Voicegain SaaS Subscription Agreement

Effective: July 25th, 2019
Last Updated: Jan 4th, 2021
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1. Acceptance of Terms

By signing up for, accessing and using SaaS Services that are owned and operated by Resolvity Inc. ("Resolvity Inc.", “Company”, "Our", "Us", "We"), the entity you represent or if you do not designate an entity you individually (“You”, “Your”) are agreeing to be bound by this Voicegain SaaS Subscription Agreement ("Agreement") that consists of the terms and conditions below.
The materials contained in this Website and Service are protected by applicable copyright and trademark law.
This Voicegain SaaS Subscription Agreement is a contract between You and the Company and apply to all Users of Voicegain Service (as defined below).

2. Definitions

“Available Balance” is the dollar amount that is displayed on the Voicegain portal as the amount that is currently available for purchase of SaaS Services after use of Free Tier. Available Balance is calculated periodically by Voicegain and so it may not reflect the actual amount that is available.

“Confidential Information” means all information of whatsoever kind or nature belonging to or in the possession or control of a party (“Discloser”) which is of a confidential, proprietary or trade secret nature that is furnished or disclosed to the other party (“Recipient”) under this Agreement, either orally, in writing or in electronic formats, and which has been marked “Confidential” or with a similar term indicating confidential or proprietary status.
“Commitment” is an agreement that you and Resolvity may enter at any time during a Subscription Term for purchase of Commitment Quantity in exchange for lower Fees.

“Commitment Period” is the period during which you agree to use the Committed Quantity. Commitment Period is a month unless specified otherwise.

“Committed Quantity” means the quantity of a SaaS Service or a Core Billing Metric that you commit to purchase in each Commitment Period. You shall pay for Committed Quantity upfront or during each Commitment Period irrespective of your actual usage.

“Commitment Term” is that period of the Subscription Term of your SaaS Service during which your Commitment is effective.

“Core Billing Metric” means a metric used to meter usage of the Voicegain platform resource in order to calculate the fees for a SaaS Service in a Subscription. A SaaS Service may involve use of one or more Core Billing Metrics each of which is measured independently. Some examples of Core Billing Metric are Speech-to-Text Standard, Speech-To-Text Premium, Real-time Session, Storage, Phone Numbers, etc.

“Customer Solution” means an application or any set of applications that you develop and adds primary and significant functionality to SaaS Service and that is not primarily a substitute for the SaaS Service.

“Data” means information. There are several different types of Data:

“Customer Data” means any Data owned or provided by you directly or indirectly to Resolvity, whether or not it is hosted by you or Resolvity.

“Resolvity Data” means any Data provided by Resolvity, whether or not it is hosted by Resolvity.

“Personal Data” means information that identifies an individual person.

“Fees” means any amounts payable for any SaaS Service purchased through Subscription.

“Mark” means a trademark, service mark or other brand associated with a Product or Service, in accordance with applicable law.

“Open Source Software” means computer programs that are subject to the Open Source Definition at opensource.org/osd, including any computer programs that are (1) not public domain, (2) subject to some form of intellectual property ownership such as copyright or patent protection, (3) are made freely available at no charge to the general public by their owner, and (4) are licensed pursuant to a written document that may list one or more limitations on how licensees may use, modify and share the programs and derivative works (new versions) of the programs.

"Portal" means the respective web sites for SaaS Services; websites may be at at https://console.voicegain.ai, https://analytics.voicegain.ai or at an alternate website we identify.

“Policies” means Resolvity’s current written policies on technical and administrative matters, including the Resolvity Privacy Policy.

“Privacy Policy” means either Resolvity’s or Customer’s statement of data privacy practices.

“Recharge Amount” means the net amount that is received by Resolvity in US Dollars for each individual deposit that you make using your debit or credit card using the Voicegain Portal. It may also mean the net amount received in Resolvity’s US bank account should we agree to accept payments directly to our bank account.

“SaaS Service” means any one of the different software-as-a-service subscription offerings of Resolvity Software that are listed at this Voicegain's github page that may be accessed by You using the Voicegain Portal and ordered as a Subscription. You may access a SaaS Service as is or use SaaS Service to develop a Customer Solution.

"SLA" means the commitments we make regarding delivery and/or performance of a SaaS Service, as published at this Voicegain's github page or an an alternate site that we identify.

“Software” means computer programs. There are several different types of Software:

“Customer Software” means any Software owned, licensed or used by You, other than Resolvity Software.

“Resolvity Software” means any Software owned by Resolvity and provided to You as part of a SaaS Service pursuant to this Agreement. Resolvity Software can be accessed as Cloud Software or Edge Software or a combination of both.

“Cloud Software” means the Resolvity Software that is hosted by Resolvity in its data center, and operated by Resolvity to process Customer Data.

“Edge Software” means the Resolvity Software that may be installed and run on one or more servers or computers controlled by You (including virtual private cloud) to process Customer Data. Edge Software is designed to connect to a Resolvity billing endpoint and is only provided as part of a Subscription.

“Third Party Software” means Software owned, distributed or operated by third parties.

“Subscription” means enrollment for a SaaS Service for a defined Subscription Term; Subscriptions may be listed and administered on Portal.

“Subscription Term” shall refer to the period of time when you are licensed to use/allowed to access a SaaS Service as part of a Subscription.

“User” means each person who You authorize to access or use any of Your accounts with Resolvity.

“Website” means Resolvity’s current website for Voicegain, https://www.voicegain.ai.

3. Use of Services

a. Right to Use: Resolvity grants you the right to access and use SaaS Services and to install any Edge Software included with your Subscription, as further described in this Agreement. We reserve all other rights.

b. Ownership: All Resolvity Software and SaaS Services are and shall remain the property of Resolvity, and will be protected as Resolvity’s Confidential Information.

c. Acceptable Use: You agree to use SaaS service and Resolvity Software only in accordance with this Agreement. You shall not reverse engineer, decompile, disassemble or attempt to learn the source code, data structures, or any other non-public information in or regarding any Resolvity Software or SaaS Services at any time. You shall not, and will not allow third parties to use SaaS Service or data from SaaS Service to create, train, or improve (directly or indirectly) a similar or competing product or service. You may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters use of the SaaS Service. You may not rent, lease, lend, resell, transfer, or host the SaaS Service or Resolvity Software, or any portion thereof, to or for third parties except as expressly permitted in this section.

d. Benchmarking: You may not publicly disclose directly or through a third party the results of any comparative or compatibility testing, benchmarking, or evaluation of the SaaS Service or Resolvity Software (each, a “Test”), unless the disclosure includes all information necessary for Resolvity or a third party to replicate the Test. If you conduct, or direct a third party to conduct, a Test of the SaaS Service or Resolvity Software and publicly discloses the results directly or through a third party, then Resolvity (or a Resolvity directed third party) may conduct Tests of any publicly available cloud products or services provided by you and publicly disclose the results of any such Test (which disclosure will include all information necessary for you or a third party to replicate the Test). This section shall survive any termination of this Agreement.

e. Customer Data: Customer Data is and shall remain your sole and exclusive property and you reserve all right, title, and interest in the same. You shall secure and maintain all rights in Customer Data necessary for Resolvity to provide SaaS Service to You without violating rights of any third party. Resolvity shall not assume and will not assume any obligations with respect to Customer Data other than as expressly set forth in this agreement or as required by applicable law. You grant Resolvity a limited license to receive, store, process, create derivative works and display Customer Data for the sole and exclusive purpose of providing SaaS Services. Customer Data shall be treated by Resolvity as Your Confidential Information. Resolvity shall keep and maintain Customer Data in strict confidence, using such degree of care as is appropriate and consistent with its obligations as further described in this Agreement and applicable law to avoid unauthorized access, use, disclosure, or loss, and in no event less than a reasonable standard of care. This Section shall survive the termination of this Agreement.

f. Responsibility for your accounts. You are responsible for maintaining the confidentiality of any non-public authentication credentials associated with your use of SaaS Service. You shall be solely responsible and liable for any fees for SaaS Services from your registered account. You must promptly notify our customer support team about any possible misuse of your accounts or authentication credentials or any security incident related to the SaaS Services.

g. Creation of Customer Solution: You may create and maintain Customer Solution combining the SaaS Service, Customer Software and Customer Data together. Customer may permit third parties to access and use the SaaS Services in connection with the use of Customer Solution. You are responsible for that use and for ensuring that these terms and the terms and conditions of this Agreement are met by that use.

h. Termination of Service: We reserve the right to terminate or suspend your account at any time. We also reserve the right to refuse service without providing a reason. We may, but have no obligation to, terminate accounts and remove content containing what we determine, in good faith and on reasonable grounds, as unlawful, offensive, threatening, defamatory, obscene or otherwise objectionable material. We will remove content that violates any party's intellectual property, if we have been notified of such violation, or which violates such terms and conditions. Any Customer data associated with an account terminated by Voicegain shall be permanently deleted from our servers.

4. Ordering SaaS Service and Fees

a. Free Tier: From time-to-time, Resolvity may provide a free tier of usage for a Subscription or for an individual Core Billing Billing Metric. Resolvity may, in its sole discretion, continue to offer or discontinue this free tier of minutes. Any Customer Data (as defined in Section 3(d)) that is provided to Resolvity solely as part of a Free Tier may be used for testing, tuning, optimizing, validating, or otherwise enhancing the Resolvity Software underlying the SaaS Service. Nothing in these Terms gives you any rights in or to any part of the SaaS Service.

b. Pre-payment: Unless Resolvity specifically approves billing in arrears, you shall deposit Recharge Amount to pay for usage of all your Subscriptions beyond the Free Tier. Resolvity shall promptly add Recharge Amount to your Available balance. You shall bear any costs related to foreign exchange conversion of your local currency to US Dollars. Resolvity shall not be responsible for any fees assessed by your bank or credit card issuer to transfer Recharge Amount. Unless it is subject to Commitment, Available Balance is not subject to any expiration. Upon your written request, Resolvity shall promptly (in less than 10 business days) refund Available Balance to credit card on file after deducting a 5% processing fee or $5, whichever is larger. Resolvity’s billing software shall be configured to deduct Fees from Available Balance as and when a SaaS Service is used and in no case shall such deduction happen in more than 36 hours from utilization of Service. At the end of each calendar month, Resolvity shall issue an electronic statement to you for all charges incurred above any Free Tier (if applicable) based on your use of SaaS Services during that month and any Commitment pricing as described in (e) below.

c. Billing in Arrears: Resolvity may in its sole discretion offer billing in arrears to you. In addition, Resolvity may set a Credit Limit. Should you choose to accept, at the end of each calendar month, Resolvity shall issue an electronic statement to you for all charges incurred above any Free Tier (if applicable) based on your use of SaaS Services during that month and any Commitment pricing as described in (e) below. Resolvity shall debit your stored credit card for the billed usage at the end of each calendar month.
d. Fees: Fees for each Subscription is based on the actual metered usage of one or more Core Billing Metrics that are used by SaaS Service. Currently Voicegain Portal displays the (a) the unit price for each Core Billing Metric and (b) cumulative consumption/usage of each Core Billing Metric across all Subscriptions.

e. Commitment pricing: At any time during your Subscription Term, you may enter into a Commitment to purchase Commitment Quantity of a Subscription during each Commitment Period through Commitment Term. In return for such Commitment, Resolvity shall not alter Fees for Subscription through Commitment Term. During Commitment Term, you shall be liable to pay for Committed Quantity irrespective of actual usage.
f. Changes: For any Subscription that is not under a Commitment, Resolvity reserves the sole right to alter, modify, change or withdraw the fees offered or quoted or stated on our Portal or Website through the Term of this Agrement or the Subscription Term.

5. Term, Termination

a. This Agreement is effective as soon as you receive confirmation of activation of Your Billing Account. Each Subscription shall commence on the date your Subscription is activated and shall end upon termination either by Resolvity or You.

b. Either Resolvity or You may terminate this Agreement at (1) any time if there are no Commitments and (b) at the end of Commitment Period should there be a Commitment for a Subscription. However you must pay any and all amounts that are due for Subscription prior to termination.

c. This Agreement may be superseded by a signed Master SaaS Agreement between you and Resolvity, Inc in which case the terms and condition of access shall be governed by such Master SaaS Agreement.

6. Confidential Information

a. Definitions. The term “Confidential Information” is defined above, but will be deemed to exclude any particular information that: (i) is already known to the Recipient without restrictions at the time of its disclosure by the Discloser; (ii) after its disclosure by the Discloser, is made known to the Recipient without restrictions by a third party having the right to do so; (iii) is or becomes publicly known without violation of this Agreement; or (iv) is independently developed by the Recipient without reference to the Discloser’s Confidential Information.

b. Ownership. Confidential Information will remain the property of the Discloser (or the entities who provide their confidential information to the Discloser), and the Recipient will not be deemed by virtue of this Agreement or any access to the Discloser’s Confidential Information to have acquired any right or interest in or to any such Confidential Information. The Recipient agrees: (i) to limit disclosure of the Discloser’s Confidential Information to those employees and consultants of the Recipient who have a need to know the information for the purposes of this Agreement; (ii) not to disclose any such Confidential Information to any third party, without the Discloser’s prior written consent; (iii) to use the Discloser’s Confidential Information solely and exclusively in accordance with the terms of this Agreement in order to carry out its obligations and exercise its rights under this Agreement; (iv) to afford the Discloser’s Confidential Information at least the same level of protection against unauthorized disclosure or use as the Recipient normally uses to protect its own information of a similar character, but in no event less than reasonable care; and (v) to notify the Discloser promptly of any unauthorized use or disclosure of the Discloser’s Confidential Information and cooperate with and assist the Discloser in every reasonable way to stop or minimize such unauthorized use or disclosure.

c. Compelled Disclosure. If the Recipient receives a subpoena or other validly issued administrative or judicial notice requiring the disclosure of the Discloser’s Confidential Information, unless prohibited by law the Recipient will promptly notify the Discloser and, if so requested, will provide reasonable cooperation to the Discloser in resisting the disclosure. Subject to its obligations stated in the preceding sentence, the Recipient will be entitled to comply with any binding subpoena or other process to the extent required by law, but will in doing so make every reasonable effort to secure confidential treatment of any materials it is compelled to disclose.

d. Return of Confidential Information. Upon termination or expiration of this Agreement and any applicable Orders, the Recipient, at the Discloser’s option, will return or destroy all Confidential Information of the Discloser that the Recipient does not possess under a valid license; provided that each party may retain one (1) electronic copy of all of its work products (including deliverables, presentations, working papers, but excluding software and documentation) produced under this Agreement for archival purposes. The party’s obligations hereunder will continue to apply to such archival copies.

e. Injunctive Relief. The Recipient agrees that if an arbitration panel, court or tribunal of competent jurisdiction determines that the Recipient has breached, or attempted or threatened to breach, its confidentiality obligations to the Discloser or the Discloser’s proprietary rights, the Discloser will be entitled to seek appropriate injunctive relief and other measures restraining further, attempted or threatened breaches of such obligations. Such relief or measures will be in addition to, and not in lieu of, any other rights and remedies available to the Discloser.

7. Warranties.

a. Limited warranty (i) SaaS Services. We warrant that the SaaS Services will meet the terms of the SLA during the Term. Your only remedies for breach of this warranty are those in the SLA.

(ii) Software. We warrant for one year from the date you first use the Software that it will perform substantially as described in the applicable user documentation. If Software fails to meet this warranty we will, at our option and as your exclusive remedy, either (1) return the price paid for the Software or (2) repair or replace the Software.

b. Limited warranty exclusions. This limited warranty is subject to the following limitations: (i) any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last one year from the start of the limited warranty; (ii) this limited warranty does not cover problems caused by accident, abuse or use of SaaS Service or Resolvity Software in a manner inconsistent with this agreement or our published documentation or guidance, or resulting from events beyond our reasonable control; (iii) this limited warranty does not apply to problems caused by a failure to meet minimum system requirements

c. DISCLAIMER. Other than this warranty, we provide no warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability or fitness for a particular purpose. These disclaimers will apply except to the extent applicable law does not permit them.

8. Defense of claims.

a. Defense. (i) We will defend you against any claims made by an unaffiliated third party that a SaaS Service or Resolvity Software infringes that third party's patent, copyright or trademark or makes unlawful use of its trade secret. (ii) You will defend us against any claims made by an unaffiliated third party that (1) any of Customer Data, Customer Solution, or Non-Resolvity Products, or services you provide, directly or indirectly, in using a SaaS Service or Resolvity Software infringes the third party's patent, copyright, or trademark or makes unlawful use of its trade secret; or (2) arises from violation of the Acceptable Use Policy.

b. Limitations. Our obligations in Section 8.a. will not apply to a claim or award based on: (i) any Customer Solution, Customer Data, Non-Resolvity Software, modifications you make to the SaaS Service or Resolvity Software, or services or materials you provide or make available as part of using the SaaS Service or Resolvity Software; (ii) your combination of the SaaS Service or Resolvity Software with, or damages based upon the value of, Customer Data or a Non-Resolvity Software, data, or business process; (iii) your use of a Resolvity trademark without our express written consent, or your use of the SaaS Service or Resolvity Software after we notify you to stop due to a third-party claim;(iv) your redistribution of the SaaS Service or Resolvity Software to, or use for the benefit of, any unaffiliated third party; or (v) any SaaS Service or Resolvity Software provided free of charge.

c. Remedies. If we reasonably believe that a claim under Section 8.a.(i). may bar your use of the SaaS Service or Resolvity Software, we will seek to: (i) obtain the right for you to keep using it; or (ii) modify or replace it with a functional equivalent and notify you to stop use of the prior version of the SaaS Service or Resolvity Software. If these options are not commercially reasonable, we may terminate your rights to use the SaaS Service and then refund any advance payments for unused SaaS Services.

d. Obligations. Each party must notify the other promptly of a claim under this Section. The party seeking protection must (i) give the other sole control over the defense and settlement of the claim; and (ii) give reasonable help in defending the claim. The party providing the protection will (1) reimburse the other for reasonable out-of-pocket expenses that it incurs in giving that help and (2) pay the amount of any resulting adverse final judgment or settlement. The parties' respective rights to defense and payment of judgments (or settlement the other consents to) under this Section 5 are in lieu of any common law or statutory indemnification rights or analogous rights, and each party waives such common law or statutory rights.

9. Limitation of liability.

a. Limitation. The aggregate liability of each party for all claims under this agreement is limited to direct damages up to the amount paid under this agreement for the SaaS Service during the 12 months before the cause of action arose; provided, that in no event will a party's aggregate liability for any SaaS Service exceed the amount paid for that SaaS Service during the Subscription. For SaaS provided free of charge, Resolvity’s liability is limited to direct damages up to $500.00 USD.

b. Exclusion. Neither party will be liable for loss of revenue or indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for lost profits, revenues, business interruption, or loss of business information, even if the party knew they were possible or reasonably foreseeable.

c. Exceptions to limitations. The limits of liability in this Section apply to the fullest extent permitted by applicable law, but do not apply to: (1) the parties' obligations under Section 7; or (2) violation of the other's intellectual property rights.

10. General Provisions of liability.

a. Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State of Texas and the federal law of the United States of America, without reference to conflicts of laws policies or provisions. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

b. Notices. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. all notices shall be sent to Resolvity to the address stated below to the attention of the CEO. Resolvity, Inc 1505 LBJ Fwy, Ste 255, Farmers Branch, TX 75234
Notices to you will be sent to the address that you identify on your account as your contact for notices. Resolvity may send notices and other information to you by email or other electronic form.

c. License Transfers and Assignment. You may not assign this agreement either in whole or in part or transfer licenses without Resolvity’s consent.

d. Severability. If any part of this agreement is held unenforceable, the rest remains in full force and effect.

e. Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.

f. No agency. This Agreement does not create an agency, partnership, or joint venture.

g. No third-party beneficiaries. There are no third-party beneficiaries to this Agreement.

h. Entire agreement. This agreement is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications.

j. Survival. The terms in Sections 1, 6, 7, 8, 9 and 10 will survive termination or expiration of this agreement.

i. Force Majeure; Excused Performance. Neither party shall be liable for delays or any failure to perform its rights or responsibilities pursuant to this Agreement due to causes beyond its reasonable control (a “force majeure event”). Such delays include, but are not limited to, fire, explosion, severe storms, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, terrorism, global pandemics to the extent not occasioned by the fault or negligence of the delayed party.

k. Export. Portions of SaaS Service or Resolvity Software may be subject to the export regulations of the United States of America and the SaaS Service, assistance, technical data, information, documents and materials provided by Resolvity to you (collectively, the “controlled items") may constitute defense services, technical data, or commercial or dual-use items or information controlled under the U.S. export control laws and regulations, including but not limited to the U.S. Arms Export Control Act, the International Traffic in Arms Regulations, and the Export Administration Regulations. You shall not either directly or indirectly use, sell or re-sell, transfer, transship, disclose, export or re-export, or otherwise dispose of any such controlled items to any foreign person (as defined under the International Traffic in Arms Regulations), either in original form or after being incorporated through an intermediate process into other end-items, without prior authorization from the U.S. Government.

l. Contracting authority. If you are an individual accepting these terms on behalf of an entity, you represent that you have the legal authority to enter into this agreement on that entity's behalf. If you specify an entity, or you use an email address provided by an entity you are affiliated with (such as an employer) in connection with a SaaS Service subscription purchase or renewal, that entity will be treated as the owner of the subscription for purposes of this agreement.
For any questions regarding this terms of service or the Privacy Policy please send an email to support@voicegain.ai

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