LISTEN360 TERMS OF SERVICE
LISTEN360 TERMS OF SERVICE
Last Modified: 06/22/2021
Listen360, Inc. requires users of its services, including any entity executing an Order Form (“Subscriber”) that references these terms to accept and adhere to these terms and conditions (the, “Terms of Service”). These Terms of Service govern the purchase and use of Listen360’s Subscription Services and is accepted by executing an Order Form that references these Terms of Service or by using or accessing Listen360’s Services. Listen360 may update these Terms of Service from time to time and you will have 30 days to reject the updated terms by providing written notice to Listen360. If you continue to use or receive the Subscription Services following such period, the updated Terms of Service will be deemed accepted. References to “you” and “your” refer to Subscriber and Subscriber’s Users.
1. Order Form. Subscription Services will be ordered by Subscriber pursuant to executed order forms (each, an “Order Form”). Each Order Form will include the specific service(s) being ordered and the associated fees (“Subscription Fees”) and any additional terms as applicable. Each additional Order Form will be numbered sequentially (e.g. Order Form 1, 2, 3, etc.) and upon execution by both parties, will be deemed an addendum hereto and will be subject to all of the terms and conditions herein. Any one of Subscriber’s subsidiaries or affiliates may also order services under these Terms of Service by entering into an Order Form signed by such subsidiary or affiliate and Listen360 and agreement to be bound by the terms of these Terms of Service and such Order Form.
2. Description of Subscription Services
a. Listen360 makes the customer feedback management and review solutions available to Users over the Internet through a website developed, operated, hosted and maintained by Listen360 or its service providers (the “Subscription Services”). The Subscription Services are described at www.listen360.com. You will only be provided those Subscription Services that are designated in an order or enrollment submission form that incorporate these Terms of Service by reference.
b. The Subscription Services are accessible through any generally available release (e.g., not a Beta or Release Candidate (RC) release) of Internet Explorer, Chrome, Safari or Firefox that has been generally available to the public for at least 3 months and that has not been superseded by a major release (defined as a left of decimal point generally available release). The Subscription Services do not include any Internet connectivity or equipment to access the Subscription Services. Therefore, each User is responsible for obtaining his own equipment and Internet connectivity to access and use the Subscription Services.
c. By agreeing to these Terms of Service with Listen360, Subscriber is obligating each of Subscriber’s designated Users to comply with the terms in Sections 7 through 17 below. Subscriber acknowledges and agrees that Subscriber will be responsible for a failure of Subscriber’s Users to comply with the terms in Sections 7 through 17 below.
d. Users. There is no additional charge for adding User accounts. Subscriber’s designated System Administrator and Location Administrators are responsible for ensuring that Users are assigned the appropriate access level. Subscriber is responsible for deactivating a System Administrator’s or Location Administrator’s account when the person associated with that account no longer has a service relationship with the Subscriber. The Subscription Services include the following roles:
i. a “System Administrator” is a Subscriber’s designated employee who has been granted full access to the Subscription Services including, but not limited to, the authority to designate a Location Administrator for a Subscribed Location and add Users for any Subscribed Location (as defined below);
ii. a “Location Administrator” is the person designated by the System Administrator as the person responsible for adding or deleting Users for a Subscribed Location; and
iii. a “User” is an employees or independent contractor of Subscriber or its franchisees or licensees who are assigned a username or password by a System Administrator or a Location Administrator.
e. Locations. A “Subscribed Location” is an entity, business unit or service area where goods or services are provided under Subscriber’s trademark or service mark and is licensed to access and use the Subscription Services, such Subscribed Locations must be designated in an agreement between Subscriber and Listen360.
3. Term. These Terms of Service will be effective as of the date of Listen360’s signature on an initial Order Form (“Effective Date”) and remain in effect until (a) all executed Order Forms have expired or been terminated or (b) terminated by either party as permitted by this Agreement. Unless otherwise stated in the Order Form, the initial term of each Order Form will be one year, thereafter the Order Form will automatically renew for successive periods equal to the initial term, unless either Listen360 or Subscriber provides written notice to the other at least 15 days prior to the expiration of the then current term of its intent not to renew.
4. Invoicing and Payment. Listen360 will invoice Subscriber in advance by sending an invoice by mail or email and Subscriber agrees to pay the invoiced amount for the applicable Subscription Fees within 10 days after the invoice date. Subscriber is responsible for providing complete and accurate billing and contact information to Listen360 and complete, accurate and current credit or debit card information if Subscriber elects to pay Listen360 by credit or debit card. All payment obligations are noncancellable after Listen360 receives a Subscriber signed order or enrollment submission and all amounts paid are nonrefundable. If Subscriber elects to pay Listen360 by a credit or debit card, then Subscriber hereby authorizes Listen360 to bill the Subscriber provided credit or debit card monthly in advance for the Subscription Fees applicable to your Subscription Services for each month of the Subscription Term. Listen360, upon notice to Subscriber, which notice may be in the form of an invoice will have the right to change Subscription Fees effective any time after one year from the Effective Date, which right will include without limitation the right to charge Subscription Fees for new features or functions of the Subscription Services or features or functions that have previously been offered at no charge. The Subscription Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Subscriber is responsible for paying all Taxes associated with the Subscription Services provided by Listen360. If Listen360 has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this Section 4, then Listen360 will invoice Subscriber for payment unless a valid tax exemption certificate authorized by the appropriate taxing authority is provided. For clarity, Listen360 is solely responsible for taxes assessable against Listen360 based on its income, property and employees.
5. Non-payment and Suspension. In addition to any other rights granted to Listen360 herein, Listen360 reserves the right to suspend or terminate access to the Services for all User accounts associated with a Location ID if you fail to pay the Subscription Fees within the payment terms described herein. Past due invoiced amounts are subject to interest at a rate of 1.5% per month on any outstanding balance from the invoice date, or the maximum amount permitted by law, whichever is less, plus all expenses of collection, and you agree to pay such interest charges and all collection expenses. Listen360 reserves the right to impose a reinstatement fee if your User accounts are suspended and thereafter you request Listen360 to reinstate your suspended User accounts. Access to any or all content associated with your User accounts may be revoked if your account is past due by more than 30 days from the invoice date.
6. Termination for Cause. Any breach of your payment obligations or the unauthorized use of the Services by your Users will be deemed a material breach of these Terms of Service. Listen360, in its sole discretion, may terminate the Subscription Term and your Users’ access to the Services if you or any of your Users materially breach or otherwise fail to comply with these Terms of Service and such breach or failure is not cured within 10 days of Listen360’s notice to Subscriber’s System Administrator. If Listen360 materially breaches these Terms of Service, and such breach is not cured within 10 days after you notify Listen360 of such breach, then Subscriber may terminate this contract by providing Listen360 further notice of such termination.
7. License Grant
a. Listen360 to You. Listen360 hereby grants you a nonexclusive, nontransferable, worldwide right to use and/or access the Subscription Services during the Subscription Term solely for the number of Subscribed Locations. Listen360 reserves all rights not expressly granted to you in this paragraph. You shall not (1) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Subscription Services in any way; (2) modify or make derivative works based upon the Subscription Services in any way; or (3) reverse engineer or access the Subscription Services in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Subscription Services, or (c) copy any ideas, features, functions or graphics of the Subscription Services. User licenses cannot be shared or used by more than one individual.
b. You to Listen360.
i. Subscriber Data. “Subscriber Data” means the data, information, images and other content that your designated Users input or uploaded to the Applications and survey responses and feedback from individuals voluntarily providing Listen360 feedback about you. You hereby grant to Listen360 a non-exclusive, non-transferable, royalty free, worldwide license to copy and use any Subscriber Data that you provide or make available to Listen360 solely in connection with Listen360 providing the Subscription Services and any other services, subscribed to by the Subscriber, under these Term of Service.
ii. Anonymized Data. You hereby grant Listen360 a royalty-free, fully-paid up, worldwide, transferable, sublicensable, irrevocable, perpetual right and license to use, copy, modify, analyze and distribute, any Subscriber Data that has been aggregated and anonymized such that it is not personally identifiable to any Subscriber or User (“Anonymized Data”) for the purposes of providing or improving Listen360 products and services, including but not limited to benchmarking.
8. Intellectual Property
a. Subscription Services. Listen360 shall have sole and exclusive ownership of all right, title, and interest in and to (i) the Subscription Services (including any Listen360 provided images, photographs, animations, video, audio, music, text, and applets); and (ii) all derivatives, modifications and enhancements thereof (including ownership of all trade secrets and copyrights pertaining thereto), subject only to the rights and privileges expressly granted to Subscriber and Users herein by Listen360. Subscriber agrees that advice, feedback, criticism, or comments provided to Listen360 related to the Subscription Services are given to Listen360 and may be used by Listen 360 freely and without restriction and will not enable Subscriber to claim any interest, ownership or royalty in Company’s intellectual property.
b. Listen360’s Data. These Terms of Service do not provide Subscriber or any Users with title or ownership of the Subscription Service, or any data, information, images and other content that are compiled, processed or made available by Listen360 through the Subscription Services including but not limited to Anonymized Data (collectively, “Compiled Data”), or any components thereof, but only a right of limited use as specified in Section 7.
c. Subscriber Data. Subscriber shall have sole and exclusive ownership of all right, title, and interest in all Subscriber Data.
9. Access to Subscriber Data. Subscriber may download portions of the Subscriber Data directly from the Subscription Services in Microsoft Excel format by using the reporting and exporting tools provided by Listen360 within the Subscription Service. Subscriber hereby grants Listen360 the right to use such Subscriber Data in connection with Listen360 providing services under the Terms of Service.
10. User Responsibilities. You are responsible for all activity occurring during your access to the Subscription Services using your username and password and you shall abide by all applicable local, state and national laws, treaties and regulations in connection with your use of the Subscription Services, including those related to data privacy and the transmission of technical or personal data. You shall: (i) notify Listen360 immediately of any unauthorized use of any username or any other known or suspected breach of security with respect to the Subscription Services; (ii) report to Listen360 immediately and use reasonable efforts to stop immediately any copying or distribution of the Subscription Services; and (iii) not impersonate another User or provide false identity information to gain access to or use the Subscription Services.
11. Confidential Information
a. For the purposes of these Terms of Service, the term “Confidential Information” shall include the Subscription Services, the Subscriber Data, and any accompanying or related documentation. For purposes of this Section 11, the term “Subscriber” shall mean Subscriber and Subscriber’s designated Users. Confidential Information does not include information that is (i) developed by the non-disclosing party independently of the disclosing party as supported by the non-disclosing party’s written records; (ii) rightfully obtained without restriction by the non-disclosing party from a third party; (iii) at the time of disclosure or thereafter becomes publicly available other than through the fault or negligence of the non-disclosing party; (iv) released without restriction by the disclosing party to anyone including the U.S. Government as supported by the non-disclosing party’s written records; (v) known to the non-disclosing party at the time of disclosure as supported by the non-disclosing party; and (vi) any Anonymized Data.
b. During the Subscription Term and indefinitely thereafter so long any information remains Confidential Information, each of Subscriber and Listen360 agree that they shall not disclose any of the other party’s Confidential Information in any manner whatsoever, except as provided in subparagraphs (c) and (d) below, and shall hold and maintain the other party’s Confidential Information in strictest confidence.
c. A party may disclose Confidential Information to such party’s directors, officers, employees, agents; and financial, legal, other advisors and affiliates (collectively, the “Representatives”) with a bona fide need to know such Confidential Information, but only to the extent necessary to evaluate or carry out the terms of these Terms of Service and only if such Representatives are advised of the confidential nature of such Confidential Information and the terms of these Terms of Service and are bound by a written agreement or by a legally enforceable code of professional responsibility to protect the confidentiality of such Confidential Information. Further, the parties acknowledge and agree that nothing in this Section 11 shall prohibit the collection, compilation and distribution of any Compiled Data by Listen360.
d. A party may disclose Confidential Information if and to the extent that such disclosure is required by court order, provided that such party provides the other party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.
e. The Confidential Information is being disclosed to the parties and the parties receive the Confidential Information solely for the purpose stated herein and specifically agree not to use the Confidential Information for any other purpose.
12. Links to Third Party Sites. Listen360’s websites and emails corresponding to the Subscription Services may contain links that will let you access other websites and services provided by third parties. The links are only provided as a convenience and Listen360 does not endorse any of these sites or the content, advertising, products and services available on or through such sites. Listen360 assumes no responsibility or liability for any material that may be accessed on, or services provided from, other websites even if reached through the Subscription Services.
13. Links from Third Party Sites or Third Party Web Services. Except as expressly permitted in these Terms of Service or as otherwise agreed by Listen360 in writing, Subscriber is prohibited from linking to the Subscription Services except as provided herein, framing of all or any portion of the Subscription Services, and the extraction of data from the Subscription Services. Listen360 reserves the right to disable any unauthorized links or frames. Listen360 will not be responsible and expressly disclaims any liability for any third party services that Subscriber may use or connect to through the Subscription Service or any material on third party websites that may link to Listen360 Subscription Service. If Subscriber activates any APIs or links to enable data sharing through the Subscription Service, Subscriber thereby authorizes Listen360 to send and receive Subscriber Data with any such activated third party service and represents and warrants to Listen360 that Subscriber has all appropriate right and title to grant such authorization.
14. Notice. All notices, requests, demands, and other communications shall be validly given if delivered in person, sent by electronic mail, or forwarded by registered or certified mail addressed to the other party at the address indicated in this section, unless such party has notified the other party of a substitute contact information in writing pursuant to this section. The email address for notices to Listen360 is [email protected].com. The mailing address for notices to Listen360 is 11625 Rainwater Dr, Suite 645, Alpharetta, Georgia 30009. The email address for notices to Subscriber shall be the email address in Listen360’s records for the System Administrator. The mailing address for notices to Subscriber shall be the notice mailing address in Listen360 records for Subscriber. Notices delivered in person or sent via electronic mail during normal business hours shall be deemed to be received on the same date. Notices forwarded by registered or certified mail shall be deemed to be delivered three (3) days after such notice was mailed.
15. Choice of Law and Venue. These Terms of Service shall be governed in accordance with the laws of the State of Georgia, without reference to its conflict of laws principles. Any action seeking to enforce any provision of, or based on any matter arising out of or in connection with, these Terms of Service may be brought in any state court located in the County of Fulton, State of Georgia, or in the United States District Court, Northern District of Georgia, and Listen360 and you hereby consent to the jurisdiction and venue of such court and the appropriate appellate courts therefrom in any such action and irrevocably waive, to the fullest extent permitted by law, any objection that Listen360 or you may now or hereafter have to the personal jurisdiction and venue of such court and to any claim of inconvenient forum. You hereby consent that service of process in any such action may be made to the most current mailing address for your System Administrator.
16. Limitation of Liability
a. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE PARTIES BE LIABLE, WHETHER IN CONTRACT, IN TORT, OR UNDER ANY OTHER LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO STRICT LIABILITY AND NEGLIGENCE) FOR LOST PROFITS OR REVENUES, LOSS OR INTERRUPTION OF USE, LOST OR DAMAGED DATA, REPORTS, DOCUMENTATION, OR SECURITY, OR SIMILAR ECONOMIC LOSS, LOSS OF PRIVACY, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THESE TERMS OF SERVICE.
b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LISTEN360 BE LIABLE FOR ANY CLAIM MADE AGAINST SUBSCRIBER BY ANY OTHER PARTY, EVEN IF LISTEN360 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM.
c. IN NO EVENT SHALL LISTEN360’S LIABILITY UNDER ANY CLAIM MADE BY SUBSCRIBER EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID BY SUBSCRIBER TO LISTEN360 IN THE 3 MONTHS PRIOR TO THE EVENT(S) GIVEN RISE TO SUCH LIABILITY. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE MAY BE BROUGHT BY SUBSCRIBER MORE THAN ONE (1) YEAR AFTER THE FIRST TO OCCUR OF (i) THE CANCELLATION OF THE SUBSCRIPTION TERM; OR (ii) THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION.
d. THE SUBSCRIPTION SERVICES ARE PROVIDED AS IS AND WITH ALL FAULTS. NO WARRANTY OR ASSURANCE, EXPRESS, IMPLIED, OR STATUTORY, IS GIVEN BY LISTEN360 WITH RESPECT TO THE SUBSCRIPTION SERVICES OR ANY OTHER MATTER, INCLUDING, WITHOUT LIMITATION (AND LISTEN360 EXPRESSLY DISCLAIMS) ALL WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LACK OF VIRUS, NEGLIGENCE, OR LACK OF WORKMANLIKE EFFORT ON THE PART OF LISTEN360.
e. THE LIMITATIONS SET FORTH IN THIS SECTION APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH A CLAIM IS BROUGH, EVEN IF LISTEN360 HAS BEEN NOTIFIED OF THE POSSIBILITY OF DAMAGE OR IF SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT