The Agreement. These Terms and Conditions (“Agreement”) apply to an order form (“Order Form”) entered into between SuccessKPI (“SuccessKPI”, “SKPI”, or “Company”) and the Customer as identified in the Order Form (the “Customer”). Each of the Company and the Customer are referred to herein as a “Party” and collectively, as the Parties. For an order made on an application exchange or application marketplace, the Customer details are found on the Order Form of the exchange or marketplace (“Marketplace Agreement”). The Agreement shall take effect upon this document being fully executed or upon completion of an Order Form.
Access Grant. Company hereby grants to Customer and its affiliates, including to all Customer’s Authorized Users, a non-exclusive, non-sublicensable, non-assignable, license to access and use the SuccessKPI Software as a Service platform (the “Software”) solely for Customer’s internal business operations in accordance with the terms of this Agreement and as set forth in the Order Form. An “Authorized User” means Customer’s and its affiliates’ employees, consultants, and independent contractors who are permitted access to the Software. Third-party contractors shall only be used with prior written approval of the Company.
Fees.
1. Customer shall pay Company the Fees outlined in the Order Form. Overage Fees are defined as any additional fees due, including, but not limited to, non-committed usage and overage charges beyond those specified in the Order Form. All payments due from Customer to the Company shall be due and payable within thirty (30) days of the date of any invoice. Invoices will be issued monthly, unless otherwise specified in the Order Form. Overage will be billed monthly. Any payment not paid when due shall be subject to an administration fee equal to five percent (5%) of the outstanding amount and shall bear interest at the rate of twelve percent (12%) per annum or the maximum rate allowed under applicable laws, whichever is lower. For orders executed in currency other than $USD, SuccessKPI reserves the right to charge the Customer additional amounts that cover exchange rate fluctuations to bring total payment equal to the USD contract value at the time of signature.
2. Fair Use Policy. Company reserves the right to enforce its fair use policies such as for data connections, automated chatbot and IVA transactions and storage attached hereto as Exhibit D: Fair Use Policy and can also be found here: https://successkpi.demandtech.org/fair-use-policy/
3. Price Increases.Following the initial term set forth in the Order Form, should any Order Form renew in accordance with its terms, all Fees set forth in such Order Form shall increase by the percentage rate of increase equal to the change in CPI-W (Consumer Price Index, Urban Wage Earners and Clerical Workers, U.S. All Items, available at http://www.bls.gov/data/ (or its substantial equivalent if this index is not available), unless other price increase is set forth in such Order Form.
Services.
1. Support Services. Company offers support services (“Support Services”) during the Term as selected and agreed to in an Order Form. Company will provide basic internet-based support available by email at support@successkpi.demandtech.org to all Customers (“Basic Support”). Such Basic Support will be generally available Monday to Friday, 8am EST to 8pm EST, provided that the Customer is current on amounts owed to the Company and is not otherwise in default under the terms of this Agreement. In addition to the Basic Support, the Company offers additional Elite and Premium support packages. Service Level Agreements are only provided if Customer purchases Elite or Premium Support.
2. Configuration Services. The Company offers implementation, configuration and/or other professional services (“Professional Services”) during the Term as selected and agreed to in an Order Form or as purchased in a Marketplace Order Form. The Support Services and the Professional Services are referred to herein as “Services”.
Data Privacy and Ownership
1. Data. The Company shall own all right, title and interest in and to the Software and all its products including, but not limited to, modifications made to the Software or any subsystems whether made by or with the assistance of Customer or any other person and any know-how, techniques, methodologies, equipment or processes used by the Company to deliver Services or operate the Software. Except as otherwise set forth herein. The Customer will be and remain the owner of all rights, title and interest in and to Customer content and data it places on the Software. The Company shall be permitted to de-identify and aggregate content and data and to use such de-identified and/or aggregated content and data to improve the Software. Each Party will own and retain all rights in its trademarks, logos and other brand elements (collectively, “Trademarks”). To the extent a Party grants any rights or licenses to its Trademarks to the other Party in connection with this Agreement, the other Party’s use of such Trademarks will be subject to the reasonable and communicated trademark guidelines provided in writing by the Party that owns the Trademarks. Use of SuccessKPI trademarks shall follow the guidelines found here: www.successkpi.demandtech.org/trademarks
2. Data Protection. Company and Customer shall maintain industry practices in the safeguarding of data and implement appropriate safeguards to prevent unauthorized access to, use of, or disclosure of any protected information and private data (e.g., PHI, PCI and other PII) exchanged between the parties in relation to the Company’s provision of the Service. SuccessKPI makes various tools available to the Customer (e.g., redaction) and sharing of data is possible within the Software. Customer is responsible for using the Software appropriately and ensuring Authorized Users are trained to follow policies with respect to PII and the protection of related data. All use of the Software must be in compliance and observation of our shared responsibility matrix which can be found on our website at https://successkpi.demandtech.org/shared-responsibility-policy/
3. Data Privacy. Company rights regarding collection, use and processing of Customer’s data is as set forth in Company’s Privacy Policy. Company may collect, use and process Customer’s data only in accordance with Company’s online Privacy Policy. The Company’s Privacy Policy may be found here: https://successkpi.demandtech.org/privacy
4. Use of Notification Services. Any email or SMS notification configured within the Software is the responsibility of the Customer. Customer is responsible to manage bouncing emails of unknown addresses and any change in employees including monitoring, auditing, and unsubscribing invalid email or SMS addresses.
5. AI/ML.s The Company may utilize Artificial Learning/Machine Learning (“AI/ML”) as part of its Software and/or Services. All rights, title and interest to the AI/ML shall be owned by Company. Customer acknowledges and agrees that Customer’s data may be utilized to train such AI/ML and that such resulting AI/ML, as trained, is solely owned by Company.
Confidentiality
1. Confidentiality Obligations. Under this Agreement, Confidential Information may be accessed or disclosed between the Parties. “Confidential Information” means any information disclosed by one party to the other party, and will in all cases include but not be limited to the Software, pricing terms, the terms of this Agreement or any order governed by this Agreement, software, technology, business plans, technical specifications, product development plans, marketing plans, education materials, customer lists, customer personal information and generic tools and objects related to our Software and other products created by us during the term of this Agreement. Confidential Information will not include information that (i) is or becomes a part of the public domain through no act or omission of the receiving Party; or (ii) was in the receiving Party’s lawful possession prior to the disclosure; or (iii) is lawfully disclosed to the receiving Party by a third-party without restriction on the disclosure, if such third-party was authorized to release such information; or (iv) is independently developed by the receiving Party without use or reference to any Confidential Information of the discloser.
2. Confidentiality Obligations. Each Party agrees to hold the other party’s Confidential Information in confidence during the term of this Agreement and to disclose such Confidential Information only to those employees or contractors of such party (“Representatives”) who have a need to know such Confidential Information and are required to protect it against unauthorized disclosure. The obligations relating to use, disclosure and confidentiality shall survive any termination of this Agreement for a period of 5 years, or, with respect to a trade secret, such longer period until such Confidential Information is no longer a trade secret. The receiving party will be responsible for any action by its Representatives that would constitute a breach of this Agreement if such action were taken by the receiving Party itself. Notwithstanding the foregoing, either Party may disclose the other party’s Confidential Information to a federal or state governmental entity to the extent such disclosure is required by law (“Required Disclosure”), so long as the Party receiving any such demand notifies the disclosing Party in advance of the required disclosure as soon as reasonably practicable to allow the disclosing Party to contest the disclosure, provided, that if such disclosure is ultimately required, the receiving Party may only disclose such Confidential Information that is legally required to be disclosed, and, when disclosing such information, seeks confidential treatment of such Confidential Information. Any information so disclosed as part of a Required Disclosure, shall remain Confidential Information for all other purposes.
3. Return of Information. Upon termination of this Agreement or upon request of the disclosing Party, the receiving Party will destroy or all Confidential Information of the disclosing Party in the receiving Party’s possession or control with written certification of compliance by a duly authorized officer.
Certain Obligations and Restrictions. Customer is responsible for its Authorized Users’ compliance with this Agreement and for any unauthorized use by any person, if such person received access, directly or indirectly from Customer. Customer will promptly notify SuccessKPI of any unauthorized use of any password or account or any other known or suspected breach of security of the Software. If Customer becomes aware of any violation of the obligations herein, Customer will immediately terminate such Authorized User’s access to the Software and Customer Content. The Company and its affiliates are not responsible for unauthorized access to Customer’s Authorized User accounts, except to the extent caused by Company’s breach of this Agreement or willful misconduct. “Customer Content” means software (including machine images), data, text, audio, video, images, or other content that Customer or any Authorized User uploads or transfers to the Software. Customer is responsible for its proper use of all email and SMS features of SuccessKPI. Customer is responsible to delete any subscription, phone number or email for alerts if Authorized User is no longer part of the organization and/or not expected to receive such alerts. Customer is responsible for use of the Software in compliance with all applicable laws, including, but not limited those related to data privacy and use of automation and AI/ML.
Other Responsibilities. Customer and its Authorized Users will not (a) modify, tamper with, repair, or otherwise create derivative works of the Software or any software included in the Software; or (b) reverse engineer or apply any other process or procedure to derive the source code of any software included in the Software; (c) interfere with or disrupt the integrity or performance of the Software; or (d) attempt to gain unauthorized access to the Software or its related systems or networks; or (e) access or use the Software in a way intended to avoid incurring fees or exceeding usage limits or quotas; or (f) use the Software to develop a product that is competitive with any of SKPI product offerings; or (g) use the Software to store or transmit (i) material in violation of third party privacy rights; or (ii) libelous, or otherwise unlawful or tortious material; or (iii) material that infringes any copyright, trademark, patent, trade secret or other proprietary right of any entity or individual; or (iv) viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs.
Customer provides content. Except for SuccessKPI responsibilities as expressly set forth in this Agreement, Customer is responsible for the development, content, operation, maintenance, and use of Customer Content and compliance with all Software Policies. “Software Policies” means any policy established by SuccessKPI or any Third-party Solution provider(s) for the Software. “Third-party Solution” means any product, service, content, or item of a third party.
Term. This Agreement begins on the effective date of the Order Form and shall last for three (3) years, unless terminated by either Party in accordance with Section 12 hereof, provided that different Services or packages within any Order Form may have a shorter term, in which case, such shorter term shall apply to such Services. This Agreement shall automatically renew annually thereafter, unless either Party terminates this Agreement upon at least 60 days’ prior written notice prior to the expiration of the then current term.
Customer Restrictions. Customer agrees not to distribute, license, loan, not to attempt to, nor allow any third-party to: (i) copy, distribute, rent, lease, lend, sublicense or transfer the Service, make the Service available to any third-party; (ii) decompile, reverse engineer, or disassemble the Service or the Platform materials or otherwise attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats, reports, maps or programming interfaces of the Software; (iii) create derivative works based on the Software; (iv) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Software or during the use and operation thereof; (v) publicly disseminate performance information or analysis (including benchmarks) relating to the Software; (vi) utilize any software or technology designed to circumvent any license keys or copy protection used in connection with the Software; (vii) scrape, export, store, or otherwise retain any copies of raw data (except Customer’s data) which Customer may access through Software; (viii) use the Software to develop a competitive product offering; or (ix) use the Software in a manner which violates or infringes, in any material respect, any laws, rules, regulations, third-party intellectual property rights, or third-party privacy rights. Customer may not use any automated means, including agents, robots, scripts, or spiders, to access or manage the Software, except solely to the extent as may be specifically enabled and authorized by the Company.
Termination
1. Termination for Material Breach. Each Party may terminate this Agreement with immediate effect by delivering notice of the termination to the other Party, if the other Party fails to perform, has made or makes any inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations, and the failure, inaccuracy, or breach continues for a period of thirty (30) days after the non-breaching party delivers notice to the breaching party reasonably detailing the breach.
2. Termination for Failure to Pay or Breach of Intellectual Property Rights. Company may terminate or suspend this Agreement with immediate effect by delivering notice of the termination to Customer if Customer (a) fails to pay the Fees within 30 days of invoice by Company, or (b) breaches any intellectual property right of Company; or (c) violates sections 6, 8, or 11.
Effect of Termination
1. Pay Outstanding Amounts. Upon termination of this Agreement for any reason, Customer shall immediately pay to Company all amounts outstanding as of the date of termination. In the case of termination of a SOW, Customer agrees to pay Company the fees due to Company under the SOW up to the date when such termination is effective. If Customer believes that a valid dispute has arisen with respect to fee, it shall bring such dispute regarding fees to the attention of the Company within 30 days of invoice.
2. Return of Materials. Upon termination of this Agreement, Company shall cease handling personally identifiable information (“Personal Information”). Metadata is stored for up to one year. Call recordings are stored for up to ninety (90) days.
3. Discontinuance of Use. Customer shall cease all use of the Software upon the effective date of the termination.
4. Revocation and Termination of License. Customer agrees and acknowledges that immediately upon termination, for whatever reason, the license granted to Customer herein is immediately revoked by the Company and terminated.
5. Survival. Sections 5, 6, 8, 11, 14, 15, 18, 19, 21, 23, 26, and 27 and Customer’s obligations to pay all Fees shall survive termination of this Agreement for any reason.
Indemnification.
1. Indemnification. The Company will indemnify, defend, and hold Customer, and its officers, directors, employees, representatives and agents (“Indemnified Parties”) harmless from and against any and all finally awarded third party claims, losses, costs, damages, judgments, settlements and expenses (collectively “Losses”) arising from the infringement of the Software of the intellectual property rights of the third-party. If Customer’s use of the Software is enjoined in connection with any indemnified claim or the Company believes such use reasonably could be enjoined, the Company may choose to either modify the Software to be non-infringing (while preserving its utility and functionality) or obtain a license to allow for continued use of the Software, or if these alternatives are not commercially reasonable, the Company may terminate this Agreement. Customer agrees to indemnify, defend and hold harmless Company, and its officers, directors, employees, representatives and agents against any Losses relating to the Company’s use of the Customer’s data in accordance with this Agreement.
2. Misuse and Unapproved Modification or Combination Exclusion: The Company will have no indemnification obligation, and Customer agrees to indemnify the Company, for any third party claim to the extent attributable to or would not have arisen without (i) the Customer’s misuse or unauthorized use of the Software; or (ii) any modification of the Software by Customer not authorized by the Company in writing; or (iii) the combination of the Software with any third-party products, services or business processes not provided by the Company as part of the Software.
3. Notice and Failure to Notify Notice Requirement. Before bringing a claim for indemnification, the Party claiming the right to indemnification (the “Claiming Party”) shall notify the other Party (“Non-claiming Party”) of the indemnifiable proceeding and deliver to the Non-claiming Party all legal pleadings and other documents reasonably necessary to indemnify or defend the indemnifiable proceeding and permit the Non-Claiming Party to have reasonable control of the defense and payment/settlement of the claim.
4. Failure to Notify. If the Claiming Party fails to promptly notify the Non-claiming Party of the indemnifiable proceeding, the Non-claiming Party will be relieved of
  its indemnification obligations to the extent that such delay in notification adversely affects such Party’s ability to defend such claim.
5. Exclusive Remedy. Customer’s right to indemnification is the exclusive remedy available with respect to any claim of indemnification.
Limitation on Liability
1. Mutual Limit on Liability. In addition to any other limitations herein, neither Party will be liable for any indirect, special, cumulative or punitive damages, even if advised in advanced of the likelihood of such damages
2. Damages for Services. With regard to any Services provided by Company, Company’s only obligation for any breach of warranty or any other failure of such Services shall be to reperform such Services, which reperformance shall be Customer’s exclusive remedy and Company’s entire liability.
3. Maximum Liability. Neither Party’s liability under this Agreement shall exceed the higher of the fees paid or due to be paid by the Customer under this Agreement during the twelve (12) months preceding the date upon which the related claim or cause of action arose.
4. Exceptions. The limitation on liability set forth in this Section 15 shall not apply in cases of willful misconduct, gross negligence, intentional actions, data privacy and data ownership obligations, confidentiality obligations or Customer’s breach of Company’s intellectual property rights.
Entire Agreement. This Agreement represents the entire understanding between the parties with respect to its subject matter and this Agreement supersedes all prior discussions, agreements, written or otherwise, unless specifically set forth herein. No terms or conditions provided by Customer, including, but not limited to, in any purchaser order or similar document shall be applicable between the parties.
Amendment. This Agreement can be amended only by a writing signed by both parties.
Assignment. Neither party may assign this Agreement or any of their rights or obligations under this Agreement without the other party’s written consent, provided, however, that Company may assign this Agreement as part of a sale of all, or substantially all of the Company’s assets.
Warranty. EXCEPT AS EXPRESSLY PROVIDED ABOVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO (I) THE SOFTWARE OR THE SERVICES MEETING CUSTOMER’S REQUIREMENTS, OR BEING UNINTERRUPTED, CONTINUOUS, TIMELY, OR ERROR OR VIRUS FREE; (II) WHETHER CUSTOMER’S USE OF THE SOFTWARE OR SERVICES WILL GENERATE ANY RESULTS OR CONSEQUENCES; OR RELATED TO AI/ML.
Notices.
1. Method of Notice. The parties shall give all notices and communications between the parties in writing by
  1. a nationally recognized, next-day courier service, or
  2. first-class registered or certified mail, postage prepaid to the party’s address specified in this agreement, or to the address that, a party has notified to be that party’s address for the purposes of this section, or
  3. via email to the Company at contracts@successkpi.demandtech.org with copy to legal@successkpi.demandtech.org and to Customer at notices@upgrade.com
  4. To the Customer at the email address provided by Customer at the time of execution of this Agreement or found in Schedule A or otherwise available to the Company in an Order Form.
2. Receipt of Notice. A notice given under this Agreement will be effective on the other earlier of a (i) party’s receipt of it, (ii) if mailed, upon receipt of confirmation of certified mail by the sending party, or (c) if sent by email, effective on the date sent, if sent to the address set forth herein.
Governing Law. This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of Delaware without regard to its conflict of laws rules. Any action arising out of this Agreement shall be in the state or federal courts located in Commonwealth of Virginia.
Authority. The Parties hereto expressly represent that they have the appropriate and necessary authority, supported by the applicable corporate resolution, to execute and enter into this Agreement.
Severability. If any part of this Agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
Waiver. The failure or neglect by a party to enforce any of rights under this Agreement will not be deemed to be a waiver of that party’s rights.
Force Majeure. A party shall not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is beyond the reasonable control of a party by reason of acts of God, wars, revolution, civil commotion, acts of public enemy, terrorism, embargo, acts of government in its sovereign capacity, or any other circumstances beyond the reasonable control and not involving any fault or negligence of the party affected (“Force Majeure Event”), which materially affects the performance of any of its obligations under this Agreement. The party affected, upon giving prompt notice to the other party, shall be excused from such performance. Notwithstanding the foregoing, the occurrence of a Force Majeure Event shall NOT delay or relieve Customer from its obligations to pay any amounts that are due and payable with respect to Software and other services, including the Services, that have been provided by Company prior to the occurrence of any such Force Majeure Event.
Attorney’s Fees. In the event of a breach of this Agreement, the prevailing party shall be entitled to reimbursement of attorney’s fees required to enforce this Agreement whether in court or otherwise in the event of such breach and/or or in the event of litigation.
Authority. By executing via signature (electronically via DocuSign or otherwise) or clicking on accept to these terms in an Order Form, the parties hereto expressly represent that they have the appropriate and necessary authority, supported by the applicable corporate resolution, to execute and enter into this
Agreement.

Last updated June 14th, 2025

Master Services Agreement