Directly Master Subscription Agreement
This Directly Master Subscription Agreement, together with the order form (“Order Form”) signed by the parties (“Agreement”) sets forth the terms under which Directly Software, Inc. (“Directly” or “we”) will provide the services identified in the Order Form (“Services”) to the company identified on the Order Form (“Company” or “you”) that incorporates this Agreement. This Agreement will become effective on the effective date set forth on the Order Form (“Effective Date”).
Technology. Directly provides a platform that allows you or your users, customers, partners, resellers, distributors, developers, and community members (collectively, “Users”) to create, view and complete questions, cases, tickets and other types of tasks (“Requests”).
User Content. The content that is provided to Directly by or on behalf of Company or created by your Users during the creation and completion of these Requests (“User Content”) belongs to you. We provide the technology and help optimize the routing and resolution of these Requests, but like all social platforms, do not take responsibility for any User Content or for any actions taken by Users when creating or completing Requests.
Pricing. Our pricing is performance-based: you place a reward on Requests that Users can earn if they complete Requests. We retain 30% of each reward as our fee and pay 70% of the reward to the User(s) that completes the Request. We pay Users after each Request is completed and report reward activity to you at the end of each month. Because you control the number of Requests submitted and the reward on each Request, you make a refundable deposit against these rewards and true it up as needed.
If you agree with the general principles above, you’ll find the Agreement straightforward.
1. Services. In this Section, we commit to providing the Services to you, we give you a license to our technology for integrating our Platform with your systems, and we describe the restrictions in using the Services.
1.1 Provision of Services. Subject to the terms and conditions of this Agreement and effective as of the Effective Date, Directly hereby grants to Company a nonexclusive, non-transferable right to access and use the Directly systems that Directly makes available to provide the Services (“Platform”) during the term specified in the Order Form (“Term”), via the software applications provided by Directly (e.g., Salesforce and Zendesk apps) and the APIs specified by Directly (“Integration Tech”). Directly will provide the Services and will use reasonable efforts to not transmit any harmful code. The Services expressly exclude any activity of any User, including in connection with any Request.
1.2 License. Subject to the terms and conditions of this Agreement, Directly hereby grants to Company a non-exclusive, non-transferable, non-sublicenseable license to copy and execute the Integration Tech on Company’s servers solely for the business purposes of integrating Company’s application(s) and website(s) with the Platform and using the Services.
1.3 Restrictions. Except as otherwise expressly permitted under this Agreement, Company agrees not to: (a) reverse engineer (except to the limited extent required to be permitted by mandatory applicable law notwithstanding contractual prohibition) or otherwise attempt to discover any source code of or trade secrets embodied in the Platform or the Integration Tech; (b) distribute, transfer, grant sublicenses to, sell, resell, rent, lease or otherwise make available any Services, Platform, or Integration Tech to third parties; (c) create modifications to or derivative works of the Platform or the Integration Tech; (d) access, use, or copy any aspect of the Platform or Integration Tech or any portion of the Services or related documentation to develop, promote, distribute, sell or support any product or service that is competitive with the Services; (e) use the Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (f) use the Services to store or transmit malware; (g) interfere with, disrupt the integrity or performance of, or attempt to gain unauthorized access to, the Platform.
2. Company Users. This Section describes the relationships with Users and the terms to which they agree.
2.1 User Terms of Service. Directly will include the following provisions in its Terms of Service (“Terms of Service”) to which Users who register to respond to Requests are required to agree: (a) a prohibition on the User engaging in harassing or offensive conduct; (b) provisions that the User is responsible for, and indemnifies Directly and Company for, any User Content; (c) a limitation on liability; (d) a statement that Company is a third party beneficiary of the Terms of Service; (e) a statement that the User’s intellectual property rights in the User Content are assigned to Directly or Company, and licensed back to the User in connection with Requests; (f) a waiver of all “moral rights” that User may have in or with respect to any User Content; (g) a provision that nonpublic Company-provided information is Company’s confidential information, which the User will only use or disclose to view or complete Requests; (h) a provision that the User is not an employee or agent of Directly or Company; (i) a requirement that the User provide for and maintain their own equipment and Internet connectivity; (j) a provision that all disputes arising or related to the Terms of Service will be resolved by binding arbitration; and (k) a class action waiver stating that any claim related to the Services will proceed solely on an individual basis without the right for any such claim to be decided, in arbitration or otherwise, on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of another. If Company elects to certify a subset of Users to complete certain types of Requests, Company may require such Users to agree to additional terms and conditions.
3. Rewards and Payment. This Section describes how Rewards are paid, minimum requirements, and advance Deposits for Rewards.
3.1 Rewards. Company will set a reward that is equal to or greater than the “Minimum Reward” specified in the Order Form that Company will pay when User(s) complete a Request (“Full Reward”). Company and Directly may also set a reward (which may be lower than the Minimum Reward) that Company will pay when User(s) partially complete a Request or when User Content previously created is used to complete a Request (“Partial Reward”, which, along with “Full Reward”, is a “Reward”). The parties will agree to criteria for determination of completion or partial completion of a Request. Directly will retain thirty percent (30%) of each Reward (the “Directly Share”) and will pay to the applicable User(s) the remaining seventy percent (70%) of the Reward (the “User Share”). If the Directly Share of all Rewards in a month (the “Monthly Total”) is less than the minimum amount described in the Order Form (the “Monthly Minimum”), Company will pay to Directly the difference between the Monthly Total and the Monthly Minimum.
3.2 Deposit. Prior to Directly allowing any Requests to be created, and no later than the “Commencement Date” identified in the Order Form, Company will pay Directly the deposit amount identified in the Order Form as a deposit against Rewards under this Agreement (the “Deposit”) and will pay Directly additional amounts from time to time to maintain the Deposit at an amount that is equal to or greater than the sum of the then-prior three (3) months’ Rewards. Directly will not be required to escrow or otherwise keep the Deposit separate from other money, and will use the Deposit to pay User Shares to Users and to credit Directly Shares to Directly.
3.3 Payment Terms. Before the end of each month, Directly will deliver to Company an invoice of all Rewards accrued in the prior month, and Company will pay such invoice within thirty (30) days.
4. Intellectual Property. This Section describes rights to User Content and confidentiality.
4.1 General. Each party and its suppliers will retain all ownership rights in and to such party’s trademarks, technology, and other intellectual property. Any goodwill associated with the use of any trademarks of a party belongs exclusively to such party. No rights are granted to either party hereunder other than as expressly set forth herein. Directly may use (including in the Services, Platform, and Integration Tech), without limitation, any suggestions, recommendations, or other feedback provided by Company in connection with this Agreement.
4.2 User Content. All User Content will be the sole and exclusive property of Company. Directly hereby irrevocably transfers and assigns to Company all of its right, title and interest in and to any User Content, including all intellectual property rights therein. Company hereby grants to Directly a perpetual, irrevocable license to (a) reproduce, create derivative works of, distribute, display, and perform all User Content in connection with performing and improving the Services and exercising its rights hereunder, and (b) grant to each User who submitted or responded to a Request, a perpetual, irrevocable license to, subject to the confidentiality obligations in the Terms of Service, reproduce, create derivative works of, distribute, display, and perform the User Content related to such Request.
4.3 Confidentiality. “Confidential Information” means non-public information pertaining to a party’s business and (a) disclosed by such party (the “Discloser”) to the other party (“Recipient”) and marked as confidential, or (b) collected by the Recipient in connection with this Agreement. Confidential Information of Company will include non-public User Content and Confidential Information of Directly will include non-public information about the Services, Platform, Integration Tech, and the documentation of any of the foregoing, regardless of any confidentiality marking. Recipient will use reasonable care to protect the confidentiality of Discloser’s Confidential Information. Recipient will use the Confidential Information of Discloser only to exercise rights and perform obligations under this Agreement. Directly may disclose the User Content related to a Request to the Users involved (or potentially involved) in such Request. Directly may collect and use data pertaining to the use of the Services to deliver the Services and exercise its rights hereunder, and may disclose high-level statistics regarding such usage data (such as average response times) based on aggregated data that in no way identifies Company or any particular User. During the Term, Directly may use Company’s name and logo to identify Company as a Directly customer in Directly’s customer lists. Recipient will not be liable to Discloser for the release of Confidential Information if such information: (i) was known to Recipient on or before the Effective Date without restriction as to use or disclosure; (ii) is released into the public domain through no fault of Recipient; (iii) was independently developed solely by the employees of Recipient who have not had access to Confidential Information; or (iv) is divulged pursuant to any legal proceeding or otherwise required by law, provided that, to the extent legally permissible, Recipient will notify Discloser promptly of such required disclosure and reasonably assists Discloser in efforts to limit such required disclosure.
4.4 AI Training. Directly may use content and data from multiple sources, including User Content and usage data generated in connection with this Agreement, to train and improve its artificial intelligence systems, including Request classification systems, which may be used to provide services to other Directly customers.
5. Warranty Disclaimer. This Section includes a typical disclaimer of warranties and a waiver regarding User activities.
Directly and its suppliers hereby disclaim all warranties, including any warranties of merchantability, fitness for a particular purpose, title, and non-infringement. Directly does not warrant that the availability or operation of the Services will be uninterrupted, timely, secure, or error free. Directly makes no warranty regarding the User Content, any helpfulness grade generated by Directly, or whether any User will be helpful in addressing Requests.
6. Indemnity. This Section provides for indemnification by each party for certain risks.
6.1 By Directly. Directly will defend Company against any claim, demand, suit, or proceeding (“Claim”) brought against Company by a third party alleging that the Services (excluding any User Content) infringe or misappropriate the intellectual property rights of such third party. Directly will pay those costs and damages finally awarded against Company in any such action that are specifically attributable to such Claim or those costs and damages agreed to by Directly in a monetary settlement of such action. The foregoing obligations are conditioned on Company notifying Directly promptly in writing of such Claim, Company giving Directly sole control of the defense thereof and any related settlement negotiations, and Company cooperating in such defense. If the Services (or any component thereof) becomes, or in Directly’s opinion is likely to become, the subject of an infringement claim, Directly may, at its option and expense, either (a) procure for Company the right to continue exercising the rights licensed to Company in this Agreement, or (b) replace or modify the Services so that they become non-infringing and remain functionally equivalent. If neither of the foregoing options are, in Directly’s reasonable opinion, commercially reasonable, Directly may terminate this Agreement and will refund to Company any unused portion of the Deposit.
6.2 By Company. Company will defend Directly against any Claim brought against Directly by a third party arising out of or related to any User Content or any action of any User. Company will pay those costs and damages finally awarded against Directly in any such Claim that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Directly notifying Company promptly in writing of such Claim, Directly giving Company sole control of the defense thereof and any related settlement negotiations, and Directly cooperating in such defense.
7. Limitation of Liability. This Section limits certain liabilities and caps the total liability under the Agreement.
Except with respect to Section 6 (Indemnity) and Section 4.3 (Confidentiality) or any breach of any license restriction: (a) in no event will either party be liable for any special, indirect, exemplary, consequential or punitive damages, including any lost profits or loss of use, arising from or relating in any way to this Agreement, even if such party knows or has been advised of the possibility of such damages; and (b) each party’s total cumulative liability in connection with this Agreement, whether in contract or tort or otherwise, will not exceed the Directly Share paid to Directly under this Agreement in the twelve (12) months preceding the claim. The existence of more than one claim will not enlarge this limit.
8. Term. In this Section, we describe the duration of the Agreement, rights of termination, and what happens when the Agreement expires or is terminated.
8.1 Subscription Term. The Term of the Agreement will commence on the Effective Date and will continue for the initial term described on the Order Form. At the end of the initial term or any extension or renewal, the Term will automatically extend for the renewal or extension period specified on the Order Form, or, if not specified, for a period of one (1) year, unless either party notifies the other party, at least sixty (60) days prior to the then-current end of the Term, of its intent to not extend or renew the Term.
8.2 Termination. This Agreement may be terminated by either party (and Directly may suspend its performance) upon the other party’s breach of a material provision of this Agreement, which breach remains uncured thirty (30) days following receipt of detailed written notice thereof from the non-breaching party.
8.3 Effect of Termination. Upon any termination or expiration of this Agreement, (a) all licenses granted to Company hereunder will immediately cease, (b) Company will pay Directly for any Rewards that have not been satisfied by the then-current Deposit, (c) upon request and subject to Section 4.4 (AI Training), each party will promptly deliver to the other party (and delete any copies of) any Confidential Information (including User Content) of the other party in the possession or control of such party, (d) Directly will reimburse Company the amount of any unused Deposit, and (e) Sections 4 through 9 will survive.
9. General. In this Section, we include miscellaneous provisions.
9.1 Assignment. Neither party may assign this Agreement, in whole or in part, without the other party’s written consent, provided, however, that either party may assign this Agreement without such consent in connection with any merger, consolidation, sale of all or substantially all of such party’s assets or shares. Any attempt to assign this Agreement other than in accordance with this provision will be null and void. The terms of this Agreement will be binding on the parties and their successors and assigns.
9.2 Waiver; Amendment. This Agreement may not be modified except by a written instrument signed by authorized agents of both parties. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
9.3 Interpretation. As used in this Agreement, the term “including” is meant to be inclusive and means “including without limitation.” The headings and italicized lead-in sentences of Sections in this Agreement are intended solely for convenience of reference and will be given no effect in the interpretation or construction of this Agreement.
9.4 Governing Law; Venue. This Agreement will be governed and construed in accordance with the laws of the State of California, without giving effect to any principles that may provide for the application of the law of any other jurisdiction. Any action or proceeding arising from or relating to this Agreement will be brought in the state and federal courts for Santa Clara County, California and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
9.5 Severability. If any provision of this Agreement is, for any reason, held to be invalid, prohibited, or otherwise unenforceable by legal authority of competent jurisdiction, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
9.6 Notices. Each party must deliver all notices, consents, and approvals required or permitted under this Agreement in writing to the other party at the address listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized overnight carrier. Any such notice will be effective upon receipt, refusal of delivery, or (at latest) three days after notice is sent. Each party may change such party’s address for receipt of notice by giving notice of such change to the other party.
9.7 Independent Contractor Relationship. Directly’s relation to Company under this Agreement is that of an independent contractor. Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employer-employee relationship between Company and Directly. Directly will take no position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving Directly, that is inconsistent with Directly being an independent contractor (and not an employee) of Company. Directly is not the agent of Company and is not authorized, and must not represent to any third party that Directly is authorized, to make any commitment or otherwise act on behalf of Company.
9.8 Force Majeure. Nonperformance of either party will be excused to the extent that performance is rendered impossible by any reason where failure to perform is beyond the reasonable control of the non-performing party.
9.9 Entire Agreement. This Agreement, including the Order Form, constitutes the complete and exclusive understanding and agreement of the parties with respect to its subject matter and supersedes all prior or contemporaneous understandings and agreements, whether written or oral. The parties agree that any terms required to be accepted electronically through any Company vendor enrollment, login, invoice submission, or other, process will not apply to this Agreement, are expressly rejected by the parties, and form no basis for any agreement between the parties; notwithstanding any “agreement” to such terms, no such agreement is formed between the parties and the parties acknowledge that only authorized representatives of the parties may enter into agreements between the parties or amendments to this Agreement. Any professional services or consulting services provided by Directly will be provided under the terms of this Agreement.
Revised: January 11, 2017