Supplemental Marketplace Terms
(Tap-To-Cloud Call Capture)
These Supplemental Marketplace Terms (the “Supplemental Terms”) are incorporated by reference into the Pindrop Subscription Agreement for Marketplaces here (the “Agreement“). The terms describe the supplemental or different terms that apply to the Products where the call capture method used is to Mirror the Call (as defined below), also referred to as Pindrop’s “tap-to-cloud” call capture method. Capitalized terms not defined in these Supplemental Terms are as defined in the Agreement or Order, as applicable. To the extent of any conflict between the terms in the Agreement and these Supplemental Terms, the terms in these Supplemental Terms shall control.
1. Definitions.
(a) “Authorized Site” means a site located within the Authorized Geography that has been designated in an Order at which the TTC Appliance(s) shall be installed and used by Company.
(b) “Hardware Refresh” means to replace existing TTC Appliance(s) with new TTC Appliances for use with the corresponding Product under a given Order.
(c) “Manufacturer EULA” means the manufacturer’s standard end user license terms that apply to the Manufacturer Software installed on a given TTC Appliance.
(d) “Manufacturer Services” means any manufacturer-provided maintenance, support or other professional services applicable to TTC Appliances and corresponding Manufacturer Software that are provided directly by the manufacturer to Company pursuant to or covered by a Manufacturer EULA and/or Other Manufacturer Terms.
(e) “Manufacturer Software” means the standard software that is pre-installed (and may be periodically updated) by the manufacturer on a given TTC Appliance prior to shipment (i.e., not installed by Pindrop). Manufacturer Software is typically “low level” software or tools used for the basic operation of the TTC Appliance itself.
(f) “Mirror the Call” means to mirror the signaling and media for a given call such that the data associated with inbound call to the Company Phone Number is concurrently routed to multiple destinations, in this case, (i) the Company Call Center Infrastructure for standard handling of that call (i.e., as if the Product were not in use by Company); and (ii) the Product for analysis.
(g) “Out-of-Scope Error” has the meaning assigned in Section 3(e) (Support Terms for Pindrop-Provided Software) of these Supplemental Terms.
(h) “Other Manufacturer Terms” means the manufacturer’s standard terms that apply to the warranty, support and other services that the manufacturer of a TTC Appliance and its personnel will or may provide directly to Company.
(i) “Pindrop-Provided Software” means the software, including the Router Software, that Pindrop installs or otherwise provides to Company from time to time for installation on the TTC Appliances necessary for the use of the cloud-based portion of the Product. Except as expressly provided otherwise in these Supplemental Terms, Pindrop-Provided Software shall be considered part of the Product. Pindrop-Provided Software does not include Manufacturer Software.
(j) “Router Software” means the portion of the Pindrop-Provided Software, including its Third-Party Software Components, that provides the core functionality to Mirror the Call and route the call to a Product for analysis.
(l) “TTC Appliances” means hardware purchased by Company from Pindrop (e.g., server, computers, switches, etc.), together with any related materials (e.g., power cords or other similar accessories) under an Order, for use with a Product covered under these Supplemental Terms.
2. Terms of Use.
(a) Use Requirements for TTC Appliances. During each relevant Order, the TTC Appliances must be dedicated and used solely with the applicable Pindrop-Provided Software and the Product under the given Order for which those TTC Appliances were purchased.
(b) Pindrop-Provided Software Terms. During an Order, Company shall (x) have and maintain the configuration for the Company Call Center Infrastructure to collect and transmit the minimum data elements required for the Product to analyze each Call (as detailed in the applicable Order and/or Documentation); and (y) have and maintain consistent WAN connectivity (both inbound and outbound). The Router Software and the use and what specific components comprise any other Pindrop-Provided Software are Confidential Information of Pindrop and its licensors. The Pindrop-Provided Software contains certain Third-Party Software Components and is subject to the terms and conditions in Section 7(g) Third-Party Software Components of the Agreement. If Company violates the terms and conditions applicable to the Pindrop-Provided Software and fails to timely cure such breach, Company understands that Pindrop shall have the right to suspend Company’s access to and use of the Product until such time that Company cures such breach or these Supplemental Terms is terminated by Pindrop for cause as authorized in the Agreement, whichever occurs first.
(c) Router Software Specific Terms. The Router Software includes software from 128 Technology, Inc. (the “Licensor”). Licensor is a third-party beneficiary with respect to the terms and conditions applicable to Company’s access, use and installation of its components of the Router Software only (i.e., not with respect to any other aspect of the Product or any other rights set forth in these Supplemental Terms or the Agreement). However, the Licensor is only entitled to exercise such rights if Pindrop and Company are unable to resolve the non-compliance amongst themselves within 30 days of the date on which Pindrop has notified Company in writing of such non-compliance or such other time period mutually agreed to by the parties. Company cannot publish or distribute any results of benchmarking test run on the Router Software. Pindrop and its affiliates are authorized to share aggregated network use data (e.g., bandwidth capacity) with the licensors of the Router Software related to the use of such Router Software in relation to the Product so long as neither Pindrop nor its affiliates identify Company as the source of such data.
(d) Support Terms for Pindrop-Provided Software. Notwithstanding anything to the contrary in the Support Program Terms the following additional or different terms shall apply with respect to the Pindrop-Provided Software:
- Support Services for the Pindrop-Provided Software for a given Product are conditioned on Company providing Pindrop remote and general access to the TTC Appliances as detailed in these Supplemental Terms and/or the applicable Order and as otherwise reasonably necessary.
- Pindrop will provide Support Services through a cloud-based control application referred to as the conductor through WAN connectivity.
- When the initial Pindrop-Provided Software is made available to Company by Pindrop, Company shall promptly install the Pindrop-Provided Software on the Company Call Center Infrastructure, after which Pindrop will maintain the Pindrop-Provided Software using the conductor.
- Pindrop will provide access to the REST API within the Router Software to allow Company to monitor the health of the Router Software. The Router Software will supply metrics to Pindrop stating that the software has been installed correctly and performing without Errors.
- Company acknowledges that maintenance and support of the Pindrop-Provided Software will include remote and automatic installation of upgrades, enhancements, patches and similar maintenance and security related updates and Company shall reasonably cooperate with Pindrop to complete such updates.
- Certain features or functionality of the Product (inclusive of the Pindrop-Provided Software) may only run on certain versions of the TTC Appliances and would be only available to Company for use when it performs a Hardware Refresh.
- If Pindrop determines an Error in the Pindrop-Provided Software requires assistance from Company with respect to the system on which the Pindrop-Provided Software is installed, Pindrop will notify Company’s pre-defined contact (email is sufficient). Company agrees to timely respond and cooperate with Pindrop in troubleshooting such Error. For issues that are caused by the Company Call Center Infrastructure or other Company-provided systems or that are not within Pindrop’s reasonable control (each an “Out-of-Scope Error”), Pindrop will be excused from its service level commitments under the Support Program Terms with respect to availability and performance of the Pindrop-Provided Software and/or other portions of the Product until such time that the Out-of-Scope Error is resolved.
- The term “Excused Event” shall also exclude any Errors resulting from the TTC Appliances or the Manufacturer Software.
3. Hardware Purchase and Related Terms.
Company has requested Pindrop to source and deliver certain TTC Appliances for use with the Product(s) in connection with a given Order. With respect to such TTC Appliances, the terms in this Section 3 shall apply.
(a) Delivery of Appliances. TTC Appliances will be delivered FCA (Incoterms 2010) to the mutually agreed to designated delivery location, which is generally expected to be the Authorized Site(s). Where the Authorized Site(s) are located outside the United States, Company is solely responsible for the exportation and importation or securing any other official authorization for the TTC Appliance(s) and Manufacturer Software for the relevant country(ies). Unless Company notifies Pindrop in writing otherwise, Pindrop will select the method of shipment of, and the carrier for, all TTC Appliances. While it is Pindrop’s policy to procure all TTC Appliances as new from the manufacturer, if a TTC Appliance is received by Pindrop prior to the initial shipment to the “ship to” location for a given Order (the “First Shipment”), and Pindrop determines there is an Error in that TTC Appliance, any such Error may be corrected by the manufacturer using refurbished and equivalent to new parts in performance and reliability prior to the First Shipment. Refurbished parts may also be used to service any TTC Appliances after the First Shipment and/or any TTC Appliances provided on an evaluation or “beta” basis. Company understands and agrees that Pindrop may have its supplier (the “Appliance Supplier”) ship the Appliances directly to Company and, where that occurs, Pindrop will share the following information with such Appliance Supplier: (i) Company’s basic contact information necessary for the Appliance Supplier to ship the Appliances to Company’s designated delivery location; and (ii) the IP address(es) designated by Company to enable the Appliance Supplier to pre-configure such data on the Appliances on Pindrop’s behalf prior to shipment of such Appliances to Company.
(b) Transfer/Assignment of Manufacturer EULA and Other Manufacturer Terms. Title and risk of loss for the TTC Appliances (but not the Manufacturer Software) is transferred by Pindrop to Company upon delivery to the designated delivery location. The Manufacturer Software is provided on a license only basis pursuant to the terms of the applicable Manufacturer EULA. The Other Manufacturer Terms shall be transferred by Pindrop to Company on or about the date of delivery of the TTC Appliances in accordance with the manufacturer’s standard transfer process. The Manufacturer EULA is and shall be automatically assigned by Pindrop to Company concurrent with the Other Manufacturer Terms. Company shall reasonably cooperate with Pindrop to timely provide the information required by the manufacturer to complete the transfer and/or assignment process.
(c) Fees for TTC Appliances. Except with respect to the TTC Appliances, access to and use of each Product are purchased as subscriptions only. In addition to any fees payable as set forth in the Agreement, Company shall also pay all transportation and shipping costs for the TTC Appliances pursuant to the Order under which an Appliance will be delivered (which includes, without limitation, all customs and brokerage fees associated with the transportation and export or importation).
(d) Additional Terms. TTC Appliances, Manufacturer Software installed on the TTC Appliances, and the Manufacturer Services are provided by Pindrop to Company on an “as is” basis and without any warranties, support, maintenance or indemnification (e.g., those rights in Section 10(a) (Infringement Claims Coverage) of the Agreement) or other similar rights and benefits of any kind by Pindrop. The Manufacturer EULA and Other Manufacturer Terms are entered into and solely between Company and the applicable manufacturer, and Pindrop shall have no responsibility and/or liability under such terms or in the event of any breach of the Manufacturer EULA and Other Manufacturer Terms by the applicable manufacturer. Company shall look exclusively to the applicable manufacturer for any problems that it experiences with the TTC Appliances and Manufacturer Software on such TTC Appliances as well as any rights and remedies and any damages in the event of any such breach of the Manufacturer EULA and Other Manufacturer Terms by the applicable manufacturer. Except as stated otherwise in the applicable Order, each TTC Appliance and any Manufacturer Software installed on such TTC Appliance are effective as of the Subscription Start Date for the corresponding Product.
(e) Support Terms for TTC Appliances and Manufacturer Software.
(i) Except as expressly provided otherwise in these Supplemental Terms, maintenance and support for the TTC Appliances and Manufacturer Software shall be provided solely by the applicable manufacturer to Company pursuant to the terms and conditions of the Manufacturer EULA and Other Manufacturer Terms, as applicable. To the extent an update is issued by the manufacturer for Manufacturer Software, Company agrees to reasonably cooperate with Pindrop in the testing and installation of any such manufacturer update prior to use in a production environment to enable the parties to verify that such update does not or will not create an Error in the Product for which such Manufacturer Software and TTC Appliances are being used with.
(ii) The recommended usage period for TTC Appliances is 3 years from the applicable Subscription Start Date. However, Company is not authorized to use any TTC Appliance that is older than 5 years from the Subscription Start Date of the applicable Product, unless expressly pre-approved otherwise by Pindrop in writing. To complete a Hardware Refresh, the parties will enter into a new Order that documents the quantity and price of the new TTC Appliances being purchased and the PS that will be performed by Pindrop to configure and deploy the Pindrop-Provided Software and new TTC Appliances for use with the applicable Product, as applicable. The migration plan from the existing TTC Appliances to the new TTC Appliances will be reflected in the applicable Order. Once a Hardware Refresh occurs, then the same support services terms and conditions described herein apply with respect to the life cycle for the new TTC Appliances and Manufacturer Software. However, the relevant start date for any new TTC Appliances would instead be measured from the applicable Project Closure Milestone for the relevant PS as defined by the relevant Order for that Hardware Refresh.
(f) Allocation of Responsibility for Ongoing Monitoring and Correction of Issues in TTC Appliances and Manufacturer Software. As between the parties and unless provided otherwise in the applicable Order, the following shall be the allocation of responsibility as it pertains to the TTC Appliances during the applicable Order:
|
Description of Task/Responsibility |
Owner |
|---|---|
|
Maintenance and repairs (e.g., including part swap) of the TTC Appliances and Manufacturer Software (including idrac and bios firmware) |
Company |
|
Monitoring of system events, temperature, component failure of the TTC Appliances |
Company |
|
Monitoring of security logs for the Manufacturer Software (recommended) |
Company |
|
Monitoring of memory, core utilization, disk space, application alarms, sessions, system uptime, packets, bandwidth and calls (i.e., duplicated SIP and RTP data) for the hardware portion of the TTC Appliances and the Pindrop-Provided Software (i.e., the operating system and Router Software, including any new Releases) |
Pindrop |
4. Term and Termination.
These Supplemental Terms are incorporated by reference into the Agreement by this reference and shall run concurrently with the Agreement. The Subscription Term applicable to each Product and the period for performance of any PS applicable to each Product shall in each case be as specified in the applicable Order. An Order can be terminated as authorized in the Agreement or in the Order itself. In addition to the terms set forth in Section 11(f) (Obligations Upon Termination) of the Agreement or as expressly authorized or provided otherwise in these Supplemental Terms, upon any expiration or termination for any reason (i) all licenses and rights granted by either party to the other with respect to the impacted Product(s) shall immediately terminate; and (ii) Pindrop will cease performing any impacted PS. If a given Order is terminated and the subscription for the Product is not renewed or a given TTC Appliance is decommissioned, Company shall provide Pindrop with (A) timely access to each TTC Appliance (no more than 14 days from the effective date of termination or decommissioning, unless the parties agree to an extension in writing); and (B) reasonable cooperation to facilitate the secure deletion of all Pindrop-Provided Software and any of Pindrop’s Confidential Information installed or otherwise residing on the TTC Appliances. Where the parties agree that Company is responsible to perform the secure deletion, then Company will timely confirm in writing to Pindrop when such secure deletion is completed. Under no circumstances shall Company retain or otherwise prevent or delay Pindrop from obtaining such access to or enabling Pindrop to transfer or remove any such files in Company’s possession or control at the time of termination. Failure to do so is a material breach of this PA. In addition to the terms in this Section 5 and any rights that state they survive termination in these Supplemental Terms, the obligations in Sections 2(c) (Router Software Specific Terms), 3(b) (Transfer/Assignment of Manufacturer EULA and Other Manufacturer Terms), 3(c) (Fees for TTC Appliances), 3(d) (Additional Terms) and 3(e)(i) shall survive any expiration or termination of these Supplemental Terms.