Master Services and Subscription Agreement and Terms of Service

THE TERMS OF THIS MASTER SERVICES AND SUBSCRIPTION AGREEMENT CONTAIN THE TERMS OF SERVICE (THE “TERMS”) AND GOVERNS YOUR USE OF INVOCA’S SERVICES (AS DEFINED BELOW).

IF CUSTOMER REGISTERS FOR A FREE TRIAL OF INVOCA SERVICES, THE APPLICABLE PROVISIONS OF THESE TERMS WILL ALSO GOVERN THAT FREE TRIAL.

BY ACCEPTING THIS AGREEMENT, EITHER BY (1) CLICKING A BOX INDICATING YOUR DESIRE TO USE THE SERVICES OR OTHERWISE INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM (AS DEFINED BELOW) THAT REFERENCES THESE TERMS, OR (3) USING FREE SERVICES, YOU AGREE TO THE TERMS AND THE APPLICABLE ORDER FORM TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “CUSTOMER”, “YOU”, OR “YOUR” AS USED IN THESE TERMS WILL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SERVICES.

Invoca may amend this Agreement at any time, and such amended Agreement will automatically be effective seven (7) days after we have posted the amended Agreement on our website. Your continued use of the Services will constitute acceptance of the amended Agreement, and no other Agreement version will be effective or enforceable against Invoca.

The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

Invoca’s direct competitors are prohibited from accessing the Services, except with Invoca’s prior written consent.

1. INVOCA SERVICES.
   1. Scope of Services.  These Terms apply to Customer’s use of Invoca’s proprietary software marketing technology platform (the “Invoca Platform”) on a free trial or subscription basis and other services (collectively, the “Services”) as identified in an ordering document that is entered into between Customer and Invoca and that incorporates these Terms (in the case of paid subscription Services, an “Order Form”).  Invoca will use commercially reasonable efforts to provide Customer with the Services during the Term.
   2. Authorization.  Subject to and conditioned on Customer's payment of the Fees and compliance and performance in accordance with all other terms and conditions of these Terms, Invoca will provide Customer with access to and use of the Services on a non-exclusive and non-transferable basis during the Term solely for Customer’s own business purposes by and through Customer's employees, contractors, publishers, Affiliates (defined below), advertisers or other third parties to whom Customer provides access to the Services on its behalf ("Authorized Users") in accordance with the conditions and limitations set forth in these Terms.  An “Affiliate” of a Party is an entity who controls, is controlled by, or is under common control with the Party with the power to direct or cause the direction of the management and policies of such entity through the ownership of more than fifty percent (50%) of the voting securities of such entity.
   3. Invoca Service Activation.  Invoca shall provide Customer with the means to activate Customer’s instance through the Services.  The activated Services shall be deemed complete and accepted once Invoca has made access to the Services available to Customer.  
   4. Beta Services.  From time to time, at Invoca’s sole discretion, Invoca may invite Customer to try Beta Services (new features and/or functionality) at no charge.  Customer may accept or decline any such trial in Customer’s sole discretion.  Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import.  Beta Services are for evaluation purposes and not for production use, are not considered “Services” under these Terms, are not supported, and may be subject to additional terms.  BETA SERVICES ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND AND SUBJECT TO SECTION 7.4.  Invoca may discontinue Beta Services at any time in Invoca’s sole discretion and may never make such Beta Services generally available.  Invoca will have no liability for any harm or damage arising out of or in connection with a Beta Service.  
   5. Free Trial.  If Customer registers for a free trial of the Services, Invoca will make certain of the Services available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registers to use the applicable Services, (b) the start date of any “purchased subscription” services ordered by Customer, or (c) termination by Invoca in its sole discretion.  Additional trial terms and conditions may be imposed upon Customer during the registration. Any such additional terms are incorporated into these Terms and are legally binding.

ANY DATA CUSTOMER ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. CUSTOMER CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL; THEREFORE, IF CUSTOMER PURCHASES A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, CUSTOMER MUST EXPORT CUSTOMER DATA BEFORE THE END OF THE TRIAL PERIOD OR CUSTOMER DATA WILL BE PERMANENTLY LOST.

NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY INVOCA” SECTION BELOW, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND INVOCA SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE INVOCA’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $1,000.00. 

WITHOUT LIMITING THE FOREGOING, INVOCA AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO INVOCA AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.

CUSTOMER SHALL REVIEW THE APPLICABLE SERVICE’S DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.

2. CUSTOMER OBLIGATIONS AND USAGE RESTRICTIONS.
   1. Proper Equipment.  Customer is responsible for procuring telecommunications service capable of receiving inbound phone calls, access to internet service and computer or other connectivity capability to access and log into the Invoca Platform.
   2. Accuracy of Information.  Customer is responsible for the accuracy, quality and legality of its data and the means by which Customer acquired such data.  
   3. Account Security.  Customer is responsible for maintaining the security of the Customer's account access passwords.  Customer will make every reasonable effort to prevent unauthorized third parties from accessing the Services.  Customer shall be liable for all activity occurring under Customer’s accounts.
   4. No Improper Use.  Customer will not, and Customer will cause its Authorized Users not to, access and/or engage in any use of the Services: (i) in a manner that abuses, materially disrupts, overburdens or otherwise interferes with the networks and/or security systems of Invoca or Invoca’s provision of the Services; (ii) to communicate any message or material that Invoca deems harassing, threatening, indecent, obscene, slanderous, or otherwise unlawful; (iii) access or use the Services for any fraudulent or illegal purposes, including, but not limited to any violation of the Copyright Act or other applicable laws of the United States or any other jurisdiction; (iv) in a manner that violates privacy laws and regulations; (v) to engage in denial of services attacks or spamming; or (vi) for the purpose of, or which results in the copying, modification, reverse engineering, disassembling, redistribution, alteration, creation of derivative works, assigning the authorization to use the Services, transferring or adapting any of the software, information, source code or HTML code, or other code.  some text
      1.  If Customer becomes aware of any actual or threatened activity prohibited by Section 2.4, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Invoca of any such actual or threatened activity. 
   5. TCPA, Call Transfers, and Call Recording.  Customer represents and warrants that it shall use the Services only in compliance with applicable laws and regulations, including those related to spamming, privacy, data protection, intellectual property, consumer and child protection, pornography, obscenity or defamation.  To the extent applicable law requires the Customer to obtain consent from a third party to record a call with a third party, Customer shall be wholly responsible for obtaining such consent, and Invoca is not responsible for any losses caused by or resulting from Customer’s failure to obtain consent. Customer shall state in its privacy policy that communications with its consumers may be recorded, transcribed, and analyzed by third parties. If the Services include outbound dialing, prior to placing any outbound calls, Customer shall open a case with Invoca support through the Invoca Community webpage located at www.community.invoca.com to enable the number/numbers Customer will be making outbound calls with and the use-case for these outbound calls. Without limiting the foregoing, Customer (i) shall at all times comply with the Telephone Consumer Protection Act (47 U.S.C. §227 – restriction on the use of telephone equipment (TCPA)); (ii) agrees to make outbound calls and/or transfer calls only to legitimate and intended recipients and/or destinations; and (iii) will comply with all federal, state, and local laws in the relevant jurisdiction when using recordings. 
   6. Termination or Suspension for Ongoing Harm.  In addition to and not in lieu of all other rights and remedies, Invoca may, with reasonably contemporaneous telephonic or email notice to Customer, remove telephone number(s) from Customer’s pool of dynamic or static telephone numbers from its Invoca Platform instance, suspend access to the Services, or terminate the Services if Invoca reasonably concludes that Customer is not complying with Sections 2.4 or 2.5 and/or Customer’s use of the Service is causing immediate, material and ongoing harm to Invoca or others.  If Invoca suspends access to or terminates the Services as described in this Section 2.6; (i) Invoca shall not be liable to Customer nor to any third party for any suspension or termination of the Services and (ii) Customer shall not be relieved of its payment obligations hereunder.
3. PRICING; FEES; PAYMENT; NONPAYMENT; TAXES.
   1. Fees.  The financial terms for use of the Services by Customer are set forth in the applicable Order Form(s) and SOW(s).  Customer is responsible for the full term of this Agreement and shall pay all fees, and such onboarding and/or professional services fees, if any, and any other fees set forth in the Order Form and/or SOWs in accordance with the payment terms set forth in the Order Form(s) and/or SOWs (the “Fees”).  If Customer’s pricing is measured in minutes, all minutes are rounded up to the nearest whole minute for billing purposes, whether such minutes are included in the Subscription Services fees or are calculated as overage fees as further described in an Order Form or SOW. The Customer’s Fees will increase on annual cycles, irrespective of a then-current Order Form, by ten percent (10%).
   2. Payment and Taxes.  Customer shall pay the Fees as stated in the Order Form and/or SOWs.  Payment obligations are non-cancellable and Fees are non-refundable unless expressly stated otherwise in the Order Form or SOW or pursuant to Section 7.2 (Invoca Representations) or Section 8.2 (Infringement Cures) below.  Quantities cannot be decreased during the relevant subscription term.  All Fees shall be paid in United States dollars.  Customer shall be responsible for all applicable taxes (e.g., withholding tax, sales tax, services tax, value-added tax (VAT), goods and services tax (GST), etc.) and/or duties imposed by any government entity or collecting agency based on the Services except those taxes based on Invoca’s net income.      
   3. Nonpayment.  Undisputed Fees not paid when due will be subject to a late fee calculated from the due date at a rate equal to the lower of 1.5% per month or the highest amount permissible by applicable law.  Invoca reserves the right, in its discretion, to suspend or terminate the Services, or any portion thereof for non-payment of Fees. Invoca will not suspend the Services pursuant to this Section 3.3 until it has provided notice to Customer and Customer has failed to cure within (i) ten (10) days in the event Customer’s payment method is ACH or credit card and payment has been declined, or (ii) thirty (30) days for all other payment methods.  
4. TERM; TERMINATION.
   1. Term.  The term of this Agreement shall commence on the Effective Date and shall continue in full force and effect for as long as any Order Forms or SOWs are in effect (the “Term”).  
   2. Order Form Term(s).  An Order Form shall begin on the effective date in the applicable Order Form and continue for the duration specified in such Order Form.  Unless otherwise expressly stated in an Order Form or this Agreement, each Order Form is non-cancellable.  Unless otherwise expressly stated in an Order Form or this Agreement, when an Order Form stipulates a multi-year term, the number of “Invoca minutes” to be used shall be split equally on an annual basis (i.e. for a two-year term, 100 total minutes would be split equally 50 minutes per year).  Any excess minutes used from the per-year allotment will be considered an “Overage” under the terms of the specific Order Form.  At the conclusion of the initial or a renewal term of any Order Form, as applicable, the Agreement and current Order Form will automatically renew for an additional twelve (12) months, absent either Party providing written notice of non-renewal to the other Party at least thirty (30) days prior to the end of the then current Term.‍
   3. Termination. 
      1. ‍Termination for Cause.  Either Party may terminate this Agreement (and any Order Forms then in effect): (i) if the other Party breaches any of its material obligations and fails to cure such breach within thirty (30) days of receipt of written notice from the non-breaching Party; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
      2. ‍Effect of Termination of Services.  Upon expiration of Services authorized in an Order Form, Customer will, and Customer will cause its Authorized Users to, immediately discontinue all access and use of the Services.  Upon termination, Invoca will have no obligation to maintain or provide any Customer Data (as defined in Section 5.2, below), and may thereafter delete or destroy all copies of Customer Data in its possession or control unless legally prohibited.  Notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control:  Invoca may retain Customer Data in its then-current state and solely to the extent and for so long as required by applicable law and in its backups, archives and disaster recovery systems or until such Customer Data is deleted in the ordinary course, provided all such Customer Data will remain subject to all confidentiality, security and other applicable requirements of this Agreement.  The provisions set forth in the following sections, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement (including without limitation any undisputed accrued right to payment by Invoca), will survive any expiration or termination of this Agreement: Sections 2.4 (No Improper Use), 2.5 (TCPA, Call Transfers, and Call Recording), Section 5 (Ownership Rights), Section 6 (Confidentiality), Section 8 (Indemnification), Section 9 (Limitation of Liability) and Section 10 (General).
5. OWNERSHIP RIGHTS.
   1. Invoca Services.  The Invoca Platform and all Services performed under this Agreement remain the exclusive property of Invoca and shall not be used in any way other than as allowed by this Agreement. Customer acknowledges that Invoca or its licensors retain all (i) proprietary right, title and interest in and to, or practiced in connection with, the Services or any intellectual property rights related thereto, including, without limitation, all modifications, enhancements, derivative works and upgrades thereto even if based on Customer feedback, and (ii) copyrights to materials contained on the Invoca websites.  Invoca reserves any rights not expressly granted herein.
   2. Customer Data.  Customer owns the data, information or material generated in whole or part by the Invoca Platform and/or Customer’s use of the Services, including any personal data (“Customer Data”); provided, however, that Invoca may access and/or use Customer Data to respond to service or technical problems, and Customer grants Invoca a perpetual, irrevocable non-exclusive license to access and/or use Customer Data in an anonymous or aggregated format to improve or optimize the Invoca Platform, Services, and for future offerings. Customer, not Invoca, will have sole responsibility for the accuracy, quality, integrity, legality of and intellectual property ownership or right to use all Customer Data.  Invoca is not responsible or liable for the deletion, correction, destruction, damage or loss of Customer Data not caused by Invoca.
   3. Non-Invoca Applications and Customer Data.  If Customer elects to use a non-Invoca application with the Invoca Platform, as evidenced in a signed Order Form identifying such non-Invoca application, Customer hereby grants Invoca permission to allow the non-Invoca application and its provider to access Customer Data as required for the interoperation of that non-Invoca application with the Services.  
   4. Personal Data.  To the extent that Invoca has access to any personal data gathered from Customer or from Authorized Users in connection with the Services, such information shall be governed by the provisions of the Invoca Privacy Policy, a copy of which is available on the Invoca website at http://www.invoca.com/privacy-policy/ which Invoca may update from time to time.
   5. Feedback.  Customer grants Invoca a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services (or Invoca’s other products or services) any suggestions, enhancement requests, recommendations or other feedback that Customer provides relating to the operation or features of the Services.
6. CONFIDENTIALITY.
   1. Confidential Information. The Parties hereto agree to keep confidential, during and after the Term of this Agreement, all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that the Disclosing Party designates as confidential as well as all information that should be reasonably assumed by the Receiving Party to be confidential in nature (“Confidential Information”).  Such Confidential Information means all non-public information, whether business or technical in nature, including, but not limited to, this Agreement and all Order Forms, information concerning each Party’s business, operations, technology, customers, finances, pricing, inventions, trade secrets, products, services, intellectual property and all other information that is either identified as confidential at the time of disclosure or may be reasonably assumed to be proprietary, sensitive or confidential.  Confidential Information shall not include any information that, as evidenced by the Receiving Party’s records: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without reference to or use of the Confidential Information of the Disclosing Party.
   2. Use and Protection of Confidential Information.  The Parties agree: (i) not to use Confidential Information except to fulfill its rights and obligations herein and (ii) to use commercially reasonable efforts to safeguard such Confidential Information in the same manner in which it would safeguard its own Confidential Information (at all times exercising at least a commercially reasonable degree of care in the protection of such Confidential Information).  The Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.  The Parties further agree, except as required by law, not to disclose such Confidential Information to any third party.
   3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided that the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent that the compelled disclosure does not contain a restraint on such prior notice) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. 
7. WARRANTIES AND DISCLAIMERS
   
   1. Mutual Representations.
      1. Each Party to this Agreement represents and warrants to the other that such Party has the necessary right, power and authority to enter into and perform this Agreement and that this Agreement’s execution has been duly authorized by all necessary corporate action.
      2. Each Party agrees to comply with all applicable local, state, national and foreign laws, rules and regulations including, but not limited to, all applicable export and import laws and regulations, in connection with their performance, access and/or use of the Services under this Agreement. 
   2. Invoca Representation.  Subject to Section 7.6 below, Invoca represents that Invoca shall perform the Services described in the applicable Order Form(s) in a manner consistent with generally accepted industry standards.  For breach of the express warranty set forth in this Section, Customer’s exclusive remedy shall be the re-performance of the deficient Services and/or fulfillment of the Service Availability and Support Plan.  If Invoca cannot re-perform such deficient Services as warranted, Customer shall be entitled to recover a pro-rata portion of the fees that Customer has paid to Invoca for such deficient Services, and such refund shall be Invoca’s entire liability for a breach of this Section.
   3. Security Measures. Invoca will make commercially reasonable efforts to implement and maintain technical and organizational measures to protect Customer Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access (the “Security Measures”). The Security Measures include measures to encrypt personal data; to help ensure ongoing confidentiality, integrity, availability and resilience of Invoca’s systems and services; to help restore timely access to personal data following an incident; and for regular testing of effectiveness. Invoca may update the Security Measures from time to time provided that such updates do not result in the material degradation of the overall security of the Services.
   4. Security and Other Risks. Customer acknowledges that, notwithstanding the security features of the Services, no product, hardware, software or service can provide a completely secure mechanism of electronic transmission or communication and that there are persons and entities, including enterprises, governments and quasi-governmental actors, as well as technologies, that may attempt to breach any electronic security measure.  Subject only to Invoca’s limited warranty obligations set forth in Section 7.2, Invoca will have no liability on account of any security breach caused by any such persons, entities, or technologies. 
   5. Data Privacy. Invoca agrees to make commercially reasonable efforts to: (i) ensure compliance with all applicable data privacy laws; and (ii) if applicable, provide Customer with commercially reasonable assistance, upon Customer’s request and at Customer’s expense, to help Customer comply with its privacy obligations with respect to the California Consumer Privacy Act. 
   6. DISCLAIMER.  EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, INVOCA AND ITS THIRD-PARTY SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  INVOCA AND ITS THIRD-PARTY SUPPLIERS DO NOT REPRESENT OR WARRANT THAT: (i) THE USE OF SUCH SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (ii) SUCH SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; OR (iii) ALL ERRORS OR DEFECTS WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS; THEREFORE, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMERS LOCATED IN SUCH JURISDICTIONS.
8. INDEMNIFICATION.
   1.  Indemnification by Invoca.  Subject to Sections 8.2 and 8.3 below, Invoca shall indemnify and defend Customer against any loss, damages finally awarded, court costs (including reasonable attorneys’ fees), or reasonable settlement costs incurred in connection with an Infringement Claim (defined below) provided that: (i) Customer promptly notifies Invoca in writing of an Infringement Claim such that Invoca is not prejudiced by any delay of such notification; (ii) Invoca will have sole control over the defense and any settlement of any Infringement Claim; and (iii) Customer will provide reasonable assistance in the defense of same. Invoca will reimburse Customer for reasonable expenses incurred in providing such assistance.   For the purposes of these Terms, “Infringement Claim” means any claim, suit or proceeding brought against a Customer by a third party alleging that the Services, as used by Customer in accordance with the Agreement and applicable documentation, infringes upon any patent, trademark, copyright or violates any trade secret rights of any third party.
   2. Infringement Cures.  If Customer’s use of any of the Services is, or in Invoca’s opinion is likely to be, enjoined as a result of an Infringement Claim, Invoca may, at its sole option and expense, either (i) procure for Customer the right to continue using the Services as contemplated herein, or (ii) replace or modify the Services to make their use non-infringing without degradation in performance or a material reduction in functionality.  If options (i) and (ii) above are not reasonably available, Invoca may, in its sole discretion and upon written notice to Customer, terminate the Agreement, cancel access to the Services and refund to Customer any prepaid, but unused subscription fees.‍
   3. Limitation.  Invoca assumes no liability, and shall have no liability, for any Infringement Claim based on (i) Customer’s access to and/or use of the Services following notice of an Infringement Claim; (ii) modifications of the Services other than by Invoca; (iii) the combination of the Services with third party programs, services, data, hardware, or other materials which otherwise would not result in such infringement claim; or (iv) any trademark or copyright infringement involving any marking or branding not applied by Invoca or involving any marking or branding applied at Customer’s request.‍
   4. Indemnification by Customer.  Customer shall indemnify, defend and hold Invoca and its Affiliates harmless against any third party claim that arises: (i) from a breach of Section 2.4 (No Improper Use) or 2.5 (TCPA, Call Transfers, and Call Recording); or (ii) alleging that any content or data submitted by Customer, including without limitation any Customer Data, or Customer’s use of the Services in violation of this Agreement, infringes upon any patent or copyright, or violates trade secret or privacy rights of a third party. Customer shall pay reasonable attorney’s fees, court costs, damages awarded, or reasonable settlement costs with respect to any such claim; provided that: (i) Invoca promptly notifies Customer in writing of such a claim such that Customer is not prejudiced by any delay of such notification, (ii) Customer will have sole control over the defense and any settlement of any such claim, and (iii) Invoca will provide reasonable assistance in the defense of same.  Customer will reimburse Invoca for reasonable expenses incurred in providing such assistance.  Invoca may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, Invoca shall not enter into any settlement agreement or otherwise settle any such claim without Customer’s express prior written consent.
   5. Exclusive Remedy. THE FOREGOING STATES EACH PARTY’S SOLE LIABILITY AND EXCLUSIVE REMEDY WITH RESPECT TO ANY INDEMNIFICATION CLAIM HEREUNDER.

9. LIMITATION OF LIABILITY.
   1. Limitation of Liability.  EXCEPT FOR (i) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 HEREIN OR (ii) A BREACH BY CUSTOMER OF SECTIONS 2.4 (No Improper Use) OR 2.5 (TCPA, Call Transfers, and Call Recording), TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT, SHALL BE LIMITED TO THE SUM OF THE AMOUNTS OWED FOR THE APPLICABLE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY.  THE FOREGOING SHALL NOT LIMIT CUSTOMER’S OBLIGATIONS TO PAY ANY UNDISPUTED FEES AND/OR OTHER SUMS DUE UNDER ANY ORDER FORM.  
   2.  Exclusion of Consequential and Related Damages.  IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, ARISING OUT OF OR RELATING TO: (i) DELETION OR DESTRUCTION OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, (v) COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE), WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. 
10. GENERAL.
    1. Assignment.  Neither Party may assign this Agreement, in whole or in part, or an Order Form without the other Party’s prior written consent, which shall not be unreasonably withheld; provided, however, that either Party may assign this Agreement without such consent in connection with a merger, consolidation, sale of all or substantially all of its assets or any other transaction in which more than fifty percent (50%) of its voting securities are transferred, subject to (i) such assigning Party to provide prompt notice of assignment to the non-assigning Party, and (ii) all of the terms of this Agreement being accepted in writing by the resulting entity in such assignment.    Any attempt to assign this Agreement other than in accordance with this provision shall be null and void.
    2. Independent Contractors.  The relationship between the Parties created by this Agreement is that of independent contractors.  Nothing contained in this Agreement shall be construed to create any joint venture, partnership, agency or fiduciary relationship between the Parties.
    3. Force Majeure.  Except for payment obligations, neither Party will be responsible for any delay, interruption or other failure to perform under this Agreement due to acts beyond its reasonable control, but only for so long as such conditions persist.  Force majeure events include, but are not limited to: natural disasters (e.g., lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; activities of local exchange carriers, telephone carriers, wireless carriers, internet service providers, and other third parties; explosions and fires; embargoes, epidemics, pandemics, public health emergencies, strikes, and labor disputes; governmental decrees; and any other cause beyond the reasonable control of a Party. 
    4. Injunctive Relief; Remedies.  Notwithstanding the above, and without limiting any other remedies available under this Agreement, at law or in equity, the Parties may seek immediate injunctive relief for any violation of Section 6 (Confidentiality) and Invoca may seek immediate injunctive relief for any violation of Sections 2.4 (No Improper Use) or 2.5 (TCPA, Call Transfers, and Call Recordings) of this Agreement and, in every case, the Parties may seek any such immediate injunctive relief without the requirement of posting a bond.
    5. Modifications and Remedies.  This Agreement may be modified only by a writing executed by an authorized representative of each Party.  Unless otherwise specified, remedies are cumulative.
    6. Captions and Headings.  Captions and headings are used herein for convenience only, are not a part of this Agreement, and shall not be used in interpreting or construing this Agreement.
    7. Governing Law; Dispute Resolution; Forum and Venue.  This Agreement shall be construed and governed by the laws of the State of California, without regard to the principles of conflict of laws thereof.  The Parties agree and accept that all such disputes/claims will be resolved by means of a court trial conducted by the superior or district court in Los Angeles County, California.  EACH PARTY EXPRESSLY WAIVES ANY RIGHT IT MAY OTHERWISE HAVE TO A JURY TRIAL UNLESS PROHIBITED BY APPLICABLE LAW.  Notwithstanding the foregoing, in the event of any such dispute/claim, the Parties may agree to mediate the dispute/claim on such terms and conditions as to which the Parties may be agree in writing.  
    8. Notices.   All legal notices required to be provided under this Agreement must be delivered in writing: (i) by email; (ii) in person; (iii) by a nationally recognized overnight delivery service with tracking capabilities; or (iv) by US certified mail (requiring signature) to the other Party at the address and/or email address set forth in an Order Form.  Notice to Invoca by email must include legal@invoca.com. Invoca may deliver invoices and notices related to billing and payment by emailing Customer’s billing contact as specified on the Order Form.  Notice is effective upon receipt. Either Party may change its address by giving timely written notice of the new address to the other Party pursuant to this Section 10.8 and identifying in such notice the date on which such changes are effective.
    9. Waiver.  Neither the waiver of any term, provision or condition of this Agreement, nor the waiver of a breach or default thereof, by conduct or otherwise, in one or more instances will be deemed to be either a continuing waiver or a waiver of a subsequent breach or default of any such term, provision or condition of this Agreement.
    10. Counterparts.  This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document.
    11. Severability.  If any part of this Agreement shall be determined to be invalid or unenforceable by a court of competent jurisdiction or by any other legal body having jurisdiction to make such determination, the remainder of the Agreement shall remain in full force and effect. 
    12. Publication and Announcements.  The Parties may identify this business relationship and release publications, announcements and/or press releases relating to this Agreement and the Invoca Platform technology described herein; however, no terms of this Agreement may be disclosed without the prior written consent of both Parties.  Customer also agrees to (i) serve as a reference, and (ii) participate in case studies and other marketing materials to the extent Customer realizes a return on investment following successful deployment.
    13. Entire Agreement and Interpretation.  This Agreement constitutes the entire agreement between the Parties relating to this subject matter and supersedes all prior or current oral or written agreements concerning such subject matter, excluding any agreements incorporated herein by reference or attachment.  In the event of any conflict between this Agreement and any applicable Order Form or applicable SOW, the applicable Order Form or SOW will control.  

Contact Us

If you have any questions about these terms of service, please contact us at: legal@invoca.com, or by mail at: Invoca, Inc., 8605 Santa Monica Blvd #56543, West Hollywood, CA 90069.

LAST UPDATED: 8/2024