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Terms and Conditions Visual IVR SAAS Subscription Agreement

Terms and Conditions Visual IVR SAAS Subscription Agreement

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JACADA VISUAL IVR SAAS SUBSCRIPTION AGREEMENT

Please read the following terms and conditions carefully (these “Terms” or “Agreement”) before using the Jacada solution and related documentation (“Program”) on a software as-a-service basis. By clicking the “I AGREE” button below, you agree to be bound by these Terms. If you do not agree to these Terms, please click the “Cancel” button or do not use the Program. If you have any questions about these Terms, you can reach the Jacada team at https://www.jacada.com/customer-support/

You hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.

These Terms constitute the complete and exclusive statement of the agreement between you, or the company on who’s behalf you are using the Program, (“You” or “Customer”) and Jacada Ltd. or its designated subsidiary in your territory (“Jacada”), which supersede any proposal or prior agreement, oral or written, and any other communication relating to the subject matter of these terms.

1.Subscription to the Program.  Subject to these Terms, and in consideration to the payment of the SaaS Subscription Fee (as defined below) for the Program, Jacada hereby grants Customer the non exclusive and non assignable right to access and use the Program, during the Term (as defined below), solely for Customer’s internal business purposes (for clarity, not for resale, distribution, or other form of making the Program available to third parties).

Customer acknowledges that the features and functions of the Program may change over time. Although Jacada endeavors to avoid changes to the Program that are not backwards compatible, if any such changes become necessary Jacada will use reasonable efforts to notify Customer at least 60 days prior to implementation.

The Subscription Fee does not include, however, any configuration, integration, training, customization or other services (“Professional Services”) with respect to the Program for use by Customer in Customer’ system or in accordance with Customer’s requirements or specifications. If Customer desires any Professional Services with respect to the Program, such Professional Services shall be subject to payment and governed by a separate services order.

2.Restrictions on Use.  The foregoing license is subject to the following restrictions: (i) the number of concurrent users who may use or access the Program will be set forth in the purchase order executed and delivered by Customer to Jacada (“Purchase Order”) (“Access and Use Restrictions”)

(ii) Customer will ensure that the use the Program provided hereunder is in accordance with all applicable laws, regulations and third party rights, as well as the terms of this Agreement

(iii) Customer may not allow any Permitted User or any third party to: (a) circumvent, disable or otherwise interfere with security-related features of the Program or features that enforce limitations on use of the Program; (b) violate or abuse password protections governing Access and Use Restrictions; (c) allow any third party to use the Program; (d) sell, rent, lease, license or timeshare the Program or use it in any service bureau arrangement; (e) copy, modify, reverse engineer, decompile, disassemble or derive, or attempt to derive, the source code of, the Program or any components thereof; (f) use the Program to develop a competing service or product; (g) use any automated means to access the Program; (h) take any action that imposes or may impose, at Jacada’s sole discretion, a disproportionately large load on the Jacada’s infrastructure; (i) interfere or attempt to interfere with the integrity or proper working of the Program; (j) remove, deface, obscure, or alter Jacada’s, or any third party’s, copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Program.

3.Documentation. Jacada will make available Documentation (defined below) to Customer for its internal business purposes and solely in connection with Customer’s use of the Program during the Term.  Customer may print or copy the Documentation as needed for its own internal business purposes provided that all copyright notices are included therein.  The Documentation shall be considered Jacada’s Confidential Information (as defined below).  Unless the Documentation is separately referred to herein, all references in this Agreement to the Program shall include the Documentation.  “Documentation” means Jacada’s standard user documentation (that Jacada generally makes available to its Program customers), in electronic form, that describes the use, features and operation of the Program.

4.Service Levels.

4.1.In consideration of the payment of the applicable Subscription Fee, Jacada shall make commercially reasonable efforts to make the Program available at the service levels identified on the Jacada Service Level Web Page on its web site, as may be amended from time to time (“Service Levels”).

4.2.Customer agrees to cooperate with Jacada in order for Jacada to provide the Service Levels to Customer and to comply with instructions that Jacada may provide to Customer in connection with Jacada’s provision of the Service Levels.

5.Customer Account.  A Customer account will be created in connection with Customer’s use of the Program (“Account”).  Customer shall only access the Program via the Jacada-designated web portal or API and in connection with Customer’s Account. Customer may not allow anyone other than Customer’s permitted users (each a “Permitted User”) to access and use Customer’s Account.  Customer acknowledges and agrees: (i) to keep, and ensure that Permitted Users keep, all Account login details and passwords secure at all times; (ii) to remain solely responsible and liable for the activity that occurs in Customer’s Account, (ii) that the login details for each Permitted User may only be used by that Permitted User, and that multiple people may not share the same login details; and (iv) to promptly notify Jacada in writing if Customer becomes aware of any unauthorized access or use of Customer’s Account or the Program.

6.Inspection.  Jacada will be entitled, at any time during the Term monitor Customer’s usage of the Program for purposes of determining compliance with these Terms.

7.Customer Data.

7.1.License.  While using the Program, Customer may choose to provide, upload, import, transmit, post, or make accessible (collectively, “Provide”) to Jacada certain Customer data or other information including call records, audio recordings, recording transcriptions, SMS records, and SMS message content (“Customer Data”).  Customer will ensure that Jacada is entitled to use the Customer Data as needed to Provide the Program. Customer grants Jacada a non-exclusive license to use, process, display, copy and store the Customer Data in order to Provide the Program to Customer.

7.2.Customer represents and warrants that: (i) Customer owns or has obtained the rights to all of the intellectual property rights subsisting in the Customer Data, and Customer has the right to provide Jacada the license granted herein to use such Customer Data in accordance with this Agreement; (ii) the Customer Data does not infringe or violate any patents, copyrights, trademarks or other intellectual property, proprietary or privacy or publicity rights of any third party; and (iii) the Customer Data does not infringe or violate any data protection statute, regulation, order or similar law.  Customer shall remain solely responsible and liable for the Customer Data and expressly releases Jacada from any and all liability arising from Jacada’s use of the Customer Data as permitted herein.

7.3.Availability of the Customer Data.  Customer acknowledges that: (i) the Program does not operate as an archive or file storage service and Jacada does not store all of the Customer Data that Customer may Provide during Customer’s use of the Program; (ii) Jacada not have any liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur with respect to the loss or deletion of Customer Data; and (iii) Customer is solely responsible for the backup of its Customer Data.

7.4.Security. Jacada agrees during the Term to implement reasonable security measures to protect Customer Data and will, at a minimum, utilize industry standard security procedures. Jacada’s security policy, as amended from time to time, may be found at Jacada’s web site.

8.Title.

8.1.Program.  The intellectual property and all other rights, title and interest of any nature in and to the Program, and any related content, Documentation and services provided or made available by Jacada hereunder, including all modifications, upgrades, enhancements, updates, customizations and derivative works (whether or not permitted under this Agreement) of the Program, are and shall remain the exclusive property of Jacada and its licensors.  Except as expressly set forth herein, nothing in this Agreement shall be construed as transferring any rights, title or interests to Customer or any third party.  Jacada and its licensors reserve any and all rights not expressly granted in these Terms and Conditions.

8.2.Customer Data.  The intellectual property and all other rights, title and interest of any nature in and to the Customer Data are and shall remain the exclusive property of Customer and its licensors.  Except as expressly set forth herein, nothing in this Agreement shall be construed as transferring any rights, title or interests to Jacada or any third party.

9.Anonymous Information.  Jacada may collect, use and publish Anonymous Information (defined below), and disclose it to its third party service providers, to provide, improve and publicize Jacada’s programs and services.  “Anonymous Information” means information about use of the Program which does not enable identification of an individual, such as aggregated and analytics information about use of the Program.  Jacada owns all Anonymous Information collected or obtained by Jacada.

10.Payments.

10.1.Subscription Fee.  The fee payable for access to and use of the Program shall be the price as set for on Jacada’s website at the time this Agreement was executed via electronic acceptance. Where pricing is not indicated on Jacada’s website, the fee payable for access to and use of the Program shall be the price as set for in a Purchase Order received and accepted by Jacada (both, the “Subscription Fee”). Customer’s access to and use of the Program is subject to Customer’s timely payment in full of the Subscription Fee for the related subscription period as described in the Purchase Order. Unless otherwise stated in the Purchase Order the Subscription Fee for each Renewal Term (as defined below) shall be determined by Jacada’s then-current subscription fee rates for the Program.

10.2.Payment Terms.  Unless otherwise expressly stated herein or in the Purchase Order, all payments hereunder are quoted and shall be paid in United States Dollars.  Payments shall be made without any right of set-off or deduction and are irrevocable and (except as expressly set forth herein) nonrefundable.  All Jacada invoices are payable within thirty (30) days of the date of invoice.  Any amount not paid when required to be paid hereunder shall accrue interest on a daily basis until paid in full at the lesser of: (i) the rate of one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable law.

10.3.Taxes.  All fees payable to Jacada are exclusive of applicable taxes (including without limitation VAT), withholdings or duties.  All taxes, withholdings and duties of any kind payable with respect to Customer’s subscription to the Program or other related services arising out of or in connection with this Agreement, other than taxes based on Jacada’s net income, shall be borne and paid by Customer.

11.Term.  This Agreement shall be effective on the date accepted by the Customer and shall continue for an initial term of one (1) year (the “Initial Term”).  Following the Initial Term, this Agreement shall automatically renew at the then-applicable Subscription Fees for successive one (1) year terms (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless: (i) Jacada or Customer provides the other with sixty (60) days written notice prior to the end of any term of its intent not to renew, or (ii) this Agreement is terminated in accordance with the Termination Section below. If Customer continues to use the Program past any renewal date, then Customer shall be deemed to have renewed the Agreement for the following term at the rates applicable for said new term.

12.Termination.

12.1.Material Breach.  Either party may terminate this Agreement with immediate effect if the other party materially breaches this Agreement and such breach remains uncured (to the extent that the breach can be cured) fifteen (15) days after having received written notice thereof.

12.2.Distress Event.  In the event that either party becomes liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily, or shall take any action to be so declared, the other party shall have the right to immediately terminate this Agreement.

13.Suspension.  If Jacada believes that Customer is using the Program in a manner that may cause harm to Jacada or any third party then Jacada may, without derogating from Jacada’s right to terminate this Agreement for any breach hereof, temporarily suspend Customer’s access to and use of the Program until such time as Jacada believes the threat of harm, or actual harm, has passed.

14.Effect of Termination.

14.1.General.  Upon termination of this Agreement, Customer shall immediately discontinue all access and use of the Program and shall promptly, but in any event within three (3) days, permanently delete all copies of the Documentation in Customer’s possession or control.

14.2.Access to Customer Data.  Upon termination of this Agreement, Customer will lose all access to any Customer Data that Jacada may be storing in order to make available the Program to Customer.  It is Customer’s responsibility to download its Customer Data prior to termination of this Agreement.  Notwithstanding the foregoing, for a period of thirty (30) days from the effective date of termination of this Agreement, Jacada will provide Customer, upon Customer’s written request, with a reasonable opportunity to download the Customer Data.  Jacada reserves the right to permanently delete any Customer Data that may be contained in Customer’s Account at any time following said thirty (30) day period, and Customer agrees to waive any legal or equitable rights or remedies it may have against Jacada with respect to Customer Data that is deleted in connection thereto.

14.3.Survival. This Section 14 and Sections ‎2 (Restrictions on Use), ‎8 (Title), ‎10 (Payments, to the extent any amounts due hereunder remain payable), ‎15 (Warranty Disclaimer), ‎16 (Limitation of Liability), ‎17 (Indemnification), ‎18 (Confidential Information), ‎19 (Privacy Policy) and ‎21 (Independent Contractors) through ‎25 (General) shall survive termination of this Agreement.

15.Warranty Disclaimer.

15.1.EXCEPT AS EXPRESSLY SET FORTH HEREIN: (I) THE PROGRAM AND SERLICE LEVELS ARE PROVIDED ON AN “AS IS” BASIS; AND (ii) ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, NON INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  JACADA WILL NOT BE LIABLE OR RESPONSIBLE FOR: (a) ANY TECHNICAL PROBLEMS OF THE INTERNET (INCLUDING WITHOUT LIMITATION SLOW INTERNET CONNECTIONS OR OUTAGES); AND/OR (b) ANY ISSUE THAT IS ATTRIBUTABLE TO CUSTOMER’S HARDWARE OR SOFTWARE OR CUSTOMER’S INTERNET OR DATA SERVICE PROVIDER.

16.Limitation of Liability.

16.1.EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL JACADA BE LIABLE FOR ANY LOSS OF INCOME, PROFITS, GOODWILL, REPUTATION, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT ARISE UNDER THIS AGREEMENT OR THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE PROGRAM, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

16.2.JACADA’S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES AND LOSSES UNDER THIS AGREEMENT, OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE PROGRAM, SHALL NOT UNDER ANY CIRCUMSTANCE EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO JACADA UNDER THIS AGREEMENT WITHIN THE TWELVE (12) MONTHS PRECEDING THE DATE OF BRINGING A CLAIM.

17.Indemnification.

17.1.By Jacada.  Jacada hereby agrees to defend and indemnify Customer against any damages awarded against Customer by a court of competent jurisdiction, or paid in settlement, in connection with a third party claim, suit or proceeding that Customer’s use of the Program within the scope of this Agreement infringes any copyright or trade secret of a third party.

Jacada shall have no obligations or liability hereunder to the extent that the alleged infringement is based on the Customer Data.  Without derogating from the foregoing defense and indemnification obligation, if Jacada believes that the Program, or any part thereof, may infringe, then Jacada may in its sole discretion: (i) obtain (at no additional cost to Customer) the right to continue to use the Program; (ii) replace or modify the allegedly infringing part of the Program so that it becomes non-infringing while giving substantially equivalent performance; or (iii) if Jacada determines that the foregoing remedies are not reasonably available, then Jacada may require that use of the (allegedly) infringing Program (or part thereof) shall cease and in such an event Customer shall receive a prorated refund of any Subscription Fees paid for the unused portion of the subscription period.  This section states Jacada’s entire liability and Customer’s exclusive remedy for infringement.

17.2.By Customer.  Customer hereby agrees to defend and indemnify Jacada against any damages awarded against Jacada by a court of competent jurisdiction, or paid in settlement, in connection with a third party claim, suit or proceeding that use of the Customer Data within the scope of this Agreement infringes any intellectual property rights of a third party.

17.3.General.  The defense and indemnification obligations of the indemnifying party under this section are subject to: (i) the indemnifying party being given prompt written notice of the claim; (ii) the indemnifying party being given immediate and complete control over the defense and/or settlement of the claim; and (iii) the indemnified party providing cooperation and assistance, at the indemnifying party’s expense, in the defense and/or settlement of such claim and not taking any action that prejudices the indemnifying party’s defense of or response to such claim.

18.Confidential Information.  Each party may have access to certain non-public and/or proprietary information of the other party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other party, whether written or oral, and any such other information that, regardless of the manner in which it is furnished and given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (“Confidential Information”).  Each party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other party’s Confidential Information from disclosure to a third party.  Neither party shall use or disclose the Confidential Information of the other party except as expressly permitted under this Agreement or by applicable law.  All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing party.  19.Privacy Policy.  To the extent that any personally identifiable information is collected by or on behalf of Jacada, it shall be used by Jacada in accordance with the Jacada privacy policy, as may be amended from time to time which is available at Jacada’s web site.

20.Reference Customer.  Jacada may use Customer’s name and logo on its website and in its promotional materials to state that Customer is a customer of Jacada and Program user, but will not imply that the parties are affiliated.  Customer agrees to serve as a reference customer of Jacada and shall cooperate with Jacada’s reasonable marketing and referencing requests.

21.Independent Contractors. The parties are independent contractors.  Nothing in this Agreement shall create a partnership, joint venture, agency, or employment relationship between the parties.  Neither party may make, or undertake, any commitments or obligations on behalf of the other.

22.Assignment.  This Agreement and any rights or obligations hereunder: (i) may not be transferred or assigned by Customer without the prior written consent of Jacada; but (ii) may be transferred or assigned by Jacada to a n affiliated company or as part of a sale of its assets, a merger or other corporate reorganization.  Subject to the foregoing conditions, this Agreement shall be binding upon and inure to the benefit of each party and its respective assigns.  Any prohibited assignment shall be null and void.

23.Force Majeure. Neither party shall be liable to the other for any performance delay or failure to perform hereunder, exclusive of payment obligations, due to any act, omission or condition beyond the reasonable control of the affected party, provided the affected party gives prompt notice to the other and makes reasonable efforts to resume performance as soon as possible.

24.Governing Law and Settlement of Disputes.

24.1.This Agreement shall be governed by the laws of the State of Israel.

24.2.In the event of any dispute arising out of this Agreement, each party agrees to cooperate and negotiate in good faith with the other party in an effort to amicably resolve said dispute.  Jacada may seek injunctive or other equitable relief in any jurisdiction in order to protect its intellectual property rights. Each party may seek injunctive or other equitable relief in any jurisdiction in order to protect its confidential Information.

25.General.  This Agreement represents the complete agreement concerning the Program between Customer and Jacada and supersedes all prior agreements and representations between Customer and Jacada.  If any provision of this Agreement held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. Any waiver of any provision of this Agreement will be effective only if in writing and signed by Jacada. Any notice required or permitted to be given hereunder will be given in writing to the receiving party by personal delivery, certified mail, return receipt requested, or by overnight delivery. Jacada may use Customer’s current address, as provided by Customer in connection with billing and payment activities. Jacada’s current address may be found on its website at www.jacada.com.

Jacada Service Level Agreement (“SLA”)

This Jacada Service Levels Agreement (“SLA”) governs the use of the Jacada Program under the terms of the JACADA SAAS SUBSCRIPTION AGREEMENT (the “Terms”) between Jacada and Customer as defined therein. This SLA applies separately to each Account using the Program. Unless otherwise provided herein, this SLA is subject to the Terms and capitalized terms will have the meaning specified in the Terms. Jacada reserves the right to change the terms of this SLA in accordance with the Terms.

1.Availability.  For the Term of the Agreement, Jacada will use commercially reasonable efforts to ensure that the Program is available for access and use in accordance with the Jacada Subscription Agreement (the “Service”) at a monthly Uptime Percentage (defined below) of at least 99.9%, as measured over any calendar month.  In the event Jacada does not meet the goal of 99.9% availability in a given calendar month, Customer will be eligible to receive a Service Credit as described below.

2.Definitions.  All capitalized terms used in this SLA without definition shall have the meaning ascribed to them in Jacada SaaS Subscription Agreement.  In addition, the following definitions shall apply to this SLA:(i)”Downtime” means the total time within a Measured Period during which the relevant Service is inoperable or inaccessible, excluding SLA Exclusions during such Measured Period.(ii)”Measured Period” means the total number of minutes in the calendar month.(iii)”Scheduled Maintenance” means any Downtime (a) of which Customer is notified at least three (3) days in advance, or (b) during a standard maintenance window, as published by Jacada from time to time. In either of the foregoing two situations, Jacada will use commercially reasonable efforts to ensure that the Scheduled Maintenance falls between the hours of Friday 19:00 PM and Monday 07:00 AM US Eastern time.(iv)“Service Credit” is a Dollar credit, calculated as set forth below, that Jacada may credit back to an eligible Customer Account.(v)”Uptime” means the total period in minutes during which the Program is available for access and use during a Measured Period.(vi)”Uptime Percentage” means Uptime expressed as a percentage, calculated in accordance with the following formula:Uptime Percentage = X / (Y – Z) × 100   Where: X=Uptime Y=Measured Period Z=The duration (in minutes) of any SLA Exclusions during the applicable Measured Period 3.For a calendar month where the Uptime Percentage is lower than 99.9%, Jacada, at its sole discretion after confirming  the nature and accuracy of the Downtime, will credit Customer’s Account for 10% of that month’s Subscription Fees. 4.To apply for a Service Credit, the Customer must submit a ticket via the Account Portal within 30 days of the month  in which the Downtime occurred. The ticket must include (i) “SLA Claim” as the subject of the ticket; (ii) the dates and  times of the Downtime for which Customer is requesting credit; and (iii) any applicable information that documents the  claimed outage. Service Credit shall be issued to Customer’s balance for future use only. No refunds or cash value will be  provided. Service Credits may not be transferred or applied to any other Account. Service Credits shall be Customer’s sole  and exclusive remedy for any unavailability or non-performance of the Jacada Program. 5.SLA Exclusions.  Jacada’s obligations hereunder are based on and subject to the Customer: (i) complying with the terms and conditions of the Agreement, including this SLA; (ii) complying with Jacada’s instructions, if any, for performing  any corrective action; and (iii) maintaining the connectivity (with acceptable bandwidth) of the Customer’s workstations to  the main Internet, as well as creating and maintaining firewall definitions and opening required ports that permit access to  the Program.  The following shall not be considered within the definition or calculation of Downtime: (i) Scheduled  Maintenance; (ii) backups of the Program; (iii) Program unavailability that is attributable to: (a) causes beyond Jacada’s  reasonable control, such as a force majeure event, or the performance of any third party hosting provider or communications  or internet service provider; (b) Customer’s failure to perform any obligation under the Agreement that affects the  performance of the Program; (c) any actions or omissions of the Customer or any third party acting on its behalf; and/or (d)  Customer’s or any third party’s equipment or software; (iv) Program unavailability caused by the suspension and termination  of Customer’s right to use the Program in accordance with the Agreement; each (each an “SLA Exclusion”).

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