Last Updated: March 5, 2018
Please read these MSA Terms (“Terms, “Terms and Conditions”) carefully before subscribing to Service Plans operated by One Touch Brands.
Your access to and use of the Services is conditioned on your acceptance of and compliance with these Terms. These terms apply to all visitors, users and others who access or use the Services.
By accessing or using the Services, you agree to be bound by these Terms. If you disagree with any of the terms, then you may not access the Services. We may revise these Terms from time to time, the most current version will always be at www.otvideochat.com/tos. If the revision, in our sole discretion, is material we will notify you via email to the email associated with your account contract. By continuing to use the Services after those revisions become effective, you agree to be bound by the revised Terms.
- Scope of the Agreement and Process. Pursuant to the terms of this Agreement, One Touch Brands will make certain Services available to Customer with respect to approved Projects. From time to time, Customer may request such Services from One Touch Brands (“OTB”) using an Order Form which will cover the scope and pricing of the Services to be provided by One Touch Brands. Upon mutual acknowledgment by the parties, each Order Form will be incorporated into and governed by the terms of this Agreement. Future or other Services added outside the scope of the original Order Form from OTB will require a new and separate Order Form. In the event of a conflict between the Terms and an Order Form, the terms and conditions in the Order Form will prevail. Words and expressions defined in the Terms shall, unless the context requires otherwise, have the same meanings in the Order Form and any other document in which is incorporated in the Agreement.
WHEREAS, OTB designs, develops and markets audio/video mobile and website telecommunication software and documentation.
WHEREAS, Customer desires to license from OTB the Software (as defined below) and distribute the same on the terms and conditions herein.
2.3 Customer Projects. The initial scope of the project is outlined in the Order Form for Services. For general information related to Services, see Exhibit A attached to this document.
2.3.1 New Projects. Customer agrees (i) not to initiate or conduct any Project until an appropriate Order Form and/or Change Order Form has been signed by the parties and (ii) to conduct such Project strictly as described in the Order Form and without variation
2.3.2 Customer Content. Customer agrees that One Touch Brands exercises no control whatsoever over the Content and Video transmitted and is a passive conduit for transmitting video connections. The Customer shall bear sole responsibility for (i) the Content transmitted using the Services; and (ii) the acts, omissions or breaches of Subscribers with respect to the use of the Services, Projects, and the Content
2.3.3 Inappropriate Content. Customer will not use the Services or permit the Services to be used to transmit Inappropriate Content. For purposes of this Agreement, “Inappropriate Content” will mean any Content that (i) is unsolicited, without end consumer accepting terms and conditions; (ii) is obscene, offensive, threatening, defamatory, discriminatory, misleading or inaccurate; or (iii) infringes the intellectual property of any person or entity.
2.3.4 Security Measures. Customer will, at its own expense, take reasonable security measures necessary to (i) protect the One Touch Brands Platform from unauthorized access, copying or use; and (ii) prevent third-party access to Customer’s password(s) to the One Touch Brands Platform. Any password issued to Customer is subject to cancellation or suspension by One Touch Brands at any time. Customer will immediately inform One Touch Brands if Customer becomes aware of any possible or actual unauthorized use or misuse of the Services under any Project.
2.3.5 Compliance Audit. Customer will promptly provide such information as One Touch Brands may request, (i) to confirm Customer’s compliance with its obligations under this Agreement, and (ii) in response to any request made by any legal, regulatory, governmental authority.
- Financial Terms.
3.1 Fees and Payment Terms. Credit terms are within One Touch Brand’s sole discretion, and unless otherwise specified in One Touch Brand’s SOW or Order Form, payment must be received by One Touch Brands prior to One Touch Brand’s acceptance of an order.
3.1.1 Credit Card Payment. All payments will be made by Customer credit card. Credit Card and related information provided by Customer must initially be provided in the Order Form. The Customer’s credit card information will be saved to file for current and future, related transactions on their account. You authorize One Touch Brands to charge the credit card on file for one-time setup fees accepted in the Order Form and the Monthly Subscription Fee. If the Customer wishes to change the credit card on file or if the credit card on file expires/changes, Customer will need to notify One Touch Brands via email at email@example.com and request a new form for new credit card information which will replace the former credit card on file. If a credit card fails to charge after two retry attempts and notifications, the Customer’s account will go into cancellation status and the account will be suspended. If after account suspension for 10 days, Customer has not made payment for the suspension period and Monthly Subscription Fee, One Touch Brands will have the right to immediately terminate the Services and this Agreement. The customer is responsible for prorated payments for the time between when the account was suspended up to, and including either reactivation or cancellation. The Customer understands that if their credit card is canceled all associated data with the account will be terminated.
3.1.2 First Payment. First payment via Customer credit card will take place upon the execution of the Order Form and will include the first-month payment for Services.
3.1.3 Set Up Payment. Within 7 days of the execution of the Order Form, the one time set up payment will take place via Customer credit card as a separate credit card charge. The one-time setup fee is not dependent on Customer rolled out and/or implementation timeline and is billed regardless of Customer delays.
3.1.4 Monthly Subscription Fee. On a monthly basis, Customer agrees to pay One Touch Brands in advance of the time during which such Services are provided. You agree that prepayments will be charged automatically via Customer credit card and that One Touch Brands may apply the amount due to the provided credit card at any time.
3.2 Price Increases. One Touch Brands may modify any fees in its sole discretion if unforeseen charges or tariffs arise upon 60 days written notice to Customer. If Customer does not agree to the modifications in fees, it may terminate this Agreement upon written notice to One Touch Brands.
3.3 Taxes. Fees included in any Order Form do not include taxes or similar fees now in force or enacted in the future that is imposed on the delivery of Services, and Customer will be solely responsible for and will pay directly or reimburse One Touch Brands in full for all taxes, including but not limited to, sales, usage, excise, VAT, property or any other taxes, duties, customs fees or surcharges, excluding taxes based upon One Touch Brand’s income.
3.4 Other Professional Services & Licensing. Other professional services, licensing and one time fees will be addressed on a Time and Material or Fixed Price basis and will be outlined and agreed to by both parties in an executed Order Form. Any future Order Forms will require Customers’ signature and/or acceptance to an online order form acceptance prior to starting any work and will be under the terms of this MSA.
- The term, Suspension, and Termination.
4.1 Term. The Agreement will commence on the Effective Date and will continue for twelve (12) months (“Initial Period”). This Agreement and the term of this Agreement and shall continue automatic renewal for twelve (12) month periods until terminated as provided above or in accordance with Subsection 4.2 (“Termination”).
4.2 Termination. Customer will have the right to terminate for convenience (i.e., for no cause) and without incurring additional fees or penalties if the request to cancel the account is received 7 calendar days prior to the Customer renewal plan cycle and they have completed the cancellation process. Customer must email, firstname.lastname@example.org, to request account cancellation. In order for the account to be canceled, it must be paid in full at the time of cancellation.
4.2.1 Termination for Material Breach. Either party may terminate this Agreement immediately by notice in writing if the other party (i) becomes insolvent, ceases doing business in the regular course, files a petition for bankruptcy or is subject to the filing of an involuntary petition for bankruptcy which is not rescinded or dismissed within a period of sixty (60) days; or (ii) fails to cure a material breach, if such material breach is capable of cure, of any term or condition of this Agreement within fifteen (15) days of written notice specifying such breach. One Touch Brands may terminate in whole or in part this Agreement immediately on written notice at any time (i) upon any failure of a Customer’s third-party subcontractor, vendor, or interconnected relationship that is not within One Touch Brand’s control and limits Customer or One Touch Brand’s ability to fulfill the Terms or (ii) upon any legal, regulatory, governmental, or Network Operator prohibition or limitation affecting the Services or (iii) as provided elsewhere in this Agreement
4.3 Effect of Termination. Upon the termination of this Agreement, (i) One Touch Brands will halt the Customer’s access to the One Touch Brands Platform; and (ii) all rights granted under this Agreement will terminate immediately. Termination shall not relieve Customer’s obligation to pay all fees owed under any Order Form. One Touch Brands will not be liable to Customer for any partial month Services refunds, or any third party for any damages, expenses or losses incurred because of termination of this Agreement by One Touch Brands as provided in this Section 4. The provisions of Sections 2.3.2 (“Subscriber Opt-in/Opt-out Requirements”), 2.3.6 (“Security Measures”), 2.3.7 (“Compliance Audit”), 3 (“Financial Terms”), 4 (“Term, Suspension and Termination”), 5 (“Ownership”), 6.2 (“Disclaimer”), 7 (“Limitation of Liability”), 8 (“Indemnification”), 9 (“Confidentiality”), 11 (“Miscellaneous”) and 12 (“Definitions”) will survive termination of this Agreement. Upon termination, Customer shall cease using, and shall return or destroy within ten (10) days, all Confidential Information of One Touch Brands.
4.4 Suspension of Services. One Touch Brands may suspend, in whole or part, with notice, the Services or any Project if (i) Customer uses the Services in contravention of the Terms; (ii) such action is necessary to address emergency network repairs or threats or actual breach of network security; (iii) upon any legal, regulatory, governmental or Network Operator prohibition or limitation affecting the Services; or (v) any payment due to One Touch Brands is outstanding after the due date for payment. One Touch Brands will provide written notice as soon as reasonably practicable of any such suspension. One Touch Brands will not be liable to Customer or any third party for any damages, expenses or losses incurred because of any such suspension. One Touch Brands will promptly restore the suspended Services and/or Project after the condition producing the suspension has been rectified to One Touch Brand’s reasonable satisfaction.
- Ownership. The intellectual property rights in all software, information, technology or data whatsoever supplied or made available by either party to the other party under this Agreement will remain the property of the supplying party. Except as expressly set forth in this Agreement, neither party grants to the other any license, sub-license or other rights in or to such intellectual property rights. Customer acknowledges the validity of the trademarks, patents, service marks, logos and branding of One Touch Brands used by One Touch Brands to provide the Services and agrees not to challenge the validity thereof or claim any rights of ownership or interest in respect thereof.
5.1 Data. Limited Use of Data. In the performance of the SaaS and Support Services, One Touch Brands will obtain, receive, store and collect the following data or information, including device-specific data: email address, cell phone number, opt-in method and date/time stamp, date/time/length of video transaction, customer and employee survey responses. (collectively, the “Data”). Customer hereby grants One Touch Brands a license to aggregate the Data for use in an anonymous manner solely in support of One Touch Brand’s validation, verification, and accounting activities as required.
- Warranties; Disclaimer of Warranty.
6.1 Legal and Regulatory Compliance. Customer warrants and undertakes that it will (i) use the Services for lawful purposes and comply with all legal, regulatory, governmental and/or Mobile Content requirements (which are provided on in 2.1.1) relating to the Content, Projects, Messages or Services; (ii) provide promptly any information relating to the Content, Projects, Messages or Services reasonably requested any legal, regulatory, governmental, or statutory authority; and (iii) promptly comply with requirements as may be issued from time to time by any applicable Network Operator and/or legal, regulatory, governmental or statutory authority in relation to the Content, Projects, Messages or Services and will fully cooperate with One Touch Brand’s request for assistance in conforming the Services and Projects to any new requirements. Customer will promptly inform One Touch Brands if any third party makes or threatens any claim or action against Customer, or One Touch Brands, or any other party relating to any Content, Project, Message or Services.
6.2 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, One Touch Brands MAKES NO WARRANTIES OR REPRESENTATIONS IN CONNECTION WITH THE One Touch Brands PLATFORM OR THE PROVISION OF SERVICES AS CONTEMPLATED IN THIS AGREEMENT AND DISCLAIMS ALL OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, CONTRACTUAL OR STATUTORY, EXPRESS OR IMPLIED, OR OTHERWISE INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, QUALITY, FITNESS FOR PARTICULAR PURPOSE OR USE, INTERFERENCE, RELIABILITY, TIMELINESS, OR SECURITY AND ANY WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OR TRADE. CUSTOMER ACKNOWLEDGES THAT (I) THE SERVICE HAS NOT BEEN SPECIFICALLY DESIGNED TO MEET Content Provider’s, ANY OF content provider’s customer’s and/or any Subscriber’s individual requirements; and (ii) THE SERVICES WILL NOT BE ERROR-FREE, UNINTERRUPTED, FREE FROM UNAUTHORIZED ACCESS (INCLUDING THIRD PARTY HACKERS OR DENIAL OF SERVICE ATTACKS), OR THAT ALL MESSAGES WILL BE DELIVERED. EXCEPT AS STATED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
- LIMITATION OF LIABILITY.
7.1 EXCEPT IN THE INSTANCE OF INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 8 OF THIS AGREEMENT, IN NO EVENT, SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PROFITS, LOST BUSINESS OR LOST SAVINGS, ANTICIPATED OR OTHERWISE (EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE).
7.2 EXCEPT IN THE INSTANCE OF INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 8 OF THIS AGREEMENT, THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY FOR ANY AND ALL DAMAGES IN CONNECTION OR OTHERWISE PERTAINING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO ONE TOUCH BRANDS IN THE 12 MONTH PERIOD PRECEDING THE CLAIM. THIS SECTION SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT.
8.1 By One Touch Brands. One Touch Brands shall defend, indemnify and hold Customer harmless against any action brought against Customer, its officers, directors, and employees, and shall pay all costs, liabilities, damages and attorney’s fees finally awarded against Customer, or paid in settlement of such action to the extent such action is based on a third party claim that (i) relates to One Touch Brand’s negligence, gross negligence or willful misconduct; or (ii) the One Touch Brands Platform or the Services infringement of any intellectual property or other rights of any third party, or (iii) One Touch Brands failed to comply with any legal, regulatory, or governmental requirements.
8.2 By Customer. Customer shall defend, indemnify and hold One Touch Brands harmless against any action brought against One Touch Brands, its officers, directors, and employees, and shall pay all costs, liabilities, damages and attorney’s fees finally awarded against One Touch Brands, or paid in settlement of such action to the extent such action is based on a third party claim that (i) to Customer’s negligence, gross negligence or willful misconduct; or (ii) the Content, Messages or any Project infringes any intellectual property or other rights of any third party, or (iii) Customer failed to comply with any legal, regulatory, or governmental requirements.
8.3 Conditions. The obligations set forth in this Section 8 (“Indemnification”) are contingent upon (i) the parties being indemnified giving prompt written notice to the indemnifying party of any claim for which a duty to indemnify is triggered, (ii) the party with the duty to defend having sole control of the defense and related settlement for such claim; and (iii) the defending party will receive and the other party will give full assistance and cooperation in the defense and settlement as may be reasonably requested by the defending party.
- Confidentiality. For purposes of this Agreement, “Confidential Information” shall mean all non-public information, whether oral, written or other tangible form that the party disclosing the information (the “Discloser”) designates as being confidential or which, under the circumstances surrounding disclosure, the receiving party (the “Recipient”) knows or has reason to know should be treated as confidential, including without limitation, the Terms. Confidential Information does not include information (a) which is independently developed by the Recipient or its affiliated company or lawfully received free of restriction from another source has the right to so furnishing such information; or (b) after it has become generally available to the public without breach of the Agreement by the Recipient or its affiliated company; or (c) which at the time of disclosure to the Recipient was known to such party or its affiliated company free of restriction as evidenced by documentation in such party’s possession; or (d) which the Discloser agrees in writing is free of such restrictions; or (e) which is required pursuant to order of any court or by regulatory demand, provided that the Recipient shall advise the Discloser of the request for disclosure and shall take reasonable steps to attempt to preserve the confidentiality of the information. During the term of this Agreement, Discloser may provide Confidential Information to the Recipient to further the business objectives of this Agreement. The recipient shall hold the Confidential Information in strict confidence, provided that the Confidential Information may be disclosed to such of Recipient’s employees and independent contractors who have a need to know for the purpose of fulfilling Recipient’s obligations under this Agreement. Without Discloser’s prior written consent, Recipient shall not, and shall direct such individuals not to, use the Confidential Information other than to perform Recipient’s obligations hereunder or disclose the Confidential Information in whole or in part, except to the extent compelled by law. The recipient shall employ all reasonable steps to protect the Confidential Information from unauthorized or inadvertent disclosure or use, including, without limitation, all steps that Recipient takes to protect Recipient’s own confidential information. It is further understood and agreed that money damages would not be a sufficient remedy for any breach by Recipient of Recipient’s obligations under this Section 9 and that Discloser shall be entitled to specific injunctive relief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for the breach of obligations under Section 9 (“Confidentiality”) but shall be in addition to all other available legal or equitable remedies.
10. Marketing. Customer shall, following the Effective Date, permit One Touch Brands to: (i) identify Customer as a One Touch Brands customer in One Touch Brands press releases (subject to Customer’s reasonable review and approval of any such release); and (ii) use Customer’s logo in One Touch Brands customer listings, and agree to act as a customer reference upon request.
One Touch Brands shall permit Customer to list One Touch Brands as a service provider in any materials with One Touch Brands approval.
- Miscellaneous. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas excluding the application of its conflicts of law principles. Neither the United Nations Convention on the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement. If any action is brought because any breach of or to enforce or interpret any of the terms or conditions of this Agreement, the prevailing party will be entitled to recover from the other, as part of the prevailing party’s costs, reasonable attorneys’ fees. Neither party may assign or otherwise transfer this Agreement to any person or entity without the other’s written consent, such consent not to be unreasonably withheld or delayed, provided that withholding consent to the assignment of this Agreement to a competitor will be deemed reasonable. Notwithstanding the foregoing, either party may assign all or any of its rights under this Agreement in the case of merger, acquisition or sale of assets. All notices, including notices of address change, required to be sent hereunder will be in writing and will be deemed to have been given when mailed by first class mail to the applicable address listed in the relevant Service Order Form. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to circumstances beyond the reasonable control of the non- performing party. Nothing in this Agreement will be construed to place the parties in any partnership, agency or joint venture relationship. This Agreement, including all applicable Order Forms, constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party; no other act, document, usage or custom will be deemed to amend or modify this Agreement. This Agreement may be executed in any number of counterparts, including facsimile counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.
- Definitions. Words and expressions used in this Agreement will have the meanings defined below.
12.1“Agreement” means this Master Services Agreement together with the Order Forms, exhibits and such other documents as the parties agree in writing from time to time will form part of the contract between them;
12.2 “Customer” means the entity identified below and in the Order Form with which One Touch Brands makes the agreement, including any person One Touch Brands reasonably believes to act with the Customer’s authority;
12.3 “Video Content” means a live video connection and delivery of two or more parties and protocols or standards used to transmit such content and information;
12.4 “Order Form” means a document in the form which contains a description of, and pricing for, the Services (including any special terms) and which the parties execute;
12.5 “Project” means marketing, advertising, customer service, promotional or informational program or initiative, or other projects, conducted by Customer utilizing the Services;
12.6 “Service(s)” means the delivery of services, software, and related services as may be more particularly described in the applicable Service Order Forms;
12.7 “Terms” means the terms and conditions of this Agreement as revised from time to time in accordance with Section 2.1.2 (“Reservation of Rights”);
12.8 “One Touch Brands Platform” means the digital wireless networks, the server(s), hardware, software and/or any other equipment that One Touch Brands uses, at its sole discretion, in connection with the provision of the Services.
- Scope. Further conditions for Scope of Services and Customer Projects.
1.1 Release of Web Widget. One Touch Video Chat will release its Web Widget with a production-ready authentication token to Company. The company will be responsible for inserting into their website pages where they would like the video chat experience to reside. This will allow for Company to begin receiving face to face video chat conversations with their prospects and customers’ desktop computers to Company’s desktop computers.
- The web widget can be initialized in three ways.
- Can be placed on every page of a website.
- Can be placed on specific pages of a website.
- Can be added to specific buttons on a web page.
1.2 Desktop Dashboard. Company will also be provided access and licensing to the One Touch Brands desktop SaaS platform (not white labeled) dashboard to accept the video consultations, assign admins and users, provision groups and set up for standard reporting. Company will be designated one admin user ID and password and the other named users will have “agent access” set up by Company admin user. The manage agent area of the Dashboard will allow Company to add users, remove users and reset passwords for named users.
1.3 Customizable Survey. Company will be responsible for providing the survey questions to One Touch Video Chat to: a). A configured survey that pops the screen of the customer when the video call is complete. b). Configured survey for Company’s employees that pops the screen at the end of the video call to disposition/provide feedback on the call. The survey is required and cannot be removed from the standard roll out.
- The survey will be configured as follows for each survey.
- One question with a 1-5-star rating
- Two questions that can include up to a 5-answer response
- One open-ended feedback question
1.4 Video Routing Options. The desktop video routing will show a personal and group queue with longest to shortest call waiting in descending order.
- The consult history shows video call details such as call time, length, caller information (from signup form), personal id/group name, customer survey information (admin view).
- This report allows the ability to search by date range, general search and the ability to export to .csv file.
1.5 Website Widget Screens. The website widget will provide the following screens:
- Connect Form, Request Consult, In Video, Survey, Notification Screens (Thank you Survey message, after hours’ message).
- The Connect Form Screen (group and/or direct code), an email address is required and will be the only field to connect, outside of the group and/or direct code selection.
1.6 Dashboard Integration. There are no requirements to integrate One Touch Video Chat dashboard technology or reporting into any Company database or routing technology. The program will stand on its own using the out of the box call provisioning dashboard provided by One Touch Video Chat.
1.7 Customer Contacts. Company will designate 1 contact that will be the communication contacts for any ongoing support. This agreement does not support end-user customer support.
1.8 Standard Support Levels.
Severity 1 – Critical: Affects large group of users AND prevents mission-critical processes from executing in an appropriate manner or time frame.
Severity 2 – High: Affects large group of users OR prevents mission-critical processes from executing in an appropriate manner or time frame.
Severity 3 – Medium: Affects all users for minor, non-mission critical operations.
Severity 4 – Low: This is reserved for general questions, consulting requests, or request without impact to end users or business personnel.