The following definitions apply to this Agreement:
2.1. “Affiliate” means any corporation, partnership, joint venture, joint stock company, limited liability company, trust, estate, association or other entity the existence of which is recognized by any Governmental Entity that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with PartnerHero or Client. For purposes of this definition the term “controls” and the phrases “is controlled by” or “under common control with” mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract or otherwise.
2.2. “Agent” means a PartnerHero personnel working at a PartnerHero Facility, employed by PartnerHero and trained by PartnerHero to provide the Services.
2.3. “Agreement” shall have the meaning set forth in the Cover Page.
2.4. “Business Day” means any day excluding Saturday, Sunday and any day that is a legal holiday under the laws of the state of California or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close.
2.5. “Change In Control” means (a) a merger involving either Party in which such Party is not the surviving entity, (b) a merger involving either Party in which such Party is the surviving entity but the holders of the voting securities of such Party immediately prior to the merger own less than fifty percent (50%) of the combined voting power of the outstanding voting securities of such Party following the merger, (c) a sale or disposition of all or substantially all of either Party’s property, assets or business (other than to an Affiliate) or (d) a sale, assignment or other transfer of either Party’s equity securities of greater than fifty percent (50%) of the total combined voting power of such Party’s outstanding voting securities at the time of such transfer.
2.6. “Client” shall have the meaning set forth in the Cover Page.
2.7. “Client-Indemnitees” shall have the meaning set forth in Section 8.2.1 (Indemnification by PartnerHero).
2.8. “Client Information” means all Confidential Information and Personal Information that PartnerHero Processes on behalf of, or receives from or on behalf of Client, including from Customer Contacts.
2.9. “Client Material” means all information systems, equipment and technology, software, tools, methods, forms, processes, procedures, workflows, data, scripts, data formats, data compilations, program names, designs, manuals and other material owned by, licensed to, or developed by or for Client that is made available to PartnerHero and its Personnel for use in rendering the Services under this Agreement.
2.10. “Client Tools” means sufficient copies of any products and related materials (in addition to any additional products and related materials as mutually agreed upon by the Parties in writing), required by Client to be used by PartnerHero to provide any Services.
2.11. “Confidential Information” means confidential or proprietary information of a Party in electronic, oral, printed, written, or other tangible or intangible forms, which may include, but is not limited to, financial information, business plans, customer or client lists, marketing or sales plans, pricing or pricing strategies, customer proposals, product or service information, operational techniques, methods of operation, strategic plans, discoveries, ideas, concepts, know-how, software, techniques, designs, specifications, drawings, blueprints, tracings, diagrams, models, samples, flow charts, data, computer programs, disks, diskettes, tapes and other technical, legal or business information. Confidential Information, which is disclosed pursuant to this Agreement, whether provided in tangible or intangible form, including but not limited to electronic mail or other electronic communications, shall be deemed confidential or proprietary if it is clearly marked or otherwise identified as being confidential or proprietary, or by its nature should be reasonably understood to be confidential or proprietary. In addition, any such information that is orally disclosed shall constitute Confidential Information hereunder if, at the time of disclosure, the Discloser declares that it is confidential or proprietary. The existence of this Agreement also shall be considered Confidential Information of the other Party hereto, and neither Party shall disclose to any third party that Confidential Information has been or will be exchanged (except where required by law). Confidential Information also includes copies of and materials or products derived from Confidential Information, such as analyses, compilations, data, studies and reports. Confidential Information shall include the Personal Information of Client’s customers as well as any other information about Client customers received by or that PartnerHero has access to, including all information disclosed to PartnerHero during or related to any Customer Contact.
2.12. “Consumers” shall have the meaning set forth in Section 9.4 (PartnerHero’s Consumer Information).
2.13. “Customer” means an individual that contacts into or receives a contact from an Agent in relation to the Services.
2.14. “Customer Contact” means a single incoming or outbound support request from or to a Customer, via telephonic voice, fax, written or electronic correspondence regarding any Client product or service.
2.15. “Disclosure” shall have the meaning set forth in Section 10.1.1 (Disclosure of Confidential Information).
2.16. “Effective Date” shall have the meaning set forth in the Cover Page.
2.17. “Facility” shall have the meaning set forth in Section 3.3 (Call Center Facilities).
2.18. “Fees” shall have the meaning set forth in the Cover Page.
2.19. “Force Majeure Event” shall have the meaning set forth in Section 11.3 (Force Majeure).
2.20. “Go Live Date” shall be the date on which the first Agent(s) are trained by Client and ready to start performing the Services.
2.21. “Governmental Entity” means any entity or body exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to United States federal, state or local government or foreign, provincial, international, multinational or other government, including any department commission, board agency, bureau, official or other regulatory, administrative or judicial authority thereof.
2.22. “Handle” means to receive and process Customer Contacts in accordance with operating procedures set forth in this Agreement and as may be mutually agreed by the parties in writing from time to time.
2.23. “Initial Term” shall have the meaning set forth in the Cover Page.
2.24. “Indemnification Claim” shall have the meaning set forth in Section 8.2.3 (Indemnification Notification and Procedure).
2.25. “Indemnified Party” shall have the meaning set forth in Section 8.2.3 (Indemnification Notification and Procedure).
2.26. “Indemnitor” shall have the meaning set forth in Section 8.2.3 (Indemnification Notification and Procedure).
2.27. “Intellectual Property Rights” shall mean, on a worldwide basis, any and all:
2.28. “Law” or “law” means any statute, decree, constitution, regulation, decision, common law, finding, order, rule, code, ordinance, judgment, or directive of any governmental authority, or any treaty, convention, pact, compact, or other agreement to which any governmental authority is a signatory or party, and includes any judicial or administrative interpretation or application of any of the foregoing, including any guideline, guidance, directive, interpretation, rule, or regulation of any person, whether or not having the force of law (but, if not having the force of law, with respect to which compliance is customary), and is a reference to any of the foregoing as amended, substituted, reissued, or reenacted.
2.29. “Losses” means losses, damages, judgments, liabilities, penalties, costs and expenses (including reasonable attorneys’ fees, costs and other litigation expenses).
2.30. “Marks” means any United States or foreign trademarks, service marks and trade names, including any registration or application for registration of any trademarks and service marks in the United States Patent and Trademark Office or the equivalent thereof in any state of the United States or in any foreign country, as well as any unregistered marks, and any trade dress (including logos, artwork, designs, company names, business names, fictitious names and other business identifiers) in the United States or any foreign country.
2.31. “Parties” or “Party” shall have the meaning set forth in the Cover Page.
2.32. “Personal Information” means any information that identifies or could reasonably be used to identify an individual person, including but not limited to names, social security numbers, driver’s license numbers, tax identification numbers, addresses and telephone numbers), any information that identifies characteristics (such as qualities, likes, dislikes, propensities or tendencies) of any person, or any information which is compiled or derived from any of the foregoing.
2.33. “Personnel” means a Party’s officers, directors, employees and authorized agents, and in the case of PartnerHero the PartnerHero Subcontractors approved by Client who contribute to the performance of such Party’s obligations under this Agreement. For purposes of the foregoing, a Party and its officers, directors, employees and authorized agents shall not be deemed Personnel of the other Party.
2.34. “Process, Processed or Processing” shall mean any operation in relation to Personal Information irrespective of the purposes and means applied including, without limitation, access, collection, retention, storage, transfer, disclosure, use, erasure, destruction, and any other operation.
2.35. “Recipient” shall have the meaning set forth in Section 10.1.1 (Disclosure of Confidential Information).
2.36. “Renewal Term” shall have the meaning set forth in the Cover Page.
2.37. “Representatives” means the legal representatives, Personnel or advisers of a Party involved in the performance of this Agreement.
2.38. “Services” shall have the meaning set forth in the Cover Page.
2.39. “Subcontractor” shall have the meaning set forth in Appendix C.
2.40. “Term” shall have the meaning set forth in the Cover Page.
2.41. “PartnerHero” shall have the meaning set forth in the Cover Page.
2.42. “PartnerHero Consumer Information” shall have the meaning set forth in Section 9.4 (PartnerHero’s Consumer Information).
2.43. “PartnerHero-Indemnitees” shall have the meaning set forth in Section 8.2.2 (Indemnification by Client).
2.44. “PartnerHero Material” shall have the meaning set forth in Section 9.2 (PartnerHero Material).
2.45. “PartnerHero Personnel” means the personnel hired by PartnerHero to perform the Services, including the Agents.
2.46. “PartnerHero Script Rights” shall have the meaning set forth in Section 9.5 (PartnerHero’s Retained Script Rights).
2.47. “PartnerHero Software” shall have the meaning set forth in Section 9.3 (PartnerHero Software).
2.27.1. Rights associated with works of authorship and literary property, including copyrights, moral rights of an author of a copyrightable work (including any right to be identified as the author of the work or to object to derogatory treatment of the work), and mask-work rights;
2.27.2. Trademarks, service marks, logos, trade dress, trade names, whether or not registered, and the goodwill associated therewith;
2.27.3. Rights relating to know-how or trade secrets, including ideas, concepts, methods, techniques, inventions (whether or not developed or reduced to practice);
2.27.4. Patents, designs, algorithms and other industrial property rights;
2.27.5. Rights in domain names, universal resource locator addresses, telephone numbers (including toll free numbers) and similar identifiers;
2.27.6. Other intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise; and
2.27.7. Registrations, initial applications (including intent to use applications), renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).