End User License Agreement
By completing the registration process either online or via an order form (the “Registration Process”) or by downloading, installing, or using any Services (defined below), you, on behalf of your company (“Company”), agree to be bound by the terms of this End User License Agreement (the “Agreement”) with LivePerson, Inc. (“LivePerson”). LivePerson will provide to Company the Services under the terms of this Agreement.
“APIs” mean LivePerson proprietary interface elements, application program interfaces and/or software development kits, and the related documentation, data, code, sample applications and materials.
“Confidential Information” means 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, as well as names and expertise of, and information relating to, vendors, employees, consultants, customers and prospects, know-how, ideas, and technical, business, pricing information, financial and marketing information and strategies and any other information that the recipient reasonably should know is confidential.
“Content” means an engagement that presents information or offers to targeted visitors in the form of text, images, video or similar.
“Effective Date” means the date Company completes the Registration Process or downloads, installs, or begins using the Services.
“Initial Term” means the term set forth during the Registration Process or download process, as applicable, or, if not specified, a term commencing on the Effective Date and ending on the last day of the third full month thereafter.
“Labs Applications” mean experimental applications and/or plug-ins made available to Company by LivePerson on a test basis.
“LivePerson Intellectual Property” means the Services and software (including without limitation any materials or code provided as part of the professional services), trademarks and icons, 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).
“Renewal Term” means consecutive renewal terms equal to the length of the Initial Term or longer if otherwise agreed by the parties.
“Services” mean any LivePerson hosted services, mobile applications or features, APIs (defined herein), professional services, products and/or content.
“Term” means the Initial Term and any Renewal Terms.
“Third-Party Offerings” mean plug-in or add-on third party services or applications that integrate, interact or interoperate with the Services.
2. Proprietary Rights and Licenses
So long as Company is in full compliance with this Agreement, LivePerson grants to Company during the Term a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to: (i) access and use the Services provided by LivePerson solely for its internal business purposes of communicating with, engaging with and delivering Content to consumer end users; and (ii) use any professional services deliverables provided by LivePerson solely in connection with the applicable hosted service. Use of the APIs is also governed by the terms available at https://www.liveperson.com/policies/apitou and any additional terms in the README file associated with any API repository LivePerson makes available on GitHub or any other repository hosting service. The Services may utilize certain open source software. Copyright information for some of the open source licenses may be found in the README file made available with the mobile feature or application or at https://www.liveperson.com/policies/opensources-app-mobile-agent. LivePerson shall retain all right, title, and interest in and to LivePerson Intellectual Property, including without limitation all ownership and proprietary rights. Company acknowledges and agrees that Company’s rights in LivePerson Intellectual Property are solely as described in this Section 2 and do not include any right of ownership in any of LivePerson Intellectual Property. Company is not permitted to change or modify LivePerson Intellectual Property. Without limiting the foregoing, in the event of any change, modification, extension or correction thereof, Company hereby irrevocably assigns to LivePerson any and all rights it may be deemed to have in any such change, modification, extension or correction, and agrees to execute all documents necessary to implement and effect such assignment.
3. Use of Our Services
Company shall not: (a) modify, decompile, disassemble, reverse engineer or misappropriate (or cause or permit any other party to do so) the Services; (b) sell, resell, rent, sublicense or lease any intellectual property or Services of LivePerson to third parties; (c) use the Services to store or transmit malicious code; (d) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; (e) attempt to gain unauthorized access to the Services or their related systems or networks; (f) alter, copy, move or delete any tags or code placed as part of the Services, except as provided in Section 5; (g) place tags on website pages not pre-approved by LivePerson in writing; (h) misappropriate any of LivePerson’s software, technology, or other services, or create competing products or services (or permit, enable or assist any third party to do so); or (i) use the Services to store or produce telephone numbers to be called, using a random or sequential number generator, and dial such numbers. LivePerson may use information about user activity on Company and third-party websites, applications and other platforms, systems and products to, among other things, provide, enhance and secure the Services (and related products and services). Company is responsible for all activity on its account and shall not share its login information with any third party.
4. Fees and Payments
Company will pay all fees as specified in the Registration Process or download process, as applicable, in advance within 30 days of the invoice date. Except as specified herein, payment obligations are non-cancelable and fees paid are non-refundable. All fees are exclusive of any applicable taxes for which Company is responsible. Each account includes a 15-day money-back guarantee. No refunds will apply following this 15-day period. Customers are invoiced and must remit payment before services are provided. If billed monthly, invoices are added to Company’s billing portal on or around the first day of each month for the next month’s Services. Payments by credit card are on a pre-paid basis only, for the timeframe specified in the Registration Process or download process, as applicable. Company is responsible for providing complete and accurate billing and contact information and notifying LivePerson of any changes. If credit card charges for the Services are denied for any reason, Company’s use of the Services will be terminated without notice. 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. Company will be responsible for all costs incurred by LivePerson for collecting overdue amounts, including attorneys’ fees and collection agency fees. LivePerson may increase or modify fees for each Renewal Term without notice. If Company purchases an upgraded package at any time during the Term, the upgrade remains in effect for the remainder of the Term and any Renewal Term(s). Company may downgrade its purchased package only by notifying LivePerson at least 90 days prior to the expiration of the Term. Accounts under a free or paid licensing model for one to three users: (i) may not include full features and/or support; (ii) are not eligible for live support; and (iii) are subject to a cap of 150 Content-based engagements with consumers per month (for example, website visitors). If a Company exceeds the Content cap, LivePerson may, in its sole discretion at any time, terminate or suspend Company’s account and/or charge Company for each Content-based engagement at a rate of US $1.48 per engagement, which is subject to change.
If Customer wishes to: (a) order additional seats or Services, or (b) make minor modifications to an order form to amend or update commercial terms, these can be implemented via email confirmation by customer in response to an authorized email generated by LivePerson Finance containing the mutually agreed amendments. Upon such email confirmation, Customer is deemed to have accepted the modifications and agrees, upon provisioning of any Service upgrade, to pay the additional Service fees for the remainder of the current term and any renewals terms.
5. Term and Termination
This Agreement commences on the Effective Date and continues for the Initial Term, unless terminated earlier pursuant to this section, and automatically renews for consecutive Renewal Terms. (If Company activated its account on or after December 1, 2015, the Initial Term is one year.) Regardless of activation date, either party may terminate this Agreement upon written notice: (i) at least 30 days prior to the expiration of the Term (or in accordance with the notice period specified in the Registration Process or download process, as applicable); or (ii) if the other party commits a material breach of this Agreement that has not been cured within 30 days of written notice of such breach. LivePerson may terminate this Agreement immediately if Company breaches Section 2, 3, or 4. Company shall remove all materials, tags and code placed on Company’s website and in Company’s mobile application as part of the Services within 24 hours of termination or expiration of the Agreement. Company remains responsible for the fees for the remainder of the then-current Term, which LivePerson shall bill in one charge immediately upon termination. Termination requests must be made in writing via chat with the LivePerson team and are not accepted by phone or by email.
6. Labs Applications
From time to time, LivePerson may offer Labs Applications for use with the Services. This Section 6 will apply if Company purchases, receives, accesses or otherwise uses, directly or indirectly, any Labs Applications. Company’s rights related to Labs Applications shall commence upon the effective date of the applicable Labs Application order form and automatically terminate upon the earlier of: (a) expiration or termination of this Agreement; (b) 6 months from the effective date of the applicable Labs Application order form (unless the parties agree to a longer term or renewal term in writing); or (c) receipt of notice of termination. Labs Applications may be discontinued at any time, with or without cause.
ALL LABS APPLICATIONS ARE PROVIDED ON AN AS-IS BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR OBLIGATIONS ON LIVEPERSON’S BEHALF. LIVEPERSON DISCLAIMS ALL WARRANTIES AND CONDITIONS REGARDING SUCH LABS APPLICATIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Company assumes full responsibility for any damages, losses, costs or harms arising from its use or inability to use Labs Applications and/or the performance or non-performance of such Labs Applications, and, to the extent permitted by law, LivePerson hereby disclaims all liability regarding the foregoing.
7. Confidential Information
Each party understands and agrees that, in connection with this Agreement, a party may have had or gain access to or may have been or be exposed to, directly or indirectly, Confidential Information of the other party. The recipient of such Confidential Information agrees to hold and treat all Confidential Information of the discloser in confidence and shall use at least reasonable care (but in no event less than the same degree of care as the recipient uses to protect its own Confidential Information of a similar nature) to prevent disclosure of Confidential Information. Each party may disclose Confidential Information of the other party, without such party’s prior written consent, to third parties with a legitimate need to know who are bound by similar written confidentiality obligations. If Confidential Information is required to be disclosed pursuant to applicable law, regulation or court order, the recipient must provide prompt advance notice thereof, to the extent legally permissible, to enable the discloser to seek a protective order or otherwise prevent such disclosure. The recipient shall not use the discloser’s Confidential Information for purposes other than to carry out its obligations under this Agreement. Each party acknowledges that unauthorized disclosure of the other party’s Confidential Information may cause irreparable harm to the other party and would entitle the other party to seek injunctive relief upon disclosure or threatened disclosure, in addition to any other remedies at law to which the party may be entitled.
If a third party claims against LivePerson that: (a) Company’s intellectual property or content provided to LivePerson infringes such third party’s intellectual property right or violates such third party’s protected right; (b) the third party has been damaged by an act or omission by Company in breach of this Agreement; or (c) the third party has been damaged by Company’s use of the Services, Company shall defend, indemnify and hold LivePerson harmless from and against such claim(s) at Company’s expense and shall pay all of LivePerson’s costs, damages, and attorney’s fees arising out of or relating to such claims. If LivePerson deems necessary, it may engage separate counsel at its own expense.
9. Limitation of Liability
EXCEPT FOR COMPANY’S VIOLATIONS OF SECTION 2, 3, OR 7 OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE, REGARDLESS OF THE CAUSE OF ACTION, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR THE SERVICES. IN NO EVENT SHALL LIVEPERSON BE LIABLE FOR: (A) 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 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE; (B) ANY ACTS OR OMISSIONS OF THIRD PARTIES; OR (C) ANY THIRD PARTY SERVICES, CODE, TECHNOLOGY, APPLICATIONS, POLICIES, PROCEDURES, OR PRODUCTS. IF APPLICABLE LAW DOES NOT ALLOW ONE OF THE ABOVE LIMITATIONS OF LIABILITY, SUCH LIMITATION WILL BE DEEMED MODIFIED SOLELY TO THE EXTENT NECESSARY TO COMPLY WITH APPLICABLE LAW.
10. Representations, Warranties and Disclaimers
11. Additional Mobile Terms
Company acknowledges that mobile applications may automatically download and install updates, upgrades, and additional features and that LivePerson may not support previous versions. Certain information or data relating to such mobile features or applications, such as messaging transcripts, may be stored locally on the mobile device used to access the Services. Company is solely responsible for the management and deletion of such locally stored information.
Company agrees that if it elects to use Short Messaging Service (“SMS”), Company will comply with any regional, national and/or international consumer consent and/or opt-in and opt-out requirements, industry best practices and all laws applicable to its business use of SMS, including, but not limited to, obtaining prior and maintaining valid consumer consent to receive SMS messages.
The mobile features or applications are not intended to provide telecommunications services, and Company may not use the mobile features or applications in any country that would deem LivePerson a telecommunications provider or a regulated entity as a result of the use of the mobile features or applications in such country. LivePerson reserves the right to refuse to allow a user to open an account or to limit the number of accounts a user can establish on its mobile applications, at its sole discretion.
Company agrees that it must provide at its own expense the equipment, mobile devices, Internet connection and/or service plans to access and use the Services. LivePerson does not guarantee that the Services can be accessed on all devices or wireless service plans or that they are available in all geographic locations. Company acknowledges that when using mobile features or applications, wireless carriers may charge fees for data, messaging and/or other wireless access. COMPANY IS SOLELY RESPONSIBLE FOR ANY COSTS INCURRED TO ACCESS THE SERVICES FROM MOBILE DEVICES.
12. Third-Party Offerings
If Company uses its own or third-party code, applications, services or technology in connection with its use of the Services, LivePerson will not support or be responsible for such code, applications, services or technology. If Company chooses to install, access or enable a Third-Party Offering, Company agrees that LivePerson may share with and receive from the third-party provider certain messaging and other data as needed for the interoperation or integration of such Third-Party Offering and that the third-party provider’s use of such data is governed by Customer’s separate agreement with such third-party provider. Third-Party Offerings are not maintained, monitored, tested, controlled, endorsed or reviewed by LivePerson, are governed by their own terms and conditions, and are not included within the definition of Services under this Agreement. Third-Party Offerings may be discontinued at any time, with or without cause. For the avoidance of doubt, in no event shall LivePerson be required via the integration to permit, directly or indirectly, misuse of a party’s data or other intellectual property.
Company assumes full responsibility for any damages, losses, costs or harms arising from the use of or inability to use such Third-Party Offerings. With respect to Company’s or third parties’ technologies or services used or integrated with the Services (including Third-Party Offerings), Company or the applicable third party will be and remain responsible for their respective services, technologies and personnel, and all matters related thereto. LivePerson does not monitor or control the service limitation, suspension or termination of such technologies and/or services and specifically disclaims any liability with regard to such service limitation, suspension or termination. Company acknowledges that if it wishes to turn off or stop using certain Third-Party Offerings, Company may be required to contact the third-party provider to do so. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE EXTENT PERMITTED BY LAW, ALL SUCH THIRD-PARTY OFFERING SERVICES ARE PROVIDED "AS IS" AND LIVEPERSON HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND OTHER TERMS AND CONDITIONS WITH REGARD TO SUCH THIRD-PARTY OFFERING SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
13. Sanctions and Export Compliance
In some countries, there are restrictions on the download and use of software, products, and services. Company is responsible for ensuring that it is legally allowed to use the Services where it is located and operates. Company represents and warrants that (i) it is not located in nor will it export or re-export the Services into (or to a national or resident of) a country that is subject to a restriction or embargo issued by a national government or similar body or that has been designated by a national government or similar body as a terrorist-supporting country; and (ii) it is not listed on nor will it export or re-export the Services to a national or resident listed on any list of prohibited or restricted parties issued by a national government or similar body.
This Agreement, together with the Registration Process and/or download process, as applicable, contains the entire agreement of the parties and supersedes any and all previous agreements with respect to the subject matter hereof, whether oral or written. Any modifications to this Agreement appearing on Company’s purchase order or other supplements shall be null and void. All notices must be sent in writing by personal delivery or by certified mail, return receipt requested, to the following addresses: If to Company, to the address LivePerson has on file. If to LivePerson, to 475 Tenth Avenue, 5th Floor, New York, NY 10018, Attention: General Counsel. The effective date of such notice shall be either upon personal delivery or 5 days following the date of mailing. The above addresses may be changed by giving prior written notice as described herein. This Agreement shall be binding on and inure to the benefit of the parties, their respective successors and permitted assigns. The parties are independent contractors. LivePerson shall not be liable for any delay or failure in the performance of this Agreement or for loss or damage of any nature due to disruption or unavailability of communication facilities, utility or internet service provider failure, acts of war, terrorism or vandalism, lightning, fire, strike, unavailability of energy resources or any other causes outside its reasonable control. LivePerson may use Company’s name, brands and trademarks in connection with or relating to the Services and for marketing and promotional purposes. LIVEPERSON MAY POST AN UPDATED AGREEMENT ON THE LIVEPERSON WEBSITE AT ANY TIME, AND, TO THE EXTENT PERMITTED BY LAW, SUCH MODIFICATIONS WILL BE EFFECTIVE IMMEDIATELY AND (IF LEGALLY PERMITTED), SHALL APPLY RETROACTIVELY. COMPANY AGREES TO THE MODIFIED AGREEMENT BY CONTINUING TO USE THE SERVICES. This Agreement shall be governed 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. Sections 2, 4-10 and 14 shall survive the expiration or termination of this Agreement.
15. Additional Terms for WhatsApp
If Company elects to use LivePerson’s integration (“WhatsApp Integration”) between LiveEngage and WhatsApp, Company agrees to the WhatsApp Business Solution Terms and any additional policies and documents referenced or incorporated by reference therein (“WhatsApp TOS”), and agrees that WhatsApp can enforce the WhatsApp TOS directly or through LivePerson as the WhatsApp service provider. Company shall defend, indemnify and hold LivePerson harmless from and against any liability that LivePerson may have as a result of Company’s use of the WhatsApp Integration or WhatsApp, or breach of the WhatsApp TOS. Further, Company understands and agrees that by accessing and using the WhatsApp Integration: (a) Company authorizes LivePerson to share messaging data with WhatsApp for product interoperation; (b) the WhatsApp TOS cover WhatsApp’s use of messaging data and WhatsApp’s support, security and other commitments to Company related to WhatsApp; and (c) LivePerson is not liable for third party acts, omissions, services, applications, technology, policies or procedures including, without limitation, those related to WhatsApp. Company will comply with any applicable consent and opt-in/opt-out requirements, including obtaining prior and maintaining valid consumer consent to send and receive WhatsApp messages.
While the WhatsApp Integration has been carefully tested and is believed to be free of bugs, because it is an early release product, it has not received the same level of testing and review as a final public release and it is possible that additional product support, bug fixes, enhancements and development may be required. Early release support may be limited and response times for any issues that Company reports will be defined and handled by LivePerson on a case-by-case basis. Certain aspects of the account management process, including brand number management, profile management, and template management, will be manual processes during the early release stage. Company agrees that (i) as an early adopter, Company may be required by WhatsApp to utilize WhatsApp proactive notifications with the WhatsApp Integration, and (ii) Company will be using LivePerson’s LiveDeflect feature to send such proactive messages. LivePerson may at any time upon notice to Company set volume restrictions for proactive notifications.
LivePerson does not currently plan to charge Company additional fees for use of the WhatsApp Integration, however: (i) Company’s messages with consumers via the WhatsApp integration will consume engagement credits per Company’s binding agreement with LivePerson, and (ii) if Company’s use of WhatsApp Message Template Messages (“MTM”) results in fees in a particular month in excess of fifty percent (50%) of Company’s monthly subscription fees to LivePerson, LivePerson has the right to immediately invoice Company for the full amount of MTM as described here plus a fifteen percent (15%) management fee at such time and in future invoice periods.
Updated on December 17, 2018