Last updated November 15, 2018
1.1 License Grant. During the Term, AllVoices hereby grants to Subscriber a limited, nonexclusive, non- transferable, non-assignable license to use AllVoices’ proprietary web-based platform for obtaining reports regarding incidents of harassment, bias, and culture issues (“Incidents”) at Subscriber’s organization (the “Service”) along with the Documentation provided by AllVoices under the terms set forth in this Agreement. “Documentation” means any and all manuals, asset kits, training or marketing materials, guides, functional or technical specifications, listings and other written materials, provided by AllVoices to Subscriber for use in conjunction with the Service.
1.2 Commercial Terms. For clarity, the business terms by which Subscriber shall access the Service, the manner by which Subscriber shall access the Service, and all obligations and responsibilities of the Parties not otherwise set forth in these Terms and Conditions is set forth in those certain Commercial Terms executed by the Parties.
2.1 . Subscriber will pay AllVoices the fees and any other amounts owing under this Agreement as specified in the Commercial Terms, plus any applicable sales, use, excise, or other taxes, under the payment schedule set forth therein. 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 and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by AllVoices to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason.
2.2 . The prices and features of the Services may change in the future. If the pricing for an Additional Term (as defined in the Commercial Terms) increases, AllVoices will notify Subscriber before the commencement of the Additional Term. The notice will detail the fees applicable to the Additional Term (the “Applicable Fees”). If AllVoices does not send a notice detailing a change to the fees, then the Applicable Fees for the Additional Term will be the same as the fees charged for the previous Term.
3.1 . This Agreement will be effective as of the Effective Date (as defined in the Commercial Terms) and shall continue until the end of the Term set forth in the Commercial Terms, unless otherwise terminated in accordance with the terms of this Agreement.
3.2 Termination for Material Breach. Either Party may terminate this Agreement if the other Party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this Section will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the 30-day cure period. If Subscriber fails to timely pay any fees, AllVoices may, without limitation to any of its other rights or remedies, suspend performance of the Service until it receives all amounts due.
3.3 Post-Termination Obligations. If this Agreement is terminated due to Subscriber’s material breach, Subscriber will pay to AllVoices any fees or other amounts that have accrued prior to the effective date of the termination within 30 days of termination. The Parties agree that upon termination of the Agreement for any reason, that any and all liabilities accrued prior to the effective date of the termination will survive.
4.1 Confidential Information. All Confidential Information disclosed by one Party to the other will be owned by and remain, as between the Parties, the sole property of the disclosing Party. For clarity, the Parties acknowledge that Confidential Information shall include the terms of this Agreement (and such discussions in connection with the Agreement and the Service, including any business or operations information or other confidential information of Subscriber), the Service, and all other information obtained via the Service, and information which should be reasonably understood to be confidential when given, whether in written, oral, graphic, electronic or any other form, that is disclosed to or observed by a Party in the course of performing its obligations hereunder, including, without limitation, product and pricing information; non-public financial information; marketing and advertising information; business strategies; information pertaining to customers, vendors or technology and all of the foregoing shall be deemed Confidential Information hereunder. Other than as required by law, governmental authority or to enforce its rights hereunder, neither Party will, without the express written consent of the other, reveal or otherwise use the other Party’s Confidential Information, except to its shareholders, directors, officers, employees and representatives on a "need-to-know" basis. This does not apply to any information that: (a) the receiving Party can demonstrate that it possessed prior to the date of this Agreement without obligation of confidentiality; (b) the receiving Party develops independently without use of any Confidential Information; (c) the receiving Party rightfully receives from a third Party, lawfully in possession of such information, without any obligation of confidentiality to the other Party; or (d) is or becomes publicly available without breach of this Agreement. However, nothing in this Agreement is intended to restrict an employee’s rights under Title VII or pursuant to EEOC guidance, or to engage in protected activity, including the ability to complain or discuss complaints with a government agency. The parties agree to preserve the confidential nature of Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its internal use. This Section will survive the termination of this Agreement and the Parties’ duty to hold Confidential Information in confidence and not use Confidential Information except as expressly permitted by this Section will remain in effect until the Confidential Information becomes publicly known through no fault of the Subscriber.
4.2 Required Disclosure. If a Party (the “Discloser”) is required by law (e.g., by subpoena or court order) to disclose any Confidential Information, the Discloser will immediately notify the other Party upon receipt of any such requirement and will furnish, within five (5) business days of its receipt, a copy of the subpoena, or other court order, or other requirement, and will cooperate with the other Party in responding to such subpoena, court order, or other requirement.
4.3 Public Announcements. Neither Party will issue any press release relating to the transactions between AllVoices and Subscriber pursuant to this Agreement without the express prior consent of the other Party.
5.1 Mutual. Each Party represents and warrants to the other that: (a) such Party has full power and authority to enter into this Agreement; (b) this Agreement has been duly authorized, executed and delivered on behalf of such Party and constitutes the valid, legal and binding agreement of such Party, enforceable in accordance with its terms; (c) such Party’s performance of its obligations hereunder does not constitute a breach of or otherwise violate any other agreement to which such Party is a signatory; and (d) it shall perform its obligations hereunder with all necessary care, skill and diligence and in compliance with all applicable laws, rules and regulations.
5.2 Additional AllVoices Representations. AllVoices further represents and warrants that it: (a) to the knowledge of AllVoices, the Service and Documentation shall not infringe, misappropriate or violate the patent, copyright, trademark, trade secret, rights of privacy, rights of publicity or any other intellectual property rights of any third party.
5.3 DISCLAIMER OF WARRANTY. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 5, ALLVOICES MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALLVOICES EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON- INFRINGEMENT. ALLVOICES DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES. ALLVOICES DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. ALLVOICES DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES WILL ALWAYS BE AVAILABLE. ALLVOICES EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE SERVICES.
6.1 . You understand and agree that the purpose of the Service is to enable the anonymous reporting of incidents of harassment, bias, and culture issues (and, if selected, Whistleblower and Fraud reporting issues), and that preserving the anonymity of employee and user reports is a material part of the Services. Any attempt by Subscriber to identify any individuals associated with a report submitted through the Services who do not agree to be identified, is a material breach of this Agreement, whether such efforts are performed directly or indirectly by Subscriber or Subscriber’s employees, agents, or attorneys, including through the filing of litigation or by causing the transmission of a third-party subpoena or court order to AllVoices. This provision applies to all reports submitted about Subscriber, including reports that were submitted prior to the execution of this Agreement. Such actions may, in AllVoices’ sole discretion, lead to immediate termination of services, without regard to the cure period set forth in Section 3.2 and will trigger the Special Indemnity Provisions of Section 6.2 and the Post- Termination obligations set forth in Section 3.3.
6.2 Special Indemnity. In the case of a breach by Subscriber of Section 6.1 of this Agreement, Subscriber understands that AllVoices will resist such efforts to identify any individuals who are associated with reports submitted through the Services, and Subscriber agrees to indemnify AllVoices and its respective parent companies, subsidiaries and affiliates, officers, stockholders, directors, agents and employees from and against any and all costs, expenses, legal fees (including litigation costs and reasonable attorney’s fees), travel expenses, and other costs incurred as a result of any conduct by Subscriber that violates Section 6.1 of this Agreement or any attempt to invalidate all or part of Section 6 of this Agreement. Such fees shall include the costs of all litigation proceedings, including any and all appeals of any orders requiring disclosures, as well as any costs incurred to respond to any effort by Subscriber to invalidate all or part of this Agreement, regardless of who prevails. Subscriber also agrees that it will not bring any claim against AllVoices, including for defamation, as a result of Subscriber’s receipt of any user report. The provisions of Section 7.2 and 7.3 below shall not apply to any indemnification required pursuant to Section 6.2.
6.3 Intended Third-Party Beneficiaries. Subscriber understands that any AllVoices user who uses AllVoices to submit a report in compliance with AllVoices Terms of Service is an intended third-party beneficiary of Section 6 of this Agreement and can seek to enforce Section 6 against any Subscriber who violates Section 6 of this Agreement.
6.4 . This Section 6 shall not apply to publicly traded companies who have contracted with AllVoices for AllVoices Whistleblower and Fraud Reporting module, and who provide AllVoices with a letter from a registered public accounting firm that additional information related to a report on an illegal act submitted through the Whistleblower and Fraud Reporting module is required by the auditor’s obligations pursuant under 15 U.S.C. §78j-1.
7.1 Indemnification. Each Party shall indemnify, defend and hold harmless the other Party, and its respective parent companies, subsidiaries and affiliates, officers, stockholders, directors, agents and employees, from and against any and all third Party liabilities, obligations, losses, damages, claims, demands, suits, actions, deficiencies, penalties, taxes, levies, fines, judgments, settlements, costs, expenses, legal fees (including litigation costs and reasonable attorney’s fees), disbursements and accountants’ fees (a “Claim”) arising out of or relating to such Party’s breach or alleged breach of any representations, warranties or covenants as set forth in this Agreement. Additionally, Subscriber agrees to defend AllVoices from any Claim arising out of or based upon Subscriber’s use of the Service, which shall include any out-of-pocket costs and legal fees required to be expended by AllVoices in responding to third-party demands, including law enforcement process, related to Subscriber’s use of the Service.
7.2 Defense. The indemnified Party will: (i) give the indemnifying Party prompt written notice of the Claim; (ii) acknowledge that the indemnifying Party shall full and complete control over the defense and settlement of the Claim; (iii) provide assistance in connection with the defense and settlement of the Claim as indemnifying Party shall may reasonably request; and (iv) comply with any settlement or court order made in connection with the Claim. The indemnified Party shall will not defend or settle any of those Claims without indemnifying Party prior written consent. The indemnified Party will have the right to participate in the defense of those Claims at its own expense and with counsel of its own choosing, but the indemnifying Party will have sole control over the defense and settlement of the Claims.
7.3 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER 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. EXCLUDING CLAIMS RELATED TO A PARTY’S CONFIDENTIALITY OBLIGATIONS, UNDER NO CIRCUMSTANCES, AND TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S TOTAL LIABILITY OF ANY KIND 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 THE TOTAL AMOUNT PAID BY SUBSCRIBER TO ALLVOICES DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY ALLVOICES TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 7 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
8.1 Choice of Law; Jurisdiction. This Agreement will be governed by the laws of the State of California without regard to any choice of law or conflict of law provisions or rules. Each of the Parties irrevocably consents to exclusive personal jurisdiction and venue in the federal and state courts located in Los Angeles County, California for any action or proceeding arising out of or relating to this Agreement, and each Party hereby irrevocably waives the defense of an inconvenient forum to the maintenance of any such action or proceeding.
8.2 Notices. Subscriber consents to receive notifications from AllVoices electronically to the email address Subscriber has provides. Subscriber agrees that all notices, disclosures, and other communications that AllVoices provides to Subscriber electronically satisfy any legal requirement that such communications be in writing or be delivered in a particular manner and Subscriber agrees to keep Subscriber’s email address information current.
8.3 Feedback. If Subscriber provides any feedback to AllVoices concerning the Service (including identifying potential errors and improvements), Subscriber hereby assigns to AllVoices all right, title, and interest in and to the feedback, and AllVoices is free to use the feedback without payment or restriction.
8.4 Assignment; Successors. Neither Party may assign its right, duties, and obligations under this Agreement without the other Party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a Party may assign this Agreement without the other Party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning Party’s obligations under this Agreement.
8.5 Force Majeure. AllVoices will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control.
8.6 Subcontractors. AllVoices may utilize a subcontractor or other third party to perform its duties under this Agreement so long as AllVoices remains responsible for all of its obligations under this Agreement.
8.7 Non-disparagement. Neither AllVoices nor Subscriber, nor any of either Party’s respective employees, directors, officers, or agents will directly or indirectly defame or disparage the other Party or any of its employees, officers, directors, or agents for any reason.
8.8 Reservation of Rights. AllVoices grants to Subscriber a limited right to use the Service and Documentation under this Agreement. Subscriber will not have any rights to the Service or Documentation except as expressly granted in this Agreement. AllVoices reserves to itself all rights to the Service and Documentation not expressly granted to Subscriber in accordance with this Agreement.
8.9 Entire Agreement. This Agreement (including for clarity, the Commercial Terms), embodies the entire understanding of the Parties with respect to the subject matter hereof, constitutes a binding agreement of the Parties upon the execution hereof, and supersedes all prior written or oral commitments, arrangements, or understandings with respect thereto.
8.10 Amendments. No change, amendment, or modification of any provision of this Agreement will be valid unless set forth in a written instrument signed by the Party subject to enforcement thereof.
8.11 Cumulative; Construction. If any provision of this Agreement is found unenforceable, invalid, or otherwise contrary to law, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose, and all other provisions hereof will continue in full force.
8.12 Remedies. All remedies, rights, undertakings, obligations and agreements contained in this Agreement will be cumulative and none of them, nor the exercise or failure to exercise any of them, will be in limitation of any other remedy, right, undertaking, obligation, or agreement of either Party.
8.13 Independent Contractors. The Parties are independent contractors, and this Agreement does not create an agency, Subscribership or joint venture. There are no third-Party beneficiaries to this Agreement.
8.14 Headings. The headings and titles of the provisions of this Agreement are inserted for convenience of the Parties only and will not affect the construction or interpretation of any provision hereof.
8.15 Survival. Upon the effective date of any termination or expiration of this Agreement, any provision that, by its terms, is intended to survive the expiration or termination of this Agreement, will remain in full force and effect.
8.16 Counterparts. This Agreement may be executed in several counterparts, each of which will be deemed an original and all of which together will constitute one and the same document. Signatures delivered via facsimile or other electronic delivery (e.g., PDF) will be deemed original signatures.