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AtlasRTX Service Terms & Conditions
These ATLASRTX SERVICE TERMS & CONDITIONS (“Service Terms and Conditions” and, together with any applicable SaaS Order Form issued, the “Agreement”), are effective as of the date set forth on an applicable SaaS Order Form between inContact, Inc. (DBA NICE), successor-in-interest to AtlasRTX, LLC, with a place of business located at 75 West Towne Ridge Parkway, Tower 1, Sandy, Utah, 84070 (“AtlasRTX”), and the Client named in such SaaS Order Form (“Client”). Client’s access to and use of Services is conditioned upon Client’s acceptance of and compliance with the Agreement. By executing an applicable SaaS Order Form, Client agrees to be bound by the Agreement.
The following definitions apply to the Agreement:
“Affiliates” means, when used with respect to a Party, any legal entity controlled by, controlling, or under common control with that Party, where “control” (and its derivatives) means: (a) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation, person, or other entity through the ownership of voting securities; or (b) direct or indirect ownership in the aggregate of fifty percent (50%) or more of any class of voting or equity interests in the other corporation, person, or entity.
“Client Data” means all data, content, and information submitted to AtlasRTX by Client, or by a third party on behalf of or for the benefit of Client (including Client’s Customers, prospective Customers, and website visitors, as applicable) to enable and utilize the Services.
“Client Parties” means and includes Client and each of Client’s authorized agents and contractors, employees, and Affiliates. Client is responsible for the acts, omissions, and compliance with the Agreement by the Client Parties.
“Cloud Services” means the subscription-based service that provides Client with the ability to access and use the Software Platform and receive related Delivery Services and Technical Support, as further described in a SaaS Order Form.
“Conversation” or “Contact Engagement” means a conversation, including all messages within that Conversation, which is started by a Digital Assistant or a Customer.
“Customer” means Client’s customer or prospective customer.
“Digital Assistant” means a computer program within the Software Platform that is designed
to simulate conversation with human users over a digital medium.
“Effective Date” means the date set forth on the applicable SaaS Order Form.
“Delivery Services” means AtlasRTX on-boarding process to allow Client to utilize the Cloud Services as set forth in a SaaS Order Form.
“Managed Services” means AtlasRTX subscription-based consulting package(s) as set forth in the applicable SaaS Order Form”.
“Party” means either AtlasRTX or Client, individually as the context indicates; and “Parties” means AtlasRTX and Client, collectively.
“Resulting Information” means data created by, or resulting from, the use of the Services, including analyses, statistics, reports, and aggregations, all of which shall be considered AtlasRTX Confidential Information. For the avoidance of doubt, the term Resulting Information does not include Client Data, such that there is no reasonable basis on which any individual, or Client itself, or a Customer could be identified by the Resulting Information.
“SaaS Order Form” means an ordering document, signed by duly authorized representatives of the Parties, that identifies, among other things, the Services, Service Term, and related fees being ordered by Client from AtlasRTX.
“Services” or “Services Ordered” means AtlasRTX’s Cloud Services, Technical Support, Delivery Services, and/or Managed Services, each as it relates to the Software Platform and as set forth in a SaaS Order Form.
“Service Term” means the duration of the Services subscribed to by Client pursuant to a SaaS Order Form.
“Software Platform” means AtlasRTX’s A.I. supported messaging platform, which includes Digital Assistant engagement through SMS/MMS text, messaging and webchat.
“Technical Support” means the standard support provided by or on behalf of AtlasRTX as it relates to the Software Platform and as further described in Section 1.2 below.
“User” means an individual employee, consultant, contractor, or agent of Client who has been authorized by Client to use AtlasRTX’s Software Platform and/or Services on behalf of Client and/or its Affiliates.
SERVICE AND SUPPORT
1.1 As part of the registration process, Client shall identify administrative User name(s) and password(s) for Client’s AtlasRTX account, as well as for sub-accounts. AtlasRTX reserves the right to refuse registration of or cancel passwords, accounts, or access as it deems appropriate.
1.2 Subject to the terms hereof, AtlasRTX will provide Client with commercially reasonable Technical Support in accordance with the following terms: Technical Support is available to Client via electronic mail on weekdays during the hours of 9:00 a.m. through 5:00 p.m. Mountain time, with the exclusion of Federal Holidays (the “Support Hours”); Client may initiate a service ticket by emailing service@Atlasrtx.com at any time; AtlasRTX will use commercially reasonable efforts to respond to all service tickets within one (1) business day and during Support Hours.
1.3 Client consents to AtlasRTX’s application of all upgrades, enhancements, and new releases to the Software Platform, and Client will cooperate timely with such application of upgrades, enhancements, and new releases as applicable.
1.4 Client consents to AtlasRTX texting, messaging, or otherwise communicating with Client Parties and Users at any time during the term of this Agreement. Message and data rates may apply.
RESTRICTIONS AND RESPONSIBILITIES
2.1 Client Parties will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, knowhow, or algorithms relevant to any AtlasRTX Software Platform, Services, product, upgrade, software,
documentation, or data; modify, translate, or create derivative works based on the Software Platform and/or Services (except as expressly permitted in writing by AtlasRTX); use the Software Platform and/or Services for time-sharing or service bureau purposes or otherwise for the benefit of a third party; distribute, sublicense, rent, lease, lend, or offer hosting services of AtlasRTX’s Software Platform or Services to a third party; remove any proprietary notices or labels; perform or attempt to perform any work around to any technical limitations in the Software Platform and/or Services; or take any other action (with respect to the Services) not expressly permitted under this Agreement.
2.2 Client Parties shall not remove or export from the United States or allow the export or re-export of the Software Platform and/or Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in Federal Acquisition Regulation (FAR) section 2.101, the Platform Software and related documentation are “Commercial Items” and according to Defense Federal Acquisition Regulation (DFAR) section 252.227‐7014(a)(1) and (5) are deemed to be “Commercial Computer Software” and “Commercial Computer Software Documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such Commercial Software or Commercial Software Documentation by the U.S. Government will be governed solely by the terms of the Agreement and will be prohibited except to the extent expressly permitted by the Agreement. Client Parties must comply with all applicable national and international laws related to all AtlasRTX Services.
2.3 Client, on behalf of itself and Client Parties, represents, covenants, and warrants that it will only use the Software Platform and Services in compliance with AtlasRTX’s standard published policies then in effect and all applicable laws and regulations. Client understands that AtlasRTX provides a Software Platform that enables Client to engage with Customers through SMS/MMS texting, messaging, and/or webchat all supported by a Digital Assistant. Client is solely responsible for content, consent, and for complying with all local, state, federal, and international laws and regulations including, without limitation, the Telephone Consumer Protection Act (TCPA), CAN-SPAM Act, Federal Trade Commission (FTC) Telemarketing Sales Rule (TSR), and General Data Protection Regulations (GDPR), as relevant and/or applicable. Client is also required to use the Software Platform and any of the Services in full compliance with the following: (i) Do-Not-Call (DNC) list prohibitions; (ii) telemarketer licensing and bonding requirements; (iii) consumer cancellation rights; (iv) mandatory disclosures; (v) wireless calling restrictions; (vi) restrictions on the use of automatic telephone dialing systems and pre- recorded messages (i.e. robocalling or voice broadcasting); (vii) internal opt-out rules; (viii) intellectual property rights and restrictions; (ix) the California Consumer Privacy Act (CCPA); and (x) other product and industry specific rules and disclosures, as applicable. Although AtlasRTX has no obligation to monitor Client or Client Parties’ use of the Software Platform and/or Services, AtlasRTX may do so and may prohibit any use of the Software Platform and/or Services it believes may be (or alleged to be) in violation of the foregoing. Client hereby agrees to indemnify, defend, and hold harmless AtlasRTX against any damages, losses, liabilities, settlements, and expenses (including, without limitation, costs and attorneys’ fees) in connection with any claim, investigation, or action that arises from an alleged violation of the foregoing or otherwise from Client’s use of the Software Platform and/or Services or use of the Software Platform and/or Services by Client Parties.
2.4 By making any use of the Software Platform and/or Services, Client expressly warrants to AtlasRTX that Client and the Client Parties are (and shall continue to act) in full compliance with the law. AtlasRTX does not assume responsibility for ensuring that Client’s marketing campaigns meet
applicable legal requirements. If AtlasRTX discovers evidence demonstrating that Client or Client Parties may have violated the law or suspects the same, AtlasRTX may suspend or terminate Client’s use of the Software Platform and/or Services immediately. Client understands and accepts that AtlasRTX may be required by law to disclose information about Client Parties if AtlasRTX receives a subpoena from a court or regulator with competent jurisdiction. AtlasRTX is under no obligation to object to the same.
2.5 Client shall be responsible for obtaining and maintaining any equipment, including ancillary services needed to connect to, access, or otherwise use the Software Platform and/or Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, “Equipment”). Client shall also be solely responsible for maintaining the security of the Equipment, Client account, User account passwords (including, but not limited to, administrative and User passwords), files, and for all uses of Client’s account, User’s accounts, or Equipment.
2.6 Client and the Client Parties shall not attempt to create, build, manufacture, or otherwise produce any form of technology, service, product, or offering that competes directly or indirectly with the AtlasRTX Software Platform or the Services (the “Competing Technology”). If Client or any of the Client Parties creates, builds, manufactures, or otherwise produces Competing Technology, in addition to any other rights that AtlasRTX may have under the Agreement or at law, Client shall cause any and all profits or monies resulting from or arising out of such Competing Technology to be transferred to AtlasRTX without deduction from any amount due under this Agreement.
CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business which is either marked as confidential (or words of similar import) or is of a nature or disclosed in such a manner as would put a reasonable person on notice as to the confidential or proprietary nature of the information (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of AtlasRTX includes, but is not limited to, non-public information regarding features, functionality, and performance of the Software Platform and/or Services. Proprietary Information of Client includes non-public data provided by Client to AtlasRTX to enable the provision of the Software Platform and/or Services. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof, or any information that the Receiving Party can document: (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without the use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law.
3.2 AtlasRTX shall own and retain all rights, titles, and interests in and to: (i) the Software Platform and Services, including all improvements, enhancements, or modifications thereto; (ii) any software, code, applications, inventions, or other technology developed in connection with Delivery Services, Managed Services or Technical Support; (iii) Resulting Information; and (iv) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, AtlasRTX shall have the right to collect and analyze Resulting Information and other information relating to the provision, use, and performance of various aspects of the Software Platform and/or Services and related systems and technologies, and AtlasRTX will be free to: (i) use such Resulting Information and related data to improve and enhance the Software Platform and/or Services and for other development, diagnostic, and corrective purposes in connection with all of AtlasRTX’s offerings; and (ii) disclose Resulting Information solely in aggregate or other de-identified form in connection with its business, as allowable by law.
GENERAL COMMERCIAL TERMS
4.1 Client will be invoiced the fees related to Services Ordered, including any additional fees which may apply as a result of a renewal subscription or Client exceeding the scope of the Services Ordered (e.g. any overages for additional Conversations, Contact Engagements or similar), each as described in and pursuant to the terms set forth in the SaaS Order Form and these Service Terms and Conditions. Client understands and agrees that the fees may be invoiced by AtlasRTX or its Affiliates. Client shall reimburse NICE for preapproved expenses associated with any on-site Services (e.g., travel expenses) in accordance with AtlasRTX’s travel and expense policy and as further described in a SaaS Order Form, and such expenses shall be invoiced monthly in arrears. Client shall pay AtlasRTX (or its Affiliate, as the case may be, if so directed on a related invoice) all fees or other costs due in U.S. Dollars, and in full within thirty (30) days following the date of each invoice. Client must provide AtlasRTX with written notice of any invoice dispute (which, in any event, must be in good faith) within thirty (30) days following the date of invoice (email notice to firstname.lastname@example.org, or other email address which may be designated on the invoice, serving as sufficient written notice). If Client does not provide such notice within thirty (30) days of the date of invoice, the invoice shall be deemed to be correct and binding. With respect to any amount due to AtlasRTX, which is not paid within thirty (30) days following the date of invoice, AtlasRTX may apply interest at the rate of one and one-half percent (11⁄2%) per month, or such lesser amount required by law, assessed from the due date through the date of payment. Without waiving any of its rights or remedies under the Agreement or at law, AtlasRTX reserves the right to suspend performance of Services until any amounts that are outstanding and past due are paid in full by Client. In limited circumstances, AtlasRTX may, in its sole discretion, accept a Client purchase order for certain Services. Client purchase orders, if any, are provided for Client’s administrative purposes only, and any preprinted terms on Client purchase orders will not add to, modify, or have any effect on the terms of the Agreement.
4.2 Client shall, in addition to the other amounts payable under the Agreement, bear and pay all sales and other taxes, federal, state or otherwise, however designated that are levied or imposed by reason of the transactions contemplated hereunder, but excluding taxes on AtlasRTX’s net income. Without limiting the foregoing, if any such taxes are imposed upon and paid by AtlasRTX, Client shall reimburse AtlasRTX within thirty (30) days of receipt of an invoice from AtlasRTX (or any of its Affiliates, as the case may be) for such amount. If, at any time, Client claims that its purchase of Services hereunder is exempt from any taxes, it shall be Client’s responsibility to provide AtlasRTX with the appropriate tax exemption certificate(s). In the absence of valid proof of exemption, AtlasRTX reserves the right to charge Client for, and Client agrees to pay, the applicable taxes.
TERM, TERMINATION, AND MODIFICATION
5.1 The Agreement is for the Service Term as specified in the SaaS Order Form. The Service Term for the Services is non-cancelable by Client. If Client elects to cease using the Services during the Service
Term, Client shall: (a) continue to be liable for all amounts payable under the SaaS Order Form for the remainder of the Service Term; and (b) not be entitled to any refunds. Unless otherwise set forth in the SaaS Order Form, and absent termination pursuant to Section 5.2 below, the Agreement and each Service Term will automatically renew for additional consecutive periods of the same amount of time as the initial Service Term (each a “Renewal Service Term”), unless and until either Party provides written notice of non-renewal to the other Party at least thirty (30) days prior to the end of the then- current Renewal Service Term. Upon commencement of each Renewal Service Term, rates for Services may be increased by the greater of (i) five percent (5%); or (ii) the most recent annual increase in the Consumer Price Index for all Urban Consumers (CPI-U). Client’s notice of non-renewal or termination must be sent to ContractUnsubscribe@NICEinContact.com; notice of non-renewal or termination via alternate methods shall not constitute notice.
5.2 In addition to any other remedies it may have, either Party may terminate these Service Terms and Conditions or a SaaS Order Form for cause, upon written notice to the other Party setting forth the effective date of termination, if the other Party fails to cure a material breach of the Service Terms and Conditions or SaaS Order Form, respectively, within thirty (30) days after receiving such notice.
5.3 Upon expiration, or earlier termination as permitted in this Section 5, of a SaaS Order Form, AtlasRTX will make the related Client Data available to Client for electronic retrieval for a period of thirty (30) days, but thereafter AtlasRTX may, but is not obligated to (unless otherwise required by law), delete stored Client Data. Any provision of the Agreement or a SaaS Order Form that contemplates performance or observance subsequent to the termination of the Agreement or SaaS Order Form and any other provision that by its nature may reasonably be presumed to survive any termination of the Agreement or SaaS Order Form shall survive its termination.
5.4 AtlasRTX reserves the right, at its sole discretion, to prospectively modify or replace these Service Terms and Conditions at any time. By continuing to utilize any of the AtlasRTX Services after any revisions become effective, and without objecting to the same, Client agrees to be bound by the revised Service Terms and Conditions.
AVAILABILITY, WARRANTY DISCLAIMER, WAIVER, SEVERABILITY, AND ASSIGNMENT
6.1 The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by AtlasRTX or by third-party providers, or due to causes beyond AtlasRTX’s reasonable control. AtlasRTX is under no obligation to provide advance notice in writing or otherwise of any scheduled or unscheduled Services disruption. Neither Party will be responsible for failure or delay of performance (excluding payment obligations) if caused by: an act of war, hostility, or sabotage; a natural disaster; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other event outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
6.2 If any part of these Service Terms and Conditions or of a SaaS Order Form is determined to be invalid or unenforceable by applicable law, the invalid or unenforceable provision will be deemed severed and shall be inoperative; the remainder of the terms of these Service Terms and Conditions or SaaS Order Form continue and shall remain legal, enforceable, and binding on the Parties.
6.3 Failure to enforce any provision of the Agreement will not constitute a waiver. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving Party. The failure of any Party to require the performance of any term or obligation of the Agreement or applicable SaaS
Order Form, or the waiver by any Party of any breach of said documents, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach. A waiver on one occasion shall not be a waiver of any right or remedy on any future occasion.
6.4 The Agreement is not assignable, transferable, or sublicensable by Client except with AtlasRTX’s prior written consent. AtlasRTX may transfer and assign any of its rights and obligations under the Agreement without consent.
6.5 EXCEPT AS EXPRESSLY STATED IN THESE SERVICE TERMS AND CONDITIONS, (a) NO WARRANTIES, EXPRESS OR IMPLIED, ARE MADE BY ATLASRTX TO CLIENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, WHICH ARE SPECIFICALLY EXCLUDED; AND (b) ATLASRTX DOES NOT WARRANT THAT ANY INFORMATION, COMPUTER PROGRAM, ATLASRTX’S EFFORTS OR ANY SOFTWARE PLATFORM OR SERVICES PROVIDED BY ATLASRTX OR ANY ATLASRTX INFRASTRUCTURE PROVIDER WILL FULFILL ANY OF CLIENT’S OR CLIENT’S CUSTOMERS’ PARTICULAR PURPOSES OR NEEDS, NOR DOES ATLASRTX WARRANT THAT THE OPERATION OF, OR ACCESS TO, THE SOFTWARE PLATORM OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
LIMITATION OF LIABILITY
7.1. SUBJECT TO SECTION 7.2 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR: (a) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING LOSS OF USE, LOSS OF OR DAMAGE TO RECORDS OR DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, LOST REVENUE AND/OR PROFITS, SUSTAINED OR INCURRED REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE, STRICT LIABILITY, INDEMNITY (EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT) OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN AND REGARDLESS OF WHETHER SUCH PARTY HAD RECEIVED NOTICE OR HAD BEEN ADVISED, OR KNEW OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; OR (b) DIRECT DAMAGES IN EXCESS OF THE AMOUNTS PAYABLE UNDER THE SAAS ORDER FORM UNDER WHICH SUCH LIABILITY AROSE.
7.2 The limitations in Section 7.1 above shall not apply to: (a) damages occasioned by the breach by either Party of its obligations of confidentiality under Section 3 above; (b) Client’s indemnification obligations under Sections 2.3 above; or (c) matters that cannot be excluded or limited by applicable law.
8.1 The Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement.
8.2 All waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein.
8.3 No agency, partnership, joint venture, or employment is created as a result of the Agreement unless otherwise agreed upon by the Parties in writing, and Client does not have any authority of any kind to bind AtlasRTX in any respect whatsoever.
8.4 With respect to notices permitted or required under the Agreement related to the following matters, such notices must be in writing and delivered by personal delivery, by registered or certified mail (return receipt requested), or by internationally recognized overnight delivery service: (a) notices of breach; (b) notices of termination; and (c) notices regarding actual or potential legal action, including claims subject to indemnification hereunder. Notices will be deemed given: (i) on the date of delivery when delivered personally, (ii) one (1) business day after deposit for next day delivery with an internationally recognized overnight delivery service, and (iii) on the date of delivery when mailed by registered or certified mail (return receipt requested). Notices other than those described in Sections 8.4(a) through 8.4(c) may also be delivered by email, and will be deemed given upon personal reply acknowledging receipt. Notices will be sent to the attention of each Party’s Legal Department at their respective addresses provided in the SaaS Order Form and if no address is included for AtlasRTX in the SaaS Order Form, then such notices should be sent to email@example.com.
GOVERNING LAW; ORDER OF PRECEDENCE
9.1 The Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, excluding its rules of conflicts of law. Both Parties hereby consent and submit to the exclusive jurisdiction of the state and federal courts in New Jersey in all questions and controversies arising out of this Agreement. Both Parties hereby exclude the application of the Uniform Computer Information Transactions Act (“UCITA”), the United Nations Convention on the International Sale of Goods (“CISG”), and any law of any jurisdiction that would apply UCITA or CISG or terms equivalent to UCITA or CISG to the Agreement. To the extent not prohibited by applicable law that cannot be waived, the Parties hereby waive, and covenant that they will not assert any right to trial by jury in any action arising in whole or in part under or in connection with the Agreement or any of the transactions contemplated hereunder.
9.2 In the event of any conflict or inconsistency between these Service Terms and Conditions and the terms of a SaaS Order Form, these Service Terms and Conditions shall prevail except where a SaaS Order Form specifically states that specified terms in the SaaS Order Form supersede specified terms under these Service Terms and Conditions, in which case such superseding terms will apply only to that SaaS Order Form.