Operative Intelligence Pty Ltd
Dated: October 2023
This Master Subscription Agreement (“Agreement”) permits Customer to purchase a subscription to the technology and services from Operative Intelligence Pty Ltd ACN 649 022 560 (“Operative Intelligence”) set forth in an order form, quote and/or statement of work executed by the parties that references this Agreement (“Order Documents”) and sets forth the terms and conditions under which such technology and services will be delivered. This Agreement includes any and all Order Documents, and any schedules attached hereto.
Operative Intelligence will provide Customer with access to the online, software-as-a-service technology platform set forth in an applicable Order Document (the “Service”). Customer may, during the term set out in the applicable Order Document, access and use Service during the Subscription Term solely for Customer’s business purposes in its own contact center analytics - and only in accordance with any end user technical documentation provided with the Service (“Documentation”). Customer shall be responsible for any and all actions taken using Customer’s accounts and passwords in its possession. In addition, if set forth in an Order Document, Operative Intelligence will provide ancillary services (such as implementation and configuration) (“Additional Services”).
Customer shall not (and shall not allow any third party to): (a) rent, lease or, except as agreed to by Operative Intelligence in writing (email is sufficient), otherwise provide any part of the Service to any third party; (b) use the Service to help develop, or help provide to any third party, any product or service competitive to the Service, ( c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to any part of the Service (provided that, the foregoing restriction on reverse engineering will not apply to the extent prohibited by applicable law - and then only upon advance notice to Operative Intelligence), (d) modify or create derivatives of any part of the Service or any Documentation, or (e) remove or obscure any proprietary or other notices contained in the Service or Documentation.
Any software that is provided by Operative Intelligence (“Software”) will only be (i) installed within the Customer’s environment (which, for clarity, may include Customer’s environment as hosted by one of its third party providers) and (ii) used for the purposes of using the Service. Any software will be included in the definition of “Service” (and only used in object code form).
The Services may offer features designed to interoperate with third-party software applications and services, including those provided by Customer (“Third-Party Applications”). Operative Intelligence cannot guarantee the continued availability of any Third-Party Application and is not responsible for the interoperation of Third-Party Applications with the Services. Any use by Customer of Third-Party Applications, and any exchange of data between Customer and any Third-Party Application provider, is solely between Customer and the applicable Third-Party Application provider. If Customer chooses to use a Third-Party Application with the Services, Customer grants Operative Intelligence permission to allow the Third-Party Application and its provider to access Customer Data and information about Customer’s usage of the Third-Party Application as appropriate for the interoperation of that Third-Party Application with the Services. Operative Intelligence is not responsible for any act or omission by a Third-Party Application.
Operative Intelligence will provide the support for the Service in accordance with Schedule A attached hereto. But no support will be applicable if the Service is provided on a non-fee or evaluation basis (in such case, support is at the discretion of Operative Intelligence).
Customer owns all Customer Data. “Customer Data” means:
2.1.1. all raw data, information, recordings, files, and other content (including, without limitation, customer interaction and transcript data and all related meta-data) that Customer makes available to Operative Intelligence for the purpose of utilizing the Service, or that Service receives from Customer’s systems or networks; and
2.1.2. if Customer is a for-fee customer subscribed to at least an annual term hereunder, all redacted transcripts and data classifications generated by the Service from the processing of the data referenced in Section 2.1.1.
For clarity, if the Services are being used on a trial, evaluation, or no-fee basis, no intellectual property rights are assigned with respect to output data/results or data classifications generated by the Service.
With respect to Section 2.1.2, Operative intelligence hereby makes all assignments necessary to achieve such ownership.
Notwithstanding the foregoing, data visualizations, and data derived in whole or part from other Operative Intelligence data sources, is not Customer Data.
Customer hereby grants Operative Intelligence a worldwide, non-exclusive, royalty-free, license to use, copy, reproduce, distribute, prepare derivative works of, display and perform the Customer Data, to the extent appropriate to perform the Service.
Customer represents and warrants that: (i) Customer has all right, power, authority, and consent necessary to provide Customer Data to Operative Intelligence for all purposes hereunder, (ii) the Customer data, nor its provision by Customer hereunder, nor its use by Operative Intelligence as permitted hereunder, will infringe or violate any laws, regulations, generally accepted industry guidelines, or third party rights (including, without limitation, privacy rights). Customer is responsible for the accuracy, quality and legality of Customer Data. Customer must provide its end users with a legally compliant privacy policy to ensure all rights to collect and use Customer Data hereunder.
Operative Intelligence will implement and maintain an industry-standard information security program with administrative, physical, and technical safeguards designed to protect the integrity of Customer Data.
During the thirty (30) days period immediately following expiration or termination of this Agreement, Customer may request Operative Intelligence provide Customer with a copy of its Customer Data in a reasonably requested form. After thirty (30) days, Operative Intelligence may delete all data.
Notwithstanding anything herein to the contrary, Operative Intelligence may retain (and use including after termination of this Agreement) Customer Data in an anonymized and aggregated form for the purpose of analyzing and improving the Service, including, without limitation, the machine learning algorithms underlying the Service. Such data will not be publicly disclosed in any manner that is capable of identifying Customer.
Customer acknowledges that no intellectual property rights are assigned or transferred to Customer hereunder (except for the output referenced in Section 2.1.2). Customer agrees that Operative Intelligence or its suppliers retain all right, title and interest in and to (i) the Service and Documentation and (ii) any intellectual property it develops hereunder.
In the event Customer provides Operative Intelligence with any suggestions, ideas, improvements or other feedback with respect to any aspect of the Service (“Feedback”), Customer shall and hereby does grant Operative Intelligence (and its successors and assigns) a non-exclusive, perpetual, irrevocable, sub licensable, transferrable, royalty-free, fully paid-up worldwide right and license to copy, reproduce, modify, display, perform, sell, offer for sale, distribute and otherwise exploit such Feedback. Operative Intelligence acknowledges that Feedback is provided “AS IS”.
All fees are as set forth in the applicable Order Document and are payable in advance. Except as otherwise set out in an Order Document, Fees must be paid within thirty (30) days of Customer’s receipt of Operative Intelligence’s invoice. If Customer pays in advance for usage-based pricing, and then exceeds such usage, Operative Intelligence will invoice Customer for the excess usage on a pro rata basis for the remainder of the term. Operative Intelligence may adjust the fees charged to Customer hereunder on written notice delivered to Customer at least sixty (60) days prior to the end of the then-current term (and such fees will take effect beginning on the next term). If Customer disagrees with an invoice, it must notify Operative Intelligence within thirty (30) days from receipt of the invoice – or it is deemed final.
(i) Operative Intelligence’s fees are quoted exclusive of all taxes and other governmental assessments. Customer is responsible for all of the foregoing - other than taxes based on the income of Operative Intelligence. (ii) Words used in this clause that have a defined meaning in the GST Law (as defined in the A New Tax System (Goods & Services Tax) Act 1999 (Cth)). (iii) Unless expressly stated otherwise, the consideration for any supply under or in connection with this Agreement is exclusive of GST. (iv) To the extent that any supply made under or in connection with this Agreement is a taxable supply (other than any supply made under another agreement that contains a specific provision dealing with GST), the amount payable by the recipient is the consideration provided under this agreement for that supply (unless it expressly includes GST) plus an amount (additional amount) equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply. (v) The recipient must pay the additional amount at the same time as the consideration to which it is referable, and upon the issue of an invoice relating to the supply. (vi) Whenever an adjustment event occurs in relation to any taxable supply to which paragraph (iv) applies: (a) the supplier must determine the amount of the GST component of the consideration payable; and (b) if the GST component of that consideration differs from the amount previously paid, the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable. (vii) If either party is entitled under this Agreement to be reimbursed or indemnified by the other party for a cost or expense incurred in connection with this Agreement, the reimbursement or indemnity payment must not include any GST component of the cost or expense to the extent that the cost or expense is the consideration for a creditable acquisition made by the party being reimbursed or indemnified, or by its representative member.
In the event of late payments, Customer agrees to pay interest calculated daily from the due date at the then-current penalty interest rate set under the Penalty Interest Rates Act 1983 (Vic). In addition, Customer will reimburse Operative Intelligence for all costs of collection (including attorneys’ fees). If Customer's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Operative Intelligence reserves the right to suspend Customer’s access to the Service, on five (5) days email notice, without liability to Customer until such amounts are paid in full.
This Agreement is effective as of the Effective Date and will terminate as set forth below. Unless otherwise terminated as set forth below, each Order Document will have the initial subscription term set forth thereon. Thereafter, each Order Document will automatically renew for successive renewal terms of equal length to the initial subscription term, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current subscription term. If no term is stated on an Order Document – the initial term for such Order Document is one (1) year.
Either party may terminate this Agreement on thirty (30) days written notice if there are no Order Documents in effect. In addition, either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice (such notice must contain sufficient detail as to the nature of the breach and state the intent to terminate) (email notice is sufficient in the case of non-payment); (b) ceases operation without a successor; or (c ) becomes subject to an event of insolvency (including having an administrator, receiver or liquidator appointed or making an assignment for the benefit of creditors, or being unable to pay its debts as they fall due, or is otherwise deemed to be insolvent under the Corporations Act 2001 (Cth)).. For clarity, termination of this Agreement will automatically terminate all Order Documents.
Upon any expiration or termination of this Agreement, (i) Customer shall immediately cease any and all use of and access to Service and (ii) each party will return to the other party (or destroy) such other party’s Confidential Information. Termination of this Agreement is not an exclusive remedy and the exercise of either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
The following Sections shall survive any expiration or termination of this Agreement: 1.2 (General Restrictions), 2.1 (Ownership), 2.3 (Customer Warranties), 2.5 (Customer Data on Termination), 2.6 (Machine Learning Data), 4.1 (Fees and Payment) (with respect to any outstanding payment obligations), Section 4.3 (Late Payments), 5 (Term; Termination), 6.2 (Disclaimers), 7 (Limitation on Liability), 8 (Indemnification), 9 (Confidential Information), 10 (Logo Use, for the period therein), and 11 (General Terms).
Operative Intelligence warrants to Customer that: (i) it has the power and authority to execute this Agreement and perform its obligations, (ii) its performance will not conflict with obligations it has to any third party, and (iii) the Service will conform materially with the Order Documents and all Operative Intelligence-provided technical documentation. In the event of a breach of Section 6.1(iii), Customer’s sole remedy, and Operative Intelligence’s exclusive liability, shall be for Operative Intelligence to use commercially reasonable efforts to correct any such defect(s); provided that, Customer specifically notifies Operative Intelligence in writing of the defect(s) within thirty (30) days from the date Customer first experiences the defect. Such corrections will be in accordance with Operative Intelligence’s standard practices (such as release cycles) that it provides to its other general customers. The limited warranty set forth in this Section 6.1 shall not apply: (a) unless Customer makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared, (b) if the error was caused by misuse, unauthorized modifications, or third-party hardware, software or services, or if the Service is provided on a no-charge or evaluation basis.
TO THE FULLEST EXTENT ALLOWED BY LAW, EXCEPT FOR THE WARRANTIES IN THIS SECTION 6, THE SERVICE IS PROVIDED “AS IS”; AND NEITHER OPERATIVE INTELLIGENCE NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT.
CERTAIN ASPECTS OF THE SERVICE MAY INVOLVE ARTIFICIAL INTELLIGENCE (“GENERATIVE AI FUNCTIONS”). CUSTOMER ACKNOWLEDGES THAT ARTIFICIAL INTELLIGENCE SYSTEMS ARE A RAPIDLY EVOLVING FIELD. WHILE OPERATIVE INTELLIGENCE IS ALWAYS WORKING TO IMPROVE THE SERVICE, DUE TO THE PROBABILISTIC NATURE OF MACHINE LEARNING, THE SERVICE MAY PROVIDE INACCURATE OUTPUT OR OTHERWISE NOT ALWAYS PRODUCE THE INTENDED RESULTS. AS SUCH, CUSTOMER ACKNOWLEDGES THAT NO WARRANTIES ARE MADE BY OPERATIVE INTELLIGENCE WITH RESPECT TO (AND OPERATIVE INTELLIGENCE WILL HAVE NO LIABILITY WITH RESPECT TO) THE OUTPUT (OR CUSTOMER’S USE THEREOF) OF GENERATIVE AI FUNCTIONS OF THE SOFTWARE.
TO THE FULLEST EXTENT ALLOWED BY LAW, NEITHER PARTY SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION, INCLUDING NEGLIGENCE) FOR ANY: (I) INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, (II) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CUSTOMER TO OPERATIVE INTELLIGENCE DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD (OR, IF NO AMOUNTS HAVE BEEN PAID, SUCH AMOUNT SHALL BE $1,000.00), OR (III) IN THE CASE OF OPERATIVE INTELLIGENCE’S LIABILITY, THE COST OR PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES. THIS SECTION 7 SHALL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS FOR THE INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS, EITHER PARTY’S GROSSLY NEGLIGENT OR WILLFUL BREACH OF SECTION 9, OR CUSTOMER’S BREACH OF ANY SERVICE USE RESTRICTIONS OR NON-PAYMENT OF FEES.
Operative Intelligence shall defend, indemnify and hold harmless Customer and its officers, directors, consultants, employees, successors and permitted assigns, from and against any Claim arising out of or relating to an allegation that the Service (as provided by Operative Intelligence) infringes any intellectual property right of a third party. In the event any such third-party claims arises, or Operative Intelligence believes may arise, Operative Intelligence may terminate this Agreement on thirty (30) days written notice.
Customer shall defend, indemnify and hold harmless Operative Intelligence and its officers, directors, consultants, employees, successors and permitted assigns, from and against any third party claim, suit or proceeding and all resulting, to the extent payable to unaffiliated third parties: damages, costs, losses, awards and reasonable attorneys’ fees (collectively, a “Claim”), arising out of or relating to (a) the use or provision of any Customer Data, including Customer’s violation of privacy or security laws or regulations in connection with Customer Data; or (b) Customer's breach of its warranties in Section 2.3.
The indemnified party shall provide the indemnifying party with: (a) prompt written notice of such Claim; (b) sole control over the defense and settlement of such Claim; and (c ) information as may be reasonably requested by the indemnifying party. The indemnifying party shall not settle any such Claim in a manner that does not unconditionally release the indemnified party without the indemnified party’s written consent.
Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any performance information relating to the Service, and all fee and pricing information, shall be deemed Confidential Information of Operative Intelligence. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. In addition, either party may disclose information if required to be disclosed pursuant to a regulation, stock exchange listing rules, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief (without the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law.
Customer agrees that Operative Intelligence may, during the term of this Agreement and a reasonable wind-down thereafter, use Customer’s name and logo on Operative Intelligence’s web site and in Operative Intelligence promotional materials as part of a general list of customers. Any other use requires Customer’s written consent (email is sufficient).
Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement to; (i) a Related Body Corporate (as defined in the Corporations Act 2001 (Cth)); or (ii) a purchaser of all or substantially all of such party’s business or assets. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, war, riot, natural disaster, pandemic, failure of power or telecommunications or data networks or services, or refusal of a license by a government agency. If a Force Majeure Event prevents a party’s performance for more than twenty (20) days, the other party may terminate this Agreement on written notice.
Operative Intelligence has general authorization to engage subcontractors (e.g. sub-processors such as its hosting provider) for performance of services under this Agreement if they also provide services across the Service to Operative Intelligence’s other customers. If a subcontractor is engaged to specifically provide services to Customer, Operative Intelligence will need Customer’s written consent. Operative Intelligence is responsible for any breach of this Agreement.
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties.
If any provision of this Agreement shall be adjudged by an any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
This Agreement shall be governed by the laws of the State of Victoria. Each party irrevocably agrees that the courts of Victoria shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims); provided that each party shall have the right to enforce a judgment of those courts in a jurisdiction in which the other party is incorporated or in which any assets of the other party may be situated.
Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Order Document or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, any legal notices to Operative Intelligence must be delivered to the following email address: peter@operativeintelligence.com (but, notwithstanding earlier receipt via email, legal notices will be deemed received only when the physical notice is received as set forth in preceding sentence).
No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. Purchase orders (and similar documents) issued by Customer are for administrative purposes (e.g. setting forth the services ordered and associated fees) and any additional or different terms or conditions contained in any such order shall not apply (even if the order is accepted, or performed on by Operative Intelligence).
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. This Agreement may be executed electronically and in counterparts (such as via DocuSign), which taken together shall form one legal instrument.
Customer support is available from 8AM to 8PM (Melbourne time), Monday through Friday (excluding public holidays).
Email: support@operativeintelligence.com
All issues reported to the Company customer support department will be classified and directed to the appropriate team. Issues are classified under three severity levels as shown in the table below. The Company support representative will determine the severity level based on the description provided by Customer. Once a case is created, Company will acknowledge the issue to Customer, issue a tracking number, provide a response in the timeframe set forth below and use its commercially reasonable efforts to provide a resolution. Company’s ability to replicate and resolve Customer issues will depend on accurate and detailed information supplied by Customer. Support does not apply with respect to issues caused by Customer’s data – or any third party products, services or data.
| Priority Code | Definition | Example | Response Time* |
| Severity 1 | Urgent: The most severe type of Company Product Error. It can be described as a showstopper, a widespread (> 80% of users affected) critical failure in operational activity where no workaround is available. Actual or alleged/suspected security breaches. | Company Product down for > 80% | 2 hours |
| Severity 2 | High: This is the second most severe type of Company Product Error. These problems are considered high impact issues. Problems in this assessment category include an application that is inoperative or seriously degraded where a short-term workaround is available. | Reduced usability of Company Product (i.e. material data access errors) | 8 hours |
| Severity 3 | Low: This is the least severe type of Company Product Error. It can be described as a minimal problem that does not substantially prevent use of any material feature or function. | Work around that is inconvenient, but Company Product is functional | 48 hours |
* Only applicable the support hours listed above. “Problem Response Time” is the time it takes Company to provide an initial response to the situation once a request has been sent to support@operativeintelligence.com. “Problem Response Time” is not a commitment on the time to resolve the problem.
Company will respond to Customer via phone and email in the event of “urgent” and “high” priority support requests and via email for all other support requests.