1.1 "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, "control" means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 “Confidential Information” means all confidential or proprietary information of a party disclosed to the other party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
1.3 “Customer” means you as the party ordering Services from Ytica.
1.4 "Customer Data" means all data originating from the Customer’s use of the Services and/or data submitted, stored, posted, displayed, transmitted or otherwise used together with the Services for the purposes of provision of the Services for you.
1.5 “Customer Deliverables” mean Deliverables that constitute Customer Data or a modification, translation, abridgment, adaptation or other derivative work of Customer Data.
1.6 “Deliverables” mean any work product or other deliverable to be provided to Customer.
1.7 “Designated National” means a person or an entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders.
1.8 “Documentation” means the online user instructions and help files made available as part of the Services, as may be updated from time to time.
1.9 “Embargoed Countries” mean countries as to which the United States maintains an embargo.
1.10 “Feedback” means suggestions, enhancement requests, recommendations or other feedback provided by Customer and its Users relating to Services.
1.11 “Force Majeure” means fire, earthquake, flood, water, utility curtailments, power failures, Internet service provider failures or delays, explosions, unavailability of transportation, acts of terror, strikes, labor disputes or shortages, civil disturbances, government actions, acts or omissions of third parties, unavailability or modification by third parties of Third Party Offerings, or any other circumstances beyond reasonable control Customer or Providers.
1.12 "Order Form" means the ordering documents for Services that are executed hereunder by the parties from time to time.
1.13 “Provider Access Codes” mean authorizations, passwords or other user credentials to a Third Party Offering granted by the Customer to the Provider.
1.14 “Provider Parties” mean Providers, their licensors and service providers.
1.15 “Providers” mean Ytica and its third party providers.
1.16 "Services" mean online, web-based data, speech and text analytics and reporting technologies provided by Ytica via the URL Ytica.com or other websites designated by Ytica, including all proprietary technology (software, processes, algorithms, user interfaces, know-how, techniques, templates, designs and other tangible or intangible technical material or information) of Ytica and associated support services.
1.17 “Subscription Term” means a term set forth in the Order Form during which the Service are available to the Customer.
1.18 “Taxes” mean taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body.
1.19 "Third Party Offerings" mean services delivered or performed by third parties related to the Services, or other online, web-based CRM, ERP, or other business application for services, and any associated offline products provided by third parties, in each case that interoperate with the Services.
1.20 “Tools” mean proprietary tools, source code samples, templates, libraries, know-how, techniques and expertise used by Providers to develop the Deliverables.
1.21 “Trial Services” mean Services available on a free trial basis.
1.22 “Trial Services Term” means a term when Trial Services are available to the Customer.
1.23 "Users" mean Customer's or its Affiliates' employees, consultants, contractors or agents who are authorized by Customer or its Affiliates to access and use the Services and who have been supplied user identifications and passwords for such purpose.
1.24 “Ytica” means Ytica.com a.s., Corporate Id. No. 04736435, with official seat at Prague, Rohanske nabrezi 29, Zip Code 186 00, the Czech Republic, a business company registered and existing under the laws of the Czech Republic.
2. TRIAL SERVICES
2.2 Customer Data for Trial Services. ANY CUSTOMER DATA ENTERED INTO THE SERVICES DURING THE TRIAL SERVICES TERM AND ANY CHANGES MADE TO THE CUSTOMER DATA BY OR FOR CUSTOMER DURING THE TRIAL SERVICES TERM MAY BE PERMANENTLY LOST UNLESS CUSTOMER: (A) PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED DURING THE TRIAL SERVICES TERM, (B) PURCHASES UPGRADED SERVICES, OR (C) EXPORTS ITS CUSTOMER DATA BEFORE THE END OF THE TRIAL SERVICES TERM.
3. PURCHASED SERVICES
4. USE OF SERVICES
4.1 Ytica’s Obligations.
4.1.1 Availability. Ytica will use commercially reasonable efforts to make the purchased Services available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which Ytica will endeavor to provide at least 48 hours advance notice, except for routine maintenance times currently scheduled for every Saturday Pacific time 1am to 7am and as otherwise set forth at Ytica website), or (b) any unavailability caused by Force Majeure.
4.1.2 Provision of the Services. Providers may update the functionality and user interface of the Services from time to time in their sole discretion as part of their ongoing improvement of the Services. The Services may be subject to certain limitations, such as, for example, limits on storage capacity for Customer Data. Any such limitations will be specified either in the Order Form or in the Documentation.
4.1.3 Support. Ytica makes a variety of Services support offerings available to its customers and will provide Customer with the level of support to which Customer is entitled based on Customer's purchase. The minimum basis of support provided to Customers by Ytica includes support of the contact center platform with which Ytica integrates with. The support shall be provided in business days during Ytica’s normal business hours published on Ytica’s website. Unless agreed otherwise in the Order Form, Support shall be provided via email with next business day response.
4.6 Accuracy of Customer's Contact Information; Email Notices. Customer agrees to provide accurate, current and complete information as necessary for Ytica to communicate with Customer from time to time regarding the Services, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online account information current and inform Ytica of any changes in Customer's legal business name, address, email address and phone number. Customer agrees to accept emails from Ytica at the email address specified by its Users for login purposes. In addition, Customer agrees that Providers may rely and act on all information and instructions provided to Ytica by Users from the above-specified email address.
5. FEES AND PAYMENT TERMS
5.2 Invoices and Payment. All Services fees will be invoiced in advance and in accordance with the applicable Order Form. Except as otherwise set forth in the applicable Order Form, Customer agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date.
5.3 Overdue Charges. If Ytica does not receive fees by the due date, then at Ytica's discretion, (i) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and (ii) Ytica may condition future Services purchases and Order Forms on payment terms shorter than those specified in Section 5.2 (Invoices and Payment).
5.4 Suspension of Service. If any amounts owed by Customer for the Services are thirty (30) or more days overdue, Ytica may, without limiting Ytica's other rights and remedies, suspend Customer's and its Users' access to the Services until such amounts are paid in full.
5.5 Payment Disputes. Ytica agrees that it will not exercise its rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service) if the applicable charges are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the dispute.
5.6 Taxes. Customer is solely responsible for the payment of Taxes arising from the Services hereunder, except any taxes assessed on Ytica’s net income. If Ytica is required to directly pay Taxes related to Customer's use of the Services hereunder, Customer agrees to promptly reimburse Ytica for any amounts paid by Ytica.
6. PROPRIETARY RIGHTS
6.4 Statistical Information. Providers may monitor Customer's use of the Services and use data related to Customer's use in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services. Customer agrees that Providers may make such information publicly available, provided that such information does not incorporate any Customer Data and/or identify Customer or its Confidential Information. Providers retain all intellectual property rights in such statistical and performance information.
7.3 Exceptions. Confidential Information shall not include information that: (i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party; (ii) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party; (iii) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party; or (iv) is independently developed by the Receiving Party without reference to or use of the Disclosing Party's Confidential Information.
7.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable law, regulation or legal process. The Receiving Party must, however: (i) provide the Disclosing Party with prompt written notice of the requirement to disclose, (ii) provide the Disclosing Party with reasonable assistance in the event the Disclosing Party wishes to oppose or contest such disclosure, and (iii) limit its disclosure to that strictly required by law, regulation or legal process.
7.5 Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
8. WARRANTIES; DISCLAIMERS
8.3 Labs Disclaimer. SERVICES IDENTIFIED AS “PREVIEW”, “EARLY ACCESS”, “BETA”, “LABS” OR BY A SIMILAR DESIGNATION ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTY WHATSOEVER, AND ARE EXCLUDED FROM ANY SUPPORT, UPDATE, AVAILABILITY OR UPTIME OBLIGATIONS, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO SECTIONS 3.1, 4.1 AND 8.1.
10. LIMITATION OF LIABILITY
10.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL PROVIDERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES AND/OR THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF PROVIDERS AND/OR THEIR LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE REASONABLY FORESEEN THEM.
11. TERM AND TERMINATION
11.1 Term of Subscriptions to Services. Customer's subscription to use the Services begins on the first day (i) of the Subscription Term as specified in the Order Form and continues for the period set forth therein; or on the first day of (ii) Customer’s use of the Services commenced after the Customer has ordered or otherwise purchased the Services via an established marketplace (such as Twilio or Talkdesk) and continues for the period of duration of such use; or oh the first day (iii) Customer’s use of the Services after the Customer has entered into an agreement with Ytica or its designated agent for the provision of the Services continues for the period of duration of agreement.
11.3 Retrieval of Customer Data. In the event of termination or expiration of the Subscription Term under an Order Form, Ytica shall make Customer Data available for download by Customer in the format in which it is stored in the Services, provided Customer requests such return of Customer Data and pays all outstanding charges hereunder in full within 30 days after the termination or expiration effective date. After such 30-day period, Ytica shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.
12.6 Publicity. Ytica may reference and use Customer's name and trademarks and may disclose the nature of the Services provided hereunder in Ytica’s business development and marketing efforts, including without limitation its website.
12.10 Export. The Services utilize software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to Embargoed Countries, or to or by a national or resident thereof, or any Designated National. The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Services, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Services may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Providers and their licensors make no representation that the Services are appropriate or available for use in other locations. Each party shall be solely responsible for its required compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Customer Data contrary to law is prohibited. None of the Customer Data, nor any information acquired through the use of the Services, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.
12.12 Contact Information. Ytica.com a.s., Rohanske nabr. 29, 186 00, Prague 8, Czech Republic, email: firstname.lastname@example.org, phone: +1 (855) 889-8281.