Siro Master Service Agreement
Updated April 4, 2023
YOUR USE OF AND ACCESS TO THE SERVICES AND ASSOCIATED SOFTWARE (COLLECTIVELY, THE “SERVICE”) OF SIRO TECHNOLOGIES INC. (“SIRO”) IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THIS AGREEMENT. BY UTILIZING THE SIRO SERVICE YOU AGREE TO BE BOUND BY THIS MASTER SERVICE AGREEMENT AND ALL INCORPORATED POLICIES (THE “AGREEMENT”).
This Agreement is made between Siro, a Delaware corporation, and each party (a “Customer”) that orders the Service through an online registration page or an order form (each an “Order Form”). The Order Form may contain additional terms and conditions and information regarding the Service Customer is ordering.
1. THE SERVICE
1.1 The Service is a cloud-based sales conversation intelligence platform. It is designed to enable Customer to record, transcribe, analyze and share Customer’s sales teams’ conversations (together with all other information data that Customer makes accessible to Siro, the “Content“).
1.2 Siro grants to Customer the right and permission to access and use the Service subject to a valid subscription, pursuant to the terms of the Order Form, or subject to free evaluation terms, and as further described herein.
1.3 Upon Customer’s valid subscription to the Service, Siro will provide Customer access to the Service per the Order Form, which will allow the provisioning of end-user accounts for authorized Customer personnel (“Permitted Users“) and for Customer to control or manage certain features of the Service. Permitted Users’ access to the Service is limited and personal. Customer is solely responsible for actions taken by Permitted Users or by anyone using Customer’s accounts and passwords.
1.4 Siro uses commercially reasonable efforts to maintain the highest Service availability. However, Siro cannot guarantee that the Service will operate in an uninterrupted or error-free manner. Siro performs Service maintenance and uses commercially reasonable effort to schedule system down-time to off-peak hours and to avoid service interruptions and delays. Siro shall provide access to the Service at least 95% of the time in any calendar month (“Service Level”), except for planned outages, which such planned outages shall not exceed 12 hours per month. The Service shall not be deemed inaccessible if such inaccessibility is due to Customer’s action or systems (e.g., due to internal firewalls, internet connectivity issues, etc.).
2. DATA SECURITY
3. CUSTOMER’S UNDERTAKINGS
3.1 Customer agrees it has full responsibility for Customer and its Permitted Users’ use of the Service in accordance with this Agreement and with applicable local, state, federal, national and international laws, regulations and treaties, and Customer warrants that (a) it has obtained all rights in the Content necessary to authorize Siro to input, process, distribute and display the Content as contemplated by the Agreement; and (b) the Content and Siro’s use thereof as contemplated by this Agreement will not violate any law or infringe any rights of any third party, including any intellectual property rights and privacy rights. Siro takes no responsibility and assumes no liability for the Content. Customer shall be solely responsible for the Content.
3.2 Customer will not, and shall ensure that Customer’s Permitted Users will not, use the Service or Content for any use or purpose that: (i) is obscene, libelous, blasphemous, defamatory, inciting hatred, terrorism or any similar offence; (ii) infringes or misappropriates the intellectual property rights or violates the privacy rights of any third party (including without limitation, copyright, trademark, patent, trade secret, or other intellectual property right, moral right, or right of publicity); (iii) is in violation or may encourage any manner of acting that would violate any applicable local, state, national and foreign laws, treatises and regulations; or (iv) may drive or encourage any third party to do any of the above.
3.3 Customer will not, and will ensure that its Permitted Users will not: (i) use the Service for non-business purposes or abuse the Service; (ii) resell, transfer, grant others permission to use the Service, pledge, lease, rent, or share Customer’s rights under this Agreement (including without limitation to any affiliates); (iii) modify, remove or amend Siro’s name or logo, update, reproduce, duplicate, copy all or any part of the Service; (iv) make any of the Service or Content available to anyone other than Customer’s employees and consultants for use for Customer’s benefit as intended pursuant to this Agreement, or use any Service or Content for the benefit of anyone other than Customer; (v) use the Service in any way that restricts or inhibits other’s use of the Service; (vi) access or attempt to access any of Siro’s systems, programs or data that are not made available for public use, or attempt to bypass any registration processes on the Service or any of the Service’s security and traffic management devices; or (vii) attempt to decompile, disassemble, re-engineer or reverse engineer the Service or otherwise create or attempt to create or permit, allow, or assist others to extract source code of the Service, its structural framework or allow or facilitate a third party, to violate or infringe any rights of Siro’s or others or Siro policies or the operational or security mechanisms of the Service.
3.4 When using the Service in conjunction with other third party services, Customer will comply with the terms of service of such third party services. Siro shall not be liable for any termination, breach of terms or suspension of service resulting from Customer’s use of the third party services.
3.5 Customer may not access or use the Service if its is a direct competitor of Siro or for monitoring the Service’s availability, performance or functionality, or for any other benchmarking or competitive purposes.
4.1 In consideration for the right to use the Service under the terms herein, Customer will pay license fees (“Fees”) in the amounts and pursuant to the payment terms described in the Order Form(s). Customer agrees that in the event Siro is unable to collect the Fees owed to Siro for the Service, Siro may take any other steps it deems necessary and reasonable to collect such Fees and that Customer will be responsible for all reasonable and documented costs and expenses incurred by Siro in connection with such collection activity, including collection fees, court costs and attorneys’ fees. Customer further agrees that Siro may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due. Except to the extent otherwise expressly stated in this Agreement or in an Order Form, all obligations to pay Fees are non-cancelable and all payments are non-refundable.
4.2 Fees are exclusive of taxes, levies, duties or similar governmental assessments of any kind (excluding taxes based on Siro’s income, property and employees). Customer is responsible for paying any and all such taxes.
4.3 Siro reserves the right to modify the Fees for the Service under one or more Order Forms, effective upon commencement of the next renewal subscription term of the relevant Order Form(s), by notifying Customer of such change in writing at least 30 days before the end of the then-current subscription term.
5. PROPRIETARY RIGHTS; FEEDBACK
5.1 All parts of the Service are protected by copyrights, trademarks, service marks, patents or other proprietary rights, as a collective work or compilation, pursuant to laws and international conventions. Except for the Content, which shall remain Customer’s property, all rights to the Service and derivatives thereof are retained by Siro. In addition, Siro retains all rights to aggregated and anonymous data derived from use of the Service, provided that such data will not be identifiable as belonging to or emanating from Customer nor will such data contain information that directly or indirectly identifies Customer or any person (natural or otherwise).
5.2 Siro makes no claim of ownership as to the Content or the trademarks of any third party linked or displayed on the Service.
5.3 In the course of using the Service, Customer or its Permitted Users may provide Siro with feedback and suggestions regarding the Service. Customer hereby assigns to Siro ownership in all such feedback and suggestions and all rights therein, without any royalty or accounting obligations to Customer.
6. LINKS TO OTHER WEBSITES AND APPLICATIONS
The Service may contain links and references to websites and applications of third parties. Siro may, from time to time, in its sole discretion, add or remove such links. Siro has no control over these third-party websites and applications, Siro does not endorse, sponsor or confirm their content and Siro is not responsible or liable for any communication or transaction that Customer may make with them.
7. WARRANTIES; DISCLAIMER
7.1 Each of Customer and Siro represents, warrants and covenants to the other that: (a) it has the full corporate right, power and authority to enter into and perform this Agreement, and such execution and performance does not and will not violate any other agreement to which it is a party, and (b) this Agreement constitutes its legal, valid and binding obligation.
7.2 Siro represents and warrants that the Service, when used in accordance with this Agreement, (i) will perform in all material respects as specified in Section 1 above (ii) will be virus-free and (iii) will not infringe the intellectual property rights of a third party. Customer’s sole and exclusive remedy for breach of such warranty shall be for Siro to use commercially reasonable efforts to correct or to replace the affected Service with a component or service of similar functionality. The above warranty is conditioned upon Customer notifying Siro in writing within 15 days of discovery of any alleged defect in the Service together with a documented example of such defect. This warranty shall not apply to any portion of the Service that (a) has been subject to Customer’s abuse or misuse of the Service, (b) is related to a virus, worms and the like that has not been introduced by Siro, or (c) was used without authorization.
7.3 EXCEPT AS EXPRESSLY PROVIDED ABOVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SIRO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE ABOVE, SIRO MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO (I) THE SERVICE MEETING CUSTOMER’S REQUIREMENTS, OR BEING UNINTERRUPTED, CONTINUOUS, TIMELY, OR ERROR FREE; (II) WHETHER CUSTOMER’S USE OF THE SERVICE OR THE CONTENT WILL GENERATE ANY PARTICULAR RESULTS OR CONSEQUENCES; OR (III) WHETHER CUSTOMER’S USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION.
7.4 NOTWITHSTANDING THE FOREGOING, DURING AN EVALUATION PERIOD, SIRO PROVIDES THE SERVICE “AS IS” AND “AS AVAILABLE”, WITHOUT ANY WARRANTIES AND REPRESENTATIONS.
8.1 Subject to the limitation set forth in Section 8.2, “Confidential Information” means all information provided by a party to other party, whether orally or in writing, 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, and excluding any information that was or has become publicly available without the receiving party’s actions or inactions. Customer’s Confidential Information includes, without limitation, the Content.
8.2 Information will not be considered Confidential Information if the receiving party can establish by documentary evidence that the information is or was: (a) publicly available through no act or omission of the receiving party; (b) in the receiving party’s lawful possession prior to disclosure by the disclosing party and not obtained either directly or indirectly from the disclosing party; (c) lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) independently developed by the receiving party without use of or access to the disclosing party’s Confidential Information.
8.3 Each party will hold the other party’s Confidential Information in strict confidence, use it only subject to the terms of this Agreement, allow its use only by the receiving party’s employees and consultants who have signed in advance a confidentiality agreement containing terms similar to this Agreement and on a need-to-know basis and pursuant to the terms of this Agreement, not make the other party’s Confidential Information available to any third party unless to the extent required by applicable law, implement adequate security measures to ensure against unauthorized access to, use or copying of the other party’s Confidential Information, and notify the other party in writing of any misuse or misappropriation of the other party’s Confidential Information of which the receiving party may become aware. If the receiving party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify the disclosing party of such requirements to afford the disclosing party the opportunity, as the disclosing party’s sole cost and expense, a protective order or other remedy. Each party acknowledges that the other party may be irreparably harmed in Confidential Information of the other is disclosed in breach of this Section and that such other party may not have an adequate remedy at law in the event of such an actual or threatened breach. Therefore, each party agrees that the other party shall be entitled to seek injunctive relief against any actual or threatened breach of this Section by the other party without the necessity of showing damages or showing that monetary damages would not afford an adequate remedy.
9. TERM AND TERMINATION
9.1 The initial subscription term of the Agreement will be as set forth and agreed by the parties in the Order Form.
9.2 Either party may terminate this Agreement during an evaluation period for any reason, or for no reason at all, by sending the other party a termination notice with immediate effect.
9.3 Either party may terminate this Agreement if the other party (i) materially breached this Agreement and has not cured such breach within 30 days after receiving notice (if curable), without prejudice and in addition to any right or remedy that the non-defaulting party may have under this Agreement or the applicable law, or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
9.3 At the end of the initial subscription term, all of Customer’s subscriptions to the Service will renew automatically for additional one calendar month periods unless Customer or Siro notifies the other party in writing at least 30 days prior to the end of the then-current subscription term of its desire not to renew (initial subscription term, with any renewal subscription terms, the “Subscription Term”).
9.4 Upon termination or expiration of this Agreement (a) Customer will cease use of the Service and all rights granted to Customer under this Agreement will terminate; (b) upon written request, Siro will make Customer’s recorded calls available for download or export within 30 days following such termination, and (c) all sections of this Agreement that by their nature should survive termination will survive termination of the Agreement, including accrued rights to payment, confidentiality, disclaimers, and limitations of liability. Thereafter, Siro will be under no obligation to maintain any Customer data, or make any data available to Customer and Siro may delete any of the Content.
9.5 In the event of a termination due to uncured breach by Siro pursuant to Section 9.2, Siro will refund the remaining Fees until the end of the Subscription Term.
10. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, (i) UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES; IN EACH CASE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE; AND (ii) EXCLUDING EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14 (INDEMNIFICATION), EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE WILL NOT EXCEED THE FEES ACTUALLY RECEIVED BY SIRO FROM CUSTOMER UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE APPLICABLE CLAIM. THE ABOVE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND ARE FUNDAMENTAL ELEMENTS OF THE BARGAIN BETWEEN THE PARTIES.
11.1 Siro will indemnify, defend and hold harmless Customer, its officers, directors, employees, agents and affiliates from and against all losses, liabilities, claims, obligations, costs and expenses (including reasonable attorneys’ fees) that Customer incurs in responding to a third-party claim or demand (“Claim”) alleging that the Service (excluding any Content) infringes or misappropriates any third party’s trademark, United States patent, copyright or trade secret. If a court of competent jurisdiction or Siro reasonably determines that any such claim prevails or is likely to prevail, Siro may, at Siro’s sole discretion and expense: (a) procure the right for Customer to continue to use the Service; (b) replace or modify the applicable Service so that it no longer infringes or misappropriates, as applicable, such patent or copyright; or (c) terminate this Agreement and refund any prepaid Fees for the period subsequent to such termination, on a pro-rated basis.
11.2 Customer will indemnify, defend and hold harmless Siro, its officers, directors, employees, agents and affiliates, from and against all losses, liabilities, claims, obligations, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claims with respect to (a) Customer’s or its user’s misuse of the Service in violation of the terms and conditions herein, and (b) the Content, including without limitation any unlawful, misleading, false, or inaccurate information in the Content.
11.3 As a condition to such indemnification the indemnitee will provide the other party with written notice of such claim. The indemnifying party will not enter into any settlement or compromise of any such claim without the indemnitee’s prior written consent. The indemnifying party may assume the exclusive defense and control of any matter subject to indemnification. In all events, each party will cooperate with the other in the defense of any claim.
12. FEDERAL GOVERNMENT END USE PROVISIONS
Siro provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. If a government agency has a need for rights not conveyed under these terms, it must negotiate with Siro to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
13. GOVERNING LAW AND EXCLUSIVE COURTS
This Agreement will be governed by laws of the State of New York without regard to its choice of law or conflicts of law principles. Customer and Siro consent to the exclusive jurisdiction and venue in the courts in the Southern District of New York except that temporary relief to enjoin infringement of intellectual property rights may be sought in any court where such infringement has occurred. EACH PARTY WAIVES ANY OBJECTION (ON THE GROUNDS OF LACK OF JURISDICTION, FORUM NON CONVENIENS OR OTHERWISE) TO THE EXERCISE OF SUCH JURISDICTION OVER IT BY ANY SUCH COURTS.
14. FORCE MAJEURE
Neither party will be deemed to be in breach of this Agreement for any unanticipated failure that is unable to be mitigated and is caused by reasons beyond a party’s reasonable control (including without limitation acts of God, war or civil disturbance), and it will notify the other party as soon as practicable in writing of such failure.
15.1 This Agreement and each applicable the Order Form comprise the entire agreement between Customer and Siro, state Siro’s and Siro’s suppliers’ entire liability and Customer’s exclusive remedy with respect to the Service, and supersede all prior agreements pertaining to subject matters hereof, and Customer specifically confirms that it has not entered into this Agreement relaying on any oral or written public comments made by Siro regarding future functionality or features of the Service. Conflicting terms of any purchase order or similar document will have no effect and are hereby rejected. This Agreement has been prepared in the English language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes.
15.2 Customer and Siro are independent contractors with respect to each other, and nothing in this Agreement will be construed as creating a partnership, agency, fiduciary or employment relationship or a joint venture between Customer and Siro.
15.3 If any provision of this Agreement is held to be contrary to law, such provision will be construed, as nearly as possible, to reflect the original provision and the other provisions remain in full force and effect.
15.4 No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term, and any failure to assert any right under the Agreement will not constitute a waiver.
15.5 Siro may in its sole discretion modify or update this Agreement from time to time, so Customer should review this page periodically. In such cases, Siro will update the ‘last modified’ date at the top of this page. If Siro changes this Agreement in a material manner, Siro will notify Customer that material changes have been made. Customer’s continued use of the Service after any change to this Agreement constitutes Customer’s acceptance of the new Agreement.
15.6 This Agreement, and any rights granted hereunder, may not be transferred or assigned by a party, except to a successor of all or substantially all of its business or assets (by merger or otherwise). Any other purported assignment shall be void.
15.7 During the Term, Siro is permitted to (i) refer to Customer as a customer and (ii) use Customer’s name and logo(s) in its marketing materials. Customer is permitted to use Siro’s name and logo in any press releases announcing this Agreement or the relationship between the parties. Each party shall comply with the trademark usage guidelines provided by the other party (if any).
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