1. THE PARTIES referred to herein include any user of Ababa services and Ababa, collectively referred to herein as the “PARTIES”, including Ababa, its successors and assigns, herein referred to as “Ababa”. By using Ababa services, connecting via API or consuming any service, USER agrees to the terms of this Agreement and to any other addenda (Addenda) linked to that Pricing order.
  2. In consideration of this Agreement, the PARTIES hereby agree that:
  3. Confidentiality: Ababa may furnish to the USER, access to certain of its systems, including but not limited to one or more of Ababa’s conversation analytics and USER may furnish to Ababa access to and information about its personnel, systems, and/or USERs as the PARTIES mutually deem appropriate. All information furnished by the USER, its representatives, or its customers, or any information obtained by Ababa through conversation or written communication between the PARTIES shall be kept confidential by Ababa and its staff. Unless required by law, Ababa shall not disclose any confidential information to any third party without prior written approval by the USER. Unless agreed to in a separate writing, Ababa will use the information and documents including any call monitoring obtained from the USER solely for delivery of service to the USER. Data may be used by Ababa in aggregate for testing and development of new services as long as it is not identifiable to USER. This paragraph shall survive termination of this Agreement.
  4.  Compliance with applicable laws: Ababa agrees to provide tools and systems to assist USER to comply with the most common laws and regulations regarding the monitoring of employee and customer conversations, but USER shall be responsible for compliance with all such laws and regulations.
  5. Contracted monthly fees: Services are billed as a credit and the account is charged with a minimum amount. Usage will be deducted from the account credit. Minutes of use are rounded up to the next half minute for billing purposes.
  6. Termination: Either PARTY may terminate this agreement at any time for any reason with at least 30 days written notice to the other PARTY or effective immediately upon notice, if the other party (a) becomes insolvent; (b) files a petition in bankruptcy, (c) makes an assignment for the benefit of its creditors, or (d) reasonably believes the system infringes upon the patent, copyright, or intellectual property rights of a third party.
  7. Indemnity: The PARTIES shall indemnify each other along with their respective employees, officers, shareholders, agents, and contractors working on programs related to this agreement [the Indemnified Group] against all claims, demands, and expenses to which the other PARTY and any of the Indemnified Group may become liable by reason of the negligent act or omission of the other PARTY or by use of any material or service supplied by that PARTY.
  8. Warranties and Limitation of Liability: The PARTIES agree that in no event shall Ababa be liable for any loss or damage resulting from any act, omission or failure of performance by Ababa, its employees, agents, or representatives, from any failure of Ababa’s systems, or from any failure of any third party suppliers including telecommunications systems. In no event shall Ababa be liable for a sum in excess of the most recent month’s fees paid to Ababa by USER. Except for the representations and warranties set forth in this Agreement, neither party makes any representation or warranty in connection with the subject matter of this Agreement and hereby disclaims any and all warranties, express or implied, including without limitation all implied warranties of merchantability and fitness for a particular purpose.
  9. Non-Solicitation: The PARTIES agree that they will not directly or indirectly, for the duration of this Agreement and for a period of one (1) year following the termination of this Agreement, solicit for employment any person now or subsequently employed by the other PARTY.
  10. Force Majeure: Ababa shall not be liable for any failure or delay in the supply of its services and goods caused by any acts beyond its control, including but not limited to, fire, accident, civil commotion, warfare, cyber terrorism (including hackers, viruses, malware, or other malicious code), or by government action, and Ababa shall not be liable for any loss, damage or expense suffered by the USER or any third party arising directly or indirectly from any related service failures or delays.
  11. Intellectual Property: USER and Ababa shall retain the sole and exclusive right, title, and interest in all of their respective intellectual property rights. Except as otherwise expressly agreed in writing, the copyright in all works, including but not limited to software code, marketing materials, training manuals, or reports provided by Ababa to the USER shall be the property of Ababa. All copyrights, trademarks, patents, or other intellectual property rights shall remain the property of Ababa. This paragraph shall survive termination of this Agreement.
  12. USER acknowledges that you have read Ababa’s Privacy Policy and understand that it sets forth how we will collect, store, and use your Customer Data. “Customer Data” consists of information made available to us through your use of our Services under these Terms, which includes information such as your name, contact information, billing records, call or messaging logs, and traffic routing information, as well as the content of communications sent through or integrated with our Services, such as audio recordings, message bodies, and call recording transcriptions. If you do not agree to Ababa’s Privacy Policy, you must stop using our Services.
  13. Except as agreed by Ababa and you in writing, Ababa may periodically delete your Customer Data. Further, data storage is not guaranteed by us and you agree that we will not have any liability whatsoever for any damage, liabilities, losses, or any other consequences that you may incur relating to the loss or deletion of Customer Data.
  14. You further acknowledge and agree that we may access or disclose Customer Data, including the content of communications, if: (i) we believe that disclosure is reasonably necessary to comply with any applicable law, regulation, legal process or government request, (ii) to enforce our agreements and policies, (iii) to protect the security or integrity of our services and products, (iv) to protect ourselves, our other customers, or the public from harm or illegal activities, or (v) to respond to an emergency which we believe in good faith requires us to disclose data to assist in preventing a death or serious bodily injury.
  15. Choice of Law: The terms of this Agreement shall be construed as independent of any other provision of this Agreement and shall be governed by the laws of the State of Utah with respect to conflicts of law principles. Any dispute arising under this Agreement shall be construed under and resolved in accordance with the laws of the State of Utah.
  16. Arbitration: The PARTIES agree to binding arbitration for resolution of any dispute arising from this Agreement. Arbitration shall be conducted in Salt Lake City, Utah.
  17. Captions: Titles or paragraph headings in this Agreement or any Addenda are solely for convenience of reference and are not intended and shall not be deemed to modify, explain or place any construction on any provision of this agreement
  18. Modifications: The language in this default Master Service Agreement, as linked to from the Pricing Quote, may be updated from time to time as needed by Ababa. By signing the Pricing Order associated with this Agreement, USER agrees to be bound by the most current terms of this default Agreement or any reasonable modifications thereto as posted at the link provided. Alternatively, USER has the option to sign a fixed version of this Agreement and attach it to the Pricing Order.
  19. Entire Agreement: This Agreement, the accompanying Pricing Order, and any Addenda incorporated hereto, set forth the entire understanding of the PARTIES and cannot be changed except by written statement signed by both PARTIES. Use of Ababa’s software as a service (SaaS) applications are subject to the terms of use on those sites. In the event that any term in this Agreement, the Pricing Order, or the Addenda is in conflict with the terms of use on the SaaS application, the terms of this Agreement, Pricing Order, and Addenda shall prevail.
  20. Severance: If any part of this Agreement is held to be invalid or unenforceable, all remaining parts of the Agreement shall remain valid and enforceable.