MaxContact Standard Terms and Conditions

1: Interpretation

1.1 Definitions

Group Company

Agentless Dialling: When the campaign type is set to IVR in MaxContact, meaning outbound calls are made but rather than being routed to an advisor an Automated IVR message is played.

Agreement: means a contract formed under these Terms and Conditions (Conditions), including the Service Order and any referred schedules, appendices and policies.

Authorised Users: those individuals (including employees, agents, independent consultants and contractors), subject to the maximum User Subscriptions licensed by MaxContact and detailed in the Service Order, who are authorised by the Customer or its Group Companies to use the Service.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks are open for business.

Business Initiated WhatsApp Conversation: where a WhatsApp conversation is initiated by The Customer to a 3^rd party; all messages from the start-time of the initial conversation for a 24 hour period to the 3^rd party are included as one chargeable unit. Replies after 24 hours incur a new chargeable unit of conversation.

Bundle Charges: the Charges payable by the Customer for a Bundled Service, as set out in the Service Order.

Bundled Service: A combined service consisting of the Service and telephone call minutes, as may be specified in the Service Order

Call Charges: charges for telephone calls payable by the Customer as specified in the Service Order and Fee Policy.

Fee Policy: MaxContact’s policy providing further detail on the structure and application of the Fees payable under this agreement, as may be updated by MaxContact from time to time.

Confidential Information: information relating to products, services, business, affairs, plans and strategy, pricing, customers, clients or suppliers, or such other information which a person may reasonably view as being proprietary or confidential, including such information identified as Confidential Information in clauses 10.5 and 10.6.

Consumption Charges: usage basedcharges payable by the Customer under the agreement, as set out in the Service Order and Charging Policy, and may include Call Charges, SMS charges, WhatsApp conversation charges and Advanced Text To Speech charges.

Customer: the entity named as such in the Service Order.

Customer Data: the information or data inputted or provided by the Customer, Group Companies, Authorised Users, or by MaxContact on the Customer’s behalf, for the purpose of using the Services or facilitating the Customer’s use of the Service.

Customer Initiated WhatsApp Conversation: where a 3^rd party sends the Customer a WhatsApp message and The Customer replies. All messages for a 24 hour period from the time of the 3^rd party’s initial message are included as one chargeable unit. Replies after 24 hours incur a new chargeable unit of conversation.

Documentation: the document made available to the Customer by MaxContact online through the Service help files and wiki which sets out a description of the Service, Software and the user instructions for the Service.

Effective Date: the date of the Service Order.

Emergency: a serious situation or occurrence that demands immediate action in order to ensure core functionality or accessibility of the Service.

Fees: together all fees and Consumption Charges payable by a Customer under the agreement as specified in the Service Order.

Flexi-subscription: The number of user subscriptions allowed above the minimum User Subscription which are not contracted for the subscription term, which is only permitted if provided for in the service Order and is applied in accordance with clauses 8.3 and 8.4.

Group Company: means, in relation to any party, any company which is a holding company or subsidiary of that party, or is a subsidiary of any holding company of that party, where “holding company” and “subsidiary” have the meanings given to them by section 1159 of the Companies Act 2006

Initial Subscription Term: means the initial period for which the Service will be licensed and provided as specified in the Service and commencing on the Subscription Start Date.

IPR means intellectual property rights in and to patents, trademarks, service marks, trade and service names, copyrights, database rights and design rights (regardless of registration, and including applications for registration), know-how, moral rights, trade secrets, confidential and proprietary information, all rights or forms of protection of a similar nature or having similar or equivalent effect to any of them which may subsist anywhere in the world now existing or hereafter arising.

MaxContact: Trivoni Software Ltd t/a MaxContact, with company number 09816677 and registered office at City View House, 5 Union Street, Manchester, M12 4JD

Ongoing Fees: such ongoing Fees payable over the Subscription Term as shown on the Service Order as applicable for the Bundled Service, Subscription Fee and/or Consumption Charges, and as may be payable monthly, quarterly or annually as detailed in the Service Order.

Normal Business Hours: 9.00 am to 5.30 pm UK time, each Business Day.

Normal Support Hours: 8.00am to 8pm UK time, Monday to Friday excluding New Year’s Day and Christmas Day.

Payment Frequency: the payment frequency for the Ongoing Fees as specified in the Service Order, being monthly, quarterly or annually.

PCI Services: Payment Card Industry collection and compliance services, which may be purchased by a Customer under a Service Order.

Problem: a failure of the Service to function materially in accordance with the Documentation.

Professional Services: any implementation, development, configuration or additional services agreed to be performed by MaxContact under a Service Order, as part of the Service.

Proof of Concept: an initial proof of concept or trial of the Service as may be agreed to be provided by MaxContact under a Service Order and which shall operate in accordance with clause 2.7.

Reasonable Business Usage: the Service shall be used solely for reasonable business use, which in the case of “MaxContact Bundled User – Unlimited”, shall be prohibited from “Agentless Dialling” and limited to a maximum of 4,500 minutes per Authorised User per calendar month

Renewal Period: the period described in clause 13.1.

Replication Server: server provided by MaxContact to the Customer to allow the customer to build extracts and bespoke reports using 3rd party tools, if provided for in a Service Order.

Service: means the supply of the Software, and any other services as may be specified in the Service Order, including PCI Services and Professional Services as the case may be.

Service Order: the order form detailing the Service purchased by the Customer, as well as applicable Charges, forming part of this agreement. 

Software: MaxContact’s software-as-a-service platform to be licensed or otherwise made available to Customer by MaxContact under this agreement, as specified in the Service Order, and including any third-party software that is incorporated within that software.

Subscription Fee: the licence fee for access and use of the Software via the Service, as set out in the Service Order and forming part of the Ongoing Fees.

Subscription Start Date: the earlier of the date upon which the Service goes live in a production environment or 30 days from the Effective Date.

Subscription Term: the Initial Subscription Term together with any subsequent Renewal Periods.

Support Services: MaxContact’s standard support services as set out in its Support Policy and as may be updated from time to time by MaxContact.

One-off Fees: such provisioning, implementation, configuration fee, and other professional service fees as set out in the Service Order.

Usage Data: means the aggregated or anonymized statistical usage, analytics, benchmarking, performance, qualitative and other data derived from the operation of the Service across the Software.

User Subscriptions: the user subscriptions purchased by the Customer as specified in the Service Order which entitle Authorised Users to access and use the Service and the Documentation in accordance with this agreement.

Virus: anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.2 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.

1.3 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.

1.4 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.

1.5 A reference to writing or written includes e-mail.

1.6 Use of the terms include, including, and any similar expressions, will be read without limitation.

2. Contract formation and Licence

2.1 MaxContact agrees to supply the Service to Customer, and Customer agrees to purchase a licence for the Service, and associated telecommunication products, from MaxContact, on the terms of the Agreement.

2.2 The Service Order will be issued to the Customer and will remain valid for 30 days from the date of issue. A contract will be formed between the parties and an agreement entered, once the Service Order has been signed by both parties.

2.3 Subject to the Customer purchasing the User Subscriptions in accordance with the Service Order this agreement, the restrictions set out in clause 3 and the other terms and conditions of this agreement, MaxContact hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sub-licences other than under clause 2.4, to permit the Authorised Users to use the Service and the Documentation during the Subscription Term for its internal business purposes.

2.4 The Customer may permit its Group Companies, other than those located or trading in a country subject on a current UK, European Union or United States of America sanction list, to use the Service, however it is responsible for the acts or omissions of the Group Companies and their Authorised Users and shall procure the Group Companies comply the terms of this Agreement as they apply to the Customer. MaxContact will provide support only to the Customer and its Group Companies using the Service, but no other affiliates or third parties. .

2.5 In the event Group Companies use the Service, they shall not be third party beneficiaries nor shall they have any direct rights against MaxContact under this Agreement. In the event an Group Company believes they have a claim for loss or damages against MaxContact, such claim must be brought by the Customer directly, and the Customer shall indemnify and hold MaxContact harmless in the event an Group Company brings a claim directly against MaxContact for any loss, liability or damage arising out of or in connection with the Group Companies use of the Service.

2.6 In the event MaxContact has agreed to provide the Service on a Proof of Concept basis, then on completion of the Proof of Concept period stated in the Service Order, the Agreement shall automatically continue and enter the Initial Subscription Term for the Service, and the Customer shall be required to pay such Fees as would apply for such Initial Subscription Term including any One-Off implementation Fees. If the Customer wishes to terminate the Agreement after the Proof of Concept and prior to the Initial Subscription Term, then the Customer shall provide at least 5 days written notice to terminate the Agreement such notice to end no later than the last date of the Proof of Concept period.

2.7 MaxContact shall have the right to terminate any SQL or other database queries or reports written by the Customer that are not fully optimised and which impact the functionality of the MaxContact database or systems. The Customer acknowledges and agrees that such right is reasonable to protect use of the database and systems for all customers and to prevent any detrimental impact on system performance.

3. Customer Restrictions

3.1 The Customer shall not use the Services in a way that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b) facilitates illegal activity;

(c) depicts sexually explicit images;

(d) promotes unlawful violence;

(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

(f) in a manner that is otherwise Illegal or causes damage or injury to any person or property; and MaxContact reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

3.2 The Customer shall not:

(a) access, store, distribute or transmit any, material or any Viruses during the course of its use of the Service;

(b) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties;

(c) and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means;

(d) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

(e) access all or any part of the Service and Documentation in order to build a product or service which competes with the Service and/or the Documentation; or

(c) other than as permitted under clause 2.3, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service and/or Documentation available to any third party except the Authorised Users, or

(d) attempt to obtain, or assist third parties in obtaining, access to the Service and/or Documentation, other than as provided under this clause 3; and

3.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify MaxContact.

4. Service

• MaxContact does not promise that the Service will be uninterrupted or error-free. The Customer acknowledges that there are risks inherent in Internet connectivity that could result in the loss of its privacy, Confidential Information and property.

• Subject to clause 4.1, MaxContact shall make the Service available 24 hours a day, seven days a week, except for:
• For the purpose of updating facilities and general maintenance, scheduled downtime may occur from time to time. MaxContact will use reasonable endeavours to keep all scheduled downtime and upgrades/updates to outside Normal Support Hours on Monday to Fridays.
• MaxContact may occasionally suspend the Service for operational reasons or because of an Emergency, but before doing so will give the Customer as much notice as possible and whenever practicable will agree with the Customer when the Service will be suspended.

4.3 MaxContact will, as part of the Services and at no additional cost to the Customer, provide the Customer with MaxContact’s standard customer Support Services during Normal Support Hours in accordance with the Support Policy in effect at the time that the Services are provided. MaxContact may amend the Support Policy in its sole and absolute discretion from time to time. 

4.4 MaxContact may modify or update the Software (and its specification) from time to time, provided that MaxContact must:

• update Documentation and specification in respect of any material modification or update and make this available to Customer upon written request;
• ensure that the modification or update does not: (i) materially degrade or adversely affect the performance of the Software or its functionality; or (ii) materially adversely affect, or require the significant modification or replacement of, any of the standard integrations or existing deliverables; both of the preceding restrictions apply save as may be required to ensure compatibility with internet service providers and cloud computing requirements.

5. Customer data and PCI DSS

5.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

5.2 Call recordings and Customer Data will be stored for the Subscription Term at no additional cost. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for MaxContact to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by MaxContact. MaxContact shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by MaxContact to perform services related to Customer Data maintenance and back-up).

5.3 Each Party shall comply with the requirements of the DPA in respect of their sharing and processing of personal data under the Agreement.

5.4 MaxContact warrants that it shall comply with the Payment Card Industry Data Security Standard (PCI DSS) Compliance requirements in respect of any PCI Services which have been purchased by the Customer, as set out in the Service Order. MaxContact will provide evidence of PCI DSS certification upon request along with its accompanying AOC (Attestation of Compliance).

5.5 MaxContact will be responsible for the security of any cardholder data within its cardholder data environment (CDE) that is under its control when providing PCI Services. This includes ensuring that any sub-contracted third parties engaged by MaxContact in respect of PCI Services, provide such subcontracted services in compliance with the PCI DSS within the scope of MaxContact’s accreditation, including the maintenance of a secure CDE environment. Please be aware that not all sections of PCI-DSS are in the scope of MaxContact’s accreditation, such as storage of cardholder data within the database, and it is the Customer’s responsibility to check MaxContact’s accreditation covers their requirements. MaxContact will provide details on its accreditation on request by the Customer.

6. MaxContact’s obligations

6.1 The Supplier shall perform the Services substantially in accordance with the Documentation and with reasonable skill and care.

6.2 The Supplier’s obligations at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to MaxContact’s instructions, or modification or alteration of the Services by any party other than MaxContact or MaxContact’s duly authorised contractors or agents. If the Services do not conform with the terms of clause 6.1, MaxContact will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Customer’s sole and exclusive remedy for any breach of the warranty set out in 6.1.

•  MaxContact does not warrant that:
• the Customer’s use of the Services will be uninterrupted or error-free;

• that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; or
• the Software or the Service will be free from vulnerabilities or Viruses.

6.4 MaxContact is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Service and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

6.5 MaxContact warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.

7. Customer’s obligations

7.1 The Customer shall:

(a) comply with all applicable laws and regulations with respect to its activities under this agreement;

(b) provide MaxContact with:

(i) all necessary cooperation in relation to this agreement; and

(ii) all necessary access to such information as may be required by MaxContact; in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

(c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, MaxContact may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d) ensure that the Group Companies’ and Authorised Users use the Services and the Documentation are in accordance with the terms and conditions of this agreement and the Customer shall be liable for any breach of this agreement caused by an Group Company or Authorised User’s; and

(e) ensure that its network and systems comply with the relevant specifications provided by MaxContact in the Support Policy;

(f) Use the Service in accordance with the Documentation provided by MaxContact. The Customer acknowledges that all Customer premises, data and voice networking structure, LAN, and IP voice equipment including but not limited to routers, switches, firewalls, PBXs, phones, IP phones, servers and personal computers (together the “Customer Network”) is the responsibility of the Customer;

(g)comply with any service requirements and dependencies set out in the Service Order; and

(i) promptly complete any onboarding documentation provided by MaxContact and provide any information requested within it.

7.2 MaxContact reserves the right to suspend the Customer’s, its Group Companies’ and/or Authorised Users’ access to the Service on reasonable grounds, including but not limited to any breach of any term of this Agreement or Support Policy by Customer, Group Companies and/or Authorised Users. MaxContact shall, where possible notify the Customer of any such denial of access promptly by telephone or email and then confirm it in writing.

7.3 The Customer shall prevent fraudulent and unauthorised access to the Service by implementing Authorised User security policies in line with industry best practices. The Customer is responsible for the cost of all calls (including fraudulent calls) made through any Authorised User accounts associated with the use of the Service.

7.2 Customer shall permit MaxContact or MaxContact’s designated auditor during the term of this Agreement and for 1 year afterwards to audit the Service in order to establish the number and identity of users match the Authorised Users, and/or the Customer’s compliance with this Agreement. Each such audit may be conducted on reasonable notice no more than once per year, at MaxContact’s expense, in such a manner as not to substantially interfere with the Customer’s normal conduct of business. If an audit reveals any non-compliance by the Customer with these terms and conditions then, in addition to any remedies otherwise available to MaxContact, Customer will reimburse MaxContact for the full cost of the audit. In any event, MaxContact shall monitor such Authorised User volume and identity through its operation of the Service.

7.3 If any of the audits referred to in clause 7.2 reveal that the Customer has permitted access to the Service other than for the agreed number of Authorised Users , then without prejudice to MaxContact’s other rights, Customer shall pay to MaxContact an amount equal to the Subscription Fees (plus an additional 20% premium) which would have applied for such additional users during the Term, as calculated in accordance with the then current Subscription Fee price, within 7 days of the date of invoice.

8. Charges, payment and Flexi Subscriptions

8.1 The Customer shall pay the One-off Fees to MaxContact in advance of the relevant services being performed. One-Off Fees are payable within 14 days of presentation of an invoice by MaxContact. 

8.2 The Customer shall pay the Ongoing Fees for the User Subscriptions and Consumption Charges to MaxContact as follows:

(i) the first Ongoing Fee will become due and payable upon execution of the Service Order and MaxContact is not required to commence any implementation or onboarding activities until such first payment is made; and

(ii)subsequent Ongoing Fees shall be payable following commencement of the Subscription Term at the Payment F requency specified in the Service Order;

(iii) All Ongoing Fees for Bundled Services will be invoiced around 30 days in advance of the payment date and are payable in advance in accordance with the Payment Frequency.

(iv) Ongoing Fees for Customers who have not purchased Bundled Services will be payable as follows; for (i) the Subscription Fees will be invoiced around 30 days in advance of the payment date and are payable in advance in accordance with the Payment Frequency, and (ii) the Consumption Charges will be invoiced monthly within 5 days of month end and payable monthly in arrears within 10 days after invoice date;

(iv) all Ongoing Fees will be payable by Direct Debit and the Customer shall promptly complete such Direct Debit mandate as requested by Max Contact. For the avoidance of doubt, a Customer shall still be liable to pay the Ongoing Fees even if a Direct Debit is delayed or cancelled. If a Direct Debit mandate is not completed within 30 days of the Subscription Start Date, then the Company reserves the right to increase the license price by a further 5% until the mandate is completed and accepted.

8.3 If the Customer has purchased Flexi-subscription licence as specified in the Service Order, the Customer can increase the number of Authorised Users over the minimum User Subscription by up to a maximum of 20% of the minimum User Subscription, without being in breach of the licence granted under clause 2.4 or having to vary the agreement or enter an additional Service Order. The Subscription Fee for an additional Authorised User subject to Flexi-subscription licence, will be subject to a 20% premium in addition to the stated Subscription Fee or such other premium as set out in the Service Order. Such additional Subscription Fees for Flexi Subscriptions will be payable in arrears and within 10 working days from invoice, and then subsequently included within future payments of the Subscription Fee in accordance with the Service Order. Consumption Charges applicable for such additional Authorised Users in any month will be payable by the Customer in accordance with the Agreement for the respective calendar month of usage.

8.4 If the Customer has purchased Flexi-subscription licence as specified in the Service Order, in the event the Customer exceeds the User Subscriptions by more than 15 % in 3 consecutive months, then from the following calendar month the User Subscription volume shall automatically increase by 20% and the Subscription Fee shall increase proportionally. Such increase shall apply for the remainder of the Subscription Term. The Flexi Subscription right under clause 8.3 shall apply on the same basis for the new User Subscription volume.

8.5 If MaxContact has not received payment of any Fees within 14 days of the due date, and without prejudice to any other rights and remedies of MaxContact:

(a) MaxContact may, without liability to the Customer, disable the Customer’s, and/or any of its Authorised Users and Group Companies’, password, account and access to all or part of the Service and MaxContact shall be under no obligation to provide any or all of the Service while the Fees concerned remain unpaid; and

(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of National Westminster Bank PLC from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

8. 6 All amounts and Fees stated or referred to in this agreement:

(a) shall be payable in Pounds (£) GBP;

(b) are non-refundable;

(c) are exclusive of value added tax, which shall be added to MaxContact’s invoice(s) at the appropriate rate.

8.7 The Customer authorised MaxContact to vary the amount, frequency and time of any Direct Debit to such level as MaxContact deems necessary to

(i) collect the contracted Fees in recognition of the Customers use and consumption of the Service, including applicable Consumption Charges, in accordance with the Service Order; and/or

(ii) recover any unpaid Fees from the Customer.

8.8 All Ongoing Fees must be paid by Direct Debit, unless expressly agreed in writing by a Director of MaxContact .

8.9 During the Subscription Term, MaxContact will increase the agreed Fees on each anniversary of the Subscription Start Date. Such an increase will not be greater than the average percentage increase in the Consumer Price Index during the previous 12 months (as determined by the Office for National Statistics) plus an additional 5%. MaxContact will provide details of such an increase at the time and in writing.

8.10 In addition to any other rights provided in this Agreement and/or in a Statement of Work, MaxContact has the right to periodically and as reasonably necessary during the Subscription Term, to increase the Fees so as to reflect any increase in costs to MaxContact in performing the Services arising due to (i) changes in law or regulation (ii) decisions or requirements of Ofcom; and/or (iii) increases in underlying internet, telecommunications call and messaging charges applied by suppliers of MaxContact and which affect the Service purchased by the Customer, which shall be passed through to the Customer on cost basis. MaxContact will provide the Customer details of such an increase in advance and in writing .

8.11 As a material commitment upon which pricing and other terms of this agreement are based, the Customer is obliged to pay (in accordance with this Clause 8) all Ongoing Fees, other Fees as set out in the Service Order and VAT related to the Service for the entire Initial Subscription Term and any Renewal Period, other than where the Customer terminates this agreement in accordance with Clause 13 .1 or 13 .3. If this agreement or any Services are terminated, cancelled or reduced for any other reason, the Customer shall, on termination, immediately pay MaxContact an early termination charge equal to the Ongoing Fees and other fees as set out in the Service Order, multiplied by the number of months remaining of the Initial Subscription Term or Renewal Period, as the case may be.

9. Proprietary rights

9.1 As between the parties, all right, title and interest, including all IPR in MaxContact’s products and services, including the Service and any components thereof, and the Usage Data, are and shall remain the sole and exclusive property of MaxContact or its licensors. Subject to the limited licenses granted under the agreement, Customer acquires no right, title or interest in any of the preceding.

• MaxContact confirms that it has all the rights in relation to the Service and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
• Notwithstanding clause 9.2 and 9.3 above, Customer expressly agrees that MaxContact may use and analyse usage data of the Service and Customer Data in aggregated, anonymised form in order to improve the Service and its business operations. Once anonymised or aggregated the data will become Usage Data, which is, along with any associated IPR, owned by MaxContact.

10. Confidentiality

10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:

(a) is or becomes publicly known other than through any act or omission of the receiving party;

(b) was in the other party’s lawful possession before the disclosure;

(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or

(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

10.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.

10.3 Each party shall ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.

10.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute MaxContact’s Confidential Information.

10.6 MaxContact acknowledges that the Customer Data is the Confidential Information of the Customer.

10.7 This clause 10 shall survive termination of this agreement, however arising.

11. Indemnity

11.1 The Customer shall defend, indemnify and hold harmless MaxContact against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) incurred or suffered by MaxContact and which arise out of or in connection with

(i) the unauthorized use of the Service, whether directly or indirectly caused by the Customer,

(ii) violations of applicable law by the Customer or its Group Companies;

(iii) breach of this agreement by the Customer; or

(iv) Customer Data including a failure by the Customer to secure all necessary rights, licenses and approvals such that MaxContact can utilize them as part of the Service in the manner contemplated hereunder. Such indemnities shall be granted on the basis that:

(a) the Customer is given prompt notice of any such claim;

(b) MaxContact provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and

(c) the Customer is given sole authority to defend or settle the claim.

11.2 MaxContact shall indemnify the Customer against losses, liabilities, costs, damages and expenses suffered by the Customer, arising out of any claim that the Services or Documentation infringes any third party IPR, provided that:

(a) MaxContact is given prompt notice of any such claim;

(b) the Customer provides reasonable co-operation to MaxContact in the defence and settlement of such claim, at MaxContact’s expense; and

(c) MaxContact is given sole authority to defend or settle the claim.

11.3 In the defence or settlement of any claim, MaxContact may procure the right for the Customer to continue using the Service, replace or modify the Service so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

11.4 In no event shall MaxContact, its employees, agents and subcontractors be liable to the Customer to the extent that the alleged infringement is based on:

(a) a modification of the Service or Documentation by anyone other than MaxContact; or

(b) the Customer’s use of the Service or Documentation in a manner contrary to this agreement or the instructions given to the Customer by MaxContact; or

(c) the Customer’s use of the Service or Documentation after notice of the alleged or actual infringement from MaxContact or any appropriate authority.

11.5 The foregoing and clause 12.4(b) state the Customer’s sole and exclusive rights and remedies, and MaxContact’s (including MaxContact’s employees’, agents’ and subcontractors’) entire obligations and liability, for infringement of any IPR.

12. Limitation of liability

12.1 This clause 12 sets out the entire liability of MaxContact (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer:

(a) arising under or in connection with this agreement;

(b) in respect of any use made by the Customer and any Group Companies of the Service and Documentation or any part of them; and

(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.

12.2 Except as expressly and specifically provided in this agreement:

(a) the Customer assumes sole responsibility for results obtained from the use of the Service and the Documentation by the Customer, and for conclusions drawn from such use. MaxContact shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to MaxContact by the Customer in connection with the Service, or any actions taken by MaxContact at the Customer’s direction;

(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement;

(c) does not guarantee the adequacy, accuracy, timeliness or completeness of the Service or any components or output thereof or that they will be error free or free from computer viruses or other infirmity or corruption;

(c) The Service and the Documentation are provided to the Customer on an “as is” basis.

12.3 Nothing in this agreement excludes the liability of MaxContact:

• for death or personal injury caused by MaxContact’s negligence; or
• for fraud or fraudulent misrepresentation.

12.4 Subject to clause 12.2 and clause 12.3:

• MaxContact shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
• MaxContact’s aggregate liability in contract (including in respect of the indemnity at clause 11.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Ongoing Fees (excluding call charges and other Consumption Charges) paid during the 6 months immediately preceding the date on which the event giving rise to the claim arose .

13. Term and termination

13.1 This agreement shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and continue for the Initial Subscription Term. Thereafter, this agreement shall automatically renew for successive periods equivalent to the initial subscription term (each a Renewal Period), unless:

(a) MaxContact notifies the Customer of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

(b) the Customer notifies MaxContact of termination, in writing, at least 90 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

(c) otherwise terminated in accordance with the provisions of this agreement.

13.2If the Customer signs an additional Service Order Increasing the User Subscriptions, the Subscription Term will automatically be extended by twelve (12) months from the activation date of the additional User Subscriptions by MaxContact. In the event the Customer increases User Subscriptions whilst there is more than twelve (12) months remaining of the Initial Subscription Term, then the Subscription Term will be unaffected by the additional Service Order(s).

13.3 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;

(b) the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

(c) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;

(d) the other party becomes unable to pay its debts or becomes insolvent, or enters into administration, enters liquidation, or proposes any composition or arrangement with its creditors generally, or anything analogous to any of these events occurs.

13.4 On termination of this agreement for any reason:

(a) all outstanding Fees related to the Service received and any Professional Services shall be payable by the Customer and for any Fees which have not been invoiced, MaxContact shall issue an invoice for the Fees which will be due and payable within 14 days of days of invoice.

(c) all licences granted under this agreement shall immediately terminate;

(d) any Customer Data and all call recordings will be deleted by MaxContact within 7 days of termination. The Customer should therefore remove or request copies of any content or Customer Data before this date; and

(e) each party shall return and make no further use of any Confidential Information equipment, property, Documentation and other items (and all copies of them) belonging to the other party.

13.5 Any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

13. Publicity

The Customer agrees that MaxContact may publicly disclose that MaxContact is providing the Service to the Customer and may use the Customer’s name and logo to identify it as MaxContact’s Customer in promotional materials, including press releases. MaxContact will not use the Customer’s name or logo in a manner that suggests an endorsement or affiliation.

14. Force majeure

Neither party will be in breach of the Agreement if the failure to perform the obligation is due to an event beyond its control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, pandemic, strikes or other organised labour action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry. If such an event prevents a party from performing its obligations under this agreement for a period of 30 consecutive days or more, the unaffected party may terminate this agreement by written notice to the other party.

15. Conflict

If there is an inconsistency between any of the provisions in the main body of this agreement, the Service order and any policies or Documentation referred to, the following priority shall apply:

(i) the provisions in the main body of this agreement;

(ii) the Service Order;

(iii) the policies and Documentation.

16. Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representative), including by way of supplemental or new Service Order.

17. Waiver

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

18. Rights and remedies

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

19. Severance

19.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

19.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

20. Entire agreement

20.1 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

20.2 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.

21. Assignment

21.1The Customer shall not, without the prior written consent of MaxContact, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

21.2 MaxContact may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

22. No partnership or agency

Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

23. Third party rights

This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

24. Notices

24.1Any notice required to be given under this agreement shall be in writing and shall be provided as follows:

(a) to the Customer – via email to the email address specified by the Customer as set out on page 1 of this agreement or delivered by hand or sent by pre-paid first-class post or recorded delivery, or such other address as may have been notified by that party for such purposes and

(b) to MaxContact – via email, either to accounts@maxcontact.com for notice of billing disputes, or to support@maxcontact.com for notice of breach, notice of claims and all other notices or delivered by hand or sent by pre-paid first-class post or recorded delivery, or such other address as may have been notified by that party for such purposes.

24.2 A notice delivered by hand shall be deemed effective and received as follows:

(i) via email – the first business day after the date sent (without any undeliverable notification being returned), (ii) via hand or post when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

25. Governing law and jurisdiction

This agreement is governed by the law of England and Wales and the parties submit to the exclusive jurisdiction of the English courts.