Terms and Conditions
Last updated: June 15, 2023
These terms of use (this “Agreement”) apply to your use of ice, an omnichannel contact center solution for Microsoft Teams. No other terms of use shall be binding unless jointly agreed upon in writing as an amendment to this Agreement. Your acceptance of this Agreement creates a binding agreement between you, the company which online enrolled into the ice service, on the one side (the “Customer”), and on the other side Computer Talk Technology Inc. (Canada), or Computer Talk Global Corp (outside of Canada), (“ComputerTalk”). ComputerTalk reserves the right to update or amend this Agreement at any time, but no less often than annually. Should any substantive change(s) be enacted to this Agreement that alters the Customer’s use of the service or associated obligations, ComputerTalk will provide reasonable notice to the Customer.
1. Form of Agreement
a) This Agreement governs the delivery of Cloud Services and Professional Services provided by ComputerTalk to the Customer.
b) Specific delivery commitments of each Party under this Agreement are to be detailed within one or more Statement(s) of Work or Change Request(s) and, as applicable, Solution Documentation introduced as part of ComputerTalk's project delivery methodology or as agreed by the Parties, all of which are to be considered part of and governed by this Agreement.
c) In case of conflict between the provisions of this Agreement and any additional Schedules or Statement of Work entered into between the Customer and ComputerTalk, the provisions of the Schedules or SOW shall prevail, but only to the extent that they modify specific provisions of this Agreement and are referenced accordingly.
2. Cloud Services
a) ComputerTalk undertakes to provide the Cloud Services according to the terms and conditions of this Agreement. ComputerTalk may perform its obligations, in whole or in part, through its subsidiaries, representatives, or subcontractors; however, in any such case, ComputerTalk shall not be released from its obligations under this Agreement.
b) The Customer Solution may include components provided and managed separately by third parties who are not a party nor subject to the terms of this Agreement, in addition to components provisioned by ComputerTalk and the Customer.
c) ComputerTalk's accountability for the provision of the Cloud Services is limited to the performance of the ComputerTalk cloud platform and the business application(s) built by ComputerTalk. For third-party services provisioned by ComputerTalk (such as network services), ComputerTalk is accountable for ensuring that such services meet the solution requirements and working with such third-party services to ensure that identified performance issues are addressed and resolved.
d) Components managed by the Customer, including on-premises network infrastructure, business applications that have data integrations with the solution, and, as applicable, Customer-contracted third-party services, are the Customer's responsibility.
e) Neither Party is directly accountable for the performance and availability of third-party services incorporated into a Solution, including network services (such as SIP and internet services) or cloud services. Any performance issues, service disruptions, or outages arising from such Solution components will not be in scope for any evaluation of the Cloud Services.
f) ComputerTalk's cloud service platform and data environments meet stringent security standards. All business applications that handle payment card data or personally identifiable information must include suitable measures to meet ComputerTalk's security standards. Such measures may include Customer-provisioned storage for archived data, such as audio recordings containing sensitive information.
g) ComputerTalk has the right to plan, schedule, and perform service activities that may cause service interruptions. ComputerTalk undertakes to minimize the impact by scheduling such service activity when most businesses are closed. When established Customer business hours are effectively 24 hours a day, ComputerTalk will provide reasonable notice for service activities that may cause service disruption.
h) Any changes to the Cloud Services, including but not limited to additional licensing, are subject to ComputerTalk's change management process.
3. Term
a) The initial term (the "Initial Term") of this Agreement shall be established on the basis of an approved quote and shall begin on the date on which both the Customer and ComputerTalk agree is the start of services (the "Effective Date"). This Agreement shall be automatically renewed for additional consecutive terms of twelve (12) months (each a "Renewal Term") unless the Customer provides ComputerTalk termination notice.
4. Charges and billing
a) The Customer undertakes to pay all charges for the applicable term. All charges are exclusive of any federal, state, local sales or use taxes or other taxes or fees assessed on or in connection with any of the Services covered under this Agreement. The Customer acknowledges that ComputerTalk has no accountability for any such charges.
b) For all orders which include Professional Services, a deposit of fifty percent (50%) for Professional Services is required at the time of the order unless otherwise stipulated in writing. ComputerTalk shall only schedule resources upon receipt of such payment.
c) The balance of payment for Professional Services will be invoiced on the Go-Live date for the project or change. For training and consultation services, the balance of payment will be invoiced when the services have been delivered.
d) Monthly charges (the "Recurring Charges") are invoiced monthly in advance by ComputerTalk based on the current contracted services. The Customer will pay all undisputed invoices within thirty (30) days of receipt of each invoice without setoff or recoupment. Any amount payable under this Agreement and unpaid on its due date shall be subject to a late charge of one and one-half percent (1.5%) per month (19.56% per annum) or the legal maximum unless Customer notifies ComputerTalk of a billing dispute in writing before the payment due date.
e) Customer-approved charges that are based upon consumption shall be invoiced monthly in arrears. The timing of consumption-based billing depends on customer billing dates and the availability of third-party usage reports.
f) The Customer is responsible for all Long Distance and Toll-free charges billed to ComputerTalk by network carriers arising from the outbound use of telephone numbers used to provide the Services. ComputerTalk will include any billed long-distance charges as part of the monthly invoicing. This condition includes user connections that are not part of the Points of Presence established for the solution.
g) ComputerTalk, acting reasonably, reserves the right, through written notice to the Customer no less than sixty (60) calendar days before the end of a given term, to adjust pricing to cover the cost-of-living increases, applicable to the following and subsequent Renewal Terms.
h) Acting reasonably and with prior written notice, ComputerTalk reserves the right to change its credit policy to require pre-payment based upon the Customer's repeated failure to comply with established payment terms.
i) Customer shall reimburse ComputerTalk actual out-of-pocket expenses as reasonably incurred by ComputerTalk in connection with the performance of Services. Additional expenses for materials, services, training, and hardware may only be incurred by ComputerTalk and charged to the Customer if prior written approval has been obtained.
5. Obligations of the Customer
The Customer has the following accountabilities concerning the delivery of any SOW or Change Request:
a) To assign suitably qualified Customer personnel to participate and provide the appropriate leadership, timely information exchange, and decision-making in the requirements gathering, design, and deployment phases for each SOW and Change Request.
b) To ensure, at its expense, that network infrastructure provided by and under the control of the Customer, including third-party cloud services, is compatible with, installed, configured, and maintained in accordance with requirements and specifications established in the Solution Documentation.
c) To ensure that, as applicable, all Customer controlled components of the solution (for example, databases, web services, email servers, or other solution-specific endpoint integrations) are adequately maintained, secure, and accessible to allow ComputerTalk to perform its obligations under this Agreement.
d) To obtain the licenses or authorizations required for any equipment, hardware, or software not provided by ComputerTalk or its partners.
e) To administer security policies for any user-facing service components, using the tools provided by ComputerTalk as part of the service platform.
f) To ensure that its employees or representatives do not commit, allow, or cause any action to be committed, and shall not provide any service that disrupts or affects in any manner whatsoever ComputerTalk's provision of the Services.
g) To refrain from reselling or remarketing all or part of the Services provided under this Agreement for commercial purposes.
ComputerTalk reserves the right, after making corrective efforts and acting reasonably, to take any measures it deems necessary to ensure compliance with this section, including termination of services subject to the provisions of Section 11.
6. Change Orders or Out of Scope Services
To the extent that Customer requires or requests modifications to the Services outlined in any SOW incorporated herein, the following conditions apply:
a) During the initial delivery of a Solution under an SOW governed by this Agreement, the Customer may request in writing additions, deletions, or modifications to the Services described in the SOW in the form of a Change Request.
b) During solution delivery, Change Requests which alter the design of the Business Application(s), or the supporting solution infrastructure will not be accepted once the custom application is fully developed or the solution infrastructure implemented unless the change is critical to the success of the solution and this at the discretion of ComputerTalk, acting reasonably. Once the solution is migrated into the production environment, such Change Requests will only be considered new requests following Customer Acceptance of the solution.
c) Customer-initiated Change Requests are to be submitted on ComputerTalk's standard Change Request form (Exhibit 3) or an alternate format as mutually agreed, providing sufficient detail to allow ComputerTalk to evaluate the request accurately.
d) Within ten (10) business days, or as otherwise mutually agreed, and once ComputerTalk has had a reasonable opportunity to pursue clarification from the Customer, ComputerTalk shall respond. The response shall include the proposed change(s) description, the impact of the change(s) on the project scope, any assumptions made, work needed to be performed, and quoted fees and expenses.
e) The Customer shall have thirty (30) calendar days from receipt of a completed Change Request from ComputerTalk to seek clarification and accept the proposed change(s) by signing and returning the Change Request. If the Customer does not sign and return the Change Request within the period prescribed above, the Change Request will be rejected, and ComputerTalk will not perform the proposed change(s).
f) No change to the deliverables under an SOW shall be made unless requested and accepted by the process described in this section. ComputerTalk shall have no obligation to perform or commence work in connection with any proposed change until a Change Request is approved and signed by authorized representatives from both parties and the requirements of Section 5, as applicable, have been met.
g) At ComputerTalk's discretion, and with prior notice to the Customer, the time required to research and document customer-originated Change Requests will be billed at the standard rates specified in Schedule B or the project Statement of Work.
7. Warranty
a) ComputerTalk warrants that the Cloud Services will operate in conformity with the Solution Documentation throughout the applicable term. Professional Services shall be delivered in a timely and professional manner. Support will be provided as detailed in Schedule C.
b) ComputerTalk warrants it has obtained all the necessary licenses, as the case may be, for software used in delivering the Cloud Services.
c) ComputerTalk offers no warranty that the Cloud Services will be uninterrupted or without defects. ComputerTalk may occasionally suspend Services to perform maintenance or other activity related to managing a multi-tenant service.
d) ComputerTalk offers no warranty concerning the scope, availability, accuracy, or any other aspect of any information, including notably and without limiting the scope of the foregoing, any datum or file, regardless of the format or presentation, to which the Customer or its users shall have access or shall have at their disposal arising from the use of the Cloud Services.
e) The warranties stipulated in this Agreement consider all other representations or warranties, whether written or verbal, of any nature whatsoever, regardless of how such representation or warranty was transmitted. The Customer at this moment expressly waives any other warranty, express, implied, or legal, and notably any warranty in respect of the market quality of the Cloud Services and their fitness for the purposes for which they were intended.
8. Dispute resolution
In the event of a dispute, disagreement, claim, or alleged breach of the provisions of this Agreement (from now on referred to as a "Dispute"), the dispute shall be submitted to the ComputerTalk Account Manager, as the case may be, and the Customer's counterpart. If the dispute is not resolved within fifteen (15) calendar days of the date on which it was submitted for said purpose, it shall then be submitted to the superior of the ComputerTalk account manager and the Customer's counterpart. If the dispute is not resolved at this level within thirty (30) calendar days from the date it was submitted, either Party may exercise its rights stipulated in Section 11.
9. Termination and migration
a) Either Party may terminate this Agreement upon the expiration of the Initial Term or any Renewal Term, by providing the other Party with prior written notice to this effect no later than thirty (30) business days before the expiration of the Initial Term or the Renewal Term, as the case may be.
b) If either Party believes that the other Party has failed in any material respect to perform its obligations under this Agreement (including any Exhibits, Amendments, or SOWs hereto), then that Party may provide written notice to the other Party's management representative describing the alleged failure in reasonable detail. If the breaching Party does not, within thirty (30) calendar days after receiving such written notice, either (a) cure the material failure or (b) if the breach cannot reasonably be cured within thirty (30) calendar days, then the non-breaching Party may terminate this Agreement, in whole or in part, for cause by providing written notice to the management representative of the breaching Party.
c) ComputerTalk may, at its discretion and in addition to its other rights and recourses under this Agreement and the law, immediately terminate this Agreement or suspend the delivery of a part or all the Services by providing the Customer with a written notice to this effect before the end of the Initial Term or any applicable Renewal Term, as the case may be, if the Customer fails to comply with any provision of this Agreement, namely, if the Customer fails to pay an invoice in full on its due date, provided that ComputerTalk provides the Customer with a notice specifying the default at issue and provided the Customer fails to remedy such default within fifteen (15) business days following delivery of such notice to the Customer. In the event of such termination, the Customer undertakes to pay ComputerTalk or its Assignee charges due and payable under the Agreement.
d) Either Party may immediately terminate this Agreement through a simple notice to this effect, should one of the parties become insolvent, be placed in receivership, assign its property or become bankrupt or should ComputerTalk cease to offer the Services. In the event of such termination, the Customer undertakes to pay ComputerTalk or its Assignee charges due and payable under the Agreement.
10. Property of ComputerTalk
a) Any hardware, equipment, and software provided by ComputerTalk located within ComputerTalk's data center or a third-party cloud provider, and used in the delivery of Cloud Services, shall always remain the exclusive property of ComputerTalk or its suppliers.
b) No provision in this Agreement shall constitute an assignment or licensing of ComputerTalk Intellectual Property rights for the benefit of a Customer.
11. Confidential information
a) Confidential information means data, documents, or other information of any nature whatsoever belonging exclusively to a party and identified as confidential, disclosed, or made available to the other Party as part of the negotiations, drafting, or execution of this Agreement. Confidential information includes network architecture specifications and documentation relating to the cloud services' design, deployment, or operation without limiting the scope of the preceding.
b) Each Party, subject to subsection d) hereunder, undertakes not to disclose to third parties the confidential information of the other Party without its written authorization to this effect, and to safeguard the information, undertakes to take the same precautions any reasonable person would take to prevent disclosure of confidential information belonging to it. Each Party undertakes to release from liability and compensate the other Party against any loss or damage caused directly or indirectly by disclosing confidential information by said Party or its duly authorized principals, contractors, sub-contractors, employees, or assignees.
c) The rights and obligations incumbent on each Party under this section shall remain in effect notwithstanding the expiration or termination of this Agreement by either Party.
d) Notwithstanding any provision to the contrary, the Customer authorizes ComputerTalk to disclose to its Assignee identified in Schedule C (when applicable) all information, including confidential information, about the solvency and credit of the Customer in ComputerTalk's possession.
12. Security and Privacy
ComputerTalk’s comprehensive ice Security and Privacy program is provided at this link on our website and is part of this Agreement: https://www.computer-talk.com/cloud-service-security-and-privacy
The Security and Privacy program at the above link is to be reviewed by you and represents the complete commitment by ComputerTalk relating to the security of the ice service and our commitment to upholding data privacy.
13. Indemnification.
a) ComputerTalk Indemnification. ComputerTalk shall indemnify and defend Customer from and against Third-Party Indemnification Claims (including suits, actions, proceedings, and demands) caused by and arising from or relating to:
i. bodily injury or damage to real or personal property directly caused by ComputerTalk relating to or arising out of ComputerTalk's negligent acts, errors, or omissions.
ii. ComputerTalk's breach of any representation, warranty, covenant, or obligation under this Agreement; or
iii. ComputerTalk's Software or Customer's use of ComputerTalk's Services infringes, misappropriates, or violates Intellectual Property Rights. But this obligation does not apply to the extent the alleged infringement, misappropriation, or violation arises from (1) Customer or Third-Party Materials, (2) access or use of ComputerTalk's Materials in combination with any hardware, system, software, network, or another service not provided by ComputerTalk or expressly permitted by ComputerTalk, or (3) failure to allow ComputerTalk to timely implement any modifications, upgrades, replacements, or enhancements.
b) Regarding Section 15 (a) (i), in the event of liability for Third-Party Indemnification Claims caused by the concurrent negligence of Customer, any third party, and ComputerTalk, its officers, officials, employees, or anyone for whom ComputerTalk is liable, ComputerTalk 's indemnity obligation hereunder shall be only to the extent ComputerTalk's negligence caused such Third-Party Indemnification Claim. It is further specifically and expressly understood that, to the fullest extent allowed by applicable law, the indemnification provided herein constitutes a waiver of immunity under any applicable worker's or workman's compensation, solely for the purpose of effectuating the indemnification obligations hereunder. The parties have mutually negotiated this waiver.
c) ComputerTalk's Indemnification Obligation is subject to the CAP on Monetary Liability set forth below in Section 16 (b).
d) Customer Indemnification. Customer shall indemnify and defend ComputerTalk from and against Third-Party Indemnification Claims (including suits, actions, proceedings, and demands) caused by and arising from or relating to: i. bodily injury or damage to real or personal property directly caused by Customer pertaining to or arising from Customer's negligent acts, errors, or omissions. ii. Customer's breach of any representation, warranty, covenant, or obligation of under this Agreement. iii. Customer Data is unlawful, or its use infringes, misappropriates, or violates Intellectual Property Rights or violates other rights. But this obligation does not apply to the extent the alleged infringement, misappropriation, or violation arises from (1) ComputerTalk's unauthorized access or use or disclosure, due to a security breach or otherwise; or iv. Any use of ComputerTalk's software or services by Customer or any Authorized User that is beyond the scope of or otherwise fails to conform to this Agreement's express requirements or restrictions.
e) Regarding Section 15 (d) (i), in the event of liability for Claims caused by the concurrent negligence of ComputerTalk, any third party, and Customer, its officers, officials, employees, or anyone for whom Customer is liable, Customer's indemnity obligation hereunder shall be only to the extent Customer's negligence caused such Third-Party Indemnification Claim. It is further specifically and expressly understood that, to the fullest extent allowed by applicable law, the indemnification provided herein constitutes a waiver of immunity under any applicable worker's or workman's compensation, solely for the purpose of effectuating the indemnification obligations hereunder. The parties have mutually negotiated this waiver.
f) Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified under Section 15 (a) or Section 15 (d). The Party seeking indemnification (the "Indemnitee") shall cooperate with the other Party (the "Indemnitor"). The Indemnitor shall promptly assume control of the defense and employ counsel to handle and defend the same at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its choosing. The Indemnitor shall not settle any Action without the Indemnitee's prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such action, the Indemnitee shall have the right, but no obligation, to defend against such action, including settling such action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee's failure to perform any obligations under this Section 15 (f) will not relieve the Indemnitor of its obligations under this Section 15, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
g) Mitigation. If any of ComputerTalk's software, services, or materials are, or in its opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer's or any Authorized User's use of ComputerTalk's software, services, or materials is enjoined or threatened to be enjoined, ComputerTalk may, at its option and sole cost and expense:
i. obtain the right for Customer to continue to use ComputerTalk's software, services, or materials as contemplated by this Agreement; or
ii. modify or replace ComputerTalk's software, services, or materials, in whole or in part, to seek to make the software, services, or materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute software, services, and materials, as applicable, under this Agreement; or
iii. by written notice to Customer, terminate this Agreement concerning all or part of the ComputerTalk software, services, and materials.
h) Sole Remedy for IP INFRINGEMENT. THIS SECTION 15 SETS FORTH THE CUSTOMER'S SOLE REMEDIES AND COMPUTERTALK'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT COMPUTERTALK'S SOFTWARE, SERVICES, AND MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
14. Limitations of Liability.
a) EXCLUSION OF DAMAGES. EXCEPT AS COVERED THROUGH THE INSURANCE SET FORTH BELOW IN SECTIONS 16 (b) AND OTHERWISE PROVIDED IN SECTION 16 (c), IN NO EVENT WILL COMPUTERTALK BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY/INDEMNIFCATION, WARRANTY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES TO EXTENT POSSIBLE UNDER THE LAW, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
b) Insurance. ComputerTalk maintains the following insurance: (1) Comprehensive General Liability (CGL) $2,000,000, (2) Non-Owned Auto $ 1,000,000, (3) Employer Liability $1,000,000, (4) Umbrella (CGL) $5,000,000, and (5) E&O $5,000,000 with Cyber (Part of E&O).
c) CAP (Limitation) On Monetary Liability. The maximum liability of ComputerTalk to Customer, or to entities claiming by or through the Customer, arising out of or related to this Agreement, whether in tort, breach of contract, or otherwise, shall be limited to (a) for insured claims, ComputerTalk's insurance then available to satisfy any settlement, award, or verdict; or (b) for uninsured claims, the original value of the contract including licenses and professional services.
d) EXCEPT AS OTHERWISE PROVIDED IN SECTION 16 (b) and 16 (c), IN NO EVENT, WILL THE LIABILITY OF COMPUTERTALK ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNTS SET FORTH IN THE PRECEDING PARAGRAPH. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
e) Exceptions. The exclusions and limitations in Section 16 (a) and Section 16 (b), and 16 (c) do not apply to the extent ComputerTalk's insurance provides coverage or to the extent an exclusion or limitation violates the law. If an exclusion or limitation violates the law, the court will enforce the remaining exclusions or limitations to the maximum extent possible under the law.
15. Force majeure
a) Save for the obligation to pay the monthly recurring charges and invoiced charges for professional services delivered, in case of difficulties in executing this Agreement, in whole or in part, arising from circumstances beyond the reasonable control of either Party, including, without limiting the scope of the foregoing, a fire, an explosion, a power failure, an act of God, war, a revolution, civil unrest, actions of usurpers, a provision of a law, decree, bylaw, ordinance or requirement by any government or municipal authority, representative thereof or public competent authority in the matter or arising from labour problems, such as strikes, work slowdowns, strike picketing or boycotts, the Party so affected shall be exempted from performing its obligations from day to day to the extent that such obligations pertain to the performance affected by such difficulties, subject to the obligation made to the other Party thus affected to take commercially reasonable measures to end said causes of non-performance diligently.
16. General provisions
a) Amendments: Unless otherwise stipulated, neither Party may amend this Agreement, except in duly signed writing by the authorized representatives of the two parties.
a) Assignment: The Customer shall not assign or transfer this Agreement, in whole or in part, (other than to an affiliate of Customer) without ComputerTalk's prior written consent, which consent shall not be unreasonably withheld. Except as set forth herein, any attempt by the Customer to assign or transfer this Agreement, in whole or in part, without the prior written consent stipulated herein, shall be null and void. ComputerTalk is authorized, with notice to the Customer, to assign the rights or obligations incumbent upon it under this Agreement or its interests therein, including the Recurring Charges, Termination Charges, or other charges payable by the Customer under this Agreement. The Customer acknowledges that the Assignee assumes no obligation of ComputerTalk set out in or ensuing from this Agreement or any other related document and assumes no liability should ComputerTalk default on or fail to perform its obligations, in whole or in part.
b) Unconditional obligation: Where ComputerTalk assigns to its Assignee its rights, titles, and interests as set out in subsection b) above, the Customer agrees to pay the Assignee all the Recurring Charges, Termination Charges, and other charges so assigned and owing under this Agreement, unconditionally, without reduction or compensation whatsoever, regardless of any actual or alleged cause of action that the Customer has or claims to have against ComputerTalk or any other third party.
d) Entire Agreement: This Agreement sets out all the provisions agreed upon between the Customer and ComputerTalk regarding the subject matter it pertains to and prevails over all agreements, covenants, undertakings, promises, and representations relating to it. Should a purchase order or other document be issued to obtain Services, the provisions set out therein shall in no manner amend or otherwise be used to interpret the provisions of this Agreement unless mutually negotiated and agreed by both Parties.
e) Parties and assigns: The provisions of this Agreement bind ComputerTalk and the Customer as well as their respective authorized assigns and successors and ensure to their benefit.
f) Governing Law, Jurisdiction, and Venue: This Agreement will be governed by the laws of the defending party. The party bringing suit will travel to the other party’s jurisdiction of law, and this location will be the venue in which the dispute is resolved by a 3rd party.
g) Interpretation: In this Agreement, the headings are included for the convenience of reference only and shall not affect the construction or interpretation of its provisions.
h) Waiver: No waiver applying to any provision or term and condition of this Agreement or in respect of any breach or default relating to it shall have effect unless it is set out in writing and signed by the party who is making said waiver and such waiver shall not constitute a waiver to any provision or term and condition of this Agreement or any subsequent breach or default of the same or similar nature.
i) Notice: The notices stipulated in this Agreement shall be given in writing and transmitted (i) by hand or by certified or registered mail, to the addresses of the Parties set out above, (ii) by facsimile, or (iii) by electronic mail. Notices sent by facsimile or electronic mail shall be deemed received upon receipt by the recipient of a bona fide transmission confirmation.
j) Severability of provisions: If one or more provisions of this Agreement are deemed invalid, illegal, or unenforceable, such determination shall not affect or invalidate any other provision of this Agreement.
17. Definitions
The following terms are defined for use within this Agreement with no distinction concerning capitalization or lack thereof.
f) "Business Application" means an ice software application (also known as a workflow) developed and configured by ComputerTalk under a Statement of Work and associated Change Requests, which provides specialized solution functionality according to business requirements and design specifications approved by the Customer.
g) "Custom Code" means software developed and coded to meet novel business application requirements that cannot be achieved through ice workflow configuration tools and are not ComputerTalk Pre-existing Materials.
h) "Change Request" means a document that defines the scope, deliverables, requirements, assumptions, accountabilities, delivery conditions and ComputerTalk pricing for changes to a formalized Statement of Work during the design and delivery stage or once a project has moved into production.
i) "Cloud Services" is the collective reference to the software-as-a-service functionality provided by ComputerTalk's data centers to meet the Customer's contact center, IVR, and associated business requirements as defined in the Solution Documentation.
j) "Go-live date" means the date that a new service goes into use on a production basis (for example, a service begins accepting live contacts, or a development/test environment is turned over to Customer to use) or a change to a service is completed, and Customer acknowledges that such change has been fully implemented. This date shall be documented by ComputerTalk as part of the delivery process and confirmed between ComputerTalk and the Customer in each case.
k) "Order" means a documented commercial commitment made by Customer to ComputerTalk establishing compensation for service delivery under this Agreement. Typically, an Order is in the form of a purchase order (PO). However, the specific form that an Order takes is an agreement between the Customer and ComputerTalk. For clarity, notwithstanding the form of an Order, the commercial legal value of an Order is the same in all cases.
l) "Pre-existing Materials" means all software and related material previously and independently developed by and proprietary to ComputerTalk, which may be incorporated into the deliverables of a Project, SOW or Change Request. In addition to ComputerTalk's ice platform software, such materials include application software elements and components previously developed by ComputerTalk, including any associated documentation. For the sake of clarity, such pre-existing application software elements may include but are not limited to, pre-built contact handling elements such as menu and contact routing structures, queuing treatments, administration modules, web service integrations, and workflow modules providing specialized functionality such as third-party payment or outbound calling.
m) "Project" means a service delivery engagement as detailed in a Statement of Work or Change Request.
n) "Professional Services" means services provided by ComputerTalk resources under a Statement of Work or Change Request. Such services may include project management, solution design, documentation, business application development, technical consultation, configuration, deployment, change management, speech services, training, testing, consulting, maintenance, support, and similar services according to the terms of this Agreement. For the sake of clarity, any reference to Professional Services does not contain any reference to software unless language is provided to link the two.
o) "Services" or "ComputerTalk Services" is the collective reference that encompasses Solution delivery services, Cloud Services, Professional Services, and maintenance and support provided by ComputerTalk to the Customer.
p) "Solution" or "Customer Solution" is the collective reference to a Customer cloud service deployment, based upon a specific solution architecture, including but not limited to network service, hardware, and software components as detailed within the Solution Documentation, which supports contact management functions and business processes.
q) "Solution Documentation" is the collective reference to any documentation which describes the specific architecture, requirements, functionality, configuration, and project delivery planning for a solution. Documentation includes but is not necessarily limited to statements of work, change requests, quotes, design specifications, infrastructure documentation, and user manuals.
r) "Statement of Work (or SOW)" means a formal document whose content defines the scope, deliverables, requirements, accountabilities, and delivery conditions for a particular project. It is an outcome of the pre-sales process for new projects and is the basis for Quotes issued by ComputerTalk. A Statement of Work may be substituted for a Change Request for substantially new developments to completed projects. Schedule A is the current ComputerTalk Statement of Work template.
s) "Third Party Services" means any professional services or cloud-based services provided by a third party as a sub-contractor of ComputerTalk or Customer, which may be incorporated into the deliverables in a Statement of Work by agreement of the parties.