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Master Service Agreement
Comm100 Software Subscription Agreement

  1. DEFINITIONS. As used in this Agreement:
    1. “Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. Without limiting the foregoing, Confidential Information of Comm100 includes the Subscribed Software and the existence and terms of this Agreement.
    2. “Customer Data” means any chat transcript, text, images, audio, video, designs or other data, content, materials and information provided by Customer to Comm100 in connection with this Agreement or submitted by Customer or any End-User through the Subscribed Software.
    3. “End-Users” means any end-users of the Subscribed Software, including without limitation Customer’s web site visitors and any end-users accessing the Subscribed Software at or in connection with web site, email or other places.
    4. “Subscribed Software” means (a) the Comm100 software set forth in the “Subscription Details” section of Comm100 Order Form for Subscription and Services and (b) any Work Product developed by Comm100 hereunder.
    5. “Work Product” means any work product and deliverables developed or produced by Comm100 or its partner in connection with the provision of the Professional Services hereunder, excluding any Customer Data contained therein.
  2. LICENSE; PROFESSIONAL SERVICES.
    1. License Grant. Subject to the terms of this Agreement, including, without limitation, the payment of the Fees, Comm100 hereby grants to Customer a non-sub licensable, non-transferable, non-exclusive right to access and use the Subscribed Software during the Term and not for resale.
    2. Professional Services. Comm100 shall provide the Professional Services to the Customer in accordance with the terms of this Agreement (Professional Services). Customer acknowledges and agrees that the pricing for the Professional Services are estimates based on the experience of Comm100. The Professional Service pricing shall be agreed in writing by Comm100 and Customer.
  3. CUSTOMER’S USE OF THE SUBSCRIBED SOFTWARE.
    1. Customer Data. Customer is solely responsible for the Customer Data and will not provide to Comm100 or transmit through the Subscribed Software any Customer Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information.
    2. Use Restrictions. Customer will not, and will not attempt to: (a) reverse engineer, disassemble or decompile any component of the Subscribed Software; (b) interfere in any manner with the operation of the Subscribed Software or the hardware and network used to operate the Subscribed Software; (c) sublicense or transfer any of Customer’s rights under this Agreement, or otherwise use the Subscribed Software for the benefit of a third party or to operate a service bureau; (d) modify, copy or make derivative works based on any part of the Subscribed Software; or (e) otherwise use the Subscribed Software in any manner that exceeds the scope of use permitted under Section 2.1 hereof.
    3. Authorized Operators/Agents. Customer undertakes that: (a) the maximum number of Authorized Operators/Agents that it authorizes to access and use the Subscribed Software shall not exceed the number of operators/Agents it has purchased from time to time; (b) it will not allow or suffer any operator/agent account to be used by more than one individual Authorized Operator/Agent unless it has been reassigned in its entirety to another individual Authorized Operator/Agent, in which case the prior Authorized Operator/Agent shall no longer have any right to access or use the Services and/or Documentation.
  4. PAYMENT AND SUSPENSION OF SERVICES.
    1. Payment. Comm100 shall invoice Customer for Fees when due and related expenses as incurred, and Customer shall pay all such invoiced Fees and expenses immediately or in number of days indicated in the invoice payment term when receiving each such invoice. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on Comm100’s net income. Comm100 reserves the right (in addition to any other rights or remedies Comm100 may have) to discontinue the Subscribed Software and Customer’s access to the Subscribed Software if any Fees or expenses are more than twenty (20) business days overdue.
  5. CONFIDENTIAL INFORMATION.
    1. Obligation. Each party agrees (a) to hold the other party’s Confidential Information in strict confidence, (b) to limit access to the other party’s Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use such Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the receiving party will not be in violation of this Section 5.1 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the receiving party gives the other party with prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information.
    2. Exceptions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records, (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s competent written records, or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
  6. OWNERSHIP.
    1. Subscribed Software and Technology. Customer acknowledges that Comm100 retains all right, title and interest in and to the Subscribed Software and all software, materials, formats, interfaces, information, data, content and information and technology used by Comm100 or provided to Customer in connection with the Subscribed Software and any modifications to or derivative works of any of the foregoing (the “Comm100 Technology”), and that the Comm100 Technology is protected by intellectual property rights owned by or licensed to Comm100. Other than as expressly set forth in this Agreement, no license or other rights in the Comm100 Technology are granted to the Customer, and all such rights are hereby expressly reserved by Comm100. Comm100 shall have a royalty-free, worldwide, transferable, sub licensable, irrevocable, perpetual license to use or incorporate into the Subscribed Software any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscribed Software. Without limiting the foregoing in this Section 6.1, Customer may not replicate, improve, modify, or create variations of any Comm100 Technology or Comm100’ Confidential Information. Customer may not make, use, sell, exploit, commercialize or seek patent protection for any compositions or matter relating to the Comm100 Technology or Comm100’ Confidential Information, new applications and uses for the Comm100 Technology and/or Comm100’ Confidential Information, and combinations of the Comm100 Technology with other products or software.
    2. Customer Data. Customer retains all right, title and interest in and to the Customer Data. Comm100 will only use Customer Data in the course of providing the Subscribed Software and Professional Services under this Agreement. Customer will be solely responsible for providing all Customer Data required for the proper operation of the Subscribed Software and the performance of the Professional Services. Customer grants to Comm100 all necessary licenses in and to such Customer Data solely as necessary for Comm100 to provide the Subscribed Software and Professional Services to Customer. Comm100 will not knowingly use or access any Customer Data unless authorized to do so by Customer and, in such circumstances, Comm100 will access and use such Customer Data only as required to perform requested services on behalf of Customer.
  7. SUBSCRIBED SOFTWARE UPGRADES AND MAINTENANCES.
    1. For shared hosting, Comm100 may upgrade or change the subscribed software or do maintenance from time to time at its own discretion. For private hosting and on premise deployment, Comm100 will do the upgrade and maintenance as mutually agreed by Customer and Comm100. To make the system secure, at least one upgrade or/and maintenance will be performed for every 6 months. Email confirmation is considered sufficient for the agreement of the upgrade and change.
  8. TERM AND TERMINATION.
    1. Term. The initial term of this Agreement will commence on the Effective Date and continue for the time period specified on the cover page of this Agreement and also the Renewal Periods (the “Term”).
    2. Effect of Termination. Customer can terminate this Agreement at any time with or without a cause by providing a 30-day written notice. Upon the termination of this Agreement for any reason, (a) any amounts owed to Comm100 under this Agreement before such termination plus 50% of the residual amount in the agreement will become immediately due and payable; and (b) each party will return to the other all property (including any Confidential Information) of the other party in its possession or control; and (c) all licenses granted under this agreement shall immediately terminate; and (c) Comm100 may destroy or otherwise dispose of any of the Customer Data in its possession unless Comm100 receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Comm100 shall use reasonable commercial endeavors to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Comm100 in returning or disposing of Customer Data.
    3. Auto Renewal. This agreement shall, unless otherwise terminated as provided in this clause 8, commence on the Effective Date and shall continue for the Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless: (a) either party notifies the other party of termination, in writing, at least thirty (30) days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or (b)otherwise terminated in accordance with the provisions of this agreement. The Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
    4. Survival. Sections 3, 4, 5, 6, 8.3, 8.4, 9.3, 10, 11 and 12 and any other sections hereof which ought reasonably to survive will survive the termination or expiration of this Agreement.
  9. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
    1. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
    2. Comm100 represents and warrants that the Subscribed Software as originally delivered to Customer will function substantially in accordance with the functional description set out in overviews with respect to such Subscribed Software provided by Comm100 to the Customer in writing. Comm100’s sole liability and Customer’s sole remedy with respect to a breach of the foregoing warranty shall be Comm100’s commercially reasonable efforts to rectify the non-conformity.
    3. Except for any representations and warranties expressly set forth in this Agreement, Comm100 makes no warranty, representation or condition of any kind concerning the Subscribed Software, Professional Services or Comm100 Technology. ACCORDINGLY, THE SUBSCRIBED SOFTWARE, PROFESSIONAL SERVICES, THE COMM100 TECHNOLOGY AND ALL OTHER DATA, EQUIPMENT, MATERIALS, AND DOCUMENTATION PROVIDED IN CONNECTION WITH THIS AGREEMENT BY COMM100 AND ITS SUPPLIERS ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. COMM100 AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF NON INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR COURSE OF TRADE. COMM100 DOES NOT WARRANT THAT THE SUBSCRIBED SOFTWARE OR PROFESSIONAL SERVICES WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, COMPLETELY SECURE, OR VIRUS-FREE.
  10. INDEMNITY.
    1. By Comm100. If any action is instituted by a third party against Customer based upon a claim that the Subscribed Software, as provided by Comm100, infringes a Canadian or United States patent or copyright, Comm100 shall defend such action at its own expense on behalf of Customer and shall pay all damages attributable to such claim which are finally awarded against Customer or paid in settlement of such claim. Comm100 may, at its option and expense, and as Customer’s exclusive remedy hereunder, (a) procure for Customer the right to continue using the Subscribed Software, (b) replace or modify the Subscribed Software so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Customer’s access to the Subscribed Software and refund any amounts previously paid for the Subscribed Software attributable to the remainder of the then-current term of this Agreement. Comm100 shall have no liability to Customer for any infringement action which arises out of a breach of the terms and conditions of this Agreement by Customer, or of the use of the Subscribed Software (i) after it has been modified by Customer or a third party without Comm100’s prior written consent, or (ii) in combination with any other service, software or process not provided by Comm100. This Section sets forth the entire obligation of Comm100 and the exclusive remedy of Customer against Comm100 or any of its suppliers for any alleged infringement or adjudicated infringement or misappropriation of any patent, copyright or other intellectual property right or proprietary right by the Subscribed Software.
    2. By Customer. If any action is instituted by a third party against Comm100 (a) arising out of or relating to Customer’s use or any End-User’s use of the Subscribed Software or Comm100 Technology (including claims by any customer or business partner of Customer); or (b) alleging that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes the intellectual property, privacy or other right of a third party or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of Comm100 and shall pay all damages attributable to such claim which are finally awarded against Comm100 or paid in settlement of such claim.
    3. Conditions. Any party that is seeking to be indemnified under the provision of this Section 10 (an “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), and (b) give the Indemnifying Party the sole control over the defense of such Claim. However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 10 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a Claim without the Indemnified Party’s prior approval of any such settlement or compromise only if (A) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (B) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (C) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party’s assumption of the defense of such Claim, the Indemnified Party will cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense.
  11. LIMITATION OF LIABILITY.
    1. Limitation of Liability. EXCEPT WITH RESPECT TO EACH PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, EACH PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY FOR ANY AND ALL CLAIMS ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT), THE SUBSCRIBED SOFTWARE, PROFESSIONAL SERVICES OR THE COMM100 TECHNOLOGY, WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID TO COMM100 BY CUSTOMER IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIMING PARTY’S FORMAL WRITTEN NOTICE OF THE CLAIM FOR LIABILITY HEREUNDER. ALL CLAIMS THAT EITHER PARTY MAY HAVE AGAINST THE OTHER PARTY WILL BE AGGREGATED TO SATISFY THIS LIMIT AND MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT), INCLUDING, BUT NOT LIMITED TO, INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS, AND DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY OR LOSS OF USE OF ANY INFORMATION OR DATA OR OF THE SUBSCRIBED SOFTWARE OR COMM100 TECHNOLOGY, EVEN IF COMM100 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
  12. GENERAL PROVISIONS.
    1. Assignment. Neither party may assign any rights or obligations arising under this Agreement, whether by operation or law or otherwise, without the prior written consent of the other; except that Comm100 may assign this Agreement without consent of Customer in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or shares. This Agreement shall inure to the benefit of and shall be binding on the successors and assignees of the parties.
    2. Entire Agreement. This Agreement is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify this Agreement.
    3. Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
    4. Relationship of the Parties. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.
    5. Marketing. Customer acknowledges and agrees that Comm100 may refer to Customer as a client on its website and in its public relations, marketing, promotional and other materials.
    6. Counterparts. This Agreement may be executed in counterparts and by facsimile, online signing or other means of electronic communication producing a printed copy, which taken together shall form one legal instrument.