BY COMPLETING THE REGISTRATION PROCESS EITHER ONLINE OR VIA AN ORDER FORM THAT INCORPORATES THIS AGREEMENT (THE “ORDERING DOCUMENT”), YOU, ON BEHALF OF YOUR COMPANY (“YOU” OR “COMPANY”) AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY SCHEDULES, EXHIBITS, ATTACHMENTS REFERENCED OR INCORPORATED BY REFERENCE HEREIN (COLLECTIVELY, THE “AGREEMENT”). YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE COMPANY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
VOICEBASE SERVICES AGREEMENT
1.1 “Affiliate” means any entity, actual or future, which directly or indirectly controls, is controlled by, or is under common control with, such party. Each Affiliate shall be bound by the terms of this Agreement. The obligations of Company or VoiceBase shall apply, as applicable, equally to each Affiliate.
1.2 “Documentation” means user documentation, in all forms, relating to the VoiceBase API (e.g., user manuals), that is provided by VoiceBase to End User.
1.3 “IP Rights” means any and all intellectual property rights, including but not limited to copyrights, trademarks, patents, know-how, and trade secrets.
1.4 “Machine Transcription” means the post processing results of the VoiceBase indexing service that electronically converts voice content contained in Recordings to the time-aligned text.
1.5 “Recording” means any audio recording made available by Company to VoiceBase via the VoiceBase API.
1.6 “Recording Quality” means the quality of a Recording and the level of noise or interference present that could impair the Machine Transcription process
1.7 “Speech Engine” means VoiceBase’s speech engine that converts speech to text.
1.8 “VoiceBase API” means the VoiceBase application programming interface, as provided by VoiceBase to Company that enables Company to upload a Recording or specify a location where VoiceBase can get a Recording and provides a means for VoiceBase to deliver to Company the resulting Machine Transcription and Voice Analytics.
1.9 “Services” means, as applicable, services offered and provided by LivePerson on behalf of its subsidiary, VoiceBase, to Company under this Agreement, which are generally comprised of the VoiceBase APIs, ETL Schema, Voice Analytics, and any separately requested Professional Services or software or other technology provided to Company in connection with its use of the services, and programs, features, functions, and report formats, and subsequent updates or upgrades of any of the foregoing made generally available by VoiceBase to Company,
1.10 “Territory” means (i) the United States and Canada, if Company’s Corporate Address is located within the United States or Canada; or (ii) the entire world less the United States and Canada, if Company’s Corporate Address is located outside of the United States or Canada. Territory shall not include any sanctioned countries as determined by OFAC, as updated from time to time or a country subject to governmental or regulatory technology infrastructure limitations.
1.11 “VoiceBase”, “We,” “Us” or “Our” means VoiceBase, Inc. on behalf of itself and its Affiliates.
2.1 Provision of Purchased Services. VoiceBase shall make the Services available to Company pursuant to this Agreement and the relevant Order Forms during the subscription term. Company agrees that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
2.2 VoiceBase API License. Subject to the terms and conditions of this Agreement, VoiceBase hereby grants to Company a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable license during the Term to access, use, and incorporate the VoiceBase API in the applicable Territory into Company’s software for use by Company in connection with recording audio content and uploading such content to VoiceBase for VoiceBase to provide Machine Transcription for that content.
2.3 Documentation License. Subject to the terms and conditions of this Agreement, VoiceBase grants to Company a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable (except as permitted in this Agreement) license during the Term to access, use, and reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the VoiceBase API in accordance with this Agreement.
2.4 Recording License. Subject to the terms and conditions of this Agreement, Company grants to VoiceBase a limited, non-exclusive, non-transferable, non-assignable (except as permitted in this Agreement) license during the Term to access and use and reproduce and create derivative works of the Recordings and to distribute, perform, and display such Recordings and derivative works in connection with providing the Machine Transcriptions to Company as contemplated by this Agreement.
2.5 Use of Brand; Marketing. Upon receipt of the other party’s written consent, each party may use the other party’s name, trade name, trademarks and icons (collectively, the “Brands”) for certain marketing and promotional purposes in promotional materials and a party’s website, including enabling VoiceBase to describe how Company is utilizing the Services as a customer, in each case as mutually agreed upon in writing by both parties. In the event that a party notifies the other party of any incorrect usage of its Brands, the notified party shall promptly correct such usage. All use of a party’s Brands by the other party shall inure to the benefit of the party owning the Brands and such owning party shall be the sole party entitled to register its Brands.
3. Fees and Payment
3.1 Fees. Company shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of subscribed minutes purchased cannot be decreased during the relevant subscription term stated on the Order Form. Certain services and features of the VoiceBase Service have fees associated with them. Please see the terms associated with such products or services for more information. VoiceBase reserves the right to modify fees on a going-forward basis, including offering certain features to some or all users at discounted rates or free of charge, without liability to Company
3.2 Invoicing and Payment. Fees for the Service will be invoiced in advance and in accordance with the terms set forth in the relevant Order Form. Unless otherwise stated in the Order Form, charges are due within 30 days of the applicable invoice date and all payments shall be in United States dollars. Company is responsible for providing complete and accurate billing and contact information to VoiceBase on the Order Form and notifying VoiceBase of any changes to such information. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined from the date due until the date paid. Company will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by VoiceBase to collect any amount that is not paid when due. Amounts due from Company under this Agreement may not be withheld or offset by Company against amounts due to Company for any reason.
3.3 Taxes. Unless otherwise stated, VoiceBase fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes“). Company is responsible for paying all Taxes associated with Company’s purchases hereunder.
4. SERVICE SCOPE
4.1 Delivery and Support. VoiceBase shall: (i) provide standard email support to Company during business hours (8:00 AM–5:00PM PT, excluding holidays) with a targeted response time of less than 3 business hours; Company may call 650-897-5170 ext. 99 for urgent matters or to escalate, if a response is not received within 3 business hours (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime or (b) any unavailability caused by circumstances beyond reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving VoiceBaseemployees), or Internet service provider failures or delays, and (iii) provide the Services only in accordance with applicable laws and government regulations. VoiceBase does not guarantee that Company will always be able to communicate with VoiceBase’s products or services without disruptions, delays, or telecommunication-related errors (“Service Interruptions”).
4.2 Service Levels. VoiceBase will target the service levels described in Appendix A attached hereto (the “SLAs”).
5. COMPANY’S RESPONSIBILITIES
5.1 Registration. In order to use certain features of the VoiceBase Service, such as features that allow users to save and manage their own recordings, or to comment on recordings that Company and other users have saved or to purchase additional services, Company will need to register for an account (such users referred to herein as “Registered Users”) and pay any and all applicable fees. Company agrees that the information Company provides to VoiceBase on registration and at all other times, including without limitation any necessary payment processing information, will be true, accurate, current, and complete, and that Company will keep this information accurate and up-to-date at all times. When Company registers, Company will be asked to provide a password. Company should keep Company password confidential, as Company (or your Company, as applicable) will be responsible for all activities that occur under Company password. In the case of a Company, your password should only be shared with those employees of the Company that have a need to access and use the VoiceBase Service on the Company behalf. Company is solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and Company agrees to accept responsibility for all activities that occur under your account or password.
5.2 Incorporation of VoiceBase Services. Company will use the VoiceBase API so that recorded audio can be automatically uploaded to VoiceBase for Services.
5.2 Rights, Consents, and Authorizations. Company will ensure that it has all rights, consents, and authorizations necessary to capture Recordings and transmit such Recordings to VoiceBase for services hereunder.
6. PROPRIETARY RIGHTS
6.1 Reserved Rights. Nothing in this Agreement transfers or is intended to transfer any such IP Rights to, or to vest any such IP Rights in, to the other party. As between the parties, any and all IP Rights in or to the Recordings and all Machine Transcriptions thereof are and will at all times remain the exclusive property of Company Notwithstanding the foregoing or any other terms of these Agreement, Company acknowledges and agrees that VoiceBase has the perpetual, irrevocable right to use the Recordings and other information made available to VoiceBase, in aggregate, de-identified form, to improve the accuracy of the Speech Engine, to perform quality assurance for Machine Transcriptions, and to otherwise improve VoiceBase’s products and services. Company acknowledges and agrees that it has and will receive no ownership rights to the Documentation, VoiceBase API, the source code or other software underlying the Speech Engine, the VoiceBase API, VoiceBase Enterprise Accelerator, or any statistical information, machine learning models, or other aggregate information derived by VoiceBase in connection with providing services to Company hereunder, and that all IP Rights therein and thereto are and will at all times remain the exclusive property of VoiceBase. There are no implied licenses under this Agreement, and any rights not expressly granted hereunder are reserved.
6.2 Restrictions. Company shall not (i) permit any third party to access the Services, except as permitted herein or in an Order Form, (ii) create derivative works based on the Services except as authorized by Company, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets in conjunction with your use of the Company Service as authorized by this Agreement, (iv) reverse engineer the Services, (v) access the Services in order to (a) build a competitive product or service or assist a third party in building a competitive product or service or (b) copy any features, or functions of the Services. All derivative works of the Company Service and all intellectual property rights therein shall be owned exclusively by VoiceBase. Company agrees that Company, or any third party working on Your behalf, shall not and will not create, develop or design any software application or service similar to the Company Service, whether for internal or external use, including but not limited to any voice analytics, voice transcription, PCI redaction, or similar application.
6.3 Feedback. VoiceBase shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Service or services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Company or its Users relating to the operation of the Company’s Service.
6.4 Admin User Access. Company understands and agrees that selected Company technical and Company support personnel may require access to the Company’s Data through the normal course of providing customer support and system administrative services. Company hereby consents to such access.
7. Warranty; Disclaimer
7.1 Mutual Warranties; Disclaimer. Each Party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms, (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement and (c) this Agreement does not and shall not conflict with any other agreement entered into by it; EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. VOICEBASE DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, THE RESULTS OF THE USE OR THE BENEFITS OF THE SERVICES, OR ANY INFORMATION CONTAINED THEREIN OR OTHERWISE PROVIDED PURSUANT TO THIS AGREEMENT. NO VOICEBASE PERSONNEL IS AUTHORIZED TO MAKE ANY EXPANSION, MODIFICATION OR ADDITION TO THIS LIMITATION OR THE EXCLUSION OF WARRANTIES IN THIS AGREEMENT. IN THE EVENT OF ANY BREACH OF THE WARRANTIES CONTAINED IN THIS AGREEMENT (SAVE FOR ANY FRAUDULENT MISREPRESENTATION), THE SOLE AND EXCLUSIVE LIABILITY OF THE BREACHING PARTY SHALL BE TO USE COMMERCIALLY REASONABLE EFFORTS TO PROMPTLY CORRECT SUCH BREACH.
8.1 Access; Definition of Terms. In connection with this Agreement, each Party may have had or gained access to or may have been or be exposed to, directly or indirectly, Confidential Information of the other Party (“Discloser”). “Confidential Information” means all information, including, without limitation, any formula, pattern, compilation, program, device, method, technique, know-how, process, marketing or pricing information, Company lists, and financial statements that Discloser reasonably determines to be business secrets of such Party, and is designated by Discloser as confidential or it should be reasonably obvious to another party under the circumstances that such information is deemed confidential and may also include information disclosed to Discloser by third parties.
8.2 Protection and Use of Confidential Information. The recipient of such Confidential Information (“Recipient”) agrees to hold and treat all Confidential Information disclosed by the other party (“Discloser”) in confidence and shall use at least reasonable care (but in no event less than the same degree of care as the recipient uses to protect its own Confidential Information of a similar nature) to prevent disclosure to any third party. Each party may disclose Confidential Information, without such party’s prior written consent, to third parties with a legitimate need to know who are bound by similar written confidentiality obligations. The Recipient shall not use the disclosure’s Confidential Information for purposes other than to carry out its obligations under this Agreement. Each party acknowledges that unauthorized disclosure of the other party’s Confidential Information may cause irreparable harm to the other party and would entitle the other party to seek injunctive relief upon disclosure or threatened disclosure, in addition to any other remedies at law to which the party may be entitled. Subject to the Storage Period, upon request by Discloser, Recipient will immediately return to discloser all Confidential Information of discloser, and all copies thereof, in its possession, custody, or control. Storage Period shall be defined as the ninety (90) day period from the date the Recordings and Machine Transcripts occurs (“Storage Period”).
8.3 Compelled Disclosure. If Confidential Information is required to be disclosed pursuant to Applicable Law, regulation, or court order, the Recipient must provide prompt advance notice thereof, to the extent legally permissible, to enable the Discloser to seek a protective order or otherwise prevent such disclosure. In the event the Recipient is legally compelled to disclose any Confidential Information that is necessary in order to comply with such legal obligations and such disclosure will not be treated as a breach of this Agreement.
9.1 Company Indemnification. Subject to the provisions of Section 9.3 below, Company shall defend and pay the defense costs, indemnify, and hold harmless VoiceBase, and its officers, directors, and employees, against all costs, expenses, losses, and damages (including reasonable attorneys’ fees) awarded by a court of competent jurisdiction to a third party for third party claims against VoiceBase based on (i) allegations that Company’s intellectual property, data, or content provided to VoiceBase infringes such third party’s registered patents, copyrights or trademarks issued within the applicable Territory as of the Effective Date or (ii) Company’s breach of its obligations in Section 5.4 (Compliance). The indemnification set forth in this Section 9.1 is Company’s entire liability, and VoiceBase’s sole and exclusive financial remedy, for such third party Claims (defined below).
9.2 VoiceBase Indemnification. Subject to the provisions of Section 9.3 below, VoiceBase shall defend and pay the defense costs, indemnify, and hold harmless Company, and its officers, directors, and employees against all costs, expenses, losses, and damages (including reasonable attorneys’ fees) awarded by a court of competent jurisdiction to a third party for third party claims against the Company based on allegations that the Services infringe such third party’s registered patents, copyrights or trademarks within the applicable Territory as of the Effective Date. VoiceBase’s indemnification obligations shall not apply to the extent that the Claim (defined below) arises from (a) Company’s modification of the Services, (b) Company’s operation or use of the Services in combination with other Company or third party technology, (c) modifications to the Services made by VoiceBase at Company’s direction or in accordance with specifications provided by Company, (d) the acts or omissions of Company, or any of its officers, directors, employees, consultants or agents. The indemnification set forth in this Section 9.2 is VoiceBase’s entire liability, and Company’s sole and exclusive financial remedy, for third party Claims.
9.3 Indemnification Procedure. The indemnification obligations in Section 9.1 and 9.2 are condition on the indemnified party (i) promptly notifying the indemnifying party of any such claim, proceeding, or suit brought against an indemnified party in respect of any allegation for which indemnity may be sought pursuant to Section 9.1 and 9.2, respectively (“Claim”) of which it becomes aware of; (ii) providing reasonable cooperation to the indemnifying party upon its request in connection with the defense or settlement of any such Claim; (iii) the indemnified party grants the indemnifying party full and complete control over the defense and settlement of the Claim; provided, however, that no settlement will obligate or impose liability on any indemnified party in any way without the written approval of the indemnified party, including without limitation, any determination or admission regarding any indemnified party’s interest. The indemnified party may participate at its own expense in the defense of any such Claim, provided that such participation is not disruptive to the indemnifying party’s defense of the Claim.
10. LIMITATION OF LIABILITY
10.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL A PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED, IN AGGREGATE, THE TOTAL AMOUNT PAID BY COMPANY TO VOICEBASE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION). THE FOREGOING LIMITATIONS WILL NOT APPLY TO (A) ANY PAYMENT OBLIGATIONS CONTAINED IN SECTION 3, OR (B) COMPANY’S BREACH OF SECTION 6.
11. Term and Termination
11.1 Term. The term of this Agreement will commence on either the Order Form effective date or the date that Company registers to utilize the Services (the “Effective Date”) and continue for so long as any Order Form or SOW is in place (the “Term”).
11.2 Termination for Material Breach. Either Party may terminate this Agreement or any Order Form, if the other Party does not cure its material breach of its obligations contained herein within 30 days of receiving written notice of such breach from the non-breaching Party. If Company fails to timely pay any fees, VoiceBase may, without limitation to any of its other rights or remedies, suspend performance of the VoiceBase Services until it receives all amounts due. In the event of (i) Company’s breach of Section 6, VoiceBase may terminate this Agreement immediately upon notice to Company; or (ii) if either party (a) holds any meeting with or proposes to enter into or has proposed to it any arrangement or composition with its creditors (including any voluntary arrangement as described in the Insolvency Act 1986); (b) has a receiver, administrator, or other encumbrancer take possession of or appointed over or has any distress, execution or other process levied or enforced (and not discharged within seven (7) days) upon the whole or substantially all of its assets; or (c) ceases or threatens to cease to carry on business or becomes unable to pay its debts ; (d) something having a substantially similar effect to (a) or (c) occurs in connection with either party under the law of the applicable jurisdiction, then in any such event, the other party shall have the right to terminate this Agreement with immediate effect upon written notice.
11.3 Post-Termination Obligations. If this Agreement is terminated for any reason, (a) Company will pay to VoiceBase any fees or other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued prior to the effective date of the termination will survive, and (c) Company will provide VoiceBase with a written certification signed by an authorized Company representative certifying that all use by Company of the VoiceBase Services, the source code contained in the VoiceBase API, and Documentation has been discontinued.
12. General Provisions.
12.1 Data Processing Agreement. Company and VoiceBase may enter into a Data Processing Agreement (DPA) that establishes that states the rights and obligations of each party concerning the protection of personal data in connection with the Services. In the event of any conflict between such DPA and this Agreement, such DPA will govern with respect to the actual conflict.
12.2 Relationship. Each Party will act as an independent contractor (and not as the agent or representative of the other Party) in the performance of this Agreement.
12.3 Entire Agreement. This Agreement, including all exhibits and addenda hereto, along with all Order Forms executed hereunder, constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Company purchase order or in any other Company order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
12.4 Conflicts. If there is any conflict between the terms of this Agreement and any Exhibit hereto, the terms of this Agreement will take precedence.
12.5 Governing Law; Venue. This Agreement shall be governed in all respects, including validity, interpretation and effect, by a) the laws of the State of New York and exclusive venue shall be in the courts of the State of New York if Company’s Corporate Address is located in the United States or Canada, or b) by the laws of England and Wales and exclusive venue shall be in the courts of England and Wales if Company’s Corporate Address is located in Europe, the Middle East, Africa, Central America or South America. Each party expressly waives its right to a trial by jury. The application of the UN Convention on Contracts for the International Sale of Goods is expressly excluded.
12.6 Amendments; Waiver. This Agreement may be changed only by a written agreement signed by an authorized agent of the Party against whom enforcement is sought. VoiceBase will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Company in any receipt, acceptance, confirmation, correspondence, or otherwise, unless VoiceBase specifically agrees to such provision in writing and signed by an authorized agent of VoiceBase. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of either Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
12.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, VoiceBase may assign this Agreement together with all rights and obligations hereunder, without consent of Company, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section 12.8 shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.9 Subcontractors. VoiceBase may utilize a subcontractor or other third party to perform its duties under this Agreement, so long as VoiceBase remains responsible for all of its obligations under this Agreement. The list of Subcontractors can be provided upon written request.
12.10 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective, if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section 12.10. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier. Except as explicitly stated otherwise, legal notices will be served on 2081 Center Street, Berkeley, CA, 94704.
12.11 No Benefit to Others. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on any other persons, unless otherwise stated herein.
VoiceBase Service Level Agreement
1. DEFINITIONS. The following capitalized terms shall be given the meaning set forth below. Any term not defined below shall have the meaning as defined in the Agreement:
“Company Processing Time” is a measure of the processing time for Normative Audio Files. Processing begins when file upload is complete and ends when the results are available for retrieval, if no callback is requested, or when the first attempt to deliver a callback is made, whether successful or not. For purposes of this SLA, the Company Processing Time metric is calculated by dividing the month into one-hour intervals and measuring the average processing time for all Normative Audio Files within each interval. For those Service Levels measured across multiple VoiceBase instances, this metric is calculated separately for all VoiceBase geographic instances each hour, and then taking the average of those values, with the worst value in each hour interval discarded. This is designed to measure the results available to customers that automatically distribute their work across two or more instances and actively avoid unavailable and/or poorly performing instances.It may not be reasonable to calculate an average for hour intervals fewer than 5 files were processed. Such intervals may at the discretion of VoiceBase be excluded from this calculation.
2. NORMATIVE AUDIO FILES
|Normative Audio File||
The Normative Audio File for purposes of this SLA shall be the VoiceBase standard test file approximately one minute in length, processed to produce a US English transcript.
“Normative Audio Files” are those files that comply with the specification outlined in the Normative Audio Files clause and are thus considered in scope for the SLA. Since processing times vary dramatically by file length, compression, noise, language, and specific API options selected, any SLA must be defined relative to a specific specification for source audio files and API options. The Normative Audio Files clause may specify a customer-specific file or range of files or may specify a VoiceBase-managed file. If a VoiceBase-managed file is specified, the measurements for the purposes of this SLA shall be taken from the VoiceBase-managed monitoring systems instead of from the Company’s account. Because the VoiceBase-managed monitoring systems run very frequently and always use the same files, the measurements generated are very accurate.
- SERVICE LEVELS. VoiceBase targets for the Services will adhere to the following Service Levels based on Company’s use of the VoiceBase Services: .
|Service Level Type||Service Level||Service Level Calculation|
|Monthly Uptime Percentage||
99.9% for a single VoiceBase instance
99.99% across multiple VoiceBase instances
|Calculated by subtracting from 100% the “Monthly Unavailable Percentage”. Any unavailability due to interruptions caused by (a) scheduled maintenance or (b) force majeure, emergency maintenance necessitated by the actions of third parties, or by events outside the reasonable control of VoiceBase (e.g. general Internet disruption) shall not be included in the Monthly Uptime calculation|
|Company Monthly Average Processing Time||
Low Priority: 30 Minutes
Normal Priority: 8 Minutes
High Priority: 5 Minutes
|The mathematical average of all Company Processing Time measurements during the month.|
|Company 99.5% Threshold Processing Time||
Low Priority: 12 Hours
Normal Priority: 1 Hour
High Priority: 10 Minutes
|Calculated by taking the highest/longest Company Processing Time measurement during a given month, excluding the worst 0.5% of all measurements|
|Company 100% Threshold Processing Time||
Low Priority: 24 Hours
Normal Priority: 2 Hours
High Priority: 20 Minutes
|Calculated by taking the highest/longest Company’s Processing Time measurement during a given month. This metric is only calculated across multiple VoiceBase instances, as defined earlier in this document, and is designed to quantify the performance available to customers that actively use multiple VoiceBase instances to improve uptime and average processing time|