s use of the Services violates or otherwise fails to comply with the Acceptable Use Terms, Parlance will give Customer notice of the violation by requesting that Customer correct the violation. Parlance may suspend all or part of Customer End-User’s use of the Services until the violation is corrected.
6.3. As specified in article 3.3 of these PCS Terms, Parlance reserves the right to terminate the provision of Services in case of any Customer End-User’s repeated or willful violations of the Acceptable Use Terms, or failure to correct such violations.
6.4. As a condition of reselling the Services, Customer shall be responsible for any Customer’s End-Users.
6.5. Customer agrees not to, and not to allow third-parties to use the Services in any manner:
(i) to engage in, or promote or encourage illegal activity or to commit fraud;
(ii) to damage, disable, overburden, or impair any Parlance server, or the network(s) connected to any Parlance server;
(iii) to interfere with the use of the Services or the equipment used to provide the Services, by other customers, authorized resellers, or other authorized users;
(iv) to attempt to gain unauthorized access to any Services, other accounts, computer systems or networks connected to any Parlance server or to any of the Services by any means;
(v) to operate robots or spiders to scan Parlance’s databases or web pages, or to use “deep linking” to Parlance’s web pages;
(vi) to violate any patent, trademark, trade secret, copyright, or any other intellectual property right;
(vii) to falsify or delete any copyright management information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material;
(viii) to generate, distribute, publish or facilitate contests, pyramid schemes, chain letters, mass email, spamming or any duplicative or unsolicited messages (commercial or otherwise);
(ix) to violate, or encourage the violation of, the legal rights (such as rights of privacy and publicity) of others;
(x) for any unlawful, invasive, infringing, defamatory or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website);
(xi) to store or produce telephone numbers to be called, using a random or sequential number generator, and dial such numbers.
7. Additional Restrictions
7.1. Unless otherwise stipulated herein in these PCS Terms, Customer will not, and will not allow third parties under its control to:
(i) modify, decompile, reverse-engineer, disassemble or otherwise attempt, directly or indirectly to obtain, or derive source code for the Services,
(ii) use any Parlance Confidential Information or Parlance intellectual property to create, distribute, sell, license, market or promote any Customer technology or service or any third-party technology or service without the prior written approval of Parlance,
(iii) use any Parlance Confidential Information or Parlance intellectual property in conjunction with any third-party technology without the prior written approval of Parlance or
(iv) introduce into the Services any threats known as software viruses, time bombs, logic bombs, Trojan horses, trap doors, or other malicious computer instructions, intentional devices or techniques that can or were designed to threaten, infect, attach, assault, vandalize, defraud, disrupt, damage, disable, or shut down a computer system or any component of such computer system, including its security or user data.
8. Warranties
8.1. Parlance and Customer represent and warrant to each other that:
(i) they have the right to perform their respective obligations in the manner contemplated by these PCS Terms, and in a professional workmanlike manner, and
(ii) these PCS Terms do not and shall not conflict with any other agreement entered into by it.
8.2. Except for the foregoing warranties and any warranties contained in any applicable Addendum, if any, and to the fullest extent permissible under applicable Law, both Parlance and Customer disclaim all representations and warranties, express and implied, concerning or related to these PCS Terms and any of the services provided hereunder or under the applicable Addendum, including but not limited to the implied warranties of merchantability and fitness for a particular purpose.
9. Limitation of Liability. In no event shall either Parlance or Customer be liable for any indirect, incidental, consequential or punitive damages, or for any damages for lost profits, loss of use, loss of business, loss of revenue, arising out of or in relation to these PCS Terms or the services relating to such documents. Additionally, in no event shall either Parlance or Customer be liable for any cause or claim whatsoever arising out of or related to these PCS Terms in excess of the fees actually received by Parlance for the provision of the Services resold by Customer during the twelve (12) month period immediately preceding the date on which the cause of action arose. The limitations and exclusions contained herein will apply regardless of whether the cause of action arises in contract, tort or otherwise. Neither Parlance nor Customer shall be liable for any acts or omissions of third-parties not under its control. Parlance shall not be liable for any third-party services, code, technology, applications, policies, procedures, or products. In the event that Applicable Law does not allow the limitation of liability as set forth in this Section 9, the limitations detailed in this Section 9 will be deemed modified solely to the extent necessary to comply with Applicable Law. Notwithstanding anything contained herein to the contrary, neither Parlance nor Customer excludes or limits liability for death or personal injury arising from its gross negligence or willful misconduct.
10. Indemnity
10.1. Parlance and Customer agree that third party claims pertaining to their respective intellectual property shall be addressed and managed in accordance with the process outlined below.
10.2. Customer Indemnity. If a third party claims against Parlance that Customer’s intellectual property (including, without limitation, applications and data) or content provided to Parlance or used by Customer to perform its duties hereunder infringes such third party’s patent(s) issued as of the Effective Date, copyright or trademark, Customer shall defend and pay all costs of defense of such claim, and will indemnify and hold Parlance harmless from and against any settlement amounts agreed to by Customer or damages finally awarded by a court of competent jurisdiction or administrative authority to such third party. In addition, Customer shall indemnify and hold harmless Parlance from any third party claims, actions, suits, procedures, penalties, fines, liabilities, losses or damages asserted against Parlance based upon or arising out of Customer’s acts or omissions or failure to perform, or its wrongful performance of, any of its obligations or duties under these PCS Terms, and/or an Addendum.
10.3. Parlance Indemnity. If a third party claims against Customer that the Services infringe such third party’s patent issued in the US, as of the Effective Date, copyright or trademark (a “Claim”), Parlance will defend the Claim and pay all reasonable costs of defense of such claim, and will indemnify and hold harmless Customer from and against all settlement amounts agreed upon by Parlance or damages finally awarded by a court of competent jurisdiction or administrative authority to such third party. The indemnification set forth in this Section 10.3 is Parlance’s entire liability, and Customer’s sole and exclusive remedy, for third party Claims. In the event that Parlance determines a risk of an infringement, at Parlance’s option and expense, Parlance may replace or modify the Services with substantially equivalent services or replacement services so that such services are no longer infringing, or obtain for Customer the right to continue using the Services
11. Force Majeure. Except for obligations of payment and confidentiality, Parlance and Customer shall not be liable to each other or any other person for any delay or failure in the performance of their respective obligations set forth in these PCS Terms or for loss or damage of any nature whatsoever due to disruption or unavailability of communication facilities, utility or Internet service provider failure, acts of war, pandemic, acts of terrorism, acts of god or mother nature, acts of vandalism, lightning, fire, strike, unavailability of energy sources or any other causes beyond Parlance or Customer’s reasonable control.
12. Amendments
12.1. To the Services: Parlance may make commercially reasonable updates to the Services from time to time. If Parlance makes a material change to the Services, Parlance will inform Customer, provided that Customer has subscribed with Parlance to be informed about such change.
12.2. To the PCS Terms. Parlance may make changes to these PCS Terms, including any linked documents, from time to time. Unless otherwise communicated by Parlance, material changes to the PCS Terms will become effective 30 days after they are posted by either: (i) sending an email to Customer’s primary point of contact; or (ii) posting a notice to the applicable Terms or Linked Document. If Customer does not agree to the revised PCS Terms, they shall stop reselling the Services.
12.3. To the Data Processing, Security and Usage Terms. Unless otherwise expressly permitted in the terms set forth in Section 5 of these PCS Terms, Parlance may change the Data Processing, Security and Usage Terms where such change is required to comply with applicable law, court order, or guidance issued by a governmental regulator or agency. If Parlance makes a material change to the Data Processing and Security Terms in accordance with this Section, Parlance will post the modification to the URL containing those terms.