Switchboard Terms & Conditions

SERVICE SUBSCRIPTION AND PROFESSIONAL SERVICES AGREEMENT

This Service Subscription and Professional Services Agreement (“Agreement”) is entered into between Switchboard Technologies, Inc. (“Switchboard”) and you (“Customer”) (each, a “party” and, collectively, the “parties”). Switchboard and Customer agree as follows:

1. DEFINITIONS

“Order Form” means an ordering document that specifies the Switchboard Services and/or Professional Services purchased by Customer under this Agreement. Each Order Form shall include the service ordered, capacity licensed (i.e. volume, etc.), pricing, bill to, sold to, and the Term. Order Forms shall be subject solely to and incorporate by reference the terms of this Agreement.

“Professional Services” means implementation services, if any, provided by Switchboard in connection with the Switchboard Services, as described more fully in an Order Form. Professional Services shall not include the Switchboard Services.

“Switchboard Client Software” means the computer programs provided by Switchboard for use in accessing the Switchboard Server and use, control, or administer the Switchboard processes, services, or data.

“Switchboard Server” is a computer system or systems to which access is made available to Customer by Switchboard including any content and computer programs running on the system(s).

“Switchboard Services” means, collectively, the subscribed features of the Switchboard Server, the Switchboard Client Software, access to and use of those features and software, and any documentation or support related to the use, configuration, and administration of those features.

2. SERVICES

a. Access. Subject to the terms and conditions of this Agreement, Switchboard shall make the Switchboard Services available to Customer during the Term and grants to Customer a limited, non-sublicensable, non-exclusive, non-transferable right during the Term to use the Switchboard Services only for Customer’s business purposes.

b. Restrictions. Customer is responsible for all activities conducted by its users. Customer shall use the Switchboard Services in compliance with applicable law and shall not and shall not allow any third party to: (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, underlying ideas, or interoperability interfaces of the Switchboard Services by any means whatsoever; (ii) remove any product identification, copyright or other notices; (iii) provide, lease, lend, use for time sharing, service bureau or hosting purposes or otherwise use the Switchboard Services to or for the benefit of third parties; (iv) resell, sublicense, distribute, or transfer the Switchboard Services or any component thereof to any third party; (v) send or store infringing or unlawful material; (vi) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (vii) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Switchboard Services or the data contained therein; (viii) modify, copy or create derivative works based on the Switchboard Services, or any portion thereof; (ix) access the Switchboard Services for the purpose of building a competitive product or service or copying its features or user interface; (x) disclose information or analysis (including, without limitation, benchmarks) regarding the quality or performance of the Switchboard Services; or (xi) remove any product identification, copyright or other notices. Customer shall only be entitled to the capacity specified in the Order Form per licensed Switchboard Service. If actual usage exceeds capacity set forth in the Order Form, Switchboard may charge additional fees as set forth in the Order Form, and such fees shall be pro-rated for the remainder of the Term.

c. Suspension. Switchboard may suspend the Switchboard Services to the extent necessary: (a) following a possible or actual security breach or cyber-attack on Switchboard or its customers or other partners, (b) in order to protect Switchboard’s or its customers’ or partners’ systems; (c) if required by a governmental entity or law enforcement agency; or (d) upon the effective date of termination or expiration of the Agreement. Customer shall receive notification of such suspension, to the extent and in the manner, that Switchboard provides a notification to all of its affected customers.

d. Professional Services. Switchboard may agree to perform work for Customer pursuant to an Order Form which specifies the scope and schedule of Professional Services to be performed and the applicable fees. Unless otherwise expressly stated in the applicable Order Form, Professional Services shall be provided as a fully managed implementation where a Switchboard implementation team will install, configure, help Customer test, and turn the product live according to the rates specified on the Order Form. Any changes to the scope of work under an Order Form shall be made by written change order or amendment to the Order Form signed by an authorized representative of each party prior to implementation of such changes.

Each party agrees to cooperate reasonably and in good faith with the other in the performance of the Professional Services and acknowledges that delays may otherwise result. Customer agrees to provide, or provide access to, the following: complete and accurate information and data from its employees and agents, coordination of onsite, online and telephonic meetings, credentials with sufficient permissions for Switchboard personnel to install and/or configure the Switchboard Services where necessary for all applications being integrated, and other resources as reasonably necessary for satisfactory and timely performance of the Professional Services.

Except where the relevant Order Form provides otherwise, scheduling of Switchboard’s resources must be agreed to no later than ten (10) business days prior to the date work is scheduled to begin. If Customer subsequently requests scheduling changes or causes delays under a Order Form to which Switchboard has dedicated resources and begun work, then (i) in the case of a T&M or block of hours Order Form, hours may be incurred to restart work, which may involve effort for information transfer, project re-planning, and other reasonable restart activities; or (ii) in the case of a fixed fee Order Form, additional fees may apply and will be billed to Customer (a “Re-engagement Fee”, as further described below), and must be paid in full by Customer before Switchboard will resume work.

The Re-engagement Fee shall be calculated to be 15% of the total estimated project price. Delays caused by Customer that exceed ten (10) business days shall entitle Switchboard to terminate the relevant Order Form for cause immediately upon written notice.

3. FEES AND PAYMENT

a. Subscription Fees. Customer shall pay Switchboard the subscription fees set forth on the applicable Order Form. Such fees will be invoiced at the beginning of each period for which Customer’s subscription continues. If not otherwise specified on an Order Form, fees will be due within fifteen (15) days of the date of invoice.

b. Annual Prepayments. Customer has the option to choose to prepay for Switchboard Services on an annual basis. Annual prepayments are non-refundable in the event either party terminates this Agreement, Customer cancels use of the Switchboard Services, Customer materially lessens its use during the annual term, or Customer indicates that it is not satisfied with the Switchboard Services.

c. Implementation Fees. Switchboard may charge an up-front implementation fee (as described in the Order Form) for each connector Customer adds to its service. There are various levels of integration support, and Customer will have the option to select the level upon adding a connector. These fees will be invoiced prior to performing any setup activity and are due upon receipt of invoice. These fees are non-refundable.

d. Professional Services. Switchboard shall invoice Customer for Professional Services (as described in the Order Form) as stated in the applicable Order Form. Unless otherwise expressly stated in the applicable Order Form, (i) charges shall be due and payable fifteen (15) days from the date of the invoice; and (ii) Customer shall reimburse Switchboard for reasonable pre-approved travel-related expenses incurred in conjunction with the Professional Services.

e. Taxes. Fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder (excluding taxes based on Switchboard’s net income or property).

3. TERM AND TERMINATION

a. Initial Term and Renewal. The initial term of this Agreement shall commence on the date that Customer signs an Order Form and shall continue for the initial term specified therein. Upon expiration of the then-current term, the Switchboard Services will automatically renew for additional renewal terms of one (1) year each, unless and until either party gives the other notice of non-renewal at least thirty (30) days prior to the end of the then-current term. The initial subscription term and any renewal terms shall be referred to as the “Term”.

b. Termination for Breach. Either party may terminate this Agreement if the other party is in material breach of this Agreement and has not cured such breach within thirty (30) days of written notice specifying the breach.

c. Termination by Customer. Customer may cancel its subscription at any time by written notice to Switchboard. Such notice should be given pursuant to the “Notices” provision in this Agreement and also by email to [e-mail].

d. Final Billing. Except in the case of annual prepayments, final billing will be pro-rated to the cancellation date (pro-rating will be to the nearest whole week; i.e., in 25% increments), and customer agrees to pay for all services used up to the time of termination.

e. Effect of Termination. Upon expiration or termination, Customer shall, and shall ensure that its users shall, immediately, (i) cease all use of the Switchboard Services, (ii) deliver to Switchboard or destroy all copies of any Switchboard Services related materials, and (iii) certify in writing to Switchboard that such delivery or destruction has been accomplished. Customer’s service will be de-activated, and Customer will lose all functionality of the Switchboard Services.

f. Survival. The sections titled “Definitions,” “Fees and Payment,” Term and Termination,” “Ownership,” “Confidentiality,” “Warranty and Disclaimer,” “Limitation of Liability,” “Indemnification,” “IP Infringement” “and “Miscellaneous” shall survive any termination or expiration of this Agreement.

4. CHANGES

a. Changes by Third Parties. At times, the service-providers Switchboard connects to on Customer’s behalf (Amazon, BigCommerce, etc.) change the behavior of their interfaces without notice. In the event that this affects any features of Customer’s subscription, Switchboard will use commercially reasonable efforts to restore its features and upgrade its interfaces in the shortest possible time.

b. Changes by Switchboard. Switchboard continually strives to improve the features, reliability, and security of the Switchboard Services, and frequently update and modify the features of its software and service, often without notice. Switchboard will not discontinue any feature that is in use by Customer, but otherwise Switchboard reserves the right to alter, suspend or discontinue any aspect of its Switchboard Services. Unless explicitly stated any new features, including new content and services shall be subject to the terms and conditions in this agreement.

5. OWNERSHIP

a. Switchboard Property. The Switchboard Services and its software components, and anything developed by Switchboard for Customer under this Agreement and/or made available to Customer in the course of delivering the Professional Services (collectively, “Switchboard Property”), is licensed (not sold). Switchboard and its suppliers retain all copyright, trade secret, trademark, patent and other proprietary rights in the Switchboard Services and the Switchboard Property, including but not limited to, all software, technology, information, content, materials, guidelines, and documentation, including all enhancements, modifications and updates thereto. This license confers no title to, or ownership in, the Switchboard Services or any of its components or any Switchboard Property, and Switchboard reserves all rights not expressly granted to Customer.

b. Customer Data. All right, title and interest in and to the electronic data submitted by or on behalf of Customer to the Switchboard Services (“Customer Data”) is owned exclusively by Customer. Switchboard shall have the right to access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement during the Term, and as otherwise expressly permitted in this Agreement.

c. Suggestions. Switchboard shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Switchboard Services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its users relating to the features, functionality or operation of the Switchboard Services, or the Professional Services.

6. CONFIDENTIALITY

a. Definition. “Confidential Information” means information about the Customer’s or Switchboard’s business, products, services or activities that is proprietary and confidential, which shall include, without limitation, all business, financial, technical, marketing and other information marked or designated by the Customer or Switchboard as “confidential” or “proprietary;” together with all information which, by the nature of the circumstances surrounding the disclosure, ought in good faith be treated as confidential. Confidential Information shall include, without limitation, the Switchboard Services and the software component(s) of the Switchboard Services, as well as the specific terms, pricing, and fees set forth in this Agreement and the applicable Order Form.

b. Mutual Obligations. Each party (“Receiving Party“) agrees that it will hold in strict confidence and not disclose the Confidential Information disclosed to Receiving Party by the other party (“Disclosing Party“) to any third party, and that Receiving Party will use the Confidential Information for no purpose other than as reasonably contemplated by this Agreement. Receiving Party shall only permit access to the Confidential Information to those of its employees, contractors or agents having a need to know and who have signed confidentiality agreements containing terms at least as restrictive as those contained in this Section 6 (Confidentiality). Receiving Party shall maintain the confidentiality and prevent accidental or other loss or disclosure of any Confidential Information with at least the same degree of care as used to protect its own confidential information (but in no event with less than reasonable care).

For the avoidance of doubt, the Receiving Party may generally disclose the existence (but not the specific terms) of the Agreement and Customer agrees that Switchboard may refer to Customer in its public and marketing communications as a customer, and use Customer’s corporate name and/or logo in customer lists, including presentations and on Switchboard’s website.

c. Exceptions. the Receiving Party’s obligation of confidentiality under this Agreement shall not apply to information which the Receiving Party can document (i) is in the public domain without the breach of any agreement or fiduciary duty or the violation of any law; (ii) was known to the Receiving Party prior to the time of disclosure (as evidenced by the Receiving Party’s records) without the breach of any agreement or fiduciary duty or the violation of any law; or (iii) is independently developed by the Receiving Party (as evidenced by the Receiving Party’s records) prior to receiving such Confidential Information or without use or reference to any Confidential Information. In addition, it will not be a breach of this Section 7 for the Receiving Party to disclose certain Confidential Information required to be so disclosed pursuant to a valid judicial order, a requirement of a governmental agency, or by operation of law; provided that the Receiving Party gives the Disclosing Party written notice of any such requirement immediately after learning of any such requirement, and takes all reasonable measures to avoid or limit disclosure under such requirements and to obtain confidential treatment or a protective order and have allowed the Disclosing Party to participate in the proceeding. Upon written request by Disclosing Party, the Receiving Party shall promptly return all documents and other tangible materials containing or representing Confidential Information and all copies thereof or destroy all such Confidential Information in intangible form.

7. SECURITY AND PRIVACY

a. Generally. Under the terms of this Agreement, and in the natural processing of Customer Data and taking into account the state of the art, the cost of implementation and the nature, scope, context and purposes of processing the Customer Data, Switchboard will secure that data using reasonable technical solutions and according to the Switchboard Security Policy and Switchboard’s Privacy Policy

b. CCPA. The parties agree and intend that Switchboard is a “service provider” as defined under the California Consumer Privacy Act of 2018 (CCPA) and other relevant data protection laws. With regard to the data Switchboard may process in providing the service under this Agreement, Switchboard will not (i) sell — as defined by the CCPA — any processed Customer Personal Data, (ii) collect, use, maintain or disclose processed Customer Personal Data except as necessary to perform the Switchboard Services or Professional Services, or retain processed Customer Personal Data beyond the expiration or termination of this agreement except to the extent required by applicable laws and in accordance with this Agreement. Switchboard certifies that it understands and will comply with the foregoing restrictions.

c. Security Breaches. In the event of a security breach defined by applicable law as reportable to authorities and/or the Customer, or the owners of personal data the Customer has custody of, Switchboard agrees to notify the Customer pursuant to applicable law.

d. GDPR. As applicable, for Personal Data that belongs to residents of the EU economic area that the Customer is the custodian of, as defined under the definitions of Personal Data per the EU General Data Protection Regulation 2016/679 (GDPR) Article 4, Customer will exclude any such data from transmission to Switchboard until a separate Data Protection Agreement (DPA) can be provided by Switchboard and executed between the parties.

8. WARRANTY AND DISCLAIMER

Switchboard warrants that the Professional Services will be performed in a professional and workmanlike manner, in accordance with generally accepted industry standards. For any breach of this warranty, Customer’s exclusive remedy, and Switchboard’s entire liability, shall be the re-performance of the Professional Services. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SWITCHBOARD SERVICES AND THE PROFESSIONAL SERVICES ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. CUSTOMER AGREES THAT ALL RISK PERTAINING TO THE USE OF THE SWITCHBOARD SERVICES IS ASSUMED BY CUSTOMER. SWITCHBOARD AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SWITCHBOARD DOES NOT WARRANT THAT THE SWITCHBOARD SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SWITCHBOARD SERVICES WILL BE SECURE OR UNINTERRUPTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SWITCHBOARD OR SUPPLIER OR THEIR EMPLOYEES OR AGENTS WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER. SWITCHBOARD AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES DURING THE TERM OF ANY TRIAL.

9. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR ITS SUPPLIERS BE LIABLE TO THE OTHER PARTY, OR ANY OTHER PERSON OR ENTITY, FOR ANY INDIRECT, INCIDENTAL, COVER, SPECIAL, STATUTORY, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF PROFITS OR DATA WHATSOEVER, ARISING FROM OR RELATED TO THIS AGREEMENT OR THE OTHER PARTY’S USE OR RELIANCE UPON THE SWITCHBOARD SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. IN NO EVENT WILL EITHER PARTY OR ITS SUPPLIERS BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS OF THE AMOUNTS PAID AND PAYABLE FOR SUBSCRIPTION SERVICES TO SWITCHBOARD UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH CLAIM. FOR THE AVOIDANCE OF DOUBT, EITHER PARTY AND ITS SUPPLIERS SHALL HAVE NO LIABILITY TO THE OTHER PARTY DURING THE TERM OF ANY TRIAL. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO EITHER PARTY.

10. INDEMNIFICATION

Customer will indemnify and hold Switchboard and its agents harmless from any third-party claims, damages, costs, and expenses related to Customer’s operation of the Switchboard Services. Customer shall permit Switchboard to participate in any defense and shall seek written consent from Switchboard prior to entering into any settlement.

11. IP INFRINGEMENT

Switchboard shall defend or settle, at its expense, any claim or action (“Claim”) against Customer that the Switchboard Services, as delivered by Switchboard to Customer and used within the scope of this Agreement, infringes any copyright, trade secret, patent or other proprietary right established under the laws of the United States.

Switchboard’s obligations shall be conditioned on Customer (i) giving Switchboard prompt written notice of each such Claim; (ii) granting Switchboard sole control over the defense, negotiation and settlement of each Claim; and (iii) providing Switchboard with such assistance in the defense and settlement of each such Claim as Switchboard may reasonably request.

If the Switchboard Services are found to be infringing, or in Switchboard’s opinion are likely to be found infringing, Switchboard at its option may (i) re-deliver the Switchboard Services so that it are no longer infringing; (ii) obtain the right for Customer to continue using the Switchboard Services, without infringing components; or (iii) terminate this Agreement and refund any prepaid and unused fees for the infringing Switchboard Services.

12. MISCELLANEOUS

a. Assignment. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer or Switchboard without the other party’s prior written consent which shall not be unreasonably withheld or delayed, and any such attempted assignment or transfer shall be void and without effect. Notwithstanding the foregoing, either party may freely assign this Agreement in its entirety (including all Order Forms), upon notice and without the consent of the other party, to its successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

b. Controlling Law, Attorneys’ Fees and Severability. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. With respect to all disputes arising out of or related to this Agreement, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in Los Angeles, California. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.

c. Notices. All legal notices hereunder shall be in writing and given upon (i) personal delivery, in which case notice shall be deemed given on the day of such hand delivery, or (ii) by overnight courier, in which case notice shall be deemed given one (1) business day after deposit with a recognized courier for U.S. deliveries (or three (3) business days for international deliveries).

d. Force Majeure. If the performance of this Agreement or any obligation hereunder (other than obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a party including but not limited to computer related attacks, hacking, or acts of terrorism (a “Force Majeure Event”), the party so affected shall be excused from such performance and liability to the extent of such prevention or restriction.

e. Equitable Relief. Due to the unique nature of the parties’ Confidential Information disclosed hereunder, there can be no adequate remedy at law for a party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching party. Therefore, upon any such breach or threat thereof, the party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it, without the requirement of posting a bond.

f. Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose.

g. Export Compliance. Each party represents that it is not named on any U.S. government list of persons or entities with which U.S. persons are prohibited from transacting, nor owned or controlled by or acting on behalf of any such persons or entities, and Customer will not access or use the Switchboard Services in any manner that would cause any party to violate any U.S. or international embargo, export control law, or prohibition.

h. Entire Agreement. This Agreement together with the Order Form(s) constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all prior or contemporaneous written or oral agreements existing between the parties hereto and related to the subject matter hereof are expressly canceled. No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties hereto. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (other than with regard to capacity licensed, Term, service, bill to, ship to, pricing) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision.