Master Services Agreement

This Master Services Agreement (“Agreement”) is made and entered into by and between ​Grupo NGN, Inc (hereinafter “Company”), and the party that has executed a Sales Order (hereinafter “Customer”) with the Company. This Agreement shall govern the Services provided by the Company for the Customer as referenced herein and in such Sales Order.

BY EXECUTING A SALES ORDER, CUSTOMER EXPRESSLY ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT AS OF THE DATE SET FORTH IN THE SALES ORDER. IF CUSTOMER IS AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF THE CUSTOMER’S LEGAL ENTITY, CUSTOMER REPRESENTS THAT SUCH INDIVIDUAL HAS THE LEGAL AUTHORITY TO BIND SUCH ENTITY. IF CUSTOMER DOES NOT AGREE WITH THIS AGREEMENT, CUSTOMER MUST NOT EXECUTE THE SALES ORDER.

In consideration of the mutual agreements below, and intending to be legally bound, the parties agree:

  1. DEFINITIONS

1.1 “Products” refers to the entire portfolio of software, services, and technology produced by the Company.  This includes, but is not limited to carrier services (long distance, toll free services, SMS, hosted PBX, etc.), contact center solutions (ACD, dialer, IVR), gamification, workforce management, professional services (i.e. application development, script customization), and call analytics.

1.2 “Effective Date” means the date on which the Customer accepts the Sales Order.

1.3 “Entitlement” refers to usage of certain software components based on subscription or premise license purchase.  Licensed components are listed in Customer’s Sales Order, and a detailed description of license types and their entitles are defined in appendix A.

  1. TERM

2.1 Term. This Agreement shall begin on the Effective Date and continue thereafter for the period stated in the Sales Order.  If no period was defined, a period of twelve (12) months will be used for the initial term.  The period between such dates being defined as the “Term” and the last day of the Term being defined as the “Expiration Date”).

2.2 Automatic Renewal. Automatic Renewal terms will be effective as stated in the Sales Order.  If no renewal terms were defined, the agreement will automatically renew for the lesser of the initial term or twelve (12) months.

2.3 Termination. Either party may terminate this Agreement for good cause at any time upon sixty (60) days written notice, except that neither the expiration nor earlier termination of this Agreement shall release either party from any obligation that has accrued as of the date of termination. For purposes of this Agreement, “good cause” shall mean a substantial breach of a material term of this Agreement, the Sales Order, or the End User License Agreement, that the breaching party has failed to cure within 15 days of receipt of written notice of such breach by the non-breaching party. Additionally, either party may terminate this Agreement if the other party is in breach of any other agreement or contract between the two parties.  Finally, the Company retains the right to suspend services at any time if the Customer is found to be in violation of federal, state, or other local legal regulations.  When possible, the Company will give Customer a reasonable opportunity to cure legal breaches to avoid service termination.

  1. FEES AND PAYMENT

3.1 Fees. In consideration of the performance of the Services, Customer agrees to pay Company the fees set forth in the applicable Sales Order in accordance with the terms and conditions set forth in the applicable Sales Order.

3.2 Pricing. Pricing information for Company’s Products under this Agreement are located in the Sales Order, mutually executed by the Customer and Company and is incorporated herein by reference.

3.3 Payment. Subscription License Fees will be billed separately upon the completion of initial implementation phase and payment will be due based on the terms in the Sales Order. If implementation fees are applicable, Company will invoice the Customer upon execution of this Agreement. All payments are not refundable.

Customer shall pay Company for the fees due hereunder via check, credit card, or ACH. If Customer elects to pay via credit card, fees shall be deducted from a credit card account designated by Customer. In such event, Customer authorizes Company to automatically charge the credit card account for the fees (plus applicable sales tax) in advance or as otherwise agreed to by the parties in writing without any further authorization from Customer. Customer acknowledges that the authorization will remain in effect until Customer cancels such authorization by providing written notice to Company. If Customer’s credit card account on file is closed or the account information is changed, or if, for any reason, a charge is rejected, Customer shall immediately update Customer’s credit card account or supply a new payment account, as appropriate. If Customer is unable to update its credit card account with appropriate information, Company will send an invoice to Customer detailing the amount due. Customer must pay the amount due in full within seven (7) days after the date of the invoice. Customer agrees to notify Company in writing of any changes to Customer’s account information or termination of its authorization at least thirty (30) days prior to the next billing date. In the event payment dates fall on a weekend or holiday, Customer understands that the payments may be executed on the next business day.

3.4 Taxes. Company’s prices do not include any taxes, levies, duties or similar governmental assessments of any nature, including, but not limited to, value-added, sales, import, use or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, “Taxes”). The Customer is solely responsible for paying all Taxes associated with the Customer’s purchases. If Company has the legal obligation to pay or collect Taxes for which the Customer is responsible, such Tax shall be invoiced to and promptly paid by the Customer, unless the Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer will indemnify and hold harmless Company for all taxes imposed which may be attributable to the Services.

3.5 Late Payments. If any charges are not received from the Customer by the due date, then at Company’s sole discretion, (a) such charges may accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date it is paid, and/or (b) Company may condition future renewals and other transactions with the Customer on pre-payment or otherwise.

3.6 Suspension of Company’s Products. If any amount owed by the Customer under this Agreement or any other agreement with Company is 30 or more days overdue, Company may, without limiting Company’s other rights and remedies, accelerate The Customer’s unpaid obligations so that all such obligations become immediately due and payable in full, and without liability to Customer, suspend the Customer’s access to Company’s Products until such amounts are paid in full. Company will give the Customer at least 7 days prior notice that the Customer’s account is overdue before suspending access to Company’s Products.

3.7 Dispute Process. If Customer has a bona fide dispute in relation to any portion of the fees invoiced, Customer must pay all undisputed invoiced fees under agreed payment terms, and Customer shall provide notice to Company in writing regarding disputed fees within thirty (30) days from the date of the invoice. Such notice shall set forth the details surrounding the dispute. The parties shall discuss the disputed fees within thirty (30) calendar days of the date of the notice. In the event the dispute is not resolved within such time period, then either party may at any time thereafter submit such dispute to arbitration as described herein.

When the dispute is resolved, (a) if a payment is owed to Company, such payment shall be made within fifteen (15) calendar days of the resolution of such dispute or (b) if an amount is owed to Customer, Company, in its sole discretion, shall either (i) credit such amount to Customer’s account within fifteen (15) calendar days of the resolution of such dispute (or within such other timeframe as mutually agreed upon by the parties in writing), or (ii) apply a pro-rated credit amount to Customer’s account for the remainder of the then-current term.

For avoidance of doubt, all negotiations pursuant to this Section 6d shall be treated as confidential compromise and settlement negotiations. Nothing said or disclosed, nor any document produced, in the course of such negotiations which is not otherwise independently discoverable shall be disclosed to any third party nor offered or received as evidence or used for impeachment or for any other purpose in any current or future arbitration or litigation.

Customer waives the right to dispute any fees not disputed within thirty (30) calendar days after the date of the applicable invoice.

  1. Products

Provision of Company’s Products. Company shall make Company’s Products available to the Customer pursuant to this Agreement during the Term. The Customer agrees that the Customer’s purchases hereunder are neither contingent on the delivery of any future functionality or features or the delivery of any of Company’s other Products or services, nor are they dependent on any oral or written comments made by Company regarding potential future functionality or features. Customer agrees to usage of Services based on their Entitlement as defined in their most recent Sales Order.

  1. PROPRIETARY RIGHTS

5.1 Use of Company’s Products. During the Term, the Customer will receive a nonexclusive, non-assignable, right to access and use Company’s Products solely for its internal business operations consistent with the terms of this Agreement and the End User License Agreement. The Customer acknowledges that it does not acquire under this Agreement any license to use Company’s Products specified in the Sales Order in excess of the scope and/or duration of the services pursuant to the End User License Agreement. The Customer acknowledges that this Agreement is a services agreement and Company will not be delivering physical copies of the Company’s Products to the Customer. Company owns all rights, title and interest in and to the Company name, Products, logos, brand, trade secrets, trademarks and trade names. The Customer will acquire no right, title or interest in or to Company’s name, Company’s Products, logotypes, brand, trade secrets, trademarks, or trade names by virtue of this Agreement.

5.2 Intellectual Property. “Intellectual Property” means (a) all inventions of any kind (whether patentable or not, and whether or not reduced to practice), all improvements thereto and all patents, patent applications, and patent disclosures (whether or not filed), together with all reissuances, divisionals, continuations, continuations-in-part, substitutes, extensions and re-examinations thereof, as well as any foreign counterparts of any of the foregoing; (b) all copyrightable works and materials and all copyrights including all applications, registrations and renewals thereof; (c) ideas expressed in any tangible or electronic medium of expression; (d) trade secrets, proprietary formulations, know-how, show-how, research and development results, projections, analyses, models, and other technical information and technology; (e) technical data; (f) computer software; (g) technical know-how; (h) trademarks and servicemarks, both registered and unregistered, as well as all applications, registrations, and renewals thereof; (i) any other legally recognized form of intellectual property; and (j) all rights in or to the foregoing.

All rights, ownership, title, and interest in and to (a) any derivative works or other modifications, add-ons, enhancements or improvements to either party’s Intellectual Property and (b) all Intellectual Property developed (whether jointly or by either party alone) that derives from and incorporates one party’s Intellectual Property shall vest in and be and remain the property of the party who owns the underlying Intellectual Property. To the extent any ownership rights in the Intellectual Property derived by one party would otherwise vest in the other party by operation of law, the parties, in accordance with the foregoing, hereby assign and agree that each party shall assign, in full, such rights to the party owning the underlying Intellectual Property, and will cooperate to take any reasonably necessary steps to effect or perfect such rights.

Company’s Product is protected by United States intellectual property law, including, but not limited to, registered trademark, copyright, and U. S. Patent No. 8,767,012. Additionally, Company owns the copyright to the look and feel of Company’s Product. You may not decompile, duplicate, copy, or reuse any portion of the code or application including, but not limited to, HTML, CSS, JavaScript, T-SQL, APIs, or visual design elements without the prior express written permission from Company, in Company’s sole discretion.

Each party agrees that:

(a) the covenants and agreements contained in this Section I are essential to these Terms and Conditions; (b) each covenant is reasonable and necessary to protect and preserve the Confidential Information and Intellectual Property and the legitimate business interests of each party; (c) irreparable harm, loss, and damage, that cannot be remedied in damages in an action at law, will be suffered by each party should the other party breach any of the covenants and agreements contained herein; (d) a breach of any such covenant and agreement may constitute an infringement of rights in and to the trade secrets of the non-breaching party; (e) each covenants is separate, distinct, and severable not only from the other of such covenants and agreements but also from the other and remaining provisions of these Terms and Conditions; (f) the unenforceability of any other such covenant shall not affect the validity or enforceability of any other provision of these Terms and Conditions; and (g) in addition to other rights and remedies available to it as a matter of law or equity, each party shall be entitled to an immediate temporary injunction and also to a permanent injunction to prevent a breach or contemplated breach by the other party of any of such covenants or agreements for which the posting of a bond is hereby waived.

  1. CONFIDENTIAL INFORMATION

“Confidential Information” means all confidential information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) whether orally, electronically or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Company’s Confidential Information shall include, but not be limited to, Company’s Product; and Confidential Information of each party shall include the terms and conditions of these Terms and Conditions and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.

The Receiving Party shall:

(a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms and Conditions; and (c) except as otherwise authorized by the Disclosing Party in writing, shall limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors, and agents who need such access for purposes consistent with the Terms and Conditions and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

  1. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF COMPANY’S PRODUCT IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY’S PRODUCT IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND COMPANY AND COMPANY’S LICENSORS (COLLECTIVELY REFERRED TO AS “COMPANY”) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO COMPANY’S PRODUCT, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

COMPANY DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF COMPANY’S PRODUCT, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED BY COMPANY’S PRODUCT WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF COMPANY’S PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICES WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN COMPANY’S PRODUCT WILL BE CORRECTED, OR THAT COMPANY’S PRODUCT WILL BE COMPATIBLE OR WORK WITH ANY THIRD-PARTY SOFTWARE, APPLICATIONS OR THIRD-PARTY SERVICES. INSTALLATION OR USE OF COMPANY’S PRODUCT MAY AFFECT THE USABILITY OF THIRD- PARTY SOFTWARE, APPLICATIONS, OR THIRD-PARTY SERVICES.

YOU FURTHER ACKNOWLEDGE THAT COMPANY’S PRODUCT IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY COMPANY’S PRODUCT COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT, OR WEAPONS SYSTEMS.

NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR A COMPANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.

COMPANY DOES NOT PROVIDE ANY WARRANTY OR SUPPORT UNDER THE TERMS AND CONDITIONS FOR ANY PRODUCTS OR SERVICES NOT PROVIDED BY COMPANY.

  1. LIMITATION OF LIABILITY

TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION, LOSS OR FAILURE TO TRANSMIT OR RECEIVE ANY DATA (INCLUDING WITHOUT LIMITATION COURSE INSTRUCTIONS, ASSIGNMENTS AND MATERIALS), BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE COMPANY’S PRODUCT OR ANY THIRD-PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH COMPANY’S PRODUCT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE LESSER OF $5,000.00 OR THE AMOUNT PAID BY YOU TO COMPANY IN THE 12 MONTHS PRECEDING THE INCIDENT FOR WHICH YOUR CLAIM FOR DAMAGES ALLEGEDLY FIRST AROSE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

  1. MEDIATION, CONTROLLING LAW; JURISDICTION; SEVERABILITY

Any and all disputes arising out of or related to Terms and Conditions shall be submitted to mediation before a mutually acceptable mediator prior to initiation of litigation. The parties shall: (i) mediate in good faith; (ii) exchange all documents which each believes to be relevant and material to the issue(s) in dispute; (iii) exchange written position papers stating their position on the dispute(s) and outlining the subject matter and substance of the anticipated testimony of persons having personal knowledge of the facts underlying the dispute(s), and; (iv) engage and cooperate in such further discovery as the parties agree or mediator suggests may be necessary to facilitate effective mediation. Mediator, venue, and related costs shall be shared equally by the parties. Venue of the mediation shall be the state of Florida, Broward County. In the event the parties are unable to agree upon a mediator, the mediator shall be appointed by a court of competent jurisdiction. This provision shall be specifically enforceable according to its terms, including but not limited to an action to compel mediation. The prevailing party in any action to enforce in whole or in part this mediation clause shall be entitled to reimbursement of attorney fees and costs incurred in said action.

Regardless of its place of negotiation, execution, or performance, each party agrees that these Terms and Conditions are governed by and shall be construed in accordance with the laws of the State of Florida, excluding any conflict-of-laws rule or principle that might refer the governance of the construction of the Terms and Conditions to the law of another jurisdiction, and the controlling United States federal law, where applicable. The Terms and Conditions shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

Each party agrees to the exclusive jurisdiction of the state and federal courts in and for the Florida Federal District of Florida and Florida County, Florida for any litigation or other dispute resolution relating in any way to these Terms and Conditions. Each party hereby irrevocably waives any personal or subject matter jurisdiction and inconvenient forum objections to the full extent permissible by law.

If for any reason a court of competent jurisdiction finds any provision herein, or portion thereof, to be unenforceable, the remainder of the Terms and Conditions shall continue in full force and effect to the maximum extent possible.

  1. INDEMNITY

Customer will indemnify, defend, and hold Company, and its respective subsidiaries, affiliates, officers, agents, employees, representatives, and assigns harmless from and against any costs, damages, expenses, losses, damages, demands and expenses, including reasonable attorney fees, and liabilities arising out of, and/or relating to, any claim (“Claim”) arising out of or related to (i) Customer’s acts and/or omissions, (ii) Customer’s use of the Services, and/or (iii) Company’s use of the User Content constitutes infringement, violation, trespass, contravention, or breach in the United States of any patent, copyright, trademark, license or other property and/or proprietary right of any third party, and/or constitutes the unauthorized use and/or misappropriation of any trade secret of any third party. Company may reasonably participate in such defense, at its sole expense.

  1. GENERAL PROVISIONS

11.1 Manner of Giving Notice. All notices, permissions, and approvals hereunder shall be in writing to the recipient designated by the receiving party and shall be deemed to have been given upon: (a) personal delivery, (b) the second business day after mailing, or (c) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to Company shall be addressed as follows:

Grupo NGN, Inc. 11555 Heron Bay Blvd. 200 Coral Springs, FL 33076

11.2 Entire Agreement. This Agreement and the Sales Order, as amended or modified from time to time, constitute the entire agreement between the parties and supersedes all prior and contemporaneous agreements, Sales Orders or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless duly entered into by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding anything herein to the contrary, Company may, at any time, for any reason, in its sole and absolute discretion make changes to this Agreement and any changes to this Agreement will become effective upon Customer’s execution of a new or additional Sales Order in which the new terms of this Agreement will be incorporated.  If there is a conflict between this agreement and the terms of the Sales Order, the terms of the Sales Order will prevail.

11.3 Representation Regarding Authorization. Each party hereby represents and warrants to the other that: (a) this Agreement has been duly and validly executed and delivered by such party and constitutes the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; (b) it is duly organized, validly existing and in good standing under the laws of the state/province/country of its organization, and has full power and authority to execute, deliver and perform this Agreement; and (c) the execution, delivery, and performance of this Agreement will not, with or without the giving of notice, the lapse of time or both, conflict with or violate any provision of law, rule or regulation to which such party is subject or cause a breach of any agreement, contract, or instrument to which such party is a party.

11.4 Costs of Enforcement. If any party hereto is required to retain legal counsel in order to enforce its rights under this Agreement, with or without the commencement of a formal legal action, such party shall be entitled to recover its attorneys’ fees and costs related to such enforcement from the breaching party.

11.5 Assignment/Benefits. The Customer shall not assign, delegate, or sublicense its rights under this Agreement without the express written consent of Company, in Company’s sole discretion. Notwithstanding the foregoing, this Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective authorized successors and assigns.

11.6 Reference. The Customer grants Company authorization to utilize the Customer name and success stories resulting from the implementation and utilization of Company’s Products as a reference.

11.7 WAIVER OF JURY TRIAL. YOU HEREBY WAIVE ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THE TERMS AND CONDITIONS.

11.8 Waiver. No failure or delay by Company in exercising or enforcing any right or provision under the Terms and Conditions shall constitute a waiver of that right or provision unless so expressed in writing by an authorized representative of Company. Any such waiver will not be construed as a waiver of any other term, condition, or provision except as provided in the writing, nor as a waiver of any subsequent breach of the same term, condition, or provision.

11.9 Attorney’s Fees. In the event of a legal action or other proceeding arising under the Terms and Conditions or a dispute regarding any alleged breach, default, claim, or misrepresentation arising out of the Terms and Conditions, whether or not a lawsuit or other proceeding is filed, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, whether incurred before suit, during suit, or at the appellate level. The prevailing party shall also be entitled to recover any attorneys’ fees and costs incurred in litigating the entitlement to attorneys’ fees and costs, as well as in determining or quantifying the amount of attorneys’ fees and costs due to it. Such recoverable costs shall specifically include, but not be limited to, costs of investigation; costs of copying documents and other materials, whether for discovery, filing with the court, internal review, or any other purpose; costs for electronic discovery; electronic research service charges; telephone charges; mailing, commercial delivery service, and courier charges; travel expenses, whether for investigation, depositions, hearings, trial, or any other purpose; information-technology support charges; any and all consultant or expert witness fees, whether or not such fees are incurred in connection with a court-ordered report or testimony at a deposition, hearing, or trial; court reporter and transcript fees, whether for deposition, trial, or an evidentiary or non-evidentiary hearing; mediator fees; and any other reasonable cost incurred by the prevailing party in connection with the dispute.

11.10 Force Majeure. Company shall not be liable for any losses arising out of the delay, failure, or interruption of its performance of obligations under the Terms and Conditions due to any act of God, pandemic, act of governmental authority, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, communication or utility failures, internet service provider failures or delays, or denial of service attacks, unplanned system down time, or any other cause beyond Company’s reasonable control.

11.11 Language. Any translation of the Terms and Conditions is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of the Terms and Conditions shall govern, to the extent not prohibited by local law in your jurisdiction. All correspondence, all contracts, all training materials, and all materials exchanged between the parties shall be in English. If you desire any translations from English, you shall be responsible for such translation and any expenses related thereto. Company has the right to review such translations.

  1. Regulatory Compliance

12.1 Legal Advice. Company does not intend for any instruction or guidance given related to compliance frameworks as legal advice, and it is Customer’s sole responsibility to ensure they are in full compliance with all appropriate compliance frameworks, regardless of requirement by government agency or as an industry best practice.

12.2 Compliance Ready.  Company will, to the best of its ability, deliver all products in a “Compliance Ready” state.  Because many businesses will have different requirements, Customer must configure compliance as necessary in areas such as, but not limited to, time of day calling, do not call (DNC) checks, data encryption, dialing speeds, abandon messages, customer opt out, ring no answer (RNA) time outs, call recording gaps, and call encryption. Company will provide training and documentation as appropriate on enabling various settings related to compliance.  If Customer believes certain compliance features cannot be met, they may contact Company for remediation.  Company makes no guarantees regarding compliance, and Company will address reported deficiencies as it determines appropriate.

12.3 Termination of Service.  If Customer is found to be in clear violation of local or federal law, Company may immediately suspect Customer’s usage of Services.  When appropriate and allowed by law, Company will notify Customer of violation prior to termination and allow a reasonable remediation period.  Once terminated, Company may, at its sole discretion, allow Customer to resume service once they have proven to have remedied identified violation.

12.4 Cooperation with Authorities.  Company is required to cooperate with carriers and government agencies in areas such as, but not limited to, Traceback Requests, STIR/SHAKEN authentication, and 10DLC registration.  When Company is asked to identify, explain, or defend traffic originated by Customer, Customer agrees to cooperate with Company in an expedient fashion.  Customer understands that certain requests are time sensitive and will provide requested information in a timely fashion.  Customer also understands that failure to cooperate could impact successful call delivery or even, in extreme situations, prohibit their ability to originate or receive voice or data traffic.

  1. Software Registration

Certain software components hosted on Customer equipment may require the ability to “call home” and register its usage with Company.  Customer agrees to enable this capability, and customer understands that failure to allow registration traffic could cause Services to automatically terminate.  Customer also agrees that Services may automatically disable when their Entitlement has expired.

  1. Database Maintenance

Customer is solely responsible for database maintenance within NGNCloudComm. This includes, but is not limited to, index hygiene, table statistics, data backups, data archival, and data deletion.  Company will provide guidance as needed regarding archival processes included with the product, and industry best practices will be considered acceptable regarding database management.  Customer may request Company provide paid database maintenance services on their behalf.

 

 

Appendix A

License Summary

 

Software Lifecycle

Grupo NGN, Inc. releases frequent updates to keep its customers ahead of their competition and up to date with the latest patches, features, and security enhancements available.  Products are supported based on the N-1 standard, where the latest and previous minor releases are supported.  For example, at the release of version 8.4, versions 8.4 and 8.3 will be considered supported versions of a software program.  If a major release occurs, the supported version would be the current major release and prior minor release.  For example, if version 9.0 were released immediately following version 8.4, the versions supported at the time of its release would be 9.0 and 8.4.  Bug fix and build versions do not affect supported releases.  For example, the release of 8.4.1 would be considered part of the 8.4 minor version, and version 8.3 would continue to be supported at the time of the release of 8.4.1.

License Models

Licenses provided by Grupo NGN, Inc. are typically delivered in one of two models – premise or subscription.

A premise license is a fixed license that is purchased for a one-time fee and is typically installed on a server owned, operated, leased, or otherwise provided by the customer.  Once purchased, this license may be used without additional cost as long as that product is supported.  Premise licenses may also have accompanying maintenance packages, and the requirement of subscription to these packages will be at the discretion of Grupo NGN, Inc. Maintenance packages will entitle customers to software upgrades as long as they are a current customer. 

Subscription licensing entitles customers to utilize software during the term of their agreement.  Subscription licenses are often not fixed, but rather are billed based on consumption.  In a consumption model, customers agree to a Monthly Minimum Commitment (MMC), and their accounts are typically configured to allow usage of up to 150% MMC.  Subscription licenses include technical support and upgrades as defined in their Technical Support Services Agreement.  These do not carry an additional cost unless specifically listed in the Sales Order.

A hybrid model may deployed on certain Services provided by Grupo NGN, Inc, where the customer may install subscription licenses on a premise based system with premise licenses also installed.

Exclusions

Grupo NGN, Inc provides the technology for engaging with customers and employees, but customers may choose to bring their own medium to establish connectivity.  This includes, but is not limited to, carrier services, such as voice, data, and messaging, as well as social media accounts, web sites, etc.  Grupo NGN, Inc may provide these services to their customers as agreed, but no software licensing includes any third-party accounts or subscriptions (i.e. Salesforce), nor do they include any carrier services unless specifically stated in the Sales Order.  For example, a customer who wishes to utilize Grupo NGN, Inc.’s Salesforce integration will need to supply their own Salesforce.com license.  Likewise, a user who integrates with Facebook will be responsible for the creation of the Facebook account to be utilized.

While Grupo NGN, Inc. has developed integration with third party products such as Facebook, Microsoft Outlook, and Salesforce.com, Grupo NGN, Inc. is in no way affiliated with these companies, and neither has any partnership or ownership in the other.  Grupo NGN, Inc. has, to the best of its abilities, followed requirements from these manufacturers regarding third-party integration techniques.

Grupo NGN, Inc. includes costs for certain third-party products such as hosting, Microsoft Windows, and Microsoft SQL Server in its subscription licensing.  These licenses are obtained for the purposes of webhosting only.  Customers with premise licenses will commonly be responsible for these same license types for customer owned servers.  In no case will Grupo NGN, Inc. be responsible for operating system licenses for end users unless specifically listed in the Sales Order.

License Definitions

The following list will define the most commonly used licenses and services available in Grupo NGN’s product portfolio.  For any products or services not listed in this table, please contact Grupo NGN’s customer service or sales team for assistance.

Note that each license is defined in its lowest quantity.  The quantity defined in the definition should be multiplied by the quantity on the Sales Order to determine full entitlement quantities.

Subscription Licensing

Cloud Contact Center User – Allows one (1) concurrent user per license to be connected to NGNCloudComm for the purposes of customer engagement.  This user is entitled to partake in any supported communication channel, such as voice (inbound or outbound), chat (up to 10 simultaneous sessions), email, social media, or SMS.  Note that, if social media or SMS transactions are routed to a “chat” pipeline, they will be entitled to up the same maximum simultaneous sessions as supported by the chat module.  This user may operate within the NGNCloudComm agent application environment, or they may operate through a customer interface developed by/for the customer or one of our custom third-party integrations, such as Salesforce.com or Microsoft Outlook.  This license also enables two (2) inbound voice channels and three (3) outbound voice channels.

TCPA Cloud Contact Center User – Named for the TCPA but specifically geared toward early interpretations regarding restrictions for cellular calling from an ATDS, this is the equivalent of the Cloud Contact Center User license.  It differs only in that it is enabled on an instance of NGNCloudComm that has all automatic dialing programmatically disabled from the platform, requiring human intervention on all outbound calling.

Cloud Platform License – Allows one (1) voice port to be used in any direction (at customer’s discretion).  Note that this allows a call only – this does not support CCS/IVR functionality on this channel.

Supervisor License – Allows one (1) concurrent user per license to access the Manager Console application or Manager Services API.  For customers who build custom integrations utilizing the Manager Services API, the integration will consume one supervisor license while the session is open.

Admin Licenses  – Allows one (1) concurrent user per license access to the Configuration Manager.

Cloud Standalone IVR Port – Allows one (1) inbound and one (1) outbound voice port with full CCS/IVR functionality.

Cloud Redundancy License – Entitles customer to one (1) complete failover NGNCloudComm system.  Note that fees may be affected by subscription to this service.  Redundancy is configured with an Active/Passive configuration, and failover can take up to five (5) minutes to complete.

Virtual Firewall – Bandwidth, IP Addressing, and ACL services provided by the cloud provider for subscribed NGNCloudComm services.

ASR Tier 2 Port – Allows one (1) concurrent call utilizing Actual Speech Recognition using a voice interpreter installed on the server hosting NGNCloudComm.  This license will work in the language selected by the customer as their primary speech language.  Tier 2 Ports support up to 500 possible responses to inputs (i.e. “What month were you born?” would be expected to have only twelve possible responses, and therefore Tier 2 would be sufficient).

ASR Tier 3 Port – Allows one (1) concurrent call utilizing Actual Speech Recognition using a voice interpreter installed on the server hosting NGNCloudComm.  This license will work in the language selected by the customer as their primary speech language.  Tier 3 Ports support over 500 possible responses to inputs (i.e. “What is your first name?” could have a potentially limitless number of responses, requiring Tier 3 interpretation).

Additional ASR Language – Enables one (1) additional language of customer’s choosing on all subscribed ASR channels using the interpreter installed on the server hosting NGNCloudComm.

ASR Tier N Enabled Backup Port – For redundant systems, backup ports allow voice interpreters to be installed on redundant systems, where “N” represents the ASR Tiers subscribed on primary system.  Backup licenses provide customer access to their primary language on their secondary systems during a failover event.  Customer may not use both the primary and backup at the same time.

Additional ASR Language Backup License – Similar to ASR Tier N Enabled Backup Ports, these licenses provide the identical level of access, but differ in that they only apply to the additional languages installed on the primary system. 

Premium TTS Voice/Language – Enables one (1) voice port with access to a voice synthesizer installed on the server hosting NGNCloudComm.  The synthesizer with be utilized for reading text, commonly know as Text to Speech or TTS.  This license will work in the language and voice “talent” or “avatar” selected by the customer as their primary speech language.  For example, the customer may select English Mary or Spanish Maria for their primary.

Additional TTS Voice/Language – Enables one (1) additional language or talent of customer’s choosing on all subscribed TTS channels using the synthesizer installed on the server hosting NGNCloudComm.  For example, the customer may select Spanish Maria or English Mike as an additional language and talent.

Premium TTS Enabled Port Backup – For redundant systems, backup ports allow voice synthesizers to be installed on redundant systems.  Backup licenses provide customer access to their primary language and talent on their secondary systems during a failover event.  Customer may not use both the primary and backup at the same time.

Additional TTS Voice/Language Backup Licenses – Similar to Premium TTS Enabled Backup Ports, these licenses provide the identical level of access, but differ in that they only apply to the additional languages/talents installed on the primary system. 

NGNInsights User – Enables one (1) named user account for use with NGNInsights as a participating user.  A participating user would be one who is consider and “agent” and is measured for performance using KPIs or other measurements.

NGNShadowCoach Agent – Enables one (1) named user account for use with NGNShadowCoach.  An agent is a user whose screen could be monitored by the application while logged in.

WFM Agent – Enables one (1) named user account for consideration for scheduling in Workforce Management.

WFM Admin – Enables one (1) supervisor user account for managing, reporting, or forecasting within Workforce Management.

 

Premise Licenses

Essential User – Allows one (1) concurrent user per license to be connected to NGNCloudComm for the purposes of customer engagement.  This user is entitled to partake in any voice communication (inbound or outbound). This user may operate within the NGNCloudComm agent application environment, or they may operate through a customer interface developed by/for the customer.

Enhanced User – Allows one (1) concurrent user per license to be connected to NGNCloudComm for the purposes of customer engagement.  This user is entitled to partake in any supported communication channel, such as voice (inbound or outbound), chat (up to 10 simultaneous sessions), email, social media, or SMS.  Note that, if social media or SMS transactions are routed to a “chat” pipeline, they will be entitled to up the same maximum simultaneous sessions as supported by the chat module.  This user may operate within the NGNCloudComm agent application environment, or they may operate through a customer interface developed by/for the customer or one of our custom third-party integrations, such as Salesforce.com or Microsoft Outlook.  This license also enables two (2) inbound voice channels and three (3) outbound voice channels.

TCPA Base License – Named for the TCPA but specifically geared toward early interpretations of the restrictions for cellular calling, this enabled a system to be licensed for manual dialing only.

TCPA Bundled User – Named for the TCPA but specifically geared toward early interpretations of the restrictions for cellular calling, this is the equivalent of the Essential User license.  It differs only in that it is enabled on an instance of NGNCloudComm that has all automatic dialing programmatically disabled from the platform, requiring human intervention on all outbound calling.

Platform Connection License – Allows one (1) voice port to be used in any direction (at customer’s discretion).  Note that this allows a call only – this does not support CCS/IVR functionality on this channel.

Supervisor License – Allows one (1) concurrent user per license to access the Manager Console application or Manager Services API.  For customers who build custom integrations utilizing the Manager Services API, the integration will consume one supervisor license while the session is open.

Admin Licenses  – Allows one (1) concurrent user per license access to the Configuration Manager.

Essential IVR Port – Allows one (1) inbound and one (1) outbound voice port with full CCS/IVR functionality.  Does not allow TTS or ASR on this port.

Enhanced IVR Port – Allows one (1) inbound and one (1) outbound voice port with full CCS/IVR functionality.  Allows TTS or ASR on this port.

Redundancy License – Entitles customer to the installation of one (1) failover (passive) NGNCloudComm node.  Failovers will be configured using Microsoft Clustering Services, and only one (1) node can be active at one time unless otherwise stated in the Sales Order.

ASR Tier 2 Port – Allows one (1) concurrent call utilizing Actual Speech Recognition using a voice interpreter installed on the server hosting NGNCloudComm.  This license will work in the language selected by the customer as their primary speech language.  Tier 2 Ports support up to 500 possible responses to inputs (i.e. “What month were you born?” would be expected to have only twelve possible responses, and therefore Tier 2 would be sufficient).

ASR Tier 3 Port – Allows one (1) concurrent call utilizing Actual Speech Recognition using a voice interpreter installed on the server hosting NGNCloudComm.  This license will work in the language selected by the customer as their primary speech language.  Tier 3 Ports support over 500 possible responses to inputs (i.e. “What is your first name?” could have a potentially limitless number of responses, requiring Tier 3 interpretation).

Additional ASR Language – Enables one (1) additional language of customer’s choosing on all subscribed ASR channels using the interpreter installed on the server hosting NGNCloudComm.

ASR Tier N Enabled Backup Port – For redundant systems, backup ports allow voice interpreters to be installed on redundant systems, where “N” represents the ASR Tiers subscribed on primary system.  Backup licenses provide customer access to their primary language on their secondary systems during a failover event.  Customer may not use both the primary and backup at the same time.

Additional ASR Language Backup License – Similar to ASR Tier N Enabled Backup Ports, these licenses provide the identical level of access, but differ in that they only apply to the additional languages installed on the primary system. 

Premium TTS Voice/Language – Enables one (1) voice port with access to a voice synthesizer installed on the server hosting NGNCloudComm.  The synthesizer with be utilized for reading text, commonly know as Text to Speech or TTS.  This license will work in the language and voice “talent” or “avatar” selected by the customer as their primary speech language.  For example, the customer may select English Mary or Spanish Maria for their primary.

Additional TTS Voice/Language – Enables one (1) additional language or talent of customer’s choosing on all subscribed TTS channels using the synthesizer installed on the server hosting NGNCloudComm.  For example, the customer may select Spanish Maria or English Mike as an additional language and talent.

Premium TTS Enabled Port Backup – For redundant systems, backup ports allow voice synthesizers to be installed on redundant systems.  Backup licenses provide customer access to their primary language on their secondary systems during a failover event.  Customer may not use both the primary and backup at the same time.

Additional TTS Voice/Language Backup Licenses – Similar to Premium TTS Enabled Backup Ports, these licenses provide the identical level of access, but differ in that they only apply to the additional languages/talents installed on the primary system. 

Consumption Services

Additional products and services are sold by Grupo NGN, Inc. on a pure consumption basis, meaning the customer pays only for usage.  Any minimums required will be defined in the Sales Order.  These products may be direct works of Grupo NGN, Inc., whereas others may be products or services resold to the customer.  While some of the definitions of these products are common, such as “Long Distance” regarding calling rates, less common items will be described here.

3rd Party Voice Services

“Third Party Voice Services” utilize best in class online voice synthesizer engines (commonly known as “Text to Speech” or “TTS”) as well as ASR (Actual Speech Recognition) engines.  These engines are the same that power Google Home appliances and Microsoft Cortana enabled devices.  Grupo NGN, Inc. will work with the Customer to determine the appropriate engines for their business based on a variety of factors, such as spoken language, region, etc.

Unlike locally installed speech engines/interpreters, all audio is transmitted through a secure and encrypted connection to the online provider.  Data is interpreted and returned to the NGNCloudComm server.

TTS Standard Engine – Converts text strings to audio streams using a provider’s standard TTS engine.

TTS Enhanced Engine – Similar to the TTS Standard Engine, this TTS model uses a premium voice engine.  Customers may determine if the added cost is necessary for their usage.

ASR Enabled Port – Allows one (1) concurrent call (voice channel) to initiate ASR using an UniMRCP channel.  Once a voice channel has obtained an UniMRCP port, that port is reserved by that voice channel until the call’s end.  ASR port licenses do not burst, and if calls attempt to utilize more ports than available, those ASR requests will fail.

Speech Recognition – Audio snippets converted to text for decision making, transcription, etc.