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BY COMPLETING THE REGISTRATION PROCESS ("REGISTRATION PROCESS") YOU AND YOUR COMPANY ("COMPANY") ARE AGREEING TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT ("AGREEMENT") WITH LIVEPERSON, INC. ("LIVEPERSON").
The terms set forth in the Order Form or Registration Process, as applicable, together with the terms of this Agreement, collectively referred to herein as the “Service Terms.”
As of the date Company has completed the Registration Process and clicked the "I Agree" button, as applicable, ("Effective Date"), in consideration of the mutual agreements contained herein and intending to be legally bound hereby, Company and LivePerson agree as follows:
1. Services. LivePerson will provide to Company the hosted services (“Hosted Services”) and/or professional services (“Professional Services”) as set forth in the Registration Process (Hosted Services and Professional Services collectively referred to this Agreement as the "Services").
2. Fees and Payments. Company agrees to pay the fees set forth in the Order Form or Registration Process, or as otherwise communicated to Company in advance in writing. Your then current fees are detailed in your billing portal (unless otherwise specified in the Registration Process). Invoices are to be paid within 30 days of the invoice date. If Company is paying by credit card, payment for the Services is on a pre-paid basis and Company is charged once every three months (unless otherwise specified in the Registration Process), for the Services and Company is responsible for maintaining accurate and current credit card information. If credit card charges for the Services are denied for any reason, use of the Services will be terminated. A one and a half percent (1.5%) monthly service charge or the highest amount permissible by law if less is payable on all overdue balances that are outstanding more than thirty (30) days after the date of the invoice. The service charge is in addition to the overdue balance. LivePerson shall be entitled to any costs of collecting any amount past due hereunder, including reasonable attorneys' fees and collection agency fees. LivePerson reserves the right to increase fees each Renewal Term (as defined below) or modify fees for the Services. All fees are exclusive of, and Company is responsible for, applicable federal, state, or local sales, use, excise or other applicable taxes other than taxes on the net income of LivePerson. Company shall pay or reimburse LivePerson for any such taxes and LivePerson may add any such taxes to invoices submitted to Company by LivePerson.
3. Term. This Agreement will commence upon the Effective Date and continue for the term set forth in the Registration Process (the “Initial Term”) unless terminated earlier pursuant to Section 4. If no Initial Term is presented during the Registration Process, the Initial Term shall be deemed to commence on the Effective Date and end on the last day of the third full month thereafter (For example, if the Effective Date is April 10, the end of the Initial Term shall be July 31. But if the Effective Date is April 1, the end of the Initial Term shall be June 30). Following the Initial Term, this Agreement shall renew for consecutive terms of thirty (30) days (each a “Renewal Term”, and each Renewal Term together with the Initial Term, the “Term”)) unless either party provides written notice to the other party at least ninety (90) days prior to the expiration of the then-current Initial Term or Renewal Term (or if another notice period is set forth in the Registration Process such other notice period shall apply). Upon request, Company shall acknowledge the commencement of each Renewal Term in writing; provided, that failure to acknowledge shall not affect the existence of the Renewal Term.
4. Termination. Either party may terminate this Agreement immediately upon written notice to the other party in the event such other party has committed a material breach of this Agreement that remains uncured thirty (30) days after initial written notice of such breach. Immediately, but in any event within twenty-four (24) hours upon expiration or any termination, Company shall remove all materials, tags and code placed on Company's website as part of the Services. LivePerson may terminate this Agreement immediately (a) if Company fails to pay any outstanding invoices, or (b) due to any breach by Company of Section 7 herein.
5. Use of Brands; Press Releases. LivePerson may use Company's name, trade name, trademarks and icons (collectively, the "Brands") (i) in connection with the Services provided hereunder, and (ii) for customer lists, and certain marketing and promotional purposes as mutually agreed upon by both parties.
6. License and Reservation of Rights.
6.1 License. So long as Company is in full compliance with all of the Service Terms, LivePerson grants to Company during the Term of this Agreement a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Hosted Services and any software (“Software”) provided by LivePerson to access those Hosted Services, solely for purposes of (as applicable) communicating with, engaging with and delivering content to, end users. LivePerson may, in its discretion, offer updates, upgrades, patches and/or new versions (collectively, “Upgrades”) of the Software to Company. If instructed by LivePerson, Company shall promptly install any such Upgrade.
6.2 Reservation of Rights. Except for the limited license set forth above, LivePerson reserves all rights to the Services and Company shall have no rights to the Services or Software except as expressly granted herein. LivePerson reserves the right to discontinue or disable certain features and/or functionality of the Hosted Services that are outdated or otherwise not generally used by LivePerson customers. All rights not granted herein are hereby reserved by LivePerson.
7. Company’s Acceptable Use of the Services. Company agrees that it will not (a) modify, decompile, disassemble or reverse engineer, or cause or permit any other party to modify, decompile, disassemble or reverse engineer, LivePerson's software, technology and/or other services; (b) sublicense any intellectual property of LivePerson to third parties or sell, resell, rent, sublicense or lease the Services or any Software to third parties; (c) otherwise violate the license grant or restrictions set forth in Section 6 above; (d) use the Services to store or transmit malicious code; (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; (f) attempt to gain unauthorized access to the Services or their related systems or networks; (g) alter, copy, move or delete any tags or code placed as part of the Services except as provided for in Section 4; (h) place tags on website pages not pre-approved by LivePerson in writing; or (i) misappropriate any of LivePerson’s software, technology or other services or use the Services to create competing products or services. Company shall ensure that its implementation and use of the Services complies with all laws and regulations applicable to Company's business and geographic locations, and shall inform LivePerson if such compliance requires any modification to LivePerson's standard Services offerings. Upon Company’s request, LivePerson will endeavor to support Company's specific requirements for compliance with applicable laws and regulations, and any modification to LivePerson's standard Services offerings requested or required by Company may require professional services work by LivePerson and/or additional fees.
9. Intellectual Property Rights. As between LivePerson and Company, LivePerson has and shall retain all rights to its Services and Software (including without limitation any materials or code provided as part of the Professional Services), Brands, technologies, information, trade secrets, know how, intellectual property, information and data generated by LivePerson or LivePerson's systems, whether pre-existing, or created after the Effective Date, including any modifications, enhancements and derivatives thereof (including, without limitation, metrics, data and information generated by such Services and software), without regard to the basis of such modifications, enhancements or derivations. No implied licenses are granted herein to any of the foregoing.
10. Confidential Information. LivePerson and Company understand and agree that in connection with the negotiation and performance of this Agreement, each party may have had or gain access to or may have been or be exposed to, directly or indirectly, private or confidential information of the other party, including, but not limited to, trade secrets, computer programs and code, scripts, algorithms, features and modes of operation, inventions (whether or not patentable), techniques, processes, methodologies, schematics, testing procedures, software design and architecture, design and function specifications, analysis and performance information, documentation, details of its products and services, know-how, ideas, and technical, business, financial or marketing information, models, pricing, plans and strategies, as well as names and expertise of, and information relating to, vendors, employees, consultants, customers and prospects and any other information that the receiving party reasonably should know is confidential (“Confidential Information”). Each party agrees to hold and treat all Confidential Information of the other party in confidence and will protect the Confidential Information using all reasonable efforts, but in any event not less than the same degree of care as such party uses to protect its own Confidential Information of like nature. The Confidential Information will not, without the prior written consent of the other party, be disclosed to any third party except that the receiving party may disclose the Confidential Information or portions thereof to (a) its directors, officers, employees, agents and representatives on a need-to-know basis, so long as each such recipient agrees to be bound in writing to maintain the confidentiality of such information as set forth herein, or (b) as may be required by law, applicable regulation or judicial process, provided, however, that if the receiving party is required to disclose such Confidential Information under this clause (b), the receiving party shall promptly notify the disclosing party of such pending disclosure and consult with the disclosing party prior to such disclosure as to the advisability of seeking a protective order or other means of preserving the confidentiality of the Confidential Information. Notwithstanding anything contained herein to the contrary, Confidential Information does not include any information that (i) at the time of the disclosure or thereafter is lawfully obtained from publically available sources generally known by the public (other than as a result of a disclosure by the receiving party or its representatives); (ii) is available to the receiving party on a non-confidential basis from a source that is not and was not bound by a confidentiality agreement with respect to the Confidential Information; or (iii) has been independently acquired or developed by the receiving party without violating its obligations under this Agreement or under any federal or state law, and without using any Confidential Information. This Section shall supersede any previous agreement relating to confidential treatment and/or non-disclosure of Confidential Information; provided, however, that any information disclosed pursuant to that earlier agreement shall be deemed to be Confidential Information and protected under the terms of this Agreement as if this Agreement had been in place at the time of such disclosures.
12. Limitation of Liability.
12.1. EXCEPT FOR ANY COMPANY USE OF THE SERVICE OR SOFTWARE IN VIOLATION OF SECTIONS 7 OR 8 OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OR DELAY OF USE, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF DATA, ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR THE SERVICES. NEITHER PARTY SHALL BE LIABLE FOR ANY ACTS OR OMISSIONS OF THIRD PARTIES. IN THE EVENT THAT APPLICABLE LAW DOES NOT ALLOW THE LIMITATION OF LIABILITY AS SET FORTH ABOVE, THIS LIMITATION WILL BE DEEMED MODIFIED SOLELY TO THE EXTENT NECESSARY TO COMPLY WITH APPLICABLE LAW.
12.2. IN NO EVENT SHALL LIVEPERSON BE LIABLE FOR ANY CAUSE OR CLAIM WHATSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT IN EXCESS OF THE AMOUNTS LIVEPERSON HAS BEEN PAID HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. IN THE EVENT THAT APPLICABLE LAW DOES NOT ALLOW THE LIMITATION OF LIABILITY AS SET FORTH ABOVE, THIS LIMITATION WILL BE DEEMED MODIFIED SOLELY TO THE EXTENT NECESSARY TO COMPLY WITH APPLICABLE LAW.
12.3. THE FOREGOING LIMITATIONS AND EXCLUSIONS WILL APPLY REGARDLESS OF WHETHER THE CAUSE OF ACTION ARISES IN CONTRACT, IN TORT OR OTHERWISE AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY OR NEGLIGENCE.
13. Indemnity. If a third party claims against LivePerson that (a) Company's intellectual property or content provided to LivePerson infringes such third party's US patent issued as of the Effective Date, US copyright or trademark; (b) the third party has been damaged by an act or omission constituting Company's breach of this Agreement; or (c) the third party has been damaged from Company's use of the Services under this Agreement, Company will defend, indemnify and hold LivePerson harmless from and against that claim at Company's expense and pay all costs, damages and reasonable attorney's fees finally awarded by a court of competent jurisdiction.
14. Force Majeure. The parties shall not be liable to each other or any other person for any delay or failure in the performance of this Agreement or for loss or damage of any nature whatsoever suffered by such party due to disruption or unavailability of communication facilities, utility or Internet service provider failure, acts of war, acts of terrorism, acts of vandalism, lightning, fire, strike, unavailability of energy sources or any other causes beyond the party's reasonable control.
15. Data Storage. Chat transcripts generated by the Services during the most recent thirteen (13) month period, as measured at any given point in time, will be available online.
16. Login. Company shall maintain the login name and password in confidence and shall not share the login information with any third party. Company shall be responsible for any and all activity on the login, regardless of whether such activity was performed or approved by Company.
17. Independent Applications. From time to time, third party software applications, plug in or other add-on online applications that integrate, interoperate or interact with LivePerson’s Services (“Applications”) may become available. If Company chooses to install, access or enable an Application, Company agrees that the third party Application provider may acquire access to Company’s account data and information data as required for the interoperation or integration of such Application and Applications are not, for the avoidance of doubt, considered Services under this Agreement and are not maintained, monitored, tested, controlled, endorsed, provided, verified, validated or reviewed by LivePerson. Accordingly, such Applications are governed by their own terms and conditions and are not considered Services under this Agreement. Company assumes full responsibility for any damages, losses, costs, or harms arising from the use of or inability to use such Applications. To the extent permitted by law, LivePerson disclaims all liabilities with respect to Company’s use of or inability to use such Applications and the performance or non-performance of such Applications (including direct, indirect, incidental, punitive or consequential damages). LivePerson has no obligation to monitor such Applications and does not control or endorse the content, messages or information found in such Applications and specifically disclaims any liability with regard to such content, messages or information. LivePerson does not monitor or control such Applications limitation, suspension or termination of their services and specifically disclaims any liability with regard to such Applications service limitation, suspension or termination. EXCEPT AS EXPRESSLY WARRANTED IN THIS AGREEMENT, ALL SUCH APPLICATIONS SERVICES ARE PROVIDED "AS IS" AND LIVEPERSON HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO SUCH APPLICATIONS SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
18. Labs Applications. During the Term, LivePerson may offer to Company the right to use certain experimental applications and/or plug-ins that are made available to Company by LivePerson on a test basis and are identified by LivePerson as “Labs Applications” or “Labs”. All Labs Applications are being provided by LivePerson on an “as is” basis, without any representations, warranties, covenants or obligations of any kind. Any use by Customer of Labs Applications is solely at Customer’s own risk. LivePerson may modify or remove any Lab Application at any time without notice or liability to Customer. This Section 18 will apply if Company purchases, receives, accesses or otherwise uses, directly or indirectly, any Labs Application. All of Company’s rights related to Lab Applications shall commence upon the effective date of the applicable Labs Application order form and shall automatically terminate upon the earlier of: expiration or termination of this Agreement, six (6) months from the effective date of the applicable Labs Application order form (unless the parties agree in a signed writing to a longer term or a renewal term), or receipt of notice of termination from LivePerson with or without cause.
19. Entire Agreement. This Agreement, together with the Order Form or the Registration Process, as applicable, contains the entire agreement of the parties, and supersedes any and all previous agreements addressed herein or with respect to the subject matter hereof, whether oral or written.
20. Notices. Subject to Section 21 below, all notices shall be in writing and shall be sent by certified mail, return receipt requested, or by wire communications (e.g., facsimile) to the respective contact at the following address: To Company, at the address LivePerson has on file and if to LivePerson, at 475 Tenth Avenue, Fifth Floor, New York, NY 10018, Attention: General Counsel. Subject to Section 21 below, the effective dates of such notice shall be (1) upon evidence of a successful facsimile transmission, or (2) five days following the date of mailing for certified or registered letters and two days following the date sent for overnight letters. The above addresses may be changed at any time by giving prior written notice as above provided.
21. Miscellaneous. LivePerson hereby rejects any terms or conditions appearing on any purchase order or other supplements that are in addition to, or different from, the terms and conditions of this Agreement (“Modifications”), and the parties agree that all such Modifications shall be void and of no force or effect. Use of one or more of the Services shall indicate Company’s agreement with these terms without modification. This Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement may not be assigned by Company without LivePerson's prior written consent, such consent not to be unreasonably withheld. LivePerson may assign this Agreement to any successor to its business in whole or in part without requiring any consent or notice to Company. No failure by either party to exercise or enforce any rights under any Service Term shall act as a waiver of such rights. Company acknowledges that the Services contain features to monitor user behavior and Company will provide notice of such monitoring behavior to Company’s customers and users in accordance with Company's obligations herein and under applicable law. For the avoidance of doubt, Company shall not bring any claim of intellectual property infringement against LivePerson with respect to any of LivePerson’s software, technology or other services. The parties are independent contractors and neither this Agreement nor the performance of Services shall create an association, partnership, joint venture, or relationship of principal and agent, master and servant, or employer and employee, between the parties; and neither party will have the right, power or authority (whether expressed or implied) to enter into or assume any duty or obligation on behalf of the other party. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and the unenforceable provision shall be interpreted so as to render it enforceable while approximating the parties’ intent as closely as possible. This Agreement shall be governed in all respects, including validity, interpretation and effect, by the laws of the State of New York and exclusive venue shall be in the courts of the State of New York. Each party expressly waives its right to a trial by jury. The application of the UN Convention on Contracts for International Sale of Goods is expressly excluded. This Agreement should not be construed in favor of or against any party by reason of the extent to which any party or its professional advisors participated in preparation or drafting of this Agreement. MODIFICATIONS TO THIS AGREEMENT MAY BE MADE BY LIVEPERSON AT ANY TIME. THE MODIFIED AGREEMENT WILL BE EFFECTIVE IMMEDIATELY UPON POSTING ON THE LIVEPERSON WEBSITE AND COMPANY AGREES TO THE NEW POSTED AGREEMENT BY CONTINUING THE USE OF THE SERVICES. LIVEPERSON WILL USE REASONABLE EFFORTS TO NOFITY CUSTOMER OF MODIFICATIONS THAT ARE MATERIAL TO COMPANY’S USE OF THE SERVICES OR SOFTWARE, WHICH MODIFICATION MAY BE PROVIDED BY EMAIL OR A NOTIFICATION POSTED TO COMPANY’S ACCOUNT. IF YOU DO NOT AGREE WITH THE MODIFIED AGREEMENT, COMPANY'S ONLY REMEDY IS TO (A) DISCONTINUE USING THE SERVICES AND DISCONTINUE USING ANY AND ALL INDEPENDENT APPLICATIONS, ADAPTERS AND LABS APPLICATIONS, AND (B) TERMINATE THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof. Sections 2, 4, 9 through 13 and 19 through 21 and the limitations set forth in Sections 17 and 18 shall survive the expiration or termination of this Agreement.
Dated as of May, 2013