terms of service
Replicant Solutions, Inc.
Terms and Conditions
These Terms and Conditions (the “Terms”) are effective upon execution of an Service Agreement referencing these Terms (each, a “Service Agreement” and together with these Terms, the “Agreement”), by and between Replicant Solutions, Inc. (“Replicant”) and the party named as Customer in the Service Agreement (“Customer”). The Agreement governs the provision by Replicant to the Customer of access to the web-based service described at www.replicant.ai, as it may be updated from time to time in Replicant’s sole discretion (the “Replicant Service”). The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior communications and agreements. Any term not defined herein shall have the meaning assigned to it in the Service Agreement.
Access to the Replicant Service. During the Term and subject to Customer’s compliance with the terms of this Agreement, Replicant shall provide Customer with non-exclusive access to the Replicant Service and grants Customer the right to access and use the Replicant Service solely for its own business purposes.
End Users. Access to the Replicant Service is made available for the Customer only. The customer is required to maintain that each end-user (an “End-User”) having unique log-in credentials. Customer will ensure that End Users maintain the confidentiality of their log-in credentials and will be responsible for End-Users’ compliance with this Agreement.
Third Party Services. Replicant offers the ability to integrate the Replicant Service with certain services and applications operated by various third parties (“Third Party Services”). Replicant is not responsible or liable for (i) the content of the Third Parties Services, (ii) the availability or reliability of the Third Party Services, or (iii) any acts or omissions of the parties offering such Third Party Services. If Customer chooses to connect its Replicant account with a Third Party Service, Customer grants Replicant permission to access and use its information from that service as permitted by that Third Party Service, and to store its log-in credentials for that Third Party Service solely for the purpose of facilitating such connection.
Professional Services. Replicant and Customer may additionally agree upon the provision by Replicant of professional services relating to the implementation or other support of Customer’s use of the Replicant Service, as set forth in a Statement of Work referencing this Agreement (“Professional Services”).
Billing and Payments.
Pricing Structure. The pricing model for the Replicant Service has the following components as set forth in the applicable Service Agreement: (i) an annual license fee (the “License Fee”); (ii) credits that, upon purchase, are applied to Customer’s account to be used as described below (“Credits”) and (iii) fees for Professional Services (“Professional Service Fees” and together with License Fees and Credits, “Fees”). Credit balances are drawn against when Customer incurs charges for items such as telephony minute usage, phone number line access fees or connection fees, as applicable. If there are no Credits available on Customer’s account at the time Customer incurs charges, Customer is billed for such charges monthly in arrears at list price. Fees charged are as-described on the applicable Service Agreement or Statement of Work and are not refundable. Credits expire at the end of the Subscription Term set forth in the Service Agreement.
Modifying Your Subscription. If you choose to upgrade your plan or add a Credits, any additional cost will payable upon the date of such change. For each subsequent Subscription Term, unless otherwise agreed in writing, your subscription will renew with the same License Fee and Credits, including Credits added during the prior Subscription Term. There are no refunds or credits for plan downgrades, or unused Credits.
Late Charges. Late payments are subject to interest charges of 1% per month, or if lower, the maximum amount allowed by law.
Taxes. Customer is solely responsible for payment of any taxes resulting from the use of the Replicant Service. If any such taxes are required to be withheld, Customer shall pay an amount to Replicant such that the net amount payable to Replicant after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement.
Billing Disputes. Customer agrees that it shall notify Replicant within 60 days of receipt of an invoice from Replicant if it intends to dispute the amounts owed under such invoice, and that after 60 days all undisputed invoices will be deemed to have been accepted. Customer agrees to pay all invoices when due, even if subject to dispute.
Replicant Intellectual Property Rights & Restrictions. Replicant shall retain all intellectual property rights in the Replicant Service, including any and all derivatives, changes, and improvements thereof, and Customer agrees that it obtains no intellectual property rights or licenses by this Agreement except those expressly granted herein. Customer hereby grants Replicant a non-exclusive, perpetual, irrevocable, royalty-free license to any ideas, suggestions or feedback given by Customer pertaining to the Replicant Service. Customer shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Replicant Service; (ii) not represent that it possess any proprietary interest in the Replicant Service; (iii) not directly or indirectly, take any action to contest Replicant’s intellectual property rights or infringe them in any way; and (iv) except as specifically permitted hereunder, not use the name, trademarks, trade-names, and logos of Replicant.
Ownership. All data, information, files or other materials and content that Customer makes available to Replicant for the purpose of utilizing the Replicant Service, including, without limitation, the content of telephone calls made by or to Customer and its End-Users (“Customer Content”) shall remain the sole property of Customer. Replicant is not responsible for the content of or any use by Customer of the Customer Content.
License to Replicant. Customer hereby grants Replicant a worldwide, non-exclusive, royalty-free, license to use, copy, reproduce, distribute, prepare derivative works of, display and perform any and all Customer Content, solely to the extent required to perform the Replicant Service.
Machine Learning Data. Replicant may anonymize and aggregate Customer Content (as so anonymized and aggregated, “Machine Learning Data”) for the purpose of analyzing and improving the performance of the Service, including the machine learning algorithms underlying the Service. Customer hereby grants to Replicant a worldwide, non-exclusive, royalty-free, license to use, copy, reproduce, distribute, prepare derivative works of, display and perform any and all Machine Learning Data for such purposes, provided that no such use of the Machine Learning Data identifies the Customer or any of its End-Users.
Nondisclosure. Each party (each a “Receiving Party”) agrees that it shall use and reproduce the Confidential Information of the other party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes and shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a need to know and who are bound by obligations of confidentiality and nonuse at least as protective of such information as this Agreement and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. Notwithstanding the foregoing, it shall not be a breach of this Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure. “Confidential Information” means all information of a party disclosed to the other party, regardless of the form of disclosure, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation and without the need to designate as confidential, the terms and conditions of this Agreement.
Exceptions. Notwithstanding anything to the contrary herein, neither party shall be liable for using or disclosing information that such party can prove: (i) was publicly known at the time it was disclosed or has become publicly known through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this Agreement.
Representations and Warranties.
Mutual Warranties. Each party represents and warrants that (i) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with the terms of this Agreement, and (ii) its execution and delivery of this Agreement and its performance hereunder will not violate any applicable law, rule or regulation (including, in the case of Customer, with respect those laws relating to call recording, telemarketing and privacy).
Customer Warranties. Customer represents and warrants that the Customer Content does not infringe upon any third party’s proprietary rights, including intellectual property rights. Customer represents and warrrants that (i) it is aware of its obligations with respect to compliance with laws relating to call recording, telemarketing, spam and privacy, and (ii) it does not rely on Talkdesk for advice or for ensuring compliance with such laws.
Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, REPLICANT PROVIDES THE USAGE OF THE Replicant SERVICE TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, AND FITNESS FOR PARTICULAR PURPOSE WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, REPLICANT DOES NOT WARRANT THAT THE REPLICANT SERVICE OR ANY SERVICES RELATED THERETO WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION OR THAT CUSTOMER WILL ACHIEVE ANY PARTICULAR BUSINESS RESULTS BY USE OF THE Replicant SERVICE.
Customer’s Indemnities. Customer shall defend, indemnify and hold harmless Replicant and its officers, directors, consultants, employees, successors and permitted assigns, from and against any third party claim, suit or proceeding and all resulting damages, costs, losses, awards and reasonable attorneys’ fees (collectively, a “Claim”), arising out of or relating to (a) the use or display of any Customer Content; (b) Customer’s breach of its warranties under Section 6.1 of this Agreement; or (c) Customer’s use of the Replicant Service in any manner that violates this Agreement or applicable laws, rules or regulations.
Replicant’s Indemnities. Replicant shall defend, indemnify and hold harmless Customer and its officers, directors, consultants, employees, successors and permitted assigns, from and against any Claim arising out of or relating to an allegation that the Replicant Service infringes any intellectual property right of a third party.
Indemnification Procedure. The indemnified party shall provide the indemnifying party with: (a) prompt written notice of such Claim; (b) sole control over the defense and settlement of such Claim; and (c) information as may be reasonably requested by the indemnifying party. The indemnified party will have the right to approve the counsel selected by the indemnifying party for defense of any such claim, which approval will not be unreasonably withheld. The indemnifying party shall not settle any such Claim in a manner that does not unconditionally release the indemnified party without the indemnified party’s written consent.
Limitation of Liability.
EXCLUSION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES. IN NO EVENT WILL REPLICANT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT Replicant HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
MAXIMUM AGGREGATE LIABILITY. EXCEPT IN THE CASE OF (I) INDEMNIFICATION OBLIGATIONS OF SECTION 7 THIS AGREEMENT, (II) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, REPLICANT’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE REPLICANT SERVICE SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO REPLICANT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES.
Term. This Agreement shall commence on the Effective Date and shall remain in effect for the period stated in the Service Agreement or until terminated as provided herein (the “Term”).
Termination for Cause. Either party may terminate this Agreement (i) for the other party’s material breach by giving written notice to the other party specifying in detail the nature of the breach, effective 30 days after receipt of such notice unless the breaching party first cures such breach or (ii) if the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party or any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
Effect of Termination. Upon termination or expiration of this Agreement, Customer will immediately cease use of the Replicant Service and each party shall return to the other party or destroy all of the other party’s Confidential Information then in its possession, provided however, that customer may retain an archival copy of such data in its backup systems as required by its security and data retention policies or as required by applicable law. The following provisions shall survive any expiration or termination of this Agreement: (i) the obligation of Customer to pay fees incurred prior to termination; (ii) Section 3 (Replicant Intellectual Property Rights & Restrictions), (iii) Section 5 (Confidentiality); Section 6.2 (Disclaimer of Warranties); Section 7 (Indemnification); Section 8 (Limitation of Liability); and Section 10 (Miscellaneous).
Amendments. These terms may be amended by Replicant from time to time in its sole discretion. In the event of such an amendment, Replicant will notify Customer of such update via email and provide Customer 30 days to object to such amendment. If Customer does not object within such period, the amended terms will be effective with respect to Customer upon the end thereof. If Customer does object, the terms in effect immediately prior to such amendment will remain in effect until the end of the then-current Subscription Term, and the amended terms will go into effect upon the beginning of the next Subscription Term, if the agreement is renewed pursuant to the terms of the Service Agreement.
Governing law. This Agreement is governed by the laws of the State of California, without regards to its conflict of laws principles, and any dispute arising from this Agreement shall be brought exclusively before the state and federal courts in San Francisco, California, and each party irrevocably submits to the jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Class Action Waiver. Both parties agree that all claims brought against the other must be brought in such party’s individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding, except to the extent such restriction is prohibited by applicable law.
Assignment. Neither party may transfer or assign its rights or obligations under this Agreement to any third party without the prior written approval of the other party, except for an assignment to an affiliated company or to a successor in connection with a merger, acquisition, reorganization or sale of substantially all of its assets or voting securities. Any purported assignment contrary to this section shall be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when sent by email.
Relationship of Parties. The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party. Neither party shall hold itself out as an agent of the other party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.
Severability. If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.
Force Majeure. Except for payment obligations under this Agreement, neither party hereto shall be liable for any loss, damage, or penalty resulting from such party’s failure to perform its obligations hereunder when such failure is due to events beyond its reasonable control, such as, without limitation, flood, earthquake, fire, acts of God, military insurrection, civil riot, or labor strikes.
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
Publicity. Either party may issue publicity or general marketing communications concerning its involvement with the other party, subject to such other party’s prior written/verbal approval, which shall not be unreasonably withheld or denied; provided, that Customer hereby approves the display by Replicant of Customer’s name and logo on its website and in marketing materials, subject to Customer’s right to revoke such approval upon written notice to Replicant.
Last Updated: 02/19/2019