Terms & Conditions

1. Grant.  Subject to the terms of this Agreement and payment of the fees set forth herein, TouchPoint One hereby grants to LICENSEE, and LICENSEE accepts, a non-exclusive, non-transferable, non-sub-licensable right to access and use the Software only as authorized in this Agreement and only for LICENSEE’s internal business purposes. LICENSEE shall not (a) attempt to or reverse assemble, reverse engineer, reverse compile, modify, or otherwise adapt or translate the Software; (b) create derivative works of the Software; (c) copy, transmit or distribute the Software to any third party; or (d) assign, sublicense, transfer, pledge, lease, rent, or share LICENSEE’s rights under this Agreement.  LICENSEE may not remove any copyright or other proprietary notices or labels in the Software and shall not promote its use of the Software to third parties without the prior written consent of TouchPoint One.
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2. Authorized Users; Restrictions on Users.  All users must be (a) sales and customer service representatives, supervisors, managers, senior managers or executives of LICENSEE (“Internal Users”), or (b) managers of LICENSEE’s clients who have been pre-approved by TouchPoint One (“External Users”).  External Users shall only be permitted to access client-specific performance reports in a read-only format. LICENSEE is solely responsible for the actions of Internal Users and External Users.
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3. Access to the Software.  LICENSEE’s access to the Software shall be via the Internet, and LICENSEE shall be solely responsible for establishing and maintaining a sufficient Internet connection. Each Internal User and External User shall be assigned a user name and password to access the Software. Internal Users and External Users shall not share their unique user names and passwords with any other user, authorized or unauthorized. LICENSEE shall notify TouchPoint One immediately if LICENSEE suspects any unauthorized use of user names and/or passwords.
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4. Customization of the Software.  In the event LICENSEE requests modifications to the Software, the parties shall complete and sign a separate Statement of Work.  LICENSEE acknowledges that modifications may be subject to fees in addition to those set forth in Exhibit B. All modifications to the Software shall be considered a part of the Software and shall be owned by TouchPoint One.
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5. LICENSEE-Owned Materials.  LICENSEE may provide TouchPoint One with LICENSEE-owned trade names, trademarks and materials to include within the interface of the Software (the “LICENSEE Proprietary Material”).  TouchPoint One must approve any and all uses of LICENSEE Proprietary Material in connection with the Software.  LICENSEE hereby represents and warrants to TouchPoint One that LICENSEE owns the LICENSEE Proprietary Material and that TouchPoint One’s use of the LICENSEE Proprietary Material in connection with the Software will not violate any rights of third parties.  LICENSEE shall retain ownership of the LICENSEE Proprietary Material and such LICENSEE Proprietary Material shall not be included within the definition of Software herein.
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6. Touch Point One’s Ownership Rights.  LICENSEE acknowledges and agrees that the Software (including any and all modifications made for LICENSEE) is a proprietary product of Touch Point One.  LICENSEE further acknowledges and agrees that all right, title, and interest in and to the Software, including associated intellectual property rights, are and shall remain with TouchPoint One.  This Agreement does not convey to LICENSEE an interest in or to the Software, but only a limited right of access and use revocable in accordance with the terms of this Agreement.
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7. Trademarks and Trade Names.  All trademarks and trade names appearing in the Software are the property of TouchPoint One or are used by TouchPoint one with permission.  No license, permission or right is granted by the Agreement to use any trademarks or trade names except as used on or in connection with LICENSEE use of the Software as set forth in Section 1.  By way of explanation and not limitation, LICENSEE shall not rebrand or otherwise market its use of the Software in any circumstance without the prior written consent of TouchPoint One, which TouchPoint One may, in its sole discretion, withhold for any or no reason.
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8. Fees; Payment; Taxes.  During the term of this Agreement, LICENSEE shall pay to TouchPoint One a monthly fee for LICENSEE’s access to and use of the Software, which fee shall be set forth on Exhibit B hereto.  LICENSEE shall also pay to TouchPoint One the hourly or other rates set forth on Exhibit B for any professional services rendered by TouchPoint One (including, but not limited to, data services, software implementation, project management, and agreed upon customization and modifications).  LICENSEE shall make payment of all fees due to TouchPoint One on the payment schedule set forth in Exhibit B.  LICENSEE shall pay all sales, use, excise, or other federal, state or local taxes, exclusive of taxes based on TouchPoint One’s net income, which are hereafter due and payable by reason of the use of the Software by LICENSEE.
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9. Availability of Software.  Except for periods of scheduled maintenance, periods of failure of the telecommunications provider to provide an Internet connection and periods of failure of the network due to problems beyond the control of TouchPoint One, TouchPoint One shall use reasonable commercial efforts to make the Software available to LICENSEE ninety-nine point nine percent (99.9%) of the time during the term of this Agreement.  Whenever possible, scheduled maintenance shall be performed during non-business hours, and notice of scheduled maintenance will be provided to LICENSEE via email at least forty-eight (48) hours prior to the scheduled maintenance.
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10. Term; Termination.  
    Subject to earlier termination as provided below, this Agreement is for the Initial Service Term of one year and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
    
    In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement.  LICENSEE will pay in full for the Services up to and including the last day on which the Services are provided. LICENSEE hereby acknowledges that, immediately upon the termination of this Agreement, for any reason whatsoever, all of LICENSEE’s rights to the Software shall terminate and revert to TouchPoint One.  TouchPoint One may disable LICENSEE’s access and any and all user names and passwords immediately upon the effective date of termination.  At LICENSEE’s request and sole expense, TouchPoint One will arrange for reports of all of LICENSEE’s data stored in the Software to be delivered to LICENSEE.   All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
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11. Limited Warranty; Disclaimer.   TouchPoint One warrants to LICENSEE that TouchPoint One has the right, power and authority to enter into this Agreement.   THE SOFTWARE IS PROVIDED “AS IS”.  TOUCHPOINT ONE DOES NOT WARRANT THE PERFORMANCE OF THE SOFTWARE OR RESULTS THAT MAY BE OBTAINED BY USING THE SOFTWARE.  TOUCHPOINT ONE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.  TOUCHPOINT ONE SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ARISING OUT OF COURSE OF PERFORMANCE OR USAGE OF TRADE.
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12. Limitation of Liability.  IN NO EVENT SHALL TOUCHPOINT ONE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR THE OPERATION OR USE OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF DATA, LOSS OF THE SOFTWARE, LOSS OF REVENUE OR PROFITS, OR DAMAGES TO EQUIPMENT, EVEN IF TOUCHPOINT ONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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13. Mutual Indemnification.  
    Indemnification by LICENSEE. LICENSEE will indemnify TouchPoint One for, and hold TouchPoint One harmless from and against, any and all Liabilities (as defined herein) or Expenses (as defined herein) at any time due, owing, paid or incurred by, or assessed against, TouchPoint One arising out of (a) a breach by LICENSEE of this Agreement; or (b) any third party claim related to the collection, storage, transfer or other use of Data, LICENSEE’s use of the Services, SaaS Product, Component or the Content, except to the extent the claim is solely attributable to the willful misconduct of TouchPoint One; provided however, that TouchPoint One must give LICENSEE prompt notice in writing of the institution of the Proceeding (as defined below), permit LICENSEE to defend the same and give LICENSEE all available information assistance and authority (at LICENSEE’s expense) in connection therewith. LICENSEE, at its option, will have control of the defense of any such Proceeding including appeals thereof and all negotiations therefor, including the right to effect the settlement or compromise thereof, provided that (i) no settlement, consent order or consent judgment which involves any admission of any liability or wrongdoing, or any act or omission on the part of TouchPoint One may be agreed to by LICENSEE without TouchPoint One’s prior written consent, which shall not be unreasonably withheld or delayed, and (b) LICENSEE shall keep the TouchPoint One informed of the status and progress of such Proceeding, the defense thereof and/or settlement negotiations with respect thereto. “Liabilities” means all liabilities, losses and claims (including judgments, interest, fines, penalties, attorneys’ fees due any other Party, court costs, and amounts to be paid in settlement) reasonably incurred in connection with any Proceeding. “Expenses” includes all attorneys’ fees and costs, retainers, court costs, transcripts, experts’ fees, witness fees, travel expenses, computer costs, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees and all other disbursements or expenses reasonably incurred in connection with asserting or defending claims, and any expenses incurred in the enforcement of LICENSEE’s obligations hereunder. “Proceeding” includes any threatened, pending or completed action, suit, arbitration, mediation, alternate dispute resolution mechanism, investigation, administrative hearing or any other proceeding, whether civil, criminal, administrative or investigative.
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14. Confidentiality and Nondisclosure.  Each party acknowledges that it may, in the course of performing its responsibilities under this Agreement, be exposed to or acquire information which is proprietary or confidential to the other party, including, but not limited to the terms of this Agreement (“Confidential Information”).  By way of explanation and not limitation, the source code for the Software and information which concerns the design, implementation, operation and performance of the Software are all considered Confidential Information of TouchPoint One.  “Confidential Information” does not include any information which (a) was known to or already in the receiving party’s possession prior to disclosure or becomes part of the public domain without breach of this Agreement, (b) was independently developed by the receiving party, (c) is lawfully obtained by the receiving party from a third party without obligation of confidentiality, or (d) is generally known by persons engaged in the business of the parties.  Both parties shall use their best efforts to ensure that such Confidential Information is protected from improper disclosure.  Each party shall exercise the same level of diligence in preserving the secrecy of the Confidential Information as the diligence used in preserving the secrecy of such party’s own comparable confidential information, but in no event less than reasonable diligence.  
    
    If a receiving party is requested or required by any legal or investigative process to disclose any Confidential Information, the receiving party shall provide the disclosing party with prompt notice of each such request and the information requested so that the disclosing party may seek to prevent disclosure or obtain a protective order.  If disclosure is required and a protective order is not obtained, the receiving party shall disclose only such information that its counsel advises it is legally required to disclose.
    
    TouchPoint One shall use reasonable efforts and industry standard security measures with respect to protecting LICENSEE’s Confidential Information that resides on the Software.  However, LICENSEE acknowledges and agrees that security breaches are possible, and that TouchPoint One will not be responsible for dissemination of any of LICENSEE’s Confidential Information that results from a security breach.
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15. TouchPoint One’s Use of Aggregate Data.  LICENSEE acknowledges and agrees that aggregate data and non-personally identifiable information data relating to LICENSEE and LICENSEE’s clients and/or results obtained by LICENSEE’s use of the Software is not Confidential Information pursuant to this Agreement, and can be used and distributed by TouchPoint One in TouchPoint One’s sole discretion.
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16. Governing Law and Forum.  This Agreement shall be construed and governed in accordance with the laws of the State of Indiana and the federal laws of the United States of America.  
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17. Severability.  Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
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18. No Waiver.  The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
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19. Compliance with Law.  LICENSEE shall abide by all applicable laws, including but not limited to the copyright law and U.S. export control laws related in any way to use of the Software.  
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20. Independent Contractors.  The relationship of TouchPoint One and LICENSEE established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (a) give either party the power to direct or control the day-to-day activities of the other or (b) constitute the parties as partners, joint ventures, franchisees, coowners or otherwise as participants in a joint or common undertaking for any purpose.
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21. Assignment.  LICENSEE may not assign this Agreement or any of its obligations or rights hereunder without prior written consent from TouchPoint One, such consent not to be unreasonably withheld.  Any attempted or purported assignment without such required consent will be void.  TouchPoint One may assign this Agreement and any of its obligations hereunder without LICENSEE’s consent.   Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective permitted successors and assigns.
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22. Force Majeure.  In the event an act of government, war conditions, fire, flood, terrorism, labor action, epidemic, pandemic, or act of God prevents a party from performing in accordance with the provisions of this Agreement, except for payment obligations of LICENSEE, such non-performance shall be excused and shall not be considered a breach or default so long as the said condition prevails.
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23. Injunctive Relief.  Notwithstanding anything to the contrary herein, in the event of any actual or threatened breach of the provisions of this Agreement restricting the use, copying, disclosure or transfer of the Software or either party’s Confidential Information, or any actual or threatened infringement of TouchPoint One’s rights in the Software, each party shall have the right, in addition to any other remedies it may have, to equitable injunctive relief, it being acknowledged that other remedies alone are inadequate.
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24. Public Relations (PR). The Parties shall consult with each other before issuing any press release or otherwise making any public statements with respect to this Agreement. The Parties agree that TouchPoint One may publicly refer to Licensee as its customer and refer to the existence of this Agreement, and that TouchPoint One shall be permitted to display the logo of the Licensee on the Company’s Internet website.
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25. Notices.  All notices required or permitted to be given hereunder shall be sent by certified or registered mail, postage prepaid, or facsimile or electronic mail (with proof of delivery) to the other party at its address first set forth above or to such other address as may from time to time be notified by one party to the other in accordance with this Section.  upon proof of delivery.  
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26. Amendments.  No amendment, modification or waiver of any provision of this Agreement shall be effective unless it is set forth in a writing that refers to this Agreement and is executed by an authorized representative of each party hereto. No failure or delay by any party in exercising any right, power, or remedy will operate as a waiver of any such right, power, or remedy.
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27. Entire Agreement.  This Agreement and all exhibits attached hereto constitutes the entire agreement and understanding of the parties relating to the subject matter hereof.
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In the event a dispute between or among the parties arises out of this Agreement requiring either party to commence litigation to enforce the terms and provisions herein, the prevailing party shall be entitled to all reasonable costs incurred in connection therewith, including but not limited to reasonable attorneys’ fees and costs.

If you have other questions, please feel free to e-mail us at info@touchpointone.com, or contact us by telephone at: (317) 454-8200